Analysis and Commentary on International Law

Protesters or Pirates?

Justia guest columnist and attorney Courtney Minick discusses a decision in which a panel of the Ninth Circuit Court of Appeals reversed a lower court’s denial of an injunction sought by Japanese whalers against the direct-action advocacy organization Sea Shepherd Society. Minick discusses the district court’s reasoning and decision denying the injunction, which focus on determining what constitutes a pirate. She then describes the Ninth Circuit’s decision reversing the lower court, calling into question the Ninth Circuit’s procedural decision to reassign the case to a different judge on remand. She concludes that while the definition of piracy may be evolving, different countries may yet come to different outcomes in deciding what constitutes a pirate for the purpose of enforcing domestic laws and international treaties.

British Prime Minister David Cameron’s Crusade to Block Internet Porn: Why His Plan Is Messier Than He Thinks

Justia columnist and U. Washington law professor Anita Ramasastry comments on the controversy in the U.K. regarding Prime Minister David Cameron’s plans for government Internet filtering. She notes that while almost everyone agrees that children’s Internet access should be regulated, the Cameron Plan for such regulation has numerous flaws—including an overbreadth that would unfairly censor worthwhile and even educational material from which teenagers would benefit. Ramasastry notes that British teens may well find a way to avoid the filters, or change them by secretly getting their parents’ IDs. She also contrasts the U.K. proposal on filtering, with the First Amendment-informed U.S. approach to the same issues when they have arisen here vis-à-vis libraries and schools.

Serving Foreign Defendants via Facebook: Is A New York-Based Federal District Court’s Decision a Sign of the Times?

Justia columnist and attorney David Kemp discusses a judge’s recent ruling that permitted the Federal Trade Commission to issue service of process on foreign defendants via email and Facebook. Kemp summarizes the facts of the case and the judge’s reasoning and provides a brief overview of the requirements of service of process. He argues that the ruling, while ostensibly narrow, may have broader implications for the use of Facebook in serving foreign defendants.

Is Obama’s Policy of Targeted Killings Really Worse than Bush’s Torture Policy?

Justia columnist and Cornell law professor Michael Dorf contrasts Obama’s policy of targeted killings of persons believed to be leaders of al Q’aeda, with George W. Bush’s prior policy of authorization of the use of torture. The issue is timely in the wake of the release of an Obama Administration white paper on the targeted-killing issue. Dorf notes that the Administration is drawing criticism from both the right and the left on that issue. Dorf argues that the Administration is right to seek to craft a policy that complies with both the U.S. Constitution and the international law of war. He also examines the views of controversial conservative law professor John Yoo on which is worse: the Obama Administration’s targeted killing policy, or the Bush Administration’s torture policy. Dorf also looks at such questions from the point of view of not just law, but also morality.

Labor of Love: Sex, Jobs, and Workers' Compensation

Justia columnist and Hofstra law professsor Joanna Grossman, and Justia guest columnist and Stanford law professor Lawrence Friedman comment on a case that raised the issue whether workers' compensation covered an injury that was incurred during sex on a business trip, with the injury at issue involving a broken and dangerous light fixture. Grossman and Friedman explain why, though the Australian woman who suffered the light-fixture injury prevailed on her workers' compensation claim, and most American claimants injured during sex on a business trip likely would, too, other would-be claimants with sex-on-a-business-trip injuries have been left without any remedy from workers’ compensation.

The European Court of Human Rights Upholds German Ban on PETA’s “Holocaust On Your Plate” Campaign: Lessons For Animal Activists and for Animal Product Consumers

Justia columnist and Cornell law professor Sherry Colb comments on a controversy in Germany in which Germany’s branch of People for the Ethical Treatment of Animals, PETA-D, compared animal exploitation and slaughter to the Nazi Holocaust, in a series of seven graphic posters. The European Court of Human Rights (ECHR) subsequently held that Germany’s censorship of the images was lawful. Colb, who is both an ethical vegan and the daughter of Holocaust survivors, critically analyzes (1) PETA-D’s decision to launch a campaign comparing animal slaughter to the Holocaust; (2) the ECHR’s decision that such a comparison diminishes Holocaust victims and survivors; and (3) the specific nature of the offense that is felt by those who condemn the analogy between animal exploitation and the Holocaust. In her analysis, Colb refers to sources ranging from Adorno, Singer, and Coetzee on animal suffering, to Seinfeld’s “Soup Nazi,” a comparison to which most people don’t object, but perhaps logically should.

The Global Child Sex Abuse Scandals in Institutions Continue, With Australia Now Joining the Countries That Are Investigating: What Congress and the President Should Do Here in the U.S.

