Professor Chimène Keitner is a leading authority on international law and civil litigation, and served as the 27th Counselor on International Law in the U.S. Department of State. She has authored two books and dozens of articles, essays, and book chapters on questions surrounding the relationship among law, communities, and borders, including issues of jurisdiction, extraterritoriality, foreign sovereign and foreign official immunity, and the historical understandings underpinning current practice in these areas.
This draft chapter addresses the contested role of U.S. courts in adjudicating disputes with fore... more This draft chapter addresses the contested role of U.S. courts in adjudicating disputes with foreign elements. As a matter of domestic law, the Due Process Clauses in the U.S. Constitution constrain the scope of adjudicatory jurisdiction that legislatures can confer on State and federal courts. The Fourth Restatement restates the U.S. law of personal jurisdiction in civil proceedings as requiring that “sufficient contacts” exist between the defendant and the forum, “and that the exercise of jurisdiction be reasonable.” These criteria limit the reach of U.S. courts’ personal jurisdiction. The chapter explores these limits and Congress’s ability to extend them. It also revisits the history and jurisprudence of Fifth Amendment due process limits on personal jurisdiction, considering the Anti-Terrorism Clarification Act of 2018 (ATCA) and the Promoting Security and Justice for Victims of Terrorism Act of 2019 (PSJVTA).
This brief symposium contribution explores some early cases involving state court jurisdiction ov... more This brief symposium contribution explores some early cases involving state court jurisdiction over common law tort claims for personal injuries that occurred on foreign soil. The idea of transitory torts has been invoked to justify litigating human rights claims in U.S. courts since Filartiga v. Pena-Irala. The ability to adjudicate a claim and provide a remedy for a transitory tort presupposes a legally binding restriction on the defendant’s conduct that gives an injured plaintiff the right to seek redress. International law does not fit this model neatly, because it contains conduct-regulating rules that are translated into “causes of action” by domestic legal systems and by international courts. However, this does not mean that a transitory tort claim can never be based on a violation of international (as opposed to municipal) law; it simply means that the policies animating the transitory tort model should be borne in mind when this model is deployed to enforce international, r...
In Samantar v. Yousuf, the U.S. Supreme Court unanimously held that the Foreign Sovereign Immunit... more In Samantar v. Yousuf, the U.S. Supreme Court unanimously held that the Foreign Sovereign Immunities Act (FSIA) does not govern the immunity of foreign officials from legal proceedings in U.S. courts. Part I of this symposium contribution seeks to put in sharper focus exactly what is, and what is not, in dispute following Samantar. Part II presents three challenges to common assumptions about conduct-based immunity, which I consider under the headings of personal responsibility, penalties, and presence. Under the heading of personal responsibility, I emphasize that state responsibility and individual responsibility are not mutually exclusive. Under penalties, I argue that civil immunity and criminal immunity are not fundamentally distinct. Under presence, I emphasize that a defendant who enters the forum state’s territory might justifiably have a weaker claim to conduct-based immunity than one who does not. Part III suggests some factors that should guide lower courts in determining...
Curt Bradley and Jack Goldsmith have recently proposed applying the Foreign Sovereign Immunities ... more Curt Bradley and Jack Goldsmith have recently proposed applying the Foreign Sovereign Immunities Act of 1976 (FSIA) to suits against current and former foreign officials for actions taken in their official capacity, including suits for human rights violations. They appeal to three basic sources of support for their proposal: logic, policy, and international law. In this brief essay, I examine each of these sources in turn. I conclude that these sources do not support reading the FSIA to encompass suits against natural persons, even when such persons have acted under color of foreign law. Current and former foreign officials should continue to invoke the well-established sources of immunity that they already have under relevant treaties, customary international law, and the common law, without creating the myriad problems associated with forcing individuals into the ill-fitting text of the FSIA.
This article explores the spectrum of status options available to small polities under internatio... more This article explores the spectrum of status options available to small polities under international law. It focuses on the status of free association, which comprises a range of options between the extremes of full independence and integration into a larger state. It provides an overview of free association arrangements to which the United States is a party, and it suggests how some aspects of these arrangements could serve as useful models for the Faroe Islands. It also outlines some considerations in designing a referendum on political status, based on the experiences of Quebec, Puerto Rico, Hawaii, and the U.S. Virgin Islands.
The central question of whether, and when, a country’s domestic rights regime constrains governme... more The central question of whether, and when, a country’s domestic rights regime constrains government action beyond national borders has largely escaped comparative analysis. This Article seeks to fill that gap. Part I provides a typology of basic approaches to rights beyond borders, which I label country, compact, and conscience. Country-based reasoning takes a strictly territorial approach to regulating the government’s actions outside the national territory, even vis-a-vis citizens. Compact-based reasoning focuses on the entitlement of a given individual to assert rights against the government based on his or her status as one of the governed, regardless of territorial location. Conscience-based reasoning holds that a government should act the same way beyond its borders as it does within them. Part II uses this framework to analyze the evolving jurisprudence of extraterritorial rights in three common law jurisdictions: the United States under the U.S. Constitution, Canada under th...
This very brief symposium contribution considers recent developments relating to corporate liabil... more This very brief symposium contribution considers recent developments relating to corporate liability for international law violations under the Alien Tort Statute, including the Second Circuit's decisions in Presbyterian Church of Sudan v. Talisman and Kiobel v. Royal Dutch Petroleum. Ultimately, the political branches bear responsibility for weighing competing considerations and developing a regulatory framework for corporate liability that takes into account multiple intersecting policy goals. In the meantime, federal judges will continue to grapple with the implications of corporate ATS cases in their courtrooms. In so doing, they should be wary of modifying doctrine in response to policy considerations in corporate ATS cases that could have unintended negative consequences for ATS cases against individuals, or for other cases involving the interpretation and application of international law.
This article investigates elements of sex-role stereotyping and gender bias in capital punishment... more This article investigates elements of sex-role stereotyping and gender bias in capital punishment, and how these play themselves out in broader societal understandings and practices surrounding the use of violence by women. Part I describes the violent acts and criminal trials of the four women who were on Florida's death row in August 2000. A survey of the trial transcripts, appellate opinions, and media reports in these cases illustrates the ways in which stereotypes of appropriate female behavior are used by lawyers, judges, and journalists to portray violence by women as particularly threatening to the social order, and thus particularly deserving of censure. Part II draws out the implications of these observations. First, it addresses the contention that women receive more lenient treatment at the hands of the criminal justice system than men, and suggests that this so-called "chivalry thesis" exemplifies a societal preoccupation with controlling women. Second, it...
This essay responds to Professor Riccardo Pisillo Mazzeschi's proposal to merge ratione perso... more This essay responds to Professor Riccardo Pisillo Mazzeschi's proposal to merge ratione personae and ratione materiae immunity for current and former state officials from the jurisdiction of foreign states. Although I find this proposal unpersuasive, my response draws out elements of Professor Pisillo Mazzeschi's analysis that could fruitfully inform ongoing conversations about the scope of ratione materiae immunity, including the continued work of the International Law Commission on this topic.
Drawing the line between disputes that can be adjudicated in domestic (U.S.) courts and those tha... more Drawing the line between disputes that can be adjudicated in domestic (U.S.) courts and those that cannot has perplexed judges and jurists since the Founding Era. Although Congress provided a statutory framework for the jurisdictional immunities of foreign states in 1976, important ambiguities remain. Notably, in 2010, the U.S. Supreme Court held in _Samantar v. Yousuf_ that the Foreign Sovereign Immunities Act (FSIA) does not govern suits against foreign officials unless the foreign state is the “real party in interest.” This decision clarified, but did not fully resolve, conceptual and doctrinal questions surrounding the immunities of foreign officials whose conduct is challenged in U.S. courts and who do not fall within existing statutes. The original research and analysis offered in this Article provides the necessary foundation for approaching, and ultimately answering, persistent questions about what common law immunity entails. This research reveals that the deferential judic...
This contribution seeks to identify and assess the frameworks used to describe and deter maliciou... more This contribution seeks to identify and assess the frameworks used to describe and deter malicious cyber activity (MCA), and to highlight legal and operational challenges in tackling problems that arise where these frameworks overlap or intersect. To that end, we examine two different models, an “armed conflict model” and a “law enforcement model,” that have been used to address the threat posed by such activity. The terms cyber-war and cyber-crime, respectively, encapsulate each of these models — yet the line separating these categories is not well defined, and both terms have been used by laypersons and experts alike to describe conduct ranging from network intrusions to data ex-filtration to denials-of-service. Our analysis of these ambiguities and their implications proceeds in four parts. Part I describes. Part II explores the assumptions underlying the predominant armed conflict model. Part III discusses the implications of characterizing MCA as cyber-war as opposed to cyber-c...
In several recent cases, domestic courts in the United Kingdom, New Zealand, Australia, the Unite... more In several recent cases, domestic courts in the United Kingdom, New Zealand, Australia, the United States, and Canada have grappled with the scope of conduct-based immunity as a matter of common law, statutory law, and customary international law. In so doing, some courts have failed to distinguish between precedents involving defendants who are physically present on the forum state’s territory and precedents involving defendants who have not been served within the jurisdiction. Insisting on this distinction might at first seem counter-intuitive, because conduct-based immunity attaches to the act, not the individual. However, all cases of immunity involve competing jurisdictional principles. When a defendant is not physically present within the forum state, there is no competing principle of territorial jurisdiction (unless the conduct occurred in the forum state, in which case most states recognize an exception to state immunity for tortious conduct that results in personal injury ...
