THE NATURE OF INTERNATION INTERNATIONAL AL LAW LAW I. International Internati onal and Comparative Law a. Comparative Law – Law of other nations; not binding binding on U.S., but but persuasive authority i. Supreme Court engaged comparative law in 3 controversial controversial areas (affirmative action, death penalty, and same sex marriages) - looked at the European Court of human rights. b. International Law – These are are laws that are binding (like treaties, etc.) i. Public - law governing foreign foreign transactions of individuals individuals and corporations ii.Private - legal relation between states iii.Misleading iii.Misleading - foreign transactions highly in the public sector, and states to state transactions highly private II. Sources of International Law - Article 38 of the Statute of the International Court of Justice defines the sources of international law. Look at them in order (hierarchy), (hierarch y), to find the law. a. Treaties and other bilateral/multinational agreements to which sovereigns are signatories, and which govern the issue. b. Customary international internat ional law (CIL). i. General practices of states, accepted as if they were law. law. ii.Followed not out of habit or expediency, but because considered law. c. General principles - Broad concepts concepts that can be applied applied (like (like estoppel, good good faith in negotiations, negotiations, etc.) i. Principles that reoccur reoccur anywhere in the world, and is accepted by any jurisdiction that care about the principles of international law. d. Judicial Decisions Decisions - Judicial Judicial decisions decisions don’t don’t create a binding precedent, so so looked at in a cautious way. way. Past decisions considered, but not in a binding way like in the U.S. e. Jurist Publication Publications - Publications Publications like law review review not binding, but can be persuasive persuasive III. Enforcement of International Law a. Ways to settle Disputes i. Set up an independent independent arbitration panel (other than than ICJ) 1. Countries Countries of the the world would would set up an agreeme agreement nt to enforce enforce all arbitrati arbitration on agreements. So if one state doesn’t want want to abide by decision, its assets can be frozen by other countries seeking to enforce the arbitration agreement ii.Most international disputes are settled through negotiations or arbitration (meditation) iii.In addition to ICJ, there's the international criminal court, European court of human rights, etc. (ad hoc tribunals) iv.Also sometimes domestic courts b. Outside Enforcement Enforcement - sanctions, sanctions, diplomacy, politics, shame, refusal refusal to trade (economic (economic sanctions), military intervention i. Different effect effect in different parts of the world world - The more powerful you are, the more likely you are to not abide by international law 1. Less pressure pressure on US to take take treaty seriously (smaller, weaker weaker countries cant really hurt US by not trading, etc, so no deterrence for US) ii.Most states abide by international law most of the time c. Long Term interest in abiding by International law: i. Fear of isolation isolation ii.To have legitimacy and persuasiveness 1. More powerfu powerfull states can can take a bigger bigger hit to legitima legitimacy cy without without compromising power iii.Self-interest iii.Self-interest - in terms of long-term outlook to present itself as a law-abiding society 1. Interest Interest state state has in good reputati reputation, on, maintain maintaining ing a sense of identity identity
d. Short-term interest in abiding int'l law i. Rule Rule of law needed for organization organization in society ii.Reciprocity ii.Reciprocity (self-interest (self-interest also) - If you break your agreements, no one will enter into agreements agreements with you. Agreements are mutually mutually beneficial beneficial iii.Also to have a right for our citizens, we need to give the same right to other nation's citizens iv.Normative: Right/moral thing to do IV. IV. European Convention Convention on Human Rights: a. McCann v. United Kingdom (pg. 3) i. Facts: 3 known Irish terrorists were in Spain. UK authorities authoritie s were alerted to their presence, and they were killed during a confrontation. The estates of the deceased brought an inquest against soldiers and govt, believing it was a wrongful killing, killing, to the ECHR. ii.Analysis : UK Court only requires requi res a killing to be justified, justifi ed, but Court looks loo ks at Article 2 para. 2 of the European Human Rights Convention (treaty), which requires that deadly force be absolutely necessary for it to be lawful. Although the soldiers were justified, the court must use the int’l law, and says the killing was not absolutely necessary (there was negligence and incompetence in the operation). iii.Damages iii.Damage s: Although UK very powerful, they still had to pay the terrorists’ families compensation, compensation, - they still have to abide by the int’l tribunal. iv.Notes: European Convention of Human Rights – product of post-WWII politics, politic s, in wake of Nazi atrocities. Countries get together to enforce human rights. This is a court of last resort, meaning you must exhaust domestic remedies first before coming here. V. The 1789 Alien Tort Claims Act : US enforcement of foreign violations of international law a. Filartiga v. Pena-Irala(pg Pena-Irala (pg 17) i. Facts: Filartiga’s ilartiga ’s son was tortured & killed by Pena, an official (all parties from Paraguay, Paraguay, and event took places in Paraguay), Paraguay), in retaliation for father’s political beliefs. They could get no justice in Paraguayan courts (lawyer arrested etc.). So, they sue in U.S., but they’re dismissed for lack of jurisdiction. Issue of jurisdiction of U.S. courts is on appeal. ii.The suit is between 2 foreign nationals, so how does the U.S. have jurisdiction? 1. Under the Alien Tort Statute, U.S. U.S. has jurisdiction jurisdiction to hear tort claims claims brought brought by an alien where there has been a tort “committed in violation of the law of nations or a treaty of the United States.” States. ” Torture was clearly a violation of int’l law (aka "the law of nations"), and the U.S. did have did have jurisdiction over the case since the claim was lodged when both parties were inside the U.S. 2. This case interpreted that that the Alien Alien Tort Tort Statute to granted the U.S. jurisdiction to enforce human rights law domestically. a. Very controversial. controversial. Should Should U.S. be a world police police by trying foreign foreign citizens in the U.S.? - Well, the the idea is that if you commit such a heinous crime, then any tribunal should be able to try you b/c the whole world would agree how bad the crime is (jus cogens). U.S. court enforces int’l law, not domestic law. iii.Now, there is a convention on torture, but there wasn’t at time of this case. How does U.S. evaluate this without a clear cut prohibition on torture? Court looks at: 1. Law prof professor essors s determi determinati nations ons of the law law 2. Public lic law law 3. Gene Genera rall usa usage ge 4. Unite United d nati nations ons charte charterr 5. Universal Declaration of human rights (not (not binding– binding– aspirational only but but shows custom) 6. Declarati Declaration on on tortur torture e - not bindin binding, g, but but evidence evidence of how how custom custom would would evolve 7. European European conventio convention n outla outlaws ws tortur torture e
8. InterInter-Ameri American can conventi convention on on human rights rights (again, (again, custom) custom) 9. Domestic Domestic laws laws - many many countri countries es have have banned banned torture torture iv.Outcome/Enforcement iv.Outcome/Enforcem ent: U.S. courts awarded Filartiga $10mm. But problem with enforcement – Pena left U.S. This is still a problem with int’l law. U.S. won’t send troops to Paraguay Paraguay to make them pay. pay. Still a victory – legal recognition of torture being wrong (political statement).
THE LAW OF TREATIES I.
Treaties, Generally: International agreements agreements are governed by the Vienna Vienna Convention on on Treaty Treaty Law. Law. Under it, states can do anything anything they want to agree to, unless unless it violates a peremptory norm. a. Many countri countries es don’t don’t have have governmen governments ts that that work. But, presu presuming ming there there is a government that works, one country can make an agreement with another government. b. Treaties and contracts contracts are analogous (but not not perfectly so) i. A K can have 2 provis provisions ions that say differen differentt things things ii. So, a treaty treaty can too (ex. (ex. Part Part I is self-e self-executin xecuting, g, while Part Part II not) II. Vienna Convention on the Law of treaties (1980) a. Addresses Addresses international international problem problem on how how to deal with treaties. treaties. A treaty on treaties. treaties. b. It codified the pre-existing pre-existing customary customary int’l law on treaties, with some some necessary gapgapfilling and clarifications. i. Before Before this, int’l int’l customa customary ry law was was used. used. Now a more more precise precise roadmap roadmap to to guide guide jurisdictions jurisdictions on how to write and apply treaties. c. Applies only to to treaties between states states (doesn’t (doesn’t include include international international organizations) d. US has signed it, but not ratified ratified it. But But since it it is customary customary international international law, US US can be bound based on that. This is highly persuasive in US, and around the world. III. What is a treaty according to the Vienna Convention (p. 926 Art II) a. Art 2 (a) (a) "treaty" means an international agreement concluded between States in written written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation; designation; b. Art 2 (b) "ratification," "acceptance," "approval," and "accession" mean in each case case the the international act so named whereby a State establishes on the international plane its consent to be bound by the treaty; IV. IV. When is a treaty tr eaty bindin bi nding? g? a. There is a gap of when its signed, and when it comes comes into force force (when it’s ratified) i. The proces process s for ratifica ratification tion can can be in the treat treaty y itself, itself, or the usual usual proces process s is that it's signed by certain parties, like in U.S., sent to Congress to ratify. ii. Art 18 - once once a treaty treaty is signed, signed, only only obligati obligation on you have have it to not defeat defeat the the purpose of the treaty, but there is no affirmative duty until it's ratified. b. No world legislature, legislature, so states only bound to treaties which which we agree to be bound to c. Some international international agreements not binding binding because because they lack lack consent; consent; based on consent to be bound d. Intent Intent to be be bound bound – not aspiratio aspirational nal i. Sometimes Sometimes writing writings s not treaties treaties becaus because e they are aspirati aspirational onalwriti writings, ngs, which which the parties did not intend to be bound bound to. But like a plan for for what they want to do in the future, intentions, without specific obligations. obligations. So a treaty not only has to be a written document, but the parties must have intended to be bound, and not only setting down some aspirational goals. ii. A treat treaty y that that says says “the “the part parties ies agree to …” is binding. A treaty that says “the “the parties intend to intend to …” is not binding. V. Multilate Multi lateral ral and Bilatera Bila terall Treaties reat ies
a. A multilateral multilateral treaty has several parties, and and establishes establishes rights rights and obligations between each party and every other party. b. Bilateral treaties treaties by by contrast are negotiated negotiated between between a limited limited number number of states, states, most commonly only two, establishing legal rights and obligations between those two states only. only. It is possible however for a bilateral treaty to have more than two parties. VI. What are treaty trea ty reservatio reserv ations ns a. The Reservations to the Genocide Convention Case (pg 56) – UN general assembly adopted this resolution in regards to disputes of the reservations to the Genocide Convention i. Basi Basic c prin princi cipl ples es of tre treat atie ies: s: 1. A state canno cannott be bound bound to a treaty treaty without without its consen consent. t. 2. Once agreem agreement ent is made, made, the parties parties to it cannot cannot change change it, or make other other agreements that go against it. 3. A reservation reservation is a modification modification of terms the participating state has included with their acceptance of a treaty. ii. Wheth Whether er or not to allow allow rese reserva rvatio tions? ns? 1. Reservations Reservations can't contravene contravene the general purpose purpose of the treaty, treaty, especially especially in regards to human rights treaties 2. We want as many many states as possi possible ble to sign sign on, and if there there were no reservations allowed, allowed, a lot of states wouldn’t sign on. And on the other side, we don’t want to sacrifice important aspects b/c we want more states to join. 1. So if minor issues issues (like (like jurisdiction) jurisdiction) then allow it, it, to get get more states 2. But if too many many minor reservati reservations, ons, it can chang change e the purpose purpose of the treaty 3. Dissent: No flexibility flexibility.. "It would be better to lose a state which insists in face of objections on a modification of the terms of the Convention, then to permit it to become a party against the wish of a state(s) which have irrevocably irrevocably and unconditionally unconditionally accepted all the obligations of the Convention." b. While some some treaties still still expressly expressly forbid any reservations reservations (Ex: he Law Law of the Sea Convention), they are now generally permitted to the extent that they are not inconsistent inconsistent with the goals and purposes of the the treaty. Some reservations are are permissible, permissible, but would be objectionable to the other signatory states. c. They are are only binding binding on the the other parties parties if the other other parties parties accept the the reservation reservation.. i. Common Common practice practice is that you you have have to object object to the the reservati reservation, on, otherwi otherwise se you accept 1. Often, Often, the practice practice of objections objections,, etc., are stipulate stipulated d in the treaty (the (the procedural mechanisms) d. Reservations Reservations have the effect of turning one one agreement into into many different different agreements, agreements, i. Suppos Suppose e there there is is a treat treaty y signe signed d by coun countri tries es A A,, B, C, and D. A makes a reservation on one part of it, say Article III. 1. B is okay with it. Fine, there is a treaty between A between A & B, including the reservation 2. C opposes the reservation. reservation. There is no no agreement between between A A & C as to Article III. There’s only only a partial agreement. 3. D says the reservation is intolerable, and that A is not a party as far as D is concerned. There is no agreement agreement at all between between A A & D. 4. Between B, C, and D, there is an agreement. ii. B/c of the mess mess this creates creates,, the trend has has been to forbid forbid reservati reservations ons in multilateral agreements (like for torture or genocide). e. Vienna Vienna Conventi Convention on on reservation reservations s - Section Section 2: Reservat Reservations ions - Art 19-21 VII. How can we interpret interpr et treaties? tr eaties? Eastern Airlines, Inc. v. Floyd (pg Floyd (pg 64)