Justia columnist and Cardozo law professor Marci Hamilton discusses the child-sex-abuse investigation in Australia and developments regarding child sex abuse here in the U.S. Hamilton argues that America’s response to evidence of child sex abuse in our institutions has been woefully deficient. While some local or state prosecutors have moved forward, Hamilton argues that what is needed, as well, is a response at the federal level. Hamilton suggests that Members of Congress are afraid to take on the relevant institutions, despite the terrible toll that child sex abuse takes on children and the monetary costs that are associated with that toll. Hamilton argues, however, that addressing child sex abuse is not only the right thing to do, but also ultimately in Members of Congress’ political interests. In particular, she urges Republicans to change their focus from “unborn children” to actual children who are suffering due to child sex abuse. Hamilton also urges Democrats in Congress and President Obama to investigate and act on this important issue, including by reforming the insurance industry's role.

Another Fine Mess: An Assessment of the Most Recent Supreme Court Oral Argument in Kiobel v. Royal Dutch Petroleum

Justia guest columnist and Touro Law Center professor Rodger Citron comments on the recent Supreme Court argument in an important case centering on the Alien Tort Statute (ATS). As Citron explains, the ATS, enacted by the first Congress in 1789, authorizes federal courts to hear “any civil action by an alien for a tort only, committed in violation of the laws of nations or a treaty of the United States.” But can the ATS be applied to conduct based outside the U.S.? As Citron explains, that is the issue that the conservative Justices brought up at oral argument. Citron predicts, however, that in the end the Court will not limit the ATS’s reach to conduct that occurs within the United States, but that the Court will affirm the lower court’s dismissal of the plaintiffs’ case.

The Right to Be Untagged: As Facebook Disables Facial Recognition for EU Consumers, U.S. Consumers Are Left Wondering What’s Next for Them

Justia columnist and U. Washington law professor Anita Ramasastry comments on regulatory responses in the EU and the U.S. regarding Facebook’s facial-recognition tool, which suggests the identities of registered Facebook users for possible tagging by other users in uploaded photos. As Ramasastry explains, the tool has sparked concern by EU regulators due to privacy worries, and even in the U.S., Facebook has voluntarily—but perhaps temporarily—suspended the tool. Ramasastry notes some reasons why Facebook users may have concerns about the tool, including its accompanying archive of tagged photos, which could in theory be used for law-enforcement, intelligence, or other purposes that users never authorized. In the EU, Facebook has agreed to soon stop using the tool, and to delete related data. But what will happen with the tool and the resulting database, here in the U.S.? With complaints from the Electronic Privacy Information Center (EPIC), a leading NGO, and a complaint filed with the FTC, the facial- recognition tool is now in hot water in the U.S. as well as the EU.

A German Court Bans Circumcision

Justia columnist and Cornell law professor Sherry Colb comments on a German court’s recent ruling banning circumcision under the criminal law. Colb notes that the ruling has caused a great deal of controversy, both domestically and internationally, because child circumcision is central to both the Jewish and Muslim faiths, and because of Germany’s history of bias and of genocide. The court claimed, however, that it was acting to preserve the child’s bodily integrity, and his ability to choose his own religion later in life. Colb covers the facts, the outraged reaction, and the arguments that might be made to the effect that the court was possibly acting out of sympathy for the child, rather than out of bias. She also compares and contrasts religious circumcision with procedures ranging from infant ear piercing, to female genital mutilation, to infant circumcision that is not performed for religious reasons. In addition, Colb raises a disturbing specter of bias based on the reported availability, in Germany, of circumcision based on medical, but not religious, reasons. Especially since child circumcision has medical benefits, she says, governments should continue to allow it regardless of whether it is motivated by religious or secular intent, or both.

Journalists, Protesters, and Other Terrorist Threats

Justia columnist and Hunter College Human Rights Program Director Joanne Mariner draws on a recent Human Rights Watch report that she co-authored, regarding the host of post-9/11 counterterrorism laws that have been passed, to question whether these laws cast too wide a net.  As Mariner explains, the report reveals that, in fact, many of the laws have proved overbroad, and that very overbreadth has meant that they have swept in journalists, social protesters, opposition figures, and other disfavored groups who have had nothing to do with terrorism.  Mariner provides specific examples to prove her thesis, citing instances of the misuse of counterterrorism laws to detain protesters in Bahrain, and to detain journalists in Ethiopia.  She also focuses on troublingly unspecific UN Security Council resolutions regarding counterterrorism, that may well open the door to abuse.

How Rulings of the Supreme Constitutional Court of Egypt Hold Lessons for Emerging Democracies, and for Our Own

Justia columnist and Cornell law professor Michael Dorf comments on what emerging democracies, and even America’s own long-established democracy, can learn from two recent rulings from the Supreme Constitutional Court of Egypt. As Dorf explains, the rulings, and the political context in which they arose, can teach us much about courts’ role in promoting democracy. He notes that the world has decisively opted for constitutional review, and the protection of individual rights, which are now a standard feature of established democracies around the globe. Dorf notes, however, that constitutional courts in emerging democracies not only must worry about the tyranny of the majority and the protection of individual rights, but must also be concerned that the government will fall prey to a military coup. In addition to commenting on Egypt’s situation, Dorf also cites Pakistan as another instructive example of the role of courts.

Can Buying a Plane Ticket Also Buy You Love? The New World of Travel Dating and Its Possible Personal and Legal Risks

Justia columnist Anita Ramasastry comments on the legal issues that may arise from MissTravel.com, a website that says that it matches “generous travelers who hate to travel alone with attractive travelers who would love the opportunity to travel the world for free.” The site has been compared to an online escort service, although the site itself argues that the analogy is unfair. Ramasastry considers the legal issues that may arise from the Miss Travel site—focusing both on (1) whether the site could get in trouble if illegal activity ensues, and (2) whether there is any recourse if the companion of the “generous traveler” gets into hot water when the two are overseas. Ramasastry also notes that state Attorneys General have gone after online escort ads’ host sites, but that such sites are generally immune from civil liability for user postings under the Communications Decency Act (CDA). Still, Ramasastry notes, under certain circumstances such sites might be hit with criminal charges if they knowingly induce prostitution. She notes, however, that Miss Travel is importantly different from such sites.

The Hybrid Rules of Drone Warfare

Justia columnist and Hunter College Human Rights Program Director Joanne Mariner discusses the controversial subject of drone warfare, and the question of what rules should apply to it. She covers Attorney General Eric Holder’s speech on the issue, given earlier this month, which focused upon the use of lethal force against U.S. citizens. Mariner notes that this speech—building on earlier analyses by State Department Legal Adviser Harold Koh and Defense Department General Counsel Jeh Johnson—is the most thorough Obama Administration analysis of these issues to date. Mariner also contrasts the U.S. and Israeli frameworks for targeted killings—noting that the U.S. seems to be borrowing, lately, from the Israeli model. In particular, she compares the rules outlined in the Holder speech with the rules outlined in an Israeli Supreme Court opinion on similar topics. Finally, Mariner makes some predictions about the kind of approach we may see in the future in this area of law, which may combine elements of both military and civilian justice.

Catching Warlords via Viral Videos: A Film About Joseph Kony Offers Us a New Vision of How to End Impunity

Justia columnist and U. Washington law professor Anita Ramasastry comments on the “Kony2012” 30-minute video, which recently received over 75 million views on YouTube and film-sharing site Vimeo—with even the White House taking notice. As Ramasastry explains, the video is a profile of the brutal warlord Joseph Kony, leader of the Lord’s Resistance Army, who is wanted by the International Criminal Court for his war crimes. Kony, a native Ugandan, mounted a war against Uganda’s government, using tactics including the recruitment of child soldiers and the commission of atrocities. Ramasastry covers Kony’s crimes; notes the praise for, and criticism of, the “Kony2012” video; and concludes that, despite some drawbacks and criticisms, the “Kony2012” video has proven to be an effective way to exert pressure for justice to be done.

What We Can Learn About Equality and Religion From a Recent Israeli Supreme Court Decision on Military Service

Justia columnist and Cornell law professor Michael Dorf comments on a recent Israeli Supreme Court decision that held that a law exempting ultra-Orthodox Jews from military service unconstitutionally denies equality of treatment to other Israelis, who either must serve in the military, or—if they are conscientious objectors—must perform alternative service. Dorf notes that the Israeli decision is not only interesting in its own right, but also sheds light on two questions that U.S. courts must frequently face: How should courts evaluate laws that confer special benefits on certain minorities within society? And, when should people and institutions be exempted from legal requirements based on religious objections? In particular, Dorf points out that the Israeli decision has interesting comparative-law implications for American debates about affirmative action, and about the granting of religious exemptions to otherwise-applicable laws.

Understanding the Misunderstandings on Both Sides of the U.S.-Chinese Financial Relationship: Who Is Taking Advantage of Whom?

George Washington law professor and economist Neil Buchanan comments on the financial relationship between U.S. and China—which he argues is far from as problematic as some claim. Buchanan covers the issues that have been raised regarding China’s holding U.S. debt; argues that the mutual China/U.S. dependence is ultimately healthy; discusses a possible worry on China’s part that the U.S. would accomplish a stealth repudiation of its debt through deliberate inflation, but deems that worry unrealistic; and considers whether the U.S. holds political power over China due to its holding our debt. Ultimately, Buchanan suggests, Americans should not be particularly concerned about the U.S.-China relationship, but should be quite concerned by the situation of the have-nots in both countries. Both governments, Buchanan concludes, need to ensure that the prosperity their country enjoys benefits not just the elites, but also the whole of society. While China is besting us in infrastructure improvements, he notes, it is not, at the same time, improving its citizen’s lives as it ought to. Yet the economic relationship between our two nations, he says, is sound.

Some Legal and Policy Ramifications of Newt Gingrich’s Plan to Colonize the Moon

Justia columnist and Cornell law professor Michael Dorf comments on remarks that Republican presidential hopeful Newt Gingrich made last week, promising that if he were to be elected president, then by the end of his second term, he will have established a colony on the Moon. Could that really happen? And if it did, would it be a good idea? Dorf considers present technological limits, and legal obstacles stemming from U.S. treaty commitments. While highly skeptical of the Gingrich proposal, Dorf does find a kernel of sense in it: Gingrich, Dorf notes, may well be right that the colonization of space could be the key to the long-term survival of human civilization.

Social Networking and Airline Travel: What the Legal Consequences of an Airline’s “Meet and Seat” Program Might Be

Justia columnist and U. Washington law professor Anita Ramasastry comments on the possible legal implications of an airline’s “Meet and Seat” program, which allows passengers to find out information about other travelers, and select the person whom they will sit next to on a flight, based on Facebook profiles and LinkedIn accounts. The upside of the program is that fliers can network with each other, or even have a first date while in the air. But the downside, Ramasastry argues, may be considerable, depending on how the details of the program are fleshed out. Ramasastry anticipates possible problems with fictitious profiles, sexual and other types of harassment, discrimination, and even de facto segregation if groups decide to sit together based on race, religion, or the like. Ramasastry also points to group-then-go charters, made easier by smart phone technology, as a less problematic way to employ social networking to ensure that travelers can opt to fly with people who share their interests and destinations.

An Endless War on Terror

Justia columnist and Hunter College Human Rights Program Director Joanne Mariner comments on the aggressive new War on Terror bills currently pending in Congress. With Osama Bin Laden dead and all the living alleged 9/11 perpetrators in custody awaiting trial, Mariner notes that the bills’ timing seems odd. She also contrasts the long-lasting War on Terror with the events of the post-World-War-Two period in American history. If the bills that are pending pass, she explains, they will go significantly beyond prior War on Terror policies, which were already broad to begin with. Mariner describes the bills as dangerous and irresponsible, and points to the irony that Congress can make bipartisan compromises in the fraught area of counterterrorism, but not when it comes to sorely needed economic measures. If the bills pass, Mariner reports, they will essentially make Guantanamo permanent, embrace detention without trial—which had previously been seen as un-American—and make the military the presumptive detaining and prosecuting authority in certain categories of cases. Mariner points out that even the Bush Administration tried and convicted many terrorism suspects in federal court, rather than resorting to military justice. Finally, she expresses hope that President Obama will veto the bills, as he has threatened to do.

Meet our Columnists

Vikram David Amar
Vikram David Amar

Vikram David Amar is the Dean and Iwan Foundation Professor of Law at the University of Illinois Co... more

Neil H. Buchanan
Neil H. Buchanan

Neil H. Buchanan is an economist and legal scholar and a Professor of Law at The George Washington U... more

Sherry F. Colb
Sherry F. Colb

Sherry F. Colb is Professor of Law and Charles Evans Hughes Scholar at Cornell University. Colb tea... more

John Dean
John Dean

John Dean served as Counsel to the President of the United States from July 1970 to April 1973. Befo... more

Michael C. Dorf
Michael C. Dorf

Michael C. Dorf is the Robert S. Stevens Professor of Law at Cornell University Law School. He has w... more

Joanna L. Grossman
Joanna L. Grossman

Joanna L. Grossman is the Ellen K. Solender Endowed Chair in Women and Law at SMU Dedman School of L... more

Marci A. Hamilton
Marci A. Hamilton

Marci A. Hamilton is one of the country’s leading church-state scholars and the Fox Professor of Pra... more

David S. Kemp
David S. Kemp

David S. Kemp is an attorney and managing editor at Justia. He received his B.A. in Psychology from... more

Joseph Margulies
Joseph Margulies

Mr. Margulies is a Professor of Law and Government at Cornell University. He was Counsel of Record... more

Anita Ramasastry
Anita Ramasastry

Anita Ramasastry is the UW Law Foundation Professor of Law at the University of Washington School of... more

Ronald D. Rotunda
Ronald D. Rotunda

Ronald D. Rotunda is the Doy & Dee Henley Chair and Distinguished Professor of Jurisprudence, at... more