This draft chapter addresses the contested role of U.S. courts in adjudicating disputes with fore... more This draft chapter addresses the contested role of U.S. courts in adjudicating disputes with foreign elements. As a matter of domestic law, the Due Process Clauses in the U.S. Constitution constrain the scope of adjudicatory jurisdiction that legislatures can confer on State and federal courts. The Fourth Restatement restates the U.S. law of personal jurisdiction in civil proceedings as requiring that “sufficient contacts” exist between the defendant and the forum, “and that the exercise of jurisdiction be reasonable.” These criteria limit the reach of U.S. courts’ personal jurisdiction. The chapter explores these limits and Congress’s ability to extend them. It also revisits the history and jurisprudence of Fifth Amendment due process limits on personal jurisdiction, considering the Anti-Terrorism Clarification Act of 2018 (ATCA) and the Promoting Security and Justice for Victims of Terrorism Act of 2019 (PSJVTA).
This brief symposium contribution explores some early cases involving state court jurisdiction ov... more This brief symposium contribution explores some early cases involving state court jurisdiction over common law tort claims for personal injuries that occurred on foreign soil. The idea of transitory torts has been invoked to justify litigating human rights claims in U.S. courts since Filartiga v. Pena-Irala. The ability to adjudicate a claim and provide a remedy for a transitory tort presupposes a legally binding restriction on the defendant’s conduct that gives an injured plaintiff the right to seek redress. International law does not fit this model neatly, because it contains conduct-regulating rules that are translated into “causes of action” by domestic legal systems and by international courts. However, this does not mean that a transitory tort claim can never be based on a violation of international (as opposed to municipal) law; it simply means that the policies animating the transitory tort model should be borne in mind when this model is deployed to enforce international, r...
In Samantar v. Yousuf, the U.S. Supreme Court unanimously held that the Foreign Sovereign Immunit... more In Samantar v. Yousuf, the U.S. Supreme Court unanimously held that the Foreign Sovereign Immunities Act (FSIA) does not govern the immunity of foreign officials from legal proceedings in U.S. courts. Part I of this symposium contribution seeks to put in sharper focus exactly what is, and what is not, in dispute following Samantar. Part II presents three challenges to common assumptions about conduct-based immunity, which I consider under the headings of personal responsibility, penalties, and presence. Under the heading of personal responsibility, I emphasize that state responsibility and individual responsibility are not mutually exclusive. Under penalties, I argue that civil immunity and criminal immunity are not fundamentally distinct. Under presence, I emphasize that a defendant who enters the forum state’s territory might justifiably have a weaker claim to conduct-based immunity than one who does not. Part III suggests some factors that should guide lower courts in determining...
Curt Bradley and Jack Goldsmith have recently proposed applying the Foreign Sovereign Immunities ... more Curt Bradley and Jack Goldsmith have recently proposed applying the Foreign Sovereign Immunities Act of 1976 (FSIA) to suits against current and former foreign officials for actions taken in their official capacity, including suits for human rights violations. They appeal to three basic sources of support for their proposal: logic, policy, and international law. In this brief essay, I examine each of these sources in turn. I conclude that these sources do not support reading the FSIA to encompass suits against natural persons, even when such persons have acted under color of foreign law. Current and former foreign officials should continue to invoke the well-established sources of immunity that they already have under relevant treaties, customary international law, and the common law, without creating the myriad problems associated with forcing individuals into the ill-fitting text of the FSIA.
This article explores the spectrum of status options available to small polities under internatio... more This article explores the spectrum of status options available to small polities under international law. It focuses on the status of free association, which comprises a range of options between the extremes of full independence and integration into a larger state. It provides an overview of free association arrangements to which the United States is a party, and it suggests how some aspects of these arrangements could serve as useful models for the Faroe Islands. It also outlines some considerations in designing a referendum on political status, based on the experiences of Quebec, Puerto Rico, Hawaii, and the U.S. Virgin Islands.
The central question of whether, and when, a country’s domestic rights regime constrains governme... more The central question of whether, and when, a country’s domestic rights regime constrains government action beyond national borders has largely escaped comparative analysis. This Article seeks to fill that gap. Part I provides a typology of basic approaches to rights beyond borders, which I label country, compact, and conscience. Country-based reasoning takes a strictly territorial approach to regulating the government’s actions outside the national territory, even vis-a-vis citizens. Compact-based reasoning focuses on the entitlement of a given individual to assert rights against the government based on his or her status as one of the governed, regardless of territorial location. Conscience-based reasoning holds that a government should act the same way beyond its borders as it does within them. Part II uses this framework to analyze the evolving jurisprudence of extraterritorial rights in three common law jurisdictions: the United States under the U.S. Constitution, Canada under th...
This very brief symposium contribution considers recent developments relating to corporate liabil... more This very brief symposium contribution considers recent developments relating to corporate liability for international law violations under the Alien Tort Statute, including the Second Circuit's decisions in Presbyterian Church of Sudan v. Talisman and Kiobel v. Royal Dutch Petroleum. Ultimately, the political branches bear responsibility for weighing competing considerations and developing a regulatory framework for corporate liability that takes into account multiple intersecting policy goals. In the meantime, federal judges will continue to grapple with the implications of corporate ATS cases in their courtrooms. In so doing, they should be wary of modifying doctrine in response to policy considerations in corporate ATS cases that could have unintended negative consequences for ATS cases against individuals, or for other cases involving the interpretation and application of international law.
This article investigates elements of sex-role stereotyping and gender bias in capital punishment... more This article investigates elements of sex-role stereotyping and gender bias in capital punishment, and how these play themselves out in broader societal understandings and practices surrounding the use of violence by women. Part I describes the violent acts and criminal trials of the four women who were on Florida's death row in August 2000. A survey of the trial transcripts, appellate opinions, and media reports in these cases illustrates the ways in which stereotypes of appropriate female behavior are used by lawyers, judges, and journalists to portray violence by women as particularly threatening to the social order, and thus particularly deserving of censure. Part II draws out the implications of these observations. First, it addresses the contention that women receive more lenient treatment at the hands of the criminal justice system than men, and suggests that this so-called "chivalry thesis" exemplifies a societal preoccupation with controlling women. Second, it...
This essay responds to Professor Riccardo Pisillo Mazzeschi's proposal to merge ratione perso... more This essay responds to Professor Riccardo Pisillo Mazzeschi's proposal to merge ratione personae and ratione materiae immunity for current and former state officials from the jurisdiction of foreign states. Although I find this proposal unpersuasive, my response draws out elements of Professor Pisillo Mazzeschi's analysis that could fruitfully inform ongoing conversations about the scope of ratione materiae immunity, including the continued work of the International Law Commission on this topic.
Drawing the line between disputes that can be adjudicated in domestic (U.S.) courts and those tha... more Drawing the line between disputes that can be adjudicated in domestic (U.S.) courts and those that cannot has perplexed judges and jurists since the Founding Era. Although Congress provided a statutory framework for the jurisdictional immunities of foreign states in 1976, important ambiguities remain. Notably, in 2010, the U.S. Supreme Court held in _Samantar v. Yousuf_ that the Foreign Sovereign Immunities Act (FSIA) does not govern suits against foreign officials unless the foreign state is the “real party in interest.” This decision clarified, but did not fully resolve, conceptual and doctrinal questions surrounding the immunities of foreign officials whose conduct is challenged in U.S. courts and who do not fall within existing statutes. The original research and analysis offered in this Article provides the necessary foundation for approaching, and ultimately answering, persistent questions about what common law immunity entails. This research reveals that the deferential judic...
This contribution seeks to identify and assess the frameworks used to describe and deter maliciou... more This contribution seeks to identify and assess the frameworks used to describe and deter malicious cyber activity (MCA), and to highlight legal and operational challenges in tackling problems that arise where these frameworks overlap or intersect. To that end, we examine two different models, an “armed conflict model” and a “law enforcement model,” that have been used to address the threat posed by such activity. The terms cyber-war and cyber-crime, respectively, encapsulate each of these models — yet the line separating these categories is not well defined, and both terms have been used by laypersons and experts alike to describe conduct ranging from network intrusions to data ex-filtration to denials-of-service. Our analysis of these ambiguities and their implications proceeds in four parts. Part I describes. Part II explores the assumptions underlying the predominant armed conflict model. Part III discusses the implications of characterizing MCA as cyber-war as opposed to cyber-c...
In several recent cases, domestic courts in the United Kingdom, New Zealand, Australia, the Unite... more In several recent cases, domestic courts in the United Kingdom, New Zealand, Australia, the United States, and Canada have grappled with the scope of conduct-based immunity as a matter of common law, statutory law, and customary international law. In so doing, some courts have failed to distinguish between precedents involving defendants who are physically present on the forum state’s territory and precedents involving defendants who have not been served within the jurisdiction. Insisting on this distinction might at first seem counter-intuitive, because conduct-based immunity attaches to the act, not the individual. However, all cases of immunity involve competing jurisdictional principles. When a defendant is not physically present within the forum state, there is no competing principle of territorial jurisdiction (unless the conduct occurred in the forum state, in which case most states recognize an exception to state immunity for tortious conduct that results in personal injury ...
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