Facts: Airline flight fl ight thought they t hey would crash, cr ash, told passengers pas sengers this. They were able to restart engine and landed safely. Passengers sued for mental distress. Court looks at Article 17 of the Warsaw Convention to determine whether mental distress alone was compensable. This was written in French, and court has to decide what was meant by the term "lesion corporelle." Because of the ambiguity of the term “lesion corporelle,” court turns to different sources: 1. Dictiona Dictionary ry – to to assess assess the plain plain text text 2. French definitions and interpretations interpretations in in French French law courts 3. How other other courts interp interprete reted d the text – only only one other court court interprete interpreted d it to include mental distress alone 4. Historical context – Intent of the drafters drafters and negotiating history of Warsaw Warsaw convention 1. Purpose Purpose behind behind draftin drafting g – what were were they they seeking seeking to do? 1. They would would want want airlines airlines to prospe prosper, r, so to expand expand the the scope scope of liability would not be in their intentions. 2. Also, Also, the fact that a remedy remedy for emotion emotional al injury injury alone was was unknown unknown in many jurisdictions at the time of the Warsaw convention. 5. Treaties reaties & schola scholarly rly writin writings gs Vienna Convention – Art 31: General Rules of Interpretation Interpret ation i. In additio addition n to the the text, look at at any other other agreemen agreements ts relating relating to the treat treaty y ii. Take accoun accountt of (in additi addition on to the conte context): xt): 1. any subsequent subsequent agreement between the parties regarding the interpretation interpretation of the treaty or the application of its provisions; 2. any subsequent subsequent practice practice in the application application of the treaty treaty which which establishes establishes the agreement of the parties regarding its interpretation; 3. any relevant relevant rules of international international law law applicable applicable in the the relations relations between the parties. c. Vienna Convention – Art 32: Supplementary means of Interpretation i. Recours Recourse e may be had to to supplemen supplementary tary means means of interpre interpretati tation, on, includ including ing the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31: 1. leaves leaves the the meaning meaning ambigu ambiguous ous or or obscure; obscure; or 2. leads leads to a result result which is manifes manifestly tly absurd absurd or unreason unreasonable able.. VIII. How do we assess a ssess whether or o r not a treaty is valid Case Concerning the Gabcikovo-Nagymaros Project (pg 74) i. Regard Regarding ing a treaty treaty entered entered into into by Hungary Hungary and Czecho Czechoslov slovakia akia in 1977. 1977. The The Court stated that both sides breached their obligation and that the 1977 Budapest Treaty is still valid. ii. ICJ - Is the the trea treaty ty stil stilll valid valid? ? Doctrine of necessity for grounds for breaching the treaty – because there were ecological concerns 1. Court says says ecologic ecological al concerns concerns didn’t didn’t arise arise to an imminent imminent peril, peril, so the breach was not warranted. There were other possibilities in addressing addressing this concern rather than breach. 2. Impo Imposs ssib ibil ilit ity y 1. the object object of the treaty treaty change changed; d; the opport opportunit unity y disappea disappeared. red. Tthe joint nature ceased to exist. But, court doesn’t accept this 3. Fundamenta undamentall change change of of circumsta circumstances nces:: 1. Political Political change - Czech split split up into 2 countries, affects affects the feasibility of the project 2. Court says says no - the the changes changes have have to affect affect the core core of the project project.. The changes presented did not change Hungary's ability to construct the dam
4. Czech Czech breached; breached; which which may be a reason reason to terminat terminate e a treaty, but but Hungary Hungary denounced the treaty before Czech breached iii. Court says these are not broad broad loopholes to count yourself yourself out of the treaty. treaty. The defenses are very narrow. You can’t just opt out of a treaty, the treaty has provisions on dealing with these types of issues that may obstruct the carrying out of duties under the treaty. Treaties – General Principles Princi ples of International Internation al Law IX. Unwritten Treaties a. Vienna Convention says treaties must must be in writing. But what about oral oral treaties made made before 1980? The Eastern Greenland Case (pg 84) Facts: Dispute about who has ha s possession possess ion of lands in Greenland btwn Norway Norwa y & Denmark. Norwegian Minister orally said that Norway wouldn’t make any difficulties in the settlement of this question, when Denmark asked if they would object to Denmark extending their interests to Greenland. ii. Vienna Convention asks treaty to be in writing, writing, but this this is before before that. This This is an oral agreement. iii. Court says statement statement meant that Norway would would refrain from contesting contesting Danish Danish sovereignty over Greenland, so therefore, this meant they would restrain from occupying it (although this doesn’t mean that Norway recognized Danish Sovereignty). iv. iv. Court looked looked at surrounding surrounding circumstances circumstances to determine determine the intent (the attitude of the parties in the exchange) – shows intent to be bound – this is the nature of the consent. v. General General Principle Principles s – Can’t say that oral agreemen agreements ts can’t be enforced enforced,, but from evidentiary perspective may be hard. Even if not enforceable treaty, can use estoppel here (good faith). vi. Norway says Minister Minister not allowed to bind the country country – int’l law says internal internal laws laws don’t matter. X. How do treaties relate general principles of law? a. Treaty provisions provisions need to be be interpreted and, and, if treaty interpretations interpretations are are not to be pure pure discretion, some guidance from other forms of law is called for. b. Treaties never never bind all states, and there need to be some rules rules of more more general application.
CUSTOMARY INTERNATIONAL LAW I.
Customary Customary intern internation ational al law (CIL) (CIL) is someth something ing done done as a general general practice practice — not not because because it is is expedient or convenient, but because it is considered law, out of a sense of legal obligation. a. Persi Persiste stent nt object objection ion i. In international international customary law, if you are a persistent persistent objector, not bound to that customary law ii.Natural law rights (super norms - like for human rights, genocide) 1. Even if you you are a persis persistent tent objector objector,, you are still still bound bound II. The Paquete Habana (pg 92) a. Facts: Cuban fishing vessels captured captured by US navy & claimed as prizes of war. Nothing that showed they had anything to do with war. International International custom/tradition that exempted exempted fishing vessels from being captured as prizes of war, dating back to Henry VI. b. First question: question: Whether or not there is CIL? When When does custom custom ripen to law? i. Two factors to ascertain a particular practice has ripened into CIL 1. The objecti objective ve requir requirement ement - Practi Practice ce of states states a. States States must must be actin acting g a certain certain way way to be be custom custom 2. The subjectiv subjective e requirement requirement - opinion opinion juris (reason/p (reason/psycho sychology) logy) a. States States are acting acting a particular particular way way because because they feel compel compelled led by law
c. Eviden Evidence ce to to find find these these facto factors rs i. Objective Objectively ly 1. Scho Schola lars rshi hip p 2. Treaties reaties of other other nations nations (bilateral (bilateral treaties) treaties) 3. Court Court also noted noted the the lack lack of competi competing ng principl principles es 4. Proclam Proclamation ations s - the members of the country country are proclaimin proclaiming g the practice practice ii.Subjectively 1. by acting acting in a certain way way (abiding (abiding by treaty), treaty), they they are acting acting this way way because they are compelled by law d. Court said that int’l law is part of our law, law, and when when there is no treaty or other governing governing force, we must look at the customs and usages of civilized nations. Court also noted that it was the "general policy of the govt to conduct the war in accordance with the principles of int’llaw." int’llaw." By looking at the sources of the evidence, court finds sufficient to enforce the custom III. The Asylum Case (pg 102) a. Facts: Failed military rebellion rebellion leader in in Peru sought sought political asylum in Columbia, Columbia, but Peru refused to allow him to leave. Dispute goes to ICJ, and since there’s no treaty concerning this, ICJ looks at CIL. b. Not enoug enough h evidenc evidence e to establish establish CIL i. One of the treaties raised, raised, Peru didn’t sign onto onto ii.Another signed on to by a limited number of states iii.Peru has not acted in a way that showed they practiced this custom iv.No evidence of consent to the custom 1. The persistent persistent objector objector - If Peru objects persistently, persistently, even if custom custom is very common, they still wouldn’t be bound (unless it was a natural right) 2. You have to to be a vocal objector; silence silence = consent; consent; consent is implied unless you object c. To invoke invoke CIL, you have have to prove it has been been used fairly fairly often, and adopted by many states. Also, you cannot bind a state to a treaty to which it did not ratify (consent to). IV. IV. The Lotus Case (pg 104) a. Facts: Collision Collision btwn French French (Lotus (Lotus)) & Turkish vessels, and some Turkish nationals die. 2 French nationals arrested by Turkish police for criminal prosecution of manslaughter, w/o notifying French consul, then sentenced & imprisoned. French govt protested, saying Turkey had no jurisdiction, and goes to ICJ (b/c parties agreed to go - consent). b. Only obligation Turkey has is to not overstep the the limits if int’l law. law. France France has burden to prove there’s CIL rule against Turkey’s jurisdiction. c. France rance has 3 arg argume uments nts:: i. A state can’t exercise exercise jurisdiction just b/c victim is a national of that state (passive personality – some states recognize it as basis for jurisdiction while others don’t) 1. ICJ says doesn’t doesn’t apply apply here b/c incident took took place on Turkish vessel, vessel, so there is a territoriality claim. ii.Since the collision occurred on the high seas, France claimed that only the state whose flag the vessel flew had exclusive jurisdiction over the matter. 1. Offense took took place on Turkish vessel vessel flying Turkish flag. flag. iii.A state can’t extend jurisdiction beyond its borders. 1. French rench did it it all the the time & had always always done done so. so. d. France failed to establish a violation of CIL. Turkey did did not overstep overstep limits of int’l law & has jurisdiction. jurisdiction. e. Legal positivism – int’l laws laws come from from states’ states’ consent. consent. Contrast with natural natural law theories, where even though law isn't written down explicitly, they should still be followed. i. States can create laws through through actions or customs, but still made through actions. Doesn’t just arise from purely moral reasons like natural law. V. Public Int’l Law vs. Private Int’l Law L aw a. The Texaco/Libya Arbitration (pg 117)
i. Facts: 2 oil companies (corporations) (corporati ons) doing business in Libya. K btwn corps and Libya. Libyan govt then passes a Nationalization Nationalization Law, where taking all private pr ivate companies and makes them Libyan governed (under state law). The rights under the K (deeds) being breached – Libyan has taken away these rights. Arbitration clause. ii.Libya says there’s new int’l law that justifies their actions – UN General Assembly resolutions. 1. UN GA resolutions resolutions are not binding binding law, law, but can be be expressive expressive of existing existing & emerging custom. custom. Not a court, doesn’t resolve disputes. disputes. More like a legislature legislature – provide guidelines on where UN wants to go – aspirational. nd iii.2 & 3rd resolutions resolutions – nationalization governed by domestic law 1. These give give Libya exclusive exclusive rights – this is what Libya using as justification justification nd rd 2. Arbitr Arbitrato atorr doesn doesn’t ’t find find that that 2 & 3 resolutions are binding CIL a. Not all countri countries es signed signed on. All develop developed ed countries countries didn’t didn’t sign sign on, very opposed. No consensus to find CIL. st iv.1 resolution resolution – explicitly mentions that nationalization is governed by CIL 1. Enough consensus consensus that that arbitrator will use this, but it will will be in opposition to Libya's case. 2. So deed deeds s (K) the then n are are bindi binding ng.. b. Polic olicy y Issu Issues es i. Should we give GA resolutions resolutions weight when when they are not meant to be binding? 1. Soft-law: Soft-law: non-binding non-binding law - If we have a lot of soft-law, soft-law, it it might ripen to hard law ii.What if there was consensus for 2nd and 3rd resolution? Would that be enough evidence of CIL? 1. Maybe Maybe if US was persis persistent tent objector objector,, can’t use use it as CIL CIL 2. Look at state practice practice - the the resolutions resolutions are are aspirational, aspirational, but maybe hasn’t manifested in practice yet. So, if not yet practicing yet, then there are no grounds to establish CIL (the objective requirement where a custom becomes CIL) iii.There may be a provision in the K to accommodate for a new int'l law, so we would look there first, if any exists
GENERAL PRINCIPLES OF INTERNATIONAL LAW I.
General principles principles - Broad Broad concepts concepts that that can be applied applied (like (like estoppel, good faith in negotiations, negotiations, etc.) a. Principles that reoccur reoccur anywhere in the world, world, and is is accepted by any jurisdiction jurisdiction that care about the principles of international law. II. The AM & S Case (pg 128) a. Facts: This case was was dealing with with an antitrust offense. offense. Applicant asked asked to produce produce docs, and some were not, on the basis that they are entitled to legal confidentiality, where these rights are protected protected by an attorney-client attorney-client privilege. (European Court of Justice – Supreme Court of EU) b. No treaty provision provision on this subject, subject, so court looks at at general principles principles of int’l law. law. c. Look at other other countrie countries: s: how how do they they handle handle this? this? i. There is a preponderance of countries using using the confidentiality privilege 1. At the very very least, least, we must recogniz recognize e this principl principle e among the EU states, states, to extend this privilege to non-in-house non-in-house counsel representing defense cases. d. To be able to come up up with a general principle of law, law, they looked at how member countries (ECJ – EU) dealt with this, and agreed that there was an attorney-client privilege. However, they did not extend this to nations not member of the European community (now EU).
III. Distinction Between CIL and General Principles Pr inciples a. The 2 princip principles les overlap, overlap, we're we're looking looking or or patterns patterns in both both i. General principles - principles of legal reasoning reasoning that cut across many legal topics 1. Estoppel 2. Equity 3. Good ood fait aith 4. Procedu Procedural ral rules rules like like privileges privileges in the the discovery discovery process process ii.Customary Int’l Law 1. We have the subjective subjective view (psychological (psychological - opinion opinion juris), juris), which doesn’t exist in determining general principles 2. CIL is more specific specific (narrower (narrower in in scope), while general principles principles are more broad, and discuss legal issues b. Why recogn recognize ize general general principl principles es of internati international onal law? law? i. Int'l law is still developing, developing, so we need the gap fillers ii.There is implied consent - b/c they are so widespread, so they should be implicitly regarded as the background conditions of a treaty c. Differ Differenc ence e in Evide Evidence nce for for each: each: i. CIL - looks to assembly resolutions, and agreements, agreements, treaties, proclamations proclamations ii.General Principles look at patterns in the individual municipal systems 1. Not dispu disputed ted as much much as CIL CIL
JUS COGENS – PEREMPTORY NORM I. Jus Cogens and peremptory norms - Where does this fit into CIL? a. Super-customs Super-customs - so universally accepted. accepted. You You cannot justify certain certain things. things. b. When there's there's an odd country country violatin violating g it, there's there's no objection objection defense defense There is no clear agreement regarding precisely precisely which norms are jus are jus cogens, cogens, but it is generally accepted that jus that jus cogens includes the prohibition of genocide, piracy, torture, and crimes against humanity. Unlike CIL, which requires consent consent & can be altered by agreement, peremptory norms are always binding even w/o consent, and cannot be conflicted with. The Vienna Convention of the Law of Treaties says if it does, treaty is void. United States v. Smith (pg 138) a. Facts: Smith & others aboard a vessel, vessel, mutinied, confined their their officer, left the vessel, and then seized another vessel. Then they plundered and robbed a Spanish vessel. b. Piracy is is jus cogens, cogens , cut court needs to find out if actions were piracy. To define piracy, court looks at if the crime of piracy is defined by the law of nations to a reasonable certainty. i. Look at works of jurists ii.general usage and practice of nations iii.Judicial iii.Judicial decisions recognizing and enforcing that law c. All define piracy as a robbery robbery upon the sea. Therefore, it it is defined defined by the law of nations nations as such. III. Forbidden Treaties in International Law (Alfred Von Verdross, 1937) (pg 142) a. States, in general, are free to conclude conclude treaties on any subject. However, there are exceptions exceptions - these are jus are jus cogens. cogens. i. Treaty binding a state to reduce its police or its organization of courts ii.Treaty binding a state to reduce its army in such a way to render it defenseless against external attack iii.Binding iii.Binding a state to close its hospitals or schools…or schools…or in other ways to expose its population to distress.
IV. IV. Prosecutor v. Furundzija (pg 148) a. The prohibition prohibition of of torture is imposed imposed upon all states, states, by a peremptory norm norm i. Prohibition Prohibition designed to produce a deterrent deterrent effect - tells all states that this is an absolute value from which no state can deviate ii.Also serves to de-legitimize any type of state legislation that authorizes torture b. There There is a univers universal al jurisdic jurisdiction tion over over torture. torture. i. Individuals that commit torture on behalf of their nation, nation, can be held criminally responsible responsible for torture, either in a foreign state, or in their own (if under a subsequent regime). ii.Any state is entitled to "investigate, prosecute, and punish or extradite individuals accused of torture, who are present in a territory terr itory under their jurisdiction." iii.Rationale iii.Rationale for this: 1. b/c the characte characterr of the crime is so univers universally ally condemn condemned, ed, every state state has a right to prosecute and punish those who participated in their commission 2. Very controversi controversial al propositi proposition, on, which which is being debated debated V. Burden of proof in deciding if peremptory norms exist - The Michael Domingues Case (pg 150) a. Facts: Michael Domingues had been been convicted convicted and sentenced to death in U.S.for two murders committed when he was 16 years old. Domingues brought the case in front of the Inter-American Inter-American Commission of Human Rights which delivered a non-legally binding report. i. Inter-American Inter-American Commission on Human Rights Rights (court of last resort; after SC denied him. US signed onto this) b. Commis Commissio sion's n's holdin holding g i. The Commission concluded that that there was a " jus cogens norm not to impose capital punishment on individuals who committed their crimes when they had not yet reached 18 years of age." ii.Even though US defense is of their persistent objection, b/c it's a preemptive norm, that defense is no good c. How did did they decide decide that that juvenile juvenile death death penalty penalty is a preemp preemptory tory norm? norm? i. UN Convention Convention on the Rights of a Child 1. All but 2 countries had adopted adopted the resolution of Human Rights Rights agreement agreement 2. US only only 1 of 7 countries who who had a practice practice on record record of juvenil juvenile e death penalty 3. US signed signed this, but but didn’t ratify ratify. This means means they don’t don’t have to take affirmative steps, but can't do anything to oppose it. ii.Also looked at American Convention on Human Rights iii.ICCPR - US lodged a reservation to use juvenile death penalty 1. But many countries lodged lodged an objection to this reservation - This proves proves CIL. iv.Geneva Convention v.Practice - not only did countries countrie s sign on to these agreements, this is one thing that countries of the world are following. Since this time, all the other 6 countries had publicly disavowed juvenile death penalty. d. This case not binding, binding, but caused caused a lot of controversy, and in next case of this sort, sort, US Supreme court uses int'l law as persuasive (Roper ( Roper v. Simmons). Simmons ). e. Is the the evidence evidence enough enough to estab establish lish a norm? norm? i. Critics may say this is going going far, considering what other norms norms are about. Does juvenile death penalty rise to the same level? This commission says yes, b/c all nations are signing on. f. How do do we raise raise it to to the leve levell of a preem preempto ptory ry norm? norm? i. Maybe this type of debate should should be brought to a broader broader int'l community, b/c taken into context of a universal norm. g. Possibl Possible e Arguments Arguments for U.S. U.S. to not have juvenil juvenile e death penalty: penalty: i. US has an an obligation obligation b/c of jus jus cogens 1. Although Although can't can't yet be enforce enforced, d, we can say US has has this obliga obligation tion
ii.Foreign developments can and should be persuasive 1. US constitution constitution defines cruel cruel & unusual vaguely, so so we should should look look outside iii.Only look within (domestic law) 1. b/c it should should be worked worked out out in the American American democratic democratic process process
TREATIES IN DOMESTIC COURTS I.
When to invok invoke e treatie treaties s in in U.S. U.S. Courts (domesti (domestically cally)) a. When When it is s self elf-ex -execu ecutin ting g i. Ex.: Treaty Treaty says, “all state parties shall cease using death as a punishment for criminal offenses." ii.If language is specific, mandatory, and doesn’t require further affirmative action by Congress, then it is most likely self-executing. iii.If treaty implicates the supremacy clause, then it is self-executing b. If not self-e self-executing, xecuting, but congress congress has taken taken additional additional steps and implemented implemented laws c. Use Use treat treaties ies as evid evidenc ence e of CIL d. How do we differentiate btwn self-execu self-executing ting and non-self-executi non-self-executing ng treaties? treaties? i. Intent Intent ii.Was the treaty urging in nature? Was it just setting goals for states to implement? iii.Whether or not the treaty requires affirmative implementation. 1. if so, can’t can’t rely on treaty, treaty, you have have to wait wait for laws to be implement implemented ed by the gov't 2. Look at treaty treaty & see if it specifi specificall cally y mentions mentions a ratificatio ratification n process process II. Provisi Provisions ons within within the US constitut constitution ion that address address treaty treaty making making a. Article Article VI of the Consti Constitutio tution: n: Supremac Supremacy y Clause Clause i. The Supremacy Clause establishes establishes the Constitution, Federal Federal Statutes, and U.S. treaties as "the supreme law of the land." All states are bound by the supreme law. *If self-executing self-executing ii.However, doesn’t give a hierarchy - which trumps which btwn US constitution, treaty law, and legislation? b. Article II (§2) - gives executive executive power to enter treaties, with with the advise advise and consent of the senate c. Article Article III (§2) (§2) - gives gives courts courts the the power power to enforce enforce treat treaty y law d. Article Article I (§1) - forbid forbids s states from from enterin entering g into treatie treaties s III. A treaty is Self-Executing Self-Executing when it operates of itself without the aid of legislation. l egislation. a. Foster & Elam v. Neilson (pg 180) *Landmark case i. Facts: Treaty Treaty btwn U.S. & Spain alleged allege d to give the King of Spain power po wer to grant gran t title to land even after U.S. took control. Language says that such a grant “shall be ratified and confirmed.” confirmed.” Pl says therefore, the the land in dispute in LA is his. [now called self-executing self-executing treaties] treaties] - A treaty operates of itself without the aid of any legislation, state or national; and it will be applied and given authoritative effect by the courts. iii.This is not a self-execu self-executing ting treaty b/c the text of the treaty specifically mentions the ratification process. process. Therefore, Pl can’t can’t rely on it until it’s ratified and and implemented by Congress. iv. iv.Dualist system of law 1. In the int’l int’l realm realm of law - where where US has has made an an agreement agreement with with Spain Spain a. May be brought brought in int’l int’l court court if treaty treaty provisions provisions say say this, and and state consented 2. On the other other hand, hand, in the domestic domestic realm realm - domestical domestically, ly, the treaty treaty doesn’t doesn’t become law until it is ratified and implemented domestically. domestically. IV. IV. A treaty trumps state law because of US constitution Art. VI (2), supremacy clause Asakura v. City of Seattle (pg 183)
Facts: Asakura, Japanese, J apanese, working wo rking as a s a pawnbroker. City passes an ordinance that requires pawnbrokers pawnbrokers to have a license, & that to get the license, you must be U.S. U .S. citizen. This violated a treaty btwn Japan & U.S. that said Japanese citizens could run businesses in the US, or anything else necessary for trade upon the same terms as native citizens, and that they shall receive protection. ii.Treaty trumps state law because of US constitution Art. VI (2), supremacy clause, which says that treaties made by U.S. “shall be the supreme law of the land.” *Only if treaty is self-executing. a. Test: the treaty has effect without without congress congress needing needing to pass legislation, legislation, because it only asks that we refrain from discriminating. It doesn’t require for congress to take any additional steps to affirm it. Therefore, treaty executes itself. A treaty does not automatically supersede local laws which are inconsistent with it unless the treaty provisions are self-executing. Sei Fuji v. California (pg 186) Facts: Fuji, Japanese, bought boug ht land that escheated esc heated to the state of o f CA (CA alien land la nd lawaimed at preventing ownership of land by Asian nationals). Fuji says CA alien land law is trumped by the UN Charter (treaty). ii.A treaty does not automatically supersede local laws which are inconsistent with it unless the treaty provisions are self-executing. 1. In determining determining whether whether a treaty is self-executi self-executing, ng, courts look at: a. The intent intent of the signator signatory y parties parties as manifested manifested by by the language language of the instrument b. If instrumen instrumentt is uncertain, uncertain, look at circumsta circumstances nces surrou surroundin nding g its execution. UN Charter not self-execut self-executing ing - it is merely m erely aspirational, forward-looking in nature. Therefore, it doesn’t trump CA alien land law. iii.However, the CA alien land law was found invalid b/c it violated the 14 amendment. VI. A treaty cannot violate the Constitution Missouri v. Holland (pg Holland (pg 191) Facts: This case ca se is regarding regardin g the ability abil ity to enforce the Migratory Migrat ory Bird Treaty,which protects certain species species of endangered birds. birds. The State of Missouri brought brought the suit to prevent its enforcement b/c it would be in violation of the 10th Amendment which says, "The powers not delegated to the US by the Constitution, nor prohibited by it to the states, are reserved to the states." A treaty cannot violate the Constitution Constitution (We imply that constitution is highest law in the land) Missouri says birds are in state’s possession, so they have a right to regulate them. SC previously said the state has exclusive domain over the birds. So, 10 th amendment kicks in. iii.But, what’s changed now is that there is a treaty, and the treaty trumps. How? 1. Birds Birds are transitor transitory, y, so no one state state has possess possession ion as state state claims. claims. a. There There is a national national interest interest in protecti protection on of the birds, birds, and it is not not sufficient to rely on the states – the U.S. has to come in. 2. Supremacy Supremacy Clause Clause gives gives power power for treaties treaties to trump state state laws. laws. iv.Executive branch has authority under Constitution to execute treaties (Art 2, Sec 2) Critique – If fed wants to trump state law, all they have to do is create a treaty. But not that easy. a. Executi Executive ve branch doesn’ doesn’tt have unlimited unlimited power to enter enter into treaties. treaties. Only when it does have the power to enact treaties, then the treaty will trump state law. VII.Congress VII. Congress has the power to preempt state law, either by an express of implied provision for preemption.
Crosby v. National Foreign Trade Council (pg 194) Facts: MA enacts enact s an act that bars b ars state entities en tities from buying bu ying goods & services ser vices from any person doing business business with Burma. Then, Congress passed passed a statute of the same nature, but with conflicting terms (imposes sanctions, but conditional, in order to compel Burma to improve human rights practices – not as harsh). Corporation says MA law invalid b/c it conflicts with fed law, and fed law trumps state law. Congress has the power to preempt state law, either by an express of implied provision for preemption. 1. Express preemption – where provision explicitly states that it preempts preempts state law 2. Implicit preemption – state must must still yield to fed in 2 circumstances: circumstances: a. When congr congress ess intends intends to occupy/m occupy/monop onopoliz olize e the entire entire field b. State State law is naturally naturally preemp preempted ted to the extent extent of any confli conflict ct with a federal statute. Court said Congress said that the MA law undermined the intended purpose and 'natural effect' of at provisions of the federal Act. State act stands in the way of Congress’ objectives VIII.In VIII.In the case of a conflict btwn a federal statute and a treaty, the one last in date will control Whitney v. Robertson (pg 202) Facts: Treaty btwn US and San S an Domingo provided prov ided that San Domingo D omingo gets get s most favored nation treatment to imports. Most favored was treaty btwn US & Hawaii, where certain goods exempts from duty-collection. Merchants made to pay duty on the goods, and the collector at the port argued he treated the goods as dutiable under the acts of Congress. Both self-executing treaties and acts of Congress are considered supreme laws of the land, and both should have effect. When they conflict with each other, "the one last in date will control control the other." other." Since the acts of Congress were were dated last, last, they control. If the country with which the treaty is made is dissatisfied with the action of the US legislative dept, then they may present a complaint to the executive head of the govt. Dualism – domestic vs. international obligations i. Domestically, we care care about checks and balances, balances, that treaty no longer has any effect ii.But in international realm, this is a problem, b/c we are not honoring the treaty with Dominican Republic. Breaching treaty - can be taken to ICJ, etc. Power over foreign affairs is exclusive to the federal government (especially executive branch) United States v. Belmont (pg Belmont (pg 204) Facts: Russian corp deposited deposit ed money with wi th NY bank. Soviet So viet nationalized nationa lized corp cor p assets, and then wanted that money from the bank, but banker refused (illegitimate confiscation against NY public policy). Executive agreement btwn US and Soviet, where Soviet will not enforce any claims against US nationals, and US will handle issues. Banker says it would be contrary to NY public policy to enforce. Fed law trumps state law; the govt has exclusive power over foreign affairs. Here it was an executive agreement (President only). Court is interpreting “treaties” in the supremacy clause to include executive agreements. 1. This is is diff from from other cases, cases, which which had to do with with Art II treaties treaties (w/ congressional congressional advice & consent). United States v. Curtiss-Wright (pg 208) Facts: Curtiss conspired conspire d to sell arms of war to Bolivia Boliv ia (involved in Chaco Chac o War), in violation of the Joint Resolution Resolution of Congress that gave President broad authority in prohibiting this. Curtiss argued that it’s unconstitutional unconstitutional b/c Congress has power to regulate commerce, and they can’t delegate that power to the Pres in such broad discretion. ii.Constitution ii.Constitution implicitly grants power to President to conduct foreign affairs. Executive has power to conduct foreign affairs in a way that Congress can’t.
1. Non-deleg Non-delegation ation doctrine doctrine (stems (stems from from separation separation of powers) powers) – it doesn’t apply here b/c this is a matter of foreign affairs. 2. Public Policy Policy – we we need on unified voice for foreign affairs, so better for executive executive to do that, rather than senate, who represent the states. Also custom in our country for Pres to do this. Dames & Moore v. Regan (pg 215) Facts: Terrorist activities acti vities in Iran against aga inst U.S. embassy embas sy & citizens held hostage. host age. Dames later files suit against Iranian govt, corps, & banks for a business contract breach, and gets a judgment. American hostages released pursuant to an agreement w/ Iran that nullified rights to Iranian assets & suspended all claims, preventing enforcement enforcement of Dames’ judgment, and he tries to prevent it, saying Pres doesn’t have this authority. ii.The Youngstown case limited the power of the President to seize private property in the absence of either specifically enumerated authority authority under Art II of the Constitution or statutory authority conferred on him by Congress. 3 prong test to determine if Pres’ actions constitutional: constitutional: 1. Pres & Congress in agreement - If yes, then strong presumption that Pres’ Pres’ actions are constitutional 2. Congress Congress is silen silentt - muddy. muddy. Court may look look at practice. practice. 3. Disagreement Disagreement - Pres Pres may have have overstepped his authority; authority; Pres has burden burden to prove otherwise iii.Court held that the executive agreement was valid 1. The IEEPA IEEPA (Int’l Emergency Economic Economic Powers Powers Act) Act) authorized authorized the President to nullify rights to Iranian assets & to transfer Iranian assets. a. Falls under Youngstown’s oungstown’s 1st category – Pres Pres & Congress Congress in agreement. b. Therefore, there’s a heavy presumption presumption that the exec agreement is valid. 2. IEEPA does not not speak about about issue issue of termination of litigation/arbitration litigation/arbitration Congress is silent here (2 nd category) i. Looks at practice - has Congress Congress been a persistent objector? objector? No. President has done this in the past and Congress has acquiesced (agree (agree to something something passively). Implicit consent here.
CUSTOMARY INT’L LAW IN DOMESTIC COURTS I.
Law Law of Nat Natio ions ns & Dome Domest stic ic Cou Court rts s a. Law of Nation Nations s is a contes contested ted term. term. Now we use CIL CIL and Genera Generall principle principles, s, and and jus cogens. II. Respublica v. De Longchamps (pg 227) a. Facts: Longchamps, French national charged with violating the int’l law protecting diplomats, by insulting and assaulting (by hitting his cane) the French consul-general in his residence. b. Court says says we need need to look look at the law law of nations nations (not (not domestic domestic law): law): i. Int’l law on diplomats diplomats - Forei Foreign gn diplomat diplomats s have immun immunity ity and and certain certain rights rights I. Protectio Protection n of minist minister er is very very important. important. Longchamp Longchamps s violated violated the law law of nations. c. French govt govt asks U.S. U.S. for Longchamps Longchamps to be be brought to France France for trial, and court, looking looking at law of nations says we won’t send him back to France. i. Punishm Punishment ent has has to be be inflicte inflicted d in the the same same country country he he is tried tried in in ii. But, U.S. U.S. says they won’t won’t imprison imprison him him unless unless France France says says it’s ok. ok. Amerada Hess v. Argentine Republic (pg 232)
a. Facts: War btwn btwn UK & Argentina, so to protect protect U.S. interests, interests, they were given a list of neutral vessels passing through the area, so they wouldn’t be attacked. Hess gets attacked by Argentine aircraft, aircraft, & vessel is destroyed. Pl sues for the destroyed vessel in U.S. court. b. U.S. Jurisdiction Jurisdiction over Argentina Argentina – via Alien Tort Statute (for tort civil civil action in violation violation of law of nations) c. Court says Argentina Argentina violated international international law. law. Very Very strong evidence of CIL here. i. Elements Elements of CIL - Practic Practice e (objecti (objective) ve) & Opinion Opinion juris juris (subject (subjective; ive; psychol psychologic ogical) al) I. Decl Declar arat atio ion n of Paris aris (185 (1856) 6) II. Geneva Geneva Conven Convention tion of the the High Seas (1958) (1958) III. Law of Sea Convention (1982) - Argentina signed on ii. 2 statutes (Alien tort tort statute & Foreign Foreign Sovereign Immunities Act) Act) incorporate CIL United States v. Alvarez-Machain (pg 236) Facts: Machain (Mexican) was allegedly involved in murder of U.S. DEA agent by prolonging prolonging his life so others could torture him. After Mexico denied U.S. extradition, they kidnapped him from Mexico to Texas for trial. Machain says kidnapping violates the Extradition Treaty btwn U.S. & Mexico. It doesn’t. Treaty silent on parties’ obligations to refrain from abducting ppl or consequences consequences of it. All treaty says is that neither party is bound to deliver upon the other its own nationals – at each country’s discretion. c. Machain Machain says this this is in violation violation of CIL CIL (U.S. says says kidnappin kidnapping g was legal) legal) i. Court ignor ignores es CIL. CIL. Says abduc abduction tion may may be shockin shocking g & violate violate CIL, CIL, but but we have have to go by the treaty. d. What does this this case case say about about releva relevance nce of CIL? CIL? i. Debate Debate on whethe whetherr CIL should should be be incorporat incorporated ed into into domestic domestic law, law, and and effect effect of treaties. ii. Maybe use use CIL as a gap-filler gap-filler here, here, where the the treaty was was silent silent on this issue issue..
COMPARATIVE & INT’L LAW AS PERSUASIVE AUTHORITY I.
Should Should US courts courts ever cite cite int'l int'l and comparat comparative ive law as persuasive persuasive sourc sources? es? If so, when? when? a. When there’s there’s a gap in our our domesti domestic c law b. Text/purpose of of the provision (the reasoning reasoning behind behind it) c. To asses assess s assu assumpt mption ions s II. How should should U.S. U.S. use use int’l law law as persuasi persuasive ve authority authority? ? a. As persua persuasive sive authority authority (not binding) binding) b. Look at at the reasoning/logic reasoning/logic behind behind it. If reasoning reasoning is is persuasive, persuasive, it's a stronger argument to use int'l law c. Consensus among UK & other Peers Peers – makes makes sense to use this, this, b/c law law is similar similar i. Also look at states that are culturally different (an overlapping overlapping consensus makes it more persuasive) Sosa v. Alvarez-Machain (details above) (pg 245) a. Overview: Court refused to look at CIL; looked looked at treaty only. only. So when can we look at CIL? b. Court takes takes CIL CIL into considera consideration tion b/c ATS ATS says to do this. this. i. ATS says "the courts shall gave original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the US." 1. Court looks at legislative legislative history, history, and it’s pretty clear clear drafters intended it to have immediate substantive substantive effect, not just procedural. procedural. But it will only be applied substantively substantively to a limited, narrow set of claims. c. So what what violatio violations ns of CIL CIL should should be covere covered d by ATS? ATS? i. ATS not limited to only piracy, torture, torture, etc., but they will open the door to new claims very narrowly.
ii.TEST: We think courts should require any claim based on the present-day law of nations rest on a norm of international character accepted by the civilized world and defined with specificity comparable to the features of the 18th century. century. d. Alvarez's abduction doesn’t doesn’t satisfy satisfy this test test there has to be specificity, specificity, & abduction abduction doesn’t have that specificity. Court looks at treatises, what other countries are doing, etc. Want to see if norm is specific enough. It's not. IV. IV. Lawrence v. Texas (not in casebook) a. Facts: Pl found having homosexual sex, and found guilty guilty in violation of a Texas Texas sodomy law. Pl saying statute is unconstitutional. b. Supreme Court finds finds that the the law is unconstitutional unconstitutional b/c it violates liberty liberty (a constitutional constitutional right) and substantive substantive due process. Individuals have have liberty for what they do in private. Legislature Legislature doesn’t have a right to trump that liberty. All gov't offered was a morality issue. This morality does not trump liberty. Overruled previous decision (Bowers) Bowers) that upheld the constitutionality of sodomy laws. c. How did it cite cite forei foreign gn int' int'll law? law? i. Cited European court of human rights 1. Holding Holding was was authorit authoritative ative in Europe Europe - 45 natio nations ns ii.Cited a recommendation to British Parliament Parliament rejecting Bowers iii.Countries more broadly have rejected the norm in Bowers 1. Shows Shows a trend from from invading invading personal personal sexual sexual lives lives & allowing allowing them them to do whatever they want within the privacy of their own homes. Roper v. Simmons (not in casebook) Facts: Simmons Simmo ns committed comm itted murder m urder when whe n he was w as 17 , found guilty. guilty. Majority decides juvenile death penalty is unconstitutional. i. How does the court determine determine whether a punishment is cruel cruel or unusual? 1. "Evolv "Evolving ing stan standar dards ds of decenc decency" y" a. We’re now now recogniz recognizing ing the comparat comparative ive immaturit immaturity y and irresponsibility irresponsibility of adolescents (we don’t allow them to vote, etc.). More vulnerable to outside pressure, p ressure, and have less control. 2. To determine determine this, look at pattern among among Nat'l jurisdictions. jurisdictions. a. Nat’l conse consensus nsus – trend trend that that U.S. U.S. states states are abolish abolishing ing it 3. Also looked looked to theories of punishment, punishment, including including principle of of proportionality proportionality ii.What role did int'l law play here? 1. Only country that still executes juveniles. What What role does this play in the opinion? a. Looking Looking abroad abroad confirm confirms s court's court's conclusi conclusion on on what is decent decent and and what is not. b. Look at UK - shared shared history history & law derived derived from from theirs, theirs, so particularl particularly y persuasive c. Majority Majority opinion opinion looks looks at at broad pattern patterns, s, cites cites treaties treaties.. iii.Should we cite int'l courts? 1. Other Other nations nations cite Supreme Supreme Court, Court, so a policy policy argument argument made made that we should in return. Dissent Disse nt (Scalia) (Sca lia) i. Saying it’s ok to cite cite int’l law, but the manner in which which court is citing the persuasive authority authority is problematic. He questioned the relevance relevance of foreign law, law, as well as accusing court of only invoking the laws that are in support of what they believe. Also says we don’t don’t have a consistent pattern pattern of when to look abroad. If we did we would have to overturn American law that’s diff from the rest of the world. Cruel & unusual - Is it specific to our country or is it something common to humanity more broadly. broadly. Some issues are uniquely American. Can we actually actuall y answer this question of uniquely American norms, by looking at int'l patterns?
Foreign Law and the th e Modern Mode rn Ius Iu s Gentium Gen tium, Jeremy Waldron (not in casebook) a. Should Should judges judges ever cite int'l law law as persuasive persuasive authority authority? ? [opinion [opinion question] question]
i. Judges may want to so they can adhere adhere to int'l standards ii.Maybe if the reasoning is very logical, and makes a lot of sense iii.Very iii.Very beneficial to look outside - they may have more modern ideas. Jeremy Waldron's Waldron's analogy - talks about scientists dealing with experiments. If another lab has conducted an experiment, why not use the results? Will help develop new things, like new drugs, or treatments. Waldron points out - justices disagree, and neither party has offered a very comprehensive comprehensive theory as to why they are correct. There’s a lot of scholarship, but no conclusion.
INT’L HUMAN RIGHTS LAW I.
Background I. Ph Phil ilos osop ophy hy fro from m long long tim time e ago ago II. Rapid Rapid developme development nt after WWII WWII - to prevent prevent atrocitie atrocities s of the war R ights s Institut Inst itutions ions,, etc. II. Human Right I. Universal Universal Declaratio Declaration n on Human Rights Rights (UDHR) (UDHR) i. Non-binding, Non-binding, aspirational declaration. Very Very universal declaration. ii.U.S. signed it, and states started implementing binding treaties to bind the goals. iii.There are 2 optional protocols (states start implemented these as binding): 1. Internat International ional Conven Convention tion on Civil Civil and Political Political Rights Rights (ICCPR) (ICCPR) 2. Internat International ional Covenan Covenantt on Economic, Economic, Social Social and Cultural Cultural Rights (ICESCR) (ICESCR) II. UN Inst Instit itut utio ions ns i. UN Human Rights Council 1. Criticized - their opinions too short, short, brief (lacking authority; not persuasive). persuasive). a. Not very very wide widely ly follow followed. ed. 2. Quasi-po Quasi-politi litical cal body that that addresses addresses human human rights violati violations ons a. Representa epresentatives tives allocated allocated among the the states states b. Get togethe togetherr and deliberat deliberate e on public public policy policy issue issues s c. Issue Issue repo reports rts of regi regiona onall proble problems ms d. Now more more checks and and balances, balances, so states states with with bad human human rights don’t get power 3. Special Rapporteurs - Experts hired as volunteers volunteers (professors) (professors) who are are tasked with fact-finding and writing reports ii.Human Rights treaty bodies (one of which is the Human Rights Committee) Committ ee) 1. The human human rights treaty treaty bodies bodies are committees committees of indepen independent dent experts experts that monitor implementation of the core international human rights treaties. 2. The treaty treaty bodies bodies perform perform a number number of functions functions in accor accordanc dance e with the provisions provisions of the treaties that created them. 3. Decisi Decisions ons;; Periodi Periodic c reports reports 4. Commentato Commentators rs have given given more more respect respect to treaty treaty bodies bodies 5. UN quasi-judicial quasi-judicial body with impartial juries juries that are experts experts in applying the law a. Tribun ribunal al of las lastt resor resortt 6. Committee is is tasked tasked with interpreting the ICCPR and issuing issuing judgments judgments (goals much narrower in scope than council). 7. Art 41 of ICCPR ICCPR gave committee committee jurisd jurisdictio iction n to hear claims claims brought brought btwn btwn states a. However, However, this this has never never happened. happened. No No state has has ever brough broughtt a claim against another state iii.High iii. High Commissioner Commissi oner on human huma n rights righ ts (OHCHR) (OHC HR) 1. Principl Principle e Human Human rights rights official official of UN UN 2. Oversees Oversees work work of UNHRC UNHRC and treaty treaty bodies bodies
III. III . Cultural Cult ural relativis relat ivism m I. Norms Norms are cultura culturally lly specif specific, ic, so laws laws that deal deal with with norms shoul should d also be cultu culturally rally specific II. Issues Issues deali dealing ng with with cultu cultural ral relat relativis ivism: m: i. Female Female circumcision - (Africa) (Africa) ii.Women under Sharia (Islamic law) iii.Communitarianism iii.Communitarianism in Confucian societies societies - philosophy that put community community before the individual III. Defense - very culturally culturally important as a tradition, tradition, and these these cultures should should be free to practice their traditions i. How can we have universal human rights, rights, if cultures are are so different? ii.However, there some values that transcend cultural boundaries - jus cogens The Normative and Institutional Evolution of Int'l Human Rights, Thomas Buergenthal (pg 378) I. Introduc Introduction tion – UN Charter Charter laid laid foundati foundation on for modern modern int’l human human rights rights law II. Stage Stage One: One: The The normative normative foundati foundation on i. Begins with UN charter charter and continues to 1966 (int'l covenants covenants on human rights) ii.States got together and drafted docs that enshrined the normative ideas III. Stage Stage two: Instituti Institution on Building Building i. During During this time time UN: 1. Focused Focused on nature and and scope scope of human human rights rights obligations obligations imposed on member states 2. Then begins begins to creat create e instituti institutions ons and and mechani mechanisms sms to enforce enforce IV. IV. Stage Three: Implementation Implementation in the Post Cold War War Era i. Progress Progress to enforce; institutions institutions becoming stronger ii.How do we implement these institutions? How do we make them work? Damian Thomas v. Jamaica (pg 381) Facts: Thomas was 15 when he was arrested arreste d for 2 murders, put in jail jai l among adults, not represented represented by counsel, and brutalized by wardens. II. Goes to UN Human Rights Rights Committee – Treaty Treaty is the ICCPR, optional optional protocol protocol 1 i. Since Jamaica had signed on to the optional protocol, they recognized recognized that the Committee was competent to determine whether there was a violation of the covenant (which there was). Jamaica has since denounced the optional protocol of the ICCPR. i. Troublesome roublesome - fear that other countries in the Caribbean will also do this VI. The Sunday Times Case (pg 390) I. Facts: Sedative given to pregnant women discovered to lead to deformities deformities in fetus, fetus, taken off the market; there were lawsuits. Sunday Times wanted to publish negative articles about the company. Injunction against publishing finally granted b/c it would prejudice the tribunal, and justice (lawsuit active). II. ECHR found that the injunction injunction constituted constituted a breach of Art 10 of the Convention Convention - right to freedom of speech w/o interference by public authorities. Court said that although injunction prescribed prescribed by law and for the purpose of maintaining the authority of the judiciary, the restriction was not justified by a 'pressing social need' and could not therefore be regarded as 'necessary' within the meaning of Article 10(2). III. Criticism of UK UK ceding its authority authority to ECHR - saying ECHR went too far. far. IV. IV. Why do you think the ECHR has evolved in this this fashion while ICCPR ICCPR has not? More persuasive? VII.The VII. The Soering Case (pg 403) I. Facts: German national living in U.S. commits murder in U.S., and flees to England. U.S. sought extradition, on basis of a treaty. II. Soering says says extradition extradition would would violate ECHR b/c no no assurances assurances that death penalty penalty won’t be carried out (conditions (conditions on death row violates violates Art 3). Soering had also filed a claim claim with the ECHR on same thing.
III. The Commission Commission held held that the the wait on death row was unacceptable. Confinement itself is bad enough, but the psychological effects and contact with other death-row types would be too degrading for this kid, so the U.K. U.K. was not required to extradite extradite him to the U.S. On these factors, they decided it was a disproportionate punishment punishment IV. IV. Court agrees extradition extradition can violate Art 3, but disagrees disagrees on these facts. Soering was was ultimately tried in Virginia, but not given death penalty (jury recommended he serve 2 life terms)
INT’L CRIMINAL LAW I.
Major Major substantive substantive crimes crimes prosecute prosecuted d at int'l level (outline (outlined d in Nuremberg Nuremberg Trial Trials) s) (pg 418) a. War cri crimes mes b. Crimes Crimes against against human humanity ity c. Genocide Genocide - someti sometimes mes lumped lumped with with crimes crimes agains againstt humanity humanity i. In Rome Rome statute, it is separated d. Tortu orturre e. Crimes Crimes again against st peace peace / aggre aggressi ssion on i. Aggression Aggression - ICC currently doesn’t deal with it - ppl who drafted Rome Statute has not yet come up for a definition for aggression Rome Treaty Treaty – Established Establish ed the ICC (int criminal cr iminal court) court ) a. US did not join, they they lobbied to amend the the proposed treaty in order to reduce reduce the power of the ICC b. ICC has jurisd jurisd only over the most most serious crimes of concern to the int int community as a whole c. Why the the ICC? ICC? d. Basis Basis of of juris jurisdic dictio tion n for for ICC i. Who can refer cases to ICC? 1. Stat State e par parti ties es 2. Indepe Independe ndent nt prose prosecu cutor tor 3. UN sec secur urit ity y coun counci cill ii.Subject needs to pass certain tests: 1. Nation Nationali ality ty of memb member er state states s 2. Territorial erritoriality ity of occurrenc occurrence e must be of a member state e. ICC ICC and and the the US i. Will the the ICC ever be acceptable to the US? 1. Rome statute - US US signed on but acknowledged acknowledged that that there are are problems problems with it a. ICC is is an instituti institution on of unchecke unchecked d power power b. Threatens Threatens the sovereign sovereignty ty of of the the US c. ICC will will complicate complicate US military military cooperat cooperation ion with with friends friends and allies allies ii.What would you you look at if advising in regards to US membership membership to Rome Statute: 1. Consent Consent - we didn’t didn’t consent consent to court so why why should should we be prosecute prosecuted d in court if on a party state's territory a. One of the the principle principle objectio objections ns to the ICC ICC is that that is it empowere empowered d to exercise exercise jurisd over US nationals even thought the US has not become a party to the Rome Treaty 2. Unbridle Unbridled d jurisdicti jurisdiction on of the Chief Prosecu Prosecutor tor (He’s not not accountable accountable to anyone) a. Pre-t Pre-tria riall juris jurisdic dictio tion n b. Test for for a reasonab reasonable le basis basis i. Substantive due process process rights ii.Procedural ii.Procedural due process rights c. Exerc Exercis ise e self self-re -restr strain aintt
i. Body is not going to go around around picking political political fights for no reason d. Prosecu Prosecutor tor can can be remove removed d by majori majority ty vote vote i. Offers more assurance; assurance; procedural procedural check e. Comp Comple leme ment ntar arit ity y i. ICC may only exercise jurisdiction jurisdiction if a good faith prosecution not carried out by the accused state. May solve territoriality issue. f. Secu ecurit rity cou council ncil i. Can exercise exercise a check saying don’t don’t pursue this iii.How would you amend and improve the Rome statute? 1. Condition: say that we don’t like this territoriality territoriality principle; principle; we won’t sign sign on unless the rest of the world gets rid of that basis for jurisdiction 2. Gary Solis Solis argues argues that that there already already are checks checks & balances balances in in place f. Amnesty Amnesty - solution solution to to the problem problem of mass mass atrocit atrocities; ies; justic justice e is traded traded for peace peace i. Principle justifications: justifications: 1. Societ Societies ies eage eagerr to end end a confli conflict ct 2. In mass cases, it it is unclear whether whether imposing imposing individual individual responsibility responsibility is a viable strategy ii.Legal issue - many people think it’s illegal for int'l, legal for intranational iii.Usually iii.Usually its conditional - like speak the truth iv.Can iv.Can be good and quick for healing when combined with truth commissions 1. Another Another mechanis mechanism m for pursuing pursuing accountabi accountability lity for atrociti atrocities es 2. Quasi-jud Quasi-judicia iciall body establish established ed to investigate investigate atrociti atrocities es Why Why wou would ld you you go go to ICC? ICC? Why Why not? not? Lack of domestic Local legitimacy infrastructure Exp Experti ertis se of of in int'l t'l jur juris istts Bett Better er unders erstandi anding ng of fac facts in local ocal cont conte ext Legitimacy Reinforce sovereignty & show world that you have a strong rule of law system Avoiding "Victor's justice" g. Basis Basis of of juris jurisdic dictio tion n for for ICC i. Who can refer cases to ICC? 1. Stat State e par parti ties es 2. Indepe Independe ndent nt prose prosecu cutor tor 3. UN sec secur urit ity y coun counci cill ii.Subject needs to pass certain tests: 1. Nation Nationali ality ty of memb member er state states s 2. Territorial erritoriality ity of occurrenc occurrence e must be of a member state h. ICC ICC and and the the US US i. Will the the ICC ever be acceptable to the US? 1. Rome statute - US US signed on but acknowledged acknowledged that that there are are problems problems with it a. ICC is is an instituti institution on of unchecke unchecked d power power b. Threatens Threatens the sovereign sovereignty ty of of the the US c. ICC will will complicate complicate US military military cooperat cooperation ion with with friends friends and allies allies ii.What would you you look at if advising in regards to US membership membership to Rome Statute: 1. Consent Consent - we didn’t didn’t consent consent to court so why why should should we be prosecute prosecuted d in court if on a party state's territory a. One of the the principle principle objectio objections ns to the ICC ICC is that that is it empowere empowered d to exercise exercise jurisd over US nationals even thought the US has not become a party to the Rome Treaty 2. Unbridle Unbridled d jurisdicti jurisdiction on of the Chief Prosecu Prosecutor tor (He’s not not accountable accountable to anyone)
i.
a. Pre-t Pre-tria riall juris jurisdic dictio tion n b. Test for for a reasonab reasonable le basis basis i. Substantive due process process rights ii.Procedural ii.Procedural due process rights c. Exerc Exercis ise e self self-re -restr strain aintt i. Body is not going to go around around picking political political fights for no reason d. Prosecu Prosecutor tor can can be remove removed d by majori majority ty vote vote i. Offers more assurance; assurance; procedural procedural check e. Comp Comple leme ment ntar arit ity y i. ICC may only exercise jurisdiction jurisdiction if a good faith prosecution not carried out by the accused state. May solve territoriality issue. f. Secu ecurit rity cou council ncil i. Can exercise exercise a check saying don’t don’t pursue this iii.How would you amend and improve the Rome statute? 1. Condition: say that we don’t like this territoriality territoriality principle; principle; we won’t sign sign on unless the rest of the world gets rid of that basis for jurisdiction 2. Gary Solis Solis argues argues that that there already already are checks checks & balances balances in in place Amnesty Amnesty - solution solution to to the problem problem of mass mass atrocit atrocities; ies; justic justice e is traded traded for peace peace i. Principle justifications: justifications: 1. Societ Societies ies eage eagerr to end end a confli conflict ct 2. In mass cases, it it is unclear whether whether imposing imposing individual individual responsibility responsibility is a viable strategy ii.Legal issue - many people think it’s illegal for int'l, legal for intranational iii.Usually iii.Usually its conditional - like speak the truth iv.Can iv.Can be good and quick for healing when combined with truth commissions 1. Another Another mechanis mechanism m for pursuing pursuing accountabi accountability lity for atrociti atrocities es 2. Quasi-jud Quasi-judicia iciall body establish established ed to investigate investigate atrociti atrocities es
INT’L INT ’L ENVIRO ENV IRONME NMENTAL NTAL LAW I. State Responsibility Responsibili ty and the Development of Int'l Environmental Law The Trail Smelter Case (pg 623) Facts: Smelter in Canada; US alleged the fumes from smelter sme lter caused cause d nuisance in Washington state. Tribunal set up to try the case, which exists per U.S.-Canada Convention, to resolve disputes. ii.Relevant Law here – CIL and U.S. law 1. Tribunal ribunal relied relied heavily heavily on US US law. law. No relevant CIL decisions decisions (no other cases like it in an int’l int’l tribunal) b/c of the US-Canadian convention convention c. US law is particu particularly larly fitting fitting - many analog analogous ous cases cases (intrastat (intrastate e cases) cases) 2. Also look looked ed at Stockholm Stockholm declarat declaration ion and Rio Rio declaratio declaration n ( below) below) iii.Smelter found liable for nuisance. Now what? 1. Figure igure out damages. damages. How much much would would Smelter owe owe for pollution pollution.. 2. Going forward, can there there be some type type of injunction. If they they know know of of these these risks and conditions, Trail Smelter has to refrain from these activities 3. Tribunal established established checks checks on what what Trail Trail Smelter was doing iv.Very seminal case - established basic principle of int'l law 1. State has right to use use resources resources how it it wants, but but has to stop when it starts infringing on rights of other states to use the environment. II. Examples of “soft-law” – these declarations are not legally binding (but still is CIL) a. Stockholm Declaration of the United Nations Conference on the Human H uman Environment (pg 632)
b.
III. More a.
b.
i. discharge of toxic toxic substances will be done in a way so that they are harmless to the environment ii.States can do whatever they want with their th eir environmental policies, as long as they don’t damage other states or any natural areas outside of the boundaries of the state iii.states will cooperate to further int'l environmental law Rio Declaration on Environment and Development (pg 632) i. humans are #1 priority, and and entitled to live healthy and w/ nature nature ii.States can do whatever they want with their th eir environmental policies, as long as they don’t damage other states or any natural areas outside of the boundaries of the state iii.states will cooperate to further int'l environmental law & develop own national environmental environmental law iv.states should discourage and prevent activities & substances that are harmful to health v.States should notify int'l community of natural disasters/emergencies that might affect other states vi.states should tell others states info about things that might harm other states (transboundary (transboundary environmental effect) on International Internatio nal Environmental Environmen tal Law Request for an Examination of the Situation in the Nuclear Tests Case (pg 635) i. Facts: acts: New Zealand asked the ICJ to rule on the legality of French underground nuclear testing on islands islands in the Pacific. Pacific. CJ said no jurisdiction. jurisdiction. ii.Dissent – Says court has a duty to listen. Discusses principles prin ciples of Stockholm Declaration - that int'l community is responsible for making sure there are no harmful things being placed into the environment. 1. State State responsib responsibilit ility y (like in Trail Trail Smelter Smelter case) case) 2. Preca Precauti ution onary ary prin princi ciple ple a. There There is a big emphasis emphasis in int'l int'l law on preventi preventing ng pollutio pollution, n, rather rather than letting it happen then trying to stop it b. Burden is placed placed when there is a significant significant risk of pollution, pollution, on party that wants to engage in the dangerous activity, to assess how much damage would occur, and to prove that it is justified. 3. Proce Procedur dural al guaran guarantee tees s a. Like Like impact impact assess assessment ment - a burden burden on sharin sharing g informati information, on, and and assessing environmental damage to prevent Protection of the Stratospheric Ozone Layer and the Structure of Int'l Environmental Lawmaking,, David D. Caron (pg 643) Lawmaking i. Ozone Ozone depletion depletion 1. Vienna - Framework principle - sets the framework by establishing the fundamental principles, and nebulous abstract goals 2. Montreal - More specific, specific, by setting up up Deduction rate, timetable, and a secretariat 3. London - Even more specific, with phase out of all CFC's ii.Challenges ii.Challenges to Int'l env law 1. Conditions and technology technology always always evolving. evolving. How do lawmakers lawmakers take take this into consideration when creating treaties? a. Write Write in provisi provisions ons that that deal with with changes changes that they they foresaw foresaw (Montreal) b. Amen mendmen dments ts - Usually to change a treaty, you go through an amendment process c. Adjus justmen tments ts - Give a legislative status to the regime d. (Montreal) set up scientific, periodic meetings, meetings, where scientists would assess the situation iii.How do we monitor compliance?
1. "Carr "Carrots ots and sti sticks cks"" 2. Giving Giving money money and technolo technology gy to states states who who comply comply 3. Elimination of trade to people trading CFC. CFC. If there there is a critical mass of ppl who wont take the CFCs there's no point in trying to sell them by exporting them 4. Shame 5. Developing countries - provide technological technological assistance, assistance, and delays to allow longer periods for compliance IV. IV. Treaty reat y Regimes and the Protecti Pro tection on of the Environmen Enviro nmentt a. The Shrimp Turtle Case (pg. 654) i. Facts: U.S. imposed ban on shrimp harvested in ways that could damage sea turtles. Some countries challenged challenged U.S.'s policy before a panel panel established under under the WTO's (World Trade Org) Dispute Settlement Understanding, arguing that it violated the General Agreement on Tariffs and Trade (GATT 1994). ii.Why does the WTO have jurisdiction? 1. Countr Countries ies signe signed d on to it it 2. WTO develo developed ped from from agree agreement ment,, GATT GATT 3. This is a trade trade issue, issue, so it it makes makes sense sense for for WTO to deal with with it. Not just just any trade issue goes to WTO, but these state consented to WTO, so they have jurisdiction iii.Background iii.Background on how WTO works as a s a dispute resolution 1. 1st step: step: consulta consultation tion - States States agreed agreed to get together together and discus discuss s the dispute be4 bringing bringing in 3rd parties. If that fails, fails, they go to step 2. Like an arbitration 2. 2nd step: step: go to panel of of experts experts - If either party party doesn’t doesn’t like it, it, go to step 3 3. 3rd step: step: appellate appellate body body - Like Like a Court Court of of final final appeals appeals for for the WTO WTO 4. 4th step: step: Dispute Dispute settlemen settlementt body - Enforcemen Enforcementt body; If party party doesn’t doesn’t comply with appellate body decision, they will impose economic sanctions on the offending party. b/c if this, they have good complying rates b/c of the enforcement. iv.U.S. defense in Shrimp Turtle Case – if falls under GATT exception “exhaustible natural resources” 1. WTO WTO uses uses 2 part part analys analysis is a. 1st - if it falls falls within within one of the excepti exceptions ons - for exhaust exhaustible ible natural natural resources b. 2nd - does the US's restrict restriction ion satisfy satisfy the preamb preamble le for the exception exception? ? 2. Analyzing Analyzing the 2nd part part of the analy analysis sis a. Even if a law, law, on its face, face, is neutral, neutral, it can still still be discriminat discriminatory, ory, and you can find this out when applying it b. Unjustif Unjustified, ied, b/c not not closely closely related related to goal of conserva conservation tion c. Boats were were using using environmen environmentall tally y safe procedur procedures, es, but still still penalized penalized d. Arbitr Arbitrary ary - There There was wasn’t n’t a proce process ss i. States were not given a process to challenge US's qualification. qualification. There was no way for countries to say that they were using safe methods of catching shrimp 3. US ended up modifying modifying its laws, creating creating a more nuanced law dealing with sea turtles, and helped countries to comply
PRINCIPLES OF JURISDICTION I. Principl Prin ciples es of jurisdict juri sdiction ion a. Terri errito tori rial alit ity y i. Objective Territoriality Territoriality - where did the case c ase begin?
ii.Subjective Territoriality (another name for effects jurisdiction) – where did the effects occur? iii.Status as an alien doesn’t affect the territoriality except if you're a diplomat etc. b. Nationality i. May also be referred referred to as personality jurisdiction jurisdiction ii.Sometimes thought of as 2 types of personality jurisdiction 1. Ac Acti tive ve – plai plaint ntif iff f 2. Passi assive ve – vic victi tim m c. Protective (pg 780) - related to effects jurisdiction i. If there is some fact pattern pattern that has grave consequences consequences for a country’s interests, then they have this jurisdiction under a protective principle. Similar to effects principle, b/c of spatial interest. But an interest doesn’t necessarily have to e within the "space" of that country. ii.Not as settled as areas of law as territoriality and nationality d. Universal i. Jus cogens, like piracy. piracy. It can be dealt with anywhere. ii.rises to a level where any tribunal court can exercise jurisdiction, jurisdiction, because it’s so universally applied iii.Highly controversial. iv.What narrow set of cases should it be applied to? 1. Some countrie countries s that are members members of ICC, ICC, so individua individuall actors of these these countries commit grave acts against int'l principle, who should here these cases? v.Not as settled as areas of law as territoriality and nationality e. Territoriality and nationality nationality and effects effects are all all very much much accepted in in the US and as general principles principles of international law. law. Universal jurisdiction jurisdiction and protection principle principle are not widely accepted. II. Terri Territori torialit ality y Principle Prin ciple American Banana Co. v. United Fruit Co . (pg 768) Facts: Pl, a U.S. citizen, has banana plantation in Panama. Df monopolizing monopolizi ng the banana trade, interferes w/ Pl’s business, driving him out of business with wrongful conspiracy. 1. Law allegedly allegedly broken broken – Sherman Antitrust Antitrust Act Act (Df trying to monopolize banana trade) ii.No jurisdiction for U.S. court: Territoriality principle – where did this happen? In Panama 1. Although the acts were illegal illegal in the United States, they they were permitted by the local law in the foreign jurisdiction jurisdiction at issue. *Predates jurisprudence on effects jurisdiction jurisdiction - now may go the other way b/c of effects jurisdiction III. III . Nationali Natio nality ty Principle Prin ciple Blackmer v. United States (pg 772) Facts: Blackmer, Blackm er, U.S. citizen, cit izen, resident reside nt of France. Found guilty of contempt c ontempt of court co urt in US by refusing to appear as a witness in US crim trial, and fined. He challenges the fine under due process clause of 5 th amendment. ii.US says there's a nationality principle. 1. But there there are some situation situations s where we wouldn’t wouldn’t extend extend nationali nationality ty 2. But here, here, US says there there are overriding principles, why US can extend extend its jurisprudential jurisprudential arm to elsewhere iii.Doesn’t violate due process b/c he has notice etc. Fine affirmed. iv.Why iv.Why nationality? – Blackmer was as a witness. If he was a Df in crim proceeding in US, there would be a diff basis for jurisdiction – territoriality if he committed crime in US The Effects Principle (Subjective Territori Territoriality) ality) United States v. Aluminum Co. of America (pg 774)
Issue: Sherman Sherm an antitrust antit rust – Aluminium monopolizing monopolizi ng industry industr y. ii.What is the test that famous Judge Learned Hand used? 1. 1st - did congress congress intend intend to regulate activity beyond beyond its borders borders (that (that doesn’t satisfy satisfy territoriality). Learned Hand said, said, that in passing the Sherman Act, Congress intended intended that even when not taking place in US, ... 2. Effe Effect cts s test test a. b/c imports imports to US, US, then then it has has effects effects in the the US b. The activity activity abroad abroad had had significa significant nt economic economic effects effects on US Party Choice - Let parties choose where dispute will be settled and the applicable law. The Bremen v. Zapata Off-Shore Co. Co . (pg 781) Facts: German & U.S. U. S. corps contracted con tracted to t o transport transpor t an oil rig. Rig Ri g damaged & towed to Florida. U.S. sues in U.S. German corp argues there’s a forum-selection clause that says England ii.Court holds forum selection clause valid 1. Freedo reedom m to to con contra tract ct 2. Globaliz Globalizatio ation n - Involves somethin something g being transporte transported d from one part of the world to another. another. So, there are so many jurisdictions that may have a claim a. It wouldn’t wouldn’t be fair fair to enforce enforce jurisdict jurisdiction ion anywher anywhere e in the world world a claim may arise. May not want a claim claim to be settled in countries with different laws 3. Public policy argument argument –we –we don’t want companies companies not doing business business with with U.S. if we don’t uphold our contracts We're not looking for the most convenient, but there is a presumption established with the forum selection clause Scherk v. Alberto-Culver Co. Co . (pg 789) Facts: Breach of K btwn parties. There was an forum selection clause c lause which stipulated that any dispute would be brought in Int’l arbitration panel in Paris, but would apply Illinois law. Claim brought in IL. Forum Selection clause is enforced (although (although theywould have been hesitant to do so in domestic case) 1. Int'l vs. vs. domestic domestic - Why are domesti domestic c transaction transactions s diff from from int'l transactions? a. Easier to apply the the law. law. Less of disincentive disincentive for businesses to enter into agreements b. But in int'l, int'l, more more multiple multiple laws, laws, etc. more uncerta uncertainty inty of what what law or forum to be utilized may be a disincentive to enter into business agreements, so important to uphold the forum selection clauses, clauses, so that parties will enter into agreements more readily if they know exactly the forum and the law 2. Especial Especially ly strong strong claim for enforceme enforcement, nt, b/c it was an arbitration arbitration panel panel a. More neutralit neutrality, y, not not tied to a particu particular lar govt govt b. Parties Parties may have have a role role in choosi choosing ng the the arbitrators arbitrators c. More incen incentive tive for for parties parties to engag engage e in transacti transactions ons too too 3. Freed reedom om of K a. Also important important that this was negotiate negotiated d b. Court not not so much much persuaded persuaded by by this, this, and instead instead goes goes further further and looks at public policies, etc.
INDIVIDUALS AND INT’L LAW I.
Individuals as objects vs subjects of Int'l Law a. 19th & early early 20t century century - individuals individuals viewed as objects of int'l law, not not subjects of int'l law (and so had neither int'l legal rights nor duties).
i. So, there was was state protection protection and responsibility responsibility for for individuals. 3 limitations limitations to this: 1. (Nottebohm) Nottebohm) - individuals may only be protected by their national states 2. (Barcelona Traction) Traction ) When notion of national links is extended to corporations, even more confusion can result 3. Most importantly, importantly, the objective view view of individuals leaves nationals nationals open to abuse by their own states, since it is impractical to conceive of a state protecting its own nationals against itself in int'l law b. Subjective - responsible responsible for yourself yourself as an individual i. Individual can bring claims, claims, etc. ii.Individuals ii.Individuals have responsibilities responsibilities and rights c. Objective Objective - your country country is respons responsible ible for you you i. Only be an object of the state, individuals individuals cannot bring claims, claims, and also cannot themselves bring claims ii.States have power over iii.Positivist iii.Positivist theory (vs natural law theory) - Positivist law - states make law, and citizens are objects that states are making agreements about d. First irst look look at: at: i. Whether the law you're looking at at (treaty), who are the actors? Are you looking looking at individual claims, or only giving legal responsibilities to states, then which states? II. Individuals Individual s as objects of Int'l Law The Nottebohm Case (pg 340) Facts: Nottebohm, Nottebohm , German citizen, living in Guatemala Guatem ala for a long time, has prosperous business. Then he becomes citizen of Liechtenstein (too easily). Tries to return to Guatemala, Guatemala, they refuse refuse to let him in. Goes to ICJ. ii.Here, an individual cannot bring the claim himself (objective view), so Liechtenstein wants to step in and Guatemala doesn’t recognize his citizenship. iii.ICJ says his citizenship is fine under Liechtenstein’s laws, but under int’l laws, he is not a citizen. 1. ICJ looking for real links links in Lichtenstein. Lichtenstein. Must Must show there there is a real connection connection before Lichtenstein can act on your behalf. a. Reasoning easoning - What What sources sources of law law were look looked ed at? i. Arbitration and and judicial decisions ii.Opinions ii.Opinions of writers 2. Nationality is is a legal bond having as its basis basis a social social fact of attachment, a genuine connection of existence, interests and sentiments, together with the existence of reciprocal rights and duties. iv.Problem: iv.Problem: Which state will represent him? Guatemala won't. So now that's why individuals are given the right for individuals to bring rights on their own. The Barcelona Traction Case (pg 350) Facts: Barcelona corp that controls utilities in Spain, but incorporated incorpor ated in Canada. Belgians hold hold majority of the shares of stock. Business Business bankrupted in Spain. Spain. Issue settled without Belgians involved, and Belgian gov't seeks reparation ii.The connection of the company with Belgium very strong, but court still decided that Belgium gov't cannot submit claims on behalf of its citizens. iii.The case is important as it demonstrates how the concept of diplomatic protection under international law can apply equally to corporations as to individuals. individuals. III. Individuals Individual s as subjects of Int'l Int' l Law Mark W. Janis, "Individuals " Individuals as Subjects of Int'l Law" (pg 363) i. Positivism Positivism view int'l law as a set of rules with states as its subjects. Municipal Municipal law is thought of as pertaining to individuals individuals who are subjects of a single state. The Nuremberg Judgment (pg 370) i. How does the tribunal explain explain where it gets its authority authority from? 1. Created a charter to to create this tribunal tribunal - Germans consented consented to this power power
2. Kellogg-Briand Kellogg-Briand Pact. This is ex-post ex-post facto law enforcement (law came came up after the fact) a. Winner Winner of war is is making making new laws laws now, and and enforcing enforcing them them retroactively b. Kellogg-Briand Kellogg-Briand Pact - signed signed by nations. nations. Aspirational and not binding CIL i. Recognized Recognized a limitation on who who can start wars. WWII not a just war. Kellogg-Briand Pact is between the states, so why being held against individuals. individuals. It's the individuals individuals who start wars. wars. ii.Crimes that come within jurisdiction of the tribunal where there is individual responsibility 1. Crim Crimes es aga again inst st pea peace ce 2. War cri crime mes s 3. Crimes Crimes against against humanity humanity - Enslavemen Enslavement, t, exterminat extermination, ion, etc. etc. iii.Why individual? individual? Ppl will say they acted on behalf of the state. This is not good b/c it’s hard to hold govt govt responsible (change (change in regime, etc.). Makes more sense sense to hold individuals responsible responsible for their actions. iv.This iv.This started the whole movement of treating individuals as having responsibilities responsibilities
U.S. EXCERCISING EXTRATERRITORIAL JURISDICTION I. Resolving Conflicts of Jurisdiction: Jurisdicti on: The Balancing Test Test a. Timberlane Lumber Co. v. Bank of America (pg 797) i. Facts: U.S. corp has lumber business in Honduras (with Honduran Hondura n subsidiaries). subsidiarie s). Dfs conspire against Pl, violating the Sherman Antitrust Act. ii.Court decides there is a legitimate claim to jurisdiction. jurisdiction. Court uses a 3-part test to decide when an antitrust issue is one where U.S. needs to get involved: 1. There There must be some effect effect – actual actual or intended intended – on American American foreign foreign commerce 2. Showing Showing that that the effect effect has substa substantia ntiall injury injury to the Pl 3. Whether the links (interests (interests to US) US) are sufficiently sufficiently strong strong to justify assertion assertion st of extraterritorial authority. If you have 1 2 tests satisfied, then go here, and use this balancing test. These are the elements to be weighed – looking at totality of the circumstances: a. Degree Degree of conflic conflictt with foreign foreign law law or policy policy b. The nationa nationality lity or allegian allegiance ce of the parties parties (or busines businesses) ses) c. Extent Extent that enforc enforcement ement by by either either state can can be expected expected to to achieve achieve compliance d. The relative relative signif significanc icance e of effects effects on the U.S. as compar compared ed with those elsewhere e. The extent extent to which which there there is expli explicit cit purpose purpose to harm harm or affect affect American commerce, the foreseeability of such effect, - andf. The relat relative ive importan importance ce to the the violation violations s charged charged of conduct conduct with with the U.S. as compared with conduct abroad. 4. A court balancing these factors factors should identify the the potential potential degree of conflict if American authority is asserted a. Differ Differenc ence e in law or poli policy cy b. Nationality (own nationals more important than foreign nationals) iii.Conclusion: iii.Conclusion: The allegation was that Dfs intended to, and did, affect U.S. foreign commerce, so they are within U.S.'s jurisdiction of the fed courts under the Sherman Antitrust Act. iv.Comity Issue – here, no conflict of law or policy with Honduras
v.Balancing Factors: 5 considerations consideration s U.S. courts taken into account when deciding whether to apply U.S. law extraterritorially 1. The legislati legislative ve intent intent of the the Congress Congress 2. The presumpt presumptive ive "reach "reach"" of the statu statute te 3. The limit limits s imposed imposed by interna internation tional al law law 4. Judicial Judicial doctri doctrines nes of discr discretio etion n (like (like comity) comity) 5. U.S. U.S. Con Const stit itut utio ion n II. Resolving Conflicts of Jurisdiction: Jurisdicti on: International Comity a. What What is Comi Comity ty? ?
Hilton v. Guyot [pp. Guyot [pp. 802] 1. The extent extent to which which one nation nation shall shall be allowed allowed to operate within within the the dominion of another nation, depends upon the "comity of nations." 2. Comity Comity is a respect respect of reciproc reciprocity ity between between jurisdic jurisdiction tions s a. Respect espect - we will not demean demean the laws laws and policies policies of other other countries countries,, b/c we expect other countries to respect ours as well b. It’s a voluntary voluntary act - neither neither an absolute absolute obliga obligation, tion, nor nor mere courtesy courtesy and good will. c. Inadmissi Inadmissible ble when when contrary contrary to policy, policy, or prejudic prejudicial ial to interes interests ts of nation. d. Promotes Promotes justic justice, e, and produces produces friendl friendly y intercourse intercourse btwn btwn sovereignties Hartford Fire Insurance Co. v. California [pg 803] Facts: The Pls (U.S. states) allege that both domestic and foreign Dfs violated the Sherman Act by engaging in various conspiracies to affect the American insurance market. Majority - Souter – Conflict of Law test 1. When U.S. U.S. has extraterri extraterritoria toriality lity jurisdic jurisdiction tion (based (based on the Sherman Sherman Antitrust Act), the test to decide whether U.S. should exercise exercise that jurisdiction jurisdiction is by balancing the substantial substantial nature of the effect on U.S. commerce with the conflict of of law and policy policy with the other nation. nation. a. No conflict conflict of law law exists exists where where a person subjec subjectt to regulatio regulation n by two states can comply with the laws of both (the question to ask is whether the person is able to comply with both laws). b. The The maj major orit ity y opi opini nion on ha s bee been n hig highl hly y cri criti tici cize zed. d. iii.Dissent – Scalia – Reasonableness Test 1. He uses a reasonableness reasonableness test, and and concludes that there is a conflict conflict of law (similar to Timberlane’s balancing test and the totality of circumstances cir cumstances test) 2. There There is a conflict conflict of law law because because it is unreasona unreasonable ble a. UK has such such strong strong interest interests s in having having a stake in this this case, it weigh weighs s in favor of UK b. UK has a heavy heavy interest interest in regulat regulating ing the insura insurance nce activity activity c. Comity Comity - if we took on jurisdicti jurisdiction, on, we would would really really be disrespe disrespecting cting UK law c. More on comity i. Comity is a complex & elusive elusive concept –b/c it varies according according the factual circumstances ii.Central precept of comity - when possible, the decisions of foreign tribunals should should be given effect in domestic courts, since recognition fosters int'l cooperation and encourages reciprocity, thereby promoting predictability and stability through satisfaction of mutual expectations. 1. The inter interests ests of both both forums forums are are advance advanced d 2. The foreign foreign court court b/c its law and and policies policies have have been vindicat vindicated ed 3. The domestic domestic country country b/c int'l int'l cooperation cooperation ties ties have been strengt strengthened hened
iii.Necessary outgrowth outgrowth of globalization. globalization. With the movement among nations, nations, national interests cross cross borders. So every nation must often rely on other countries to achieve its regulatory expectations. iv.Limitations to the application of comity 1. When the the foreign foreign act is inherently inconsistent inconsistent with the policies underlying comity, domestic recognition of those policies defeats the goals of comity. Therefore, Therefore, no nation is obligated to enforce foreign interests which are prejudicial prejudicial to those those of the domestic domestic forum. Comity expires expires when when the strong public policies of the forum are impaired by the foreign act. v.Criticism of Souter's test as used in this case - basically, that means that US forums would give more deference to the laws of nations that have substantially different laws than our own (like favoring monopolistic practices) instead of giving deferential treatment to laws of nations who have the same goals we do, but just not as strict laws. This doesn’t make sense though. 1. Also doesn’t doesn’t really get along with globalization. globalization. We We need a more more outwardoutwardlooking and cooperative economic policy so we should more often defer to foreign states, and not make an assumption that our laws are the best. III. Resolving Conflicts Confl icts of Jurisdiction: Jurisdi ction: Forum Non Conveniens Conven iens Piper Aircraft Co. v. Reyno [pp. 814] Facts: Plane crashes in Scotland; Scots sue in US b/c law more favorable.Df favorab le.Df wants forum non conveniens and wants to go to Scotland. ii.Test for non conveniens - The jurisdiction's oppressiveness and vexation have to be outweighs the inconvenience. iii.Gilbert Test - Factors (fact based analysis - as opposed to Souter's test which is a comparison of laws) iv.Court decides Scotland forum more convenient. v.U.S. case law - principle is that we usually defer to the Pls choice of venue 1. But here, the Pl is foreign. Are Are they really really asking this because because it's more convenient? No, it's b/c US law is more convenient. 2. Court Court wants to discour discourage age forum forum shopping shopping - and flood flood U.S. courts courts b. The Doctrine of Forum Non Conveniens and the Bhopal Case, Case , Mark W. Janis [pp. 824] i. Facts: Bad industrial accident accide nt in India, involving chemical chemi cal gases that killed & injured a lot of ppl. Indian govt decided to sue on behalf of the Indian victims in U.S. courts (Indian govt believes US courts preferable to their own). Df says forum non conveniens. ii.Jurisdiction ii.Jurisdiction – US has it b/c US company involved. But should they exercise their jurisdiction? iii.In deciding whether to grant forum non conveniens, court first looks to see if there is another adequate forum available (if there isn’t then US court will deny forum non conveniens & take it) Court says India’s court system is an adequate forum (tort law derived from British, etc. iv.If iv.If there is an adequate forum av ailable, then court weigh public & private interests of both parties 1. Private – all private private interests interests point to India (accident happened there, etc.) etc.) 2. Public Public – also also weighed weighed heavil heavily y in support support of of India India a. India India has greater greater interest interest in adjudicat adjudicating ing claims claims of its own citizens citizens Public Private US Trial in PA using both US & Some evidence here, but nothing so Scottish law would be very major that a trial in Scotland would confusing for jury be unfair (the design - plane made in PA) US courts not familiar with Scottish law
Not enough US interest to justify spending time & judicial resources trying this case
Scotla nd
Wanting Scotland to see justice done with their citizens Best to resolve local disputes in a local forum
More convenient, b/c witnesses and evidence is in Scotland Possible 3rd party Dfs in Scotland
v.Court decides Scotland forum more convenient. vi.U.S. case law - principle is that we usually defer to the Pls choice of venue 1. But here, the Pl is foreign. Are Are they really really asking this because because it's more convenient? No, it's b/c US law is more convenient. 2. Court Court wants to discour discourage age forum forum shopping shopping - and flood flood U.S. courts courts c. The Doctrine of Forum Non Conveniens and the Bhopal Case, Case , Mark W. Janis [pp. 824] i. Facts: Bad industrial accident accide nt in India, involving chemical chemi cal gases that killed & injured a lot of ppl. Indian govt decided to sue on behalf of the Indian victims in U.S. courts (Indian govt believes US courts preferable to their own). Df says forum non conveniens. ii.Jurisdiction ii.Jurisdiction – US has it b/c US company involved. But should they exercise their jurisdiction? iii.In deciding whether to grant forum non conveniens, court first looks to see if there is another adequate forum available (if there isn’t then US court will deny forum non conveniens & take it) Court says India’s court system is an adequate forum (tort law derived from British, etc. iv.If iv.If there is an adequate forum av ailable, then court weigh public & private interests of both parties 1. Private – all private private interests interests point to India (accident happened there, etc.) etc.) 2. Public Public – also also weighed weighed heavil heavily y in support support of of India India a. India India has greater greater interest interest in adjudicat adjudicating ing claims claims of its own citizens citizens
FOREIGN SOVEREIGN IMMUNITY I.
Foreig Foreign n sovereigns sovereigns are are shielded shielded in various various ways by nation national al courts, courts, so as to not upset upset relation relations s btwn the states. II. Foreign Sovereign Immunity Doctrine as Absolute The Schooner Exchange v. McFaddon (pg 830) Facts: Vessel, owned by an U.S. citizen, was violently and forcibly seized by Napoleon of France. France. The vessel sailed into an American American port and the citizens filed a libel action to reclaim it. Court says claim dismissed. ii.Foreign ii.Foreign Sovereign Immunity Doctrine 1. France, a foreign foreign sovereign, owned the boat. boat. Court notes that Emperor took took custody of the vessel, albeit improperly, they still took custody of it 2. Court will will waive the territori territorial al jurisdict jurisdiction ion b/c of this principle principle.. iii.Napoleon using it as an official armed ship for military purposes iv.Court iv.Court holds that in cases like this, there is immunity, and jurisdiction is waived. 1. This is during during War War of 1812. U.S. at war with UK, France France is our ally. ally. Perhaps Perhaps court didn’t want to upset diplomatic affairs. Policy rationale - an int'l principle princi ple that has been long respected by countries countri es of the world 1. Reciprocity Reciprocity - b/c b/c we we recognize recognize each other's sovereignty sovereignty there is implied consent to the principle of foreign sovereign sovereign immunity
vi.Schooner established the basic doctrine that was absolute in the beginning, but has been limited since then 1. If it become becomes s absolute absolute,, there there may be injus injustice tice 2. Later court & congress congress want want states to be more accountable accountable for for their actions. actions. Especially b/c of globalization globalization 3. Balance btwn btwn state maintaining a sovereignty sovereignty and being accountable accountable to the int'l community III. Foreign Sovereign Immunity Immu nity Doctrine: Doctrin e: No longer absolute absolu te Victory Transport, Inc. v. Comisaria General [pp. 834] Facts: Owner of a cargo ship wants to sue the Spanish Ministry Ministr y of Commerce in U.S. court. Govt of Spain says that because of foreign sovereign immunity, it cannot be sued in a U.S. court without its consent, and it declines that. RULE: The modern trend is to use the restrictive theory of immunity, recognizing immunity for a foreign state's public or sovereign acts ( jure imperii), imperii), but denying immunity to a foreign state's private or commercial acts ( jure gestionis ). Reason court gives for absoluteness of it no longer apply: 1. Originally for personal sovereignty sovereignty (like (like King) who could do no wrong, wrong, so if you excersized authority over a sovereign, it indicated hostility or superiority. superiority. No longer the case b/c now it’s a public function. 2. Modern trend is the the restrictive restrictive theory, basically limiting immunity (court (court discusses several treaties). int'l /comparative developments. Shift in social reality. More int'l transactions. Restrictive Theory: recognizing it for public functions, but not for private. 1. Purpose – accommodate accommodate individuals individuals doing business (globalization), (globalization), but but we don’t want to undermine foreign govts freedom to perform political acts The Foreign Sovereign Immunities Act of 1976 [pp. 839] - Congress decides to codify the restricted theory of foreign sovereign immunity Subject to other int'l agreement, foreign state is immune from jurisdiction, except: i. If immunity is waived waived explicitly explicitly or implicitly ii.Commercial activity that has affect on U.S. iii.Property rights in connection with U.S. iv.Money iv.Money damages sought for tortious conduct of foreign states, if tort occurs in U.S. 1. Except: if claim is based on (or failure to) perform perform a discretionary discretionary function 2. Except: any any claim arising arising out out of malicious malicious prosecution, abuse of process, libel, libel, slander, misrepresentation, misrepresentation, deceit, or interference with k rights v.If concerning a legal relationship, relationship, either agreed or not (specifically (specifically arbitration) For tort damages from an act of torture, extrajudicial killing, aircraft aircraft sabotage, hostage taking. 1. This only only applies if if the foreign foreign state has been designated designated a state sponsor of terrorism by the U.S. secretary of state and if the claimant or victim was a national of the U.S. when the act occurred. 2. Unlike the other exceptions, this one permits state-owned state-owned property property unrelated unrelated to the claim to be executed against against to satisfy a judgment based on its terms. b. Deciding claims of of foreign sovereign immunity involves involves using using material evidences from from 3 sources: case law, international law, and statute. c. §1604 - presumes immunity unless unless private private Pl can show otherwise (using the the exceptions) exceptions) d. How is this different different from Victor Victory y transport? transport? i. Now, we have a presumption presumption of immunity unless one of the above above are present ii.Now the focus of defining if it’s a commercial activity is on the actual transaction, and not the purpose. V. Interpre Int erpretin ting g the FSIA Texas Trading & Milling Corp. v. Federal Republic of Nigeria [pp. 843] Facts: Nigeria repudiated K with US cement suppliers when they realized they bought too much, and cargos were dangerously overloading their docks. Nigeria's
argues that it's a govt action b/c they were buying for the govt, not a commercial transaction. Goals were public policy oriented. Court says we must apply the FSIA (The Foreign Sovereign Immunities Act of 1976) here. 1. FSIA defines defines commercial commercial activity activity in terms of course of transaction, not purpose. purpose. So is transaction commercial in nature? Act doesn’t give guidance so court looks at other sources: a. Legislat Legislative ive history history – says if it’s it’s a purchase purchase or sale of goods; goods; or, if it’s it’s an activity in which a private person c ould engage in, then its commercial b. U.S. case law law which which existed upon the passage passage of FSIA. FSIA. Uses restrictive theory - public acts immune, private (incl commercial) not immune. c. Current Current standar standards ds of int'l law concerni concerning ng sovereign sovereign immunity immunity – follows follows restrictive theory as well iii.Court concludes: Under each of these standards (sources), Nigeria's activity qualified as "commercial activity," and in nature of a private K transaction. Purpose is irrelevant. Argentine Republic v. Amerada Hess Shipping Corp. [pp. 851]
Facts: Liberian Liberi an corp chartered oil tanker to Hess. Vessel Vessel destroyed by Argentine aircraft b/c of armed conflict btwn Argentina & UK, even though Argentina given list of neutral ships. Liberians suing Argentina (invoking Alien Tort Act). Says that Congress' intent when creating the FSIA was that it be the sole basis for jurisdiction over a foreign state in our courts. FSIA trumps ATCA. ATCA. Presumption of immunity and Pl has burden to prove otherwise. 1. Immune Immune per FSIA b/c it was a public act act (doesn’t (doesn’t fall within within exception exceptions s of FSIA)
ACT OF STATE DOCTRINE I.
The Act of State Doctrine [pp.859] a. Serves as a principle of of choice of law, instructing instructing a court to apply the law of of a foreign foreign state respecting an act made by the foreign govt in its own territory. b. Doesn’t Doesn’t have notion notion of comity; comity; does not provide provide jurisdict jurisdictiona ionall immunity immunity c. To invoke invoke the act of state state doctrine doctrine you have to show show 2 things? things? i. A foreign state was acting acting ii.That the events took place in the foreign state iii.Also a presumption that it was legal in the foreign state d. How How did did this this emer emerge ge? ? i. Int'l reason - like comity; if state is acting within their own laws, we should respect that ii.Domestic - U.S. can still advocate on behalf of its own citizens, but b/c there's a separation of power, judiciary branch shouldn’t deal with this, but the other 2 branches should Underhill v. Hernandez [pp. Hernandez [pp. 860] Facts: Revolution in Venezuela. Underhill, U.S. U.S . citizen citize n lived there, t here, and asks to leave le ave country. country. New leader, Hernandez refuses at first, but ultimately lets him. Underhill suing to recover damages for his detention. Court will not let case proceed in U.S., per the Act of State Doctrine i. Use the int'l reasoning reasoning - we should judge another another country's actions if they have justification for it within their own laws. Hernandez acting in official state capacity on behalf of Venezuela. Therefore we should apply their law.
Banco Nacional De Cuba v. Sabbatino [pp. 862] Facts: Cuba nationalized its sugar industry industry.. A large number of Americans who had invested in those companies lost their investments without compensation when the Cuban government assumed control. b. Act of state doctrine doctrine applies here – we are respecting Cuba’s laws. i. When foreign party party has a law that can be applied, judicial judicial branch won’t get involved. The executive branch has the exclusive authority here, b/c it’s about foreign affairs. We care about separation of powers. W.S. Kirkpatrick & Co. v. Environmental Tectonics Corp. International [pp. 870] Facts: Kirkpatrick Kirkpