Foreign Sovereign Immunity, Individual Officials, and Human Rights Litigation

For thirty years, international human rights litigation in U.S. courts has developed with little attention to a lurking doctrinal objection to the entire enterprise. The paradigm international human rights case involves a suit against a foreign government official for alleged abuses committed abroad under color of state law. A potentially dispositive objection to this litigation is foreign sovereign immunity. The Foreign Sovereign Immunities Act (FSIA) creates presumptive immunity for foreign states and has no exception that would cover human rights cases. Many courts have assumed that the FSIA has no relevance to human rights suits as long as they are directed against state officials rather than the state itself. Recently, however, courts have begun to reject this assumption, and the issue is now before the Supreme Court in Yousuf v. Samantar. This essay makes two contributions to the debate over whether the FSIA applies to suits against individual foreign officials. First, it shows that, contrary to what some courts have assumed, suits against individual officials fall naturally within the plain language of the FSIA’s immunity provisions. Second, it shows that the international law of state immunity, which is relevant to the proper interpretation of the FSIA in several ways, supports this construction. Combining these and other points, the essay concludes that the FSIA confers presumptive immunity in suits against state officials, including former state officials, for their official acts committed while in office, and that this immunity applies even in human rights cases. This conclusion, if accepted, would narrow the scope of human rights litigation in U.S. courts, but it would not affect other legitimate mechanisms of human rights accountability

Foreign Sovereign Immunity and Domestic Officer Suits

Under international law, official-capacity suits brought against a foreign state’s officers are treated as suits against the state itself and thus as subject to the state’s immunity, even in suits alleging human rights abuses. This immunity regime differs from the immunity regime that applies in the United States in suits brought against state and federal officials for violations of federal law. Despite the federal government’s sovereign immunity and the immunity of state governments under Eleventh Amendment jurisprudence, courts often allow suits against federal and state officers for their official actions. This essay attempts to explain why the immunity rules differ between the two regimes. We begin by showing that the differential treatment of foreign and domestic officer suits has deep roots in British and American common law. We then show that Congress has not acted to alter this common law backdrop, and we explain the significance of this fact. Finally, we discuss functional reasons for the long-time differential treatment of suits against domestic and foreign officials

Congressional Authorization and the War on Terrorism

This Article presents a framework for interpreting Congress\u27s September 18, 2001 Authorization for Use of Military Force (AUMF), the central statutory enactment related to the war on terrorism. Although both constitutional theory and constitutional practice suggest that the validity of presidential wartime actions depends to a significant degree on their relationship to congressional authorization, the meaning and implications of the AUMF have received little attention in the academic debates over the war on terrorism. The framework presented in this Article builds on the analysis in the Supreme Court\u27s plurality opinion in Hamdi v. Rumsfeld, which devoted significant attention to the AUME Under that framework, the meaning of the AUMF is determined in the first instance by its text, as informed by a comparison with authorizations of force in prior wars, including declared wars. In ascertaining the scope of the necessary and appropriate force that Congress authorized in the AUMF, courts should look to two additional interpretive factors: Executive Branch practice during prior wars, and the international laws of war. Although nondelegation concerns should not play a significant role in interpreting the AUMF, a clear statement requirement is appropriate when the President takes actions under the AUMF that restrict the liberty of non-combatants in the United States. The authors apply this framework to three specific issues in the war on terrorism: the identification of the enemy, the detention of persons captured in the United States, and the validity of using military commissions to try alleged terrorists

Collective Dynamics of Dark Web Marketplaces

Dark markets are commercial websites that use Bitcoin to sell or broker transactions involving drugs, weapons, and other illicit goods. Being illegal, they do not offer any user protection, and several police raids and scams have caused large losses to both customers and vendors over the past years. However, this uncertainty has not prevented a steady growth of the dark market phenomenon and a proliferation of new markets. The origin of this resilience have remained unclear so far, also due to the difficulty of identifying relevant Bitcoin transaction data. Here, we investigate how the dark market ecosystem re-organises following the disappearance of a market, due to factors including raids and scams. To do so, we analyse 24 episodes of unexpected market closure through a novel datasets of 133 million Bitcoin transactions involving 31 dark markets and their users, totalling 4 billion USD. We show that coordinated user migration from the closed market to coexisting markets guarantees overall systemic resilience beyond the intrinsic fragility of individual markets. The migration is swift, efficient and common to all market closures. We find that migrants are on average more active users in comparison to non-migrants and move preferentially towards the coexisting market with the highest trading volume. Our findings shed light on the resilience of the dark market ecosystem and we anticipate that they may inform future research on the self-organisation of emerging online markets

Sosa, Customary International Law, and the Continuing Relevance of Erie

Ten years ago, the conventional wisdom among international law academics was that customary international law (CIL) had the status of self-executing federal common law to be applied by courts without any need for political branch authorization. This modern position came under attack by so-called revisionist critics who argued that CIL had the status of federal common law only in the relatively rare situations in which the Constitution or political branches authorized courts to treat it as such. Modern position proponents are now claiming that the Supreme Court\u27s 2004 decision in Sosa v. Alvarez-Machain confirms that CIL has the status of self-executing federal common law. As this Article explains, the decision in Sosa did not in fact embrace the modern position, and, indeed, is best read as rejecting it. Commentators who construe Sosa as embracing the modern position have confounded the automatic incorporation of CIL as domestic federal law in the absence of political branch authorization (i.e., the modern position) with the entirely different issue of whether and to what extent a particular statute, the Alien Tort Statute ( ATS ), authorizes courts to apply CIL as domestic federal law. The Article also explains how CIL continues to be relevant to domestic federal common law despite Sosa\u27s rejection of the modern position. The fundamental flaw of the modern position is that it ignores the justifications for, and limitations on, post-Erie federal common law. As the Article shows, however, there are a number of contexts in addition to the ATS in which it is appropriate for courts to develop federal common law by reference to CIL, including certain jurisdictional contexts not amenable to state regulation (namely admiralty and interstate disputes), and gap-filling and interpretation of foreign affairs statutes and treaties. The Article concludes by considering several areas of likely debate during the next decade concerning the domestic status of CIL: corporate aiding and abetting liability under the ATS; application of CIL to the war on terrorism; and the use of foreign and international materials in constitutional interpretation

Evaluation of techniques for removal of spacecraft contaminants from activated carbon

Alternative techniques for the regeneration of carbon contaminated with various spacecraft contaminants were evaluated. Four different modes of regeneration were evaluated: (1) thermal desorption via vacuum, (2) thermal desorption via nitrogen purge, (3) in-situ catalytic oxidation of adsorbed contaminants, and (4) in-situ non-catalytic oxidation of adsorbed contaminants

Book Review

Reviewing, Gary B. Born & David Westin, International Civil Litigation in the United States Courts (1992) (with Jack L. Goldsmith

Reconstructing Columbus’s first transatlantic track and landfall using climatological winds and currents

An article in the November 1986 National Geographic magazine examined the question of Columbus's first landfall in the Americas. The author, Luis Marden, was the first to quantitatively include the effects of the winds and currents in reconstructing the transoceanic portion of the voyage. There seemed, however, to be two major weaknesses in his analysis. First, the leeway effect on the ship by the wind was ignored for that portion of the voyage west of 40W, the whole second half of the voyage. Second, currents from pilot charts were used with the corresponding speed determined by the prevailing current. We sought to reanalyze the track using the leeway effect for the whole transatlantic track and using more appropriate average vector velocities of the current. Using climatological winds and currents we found the island of San Salvador (Watling Island) to be the most likely site of the first landfall of Columbus. This paper discusses the effects of wind, current, leeway, and magnetic variation on the determination of the landfall.Funding was provided in part by the National Science Foundation under grant Number DCE 85-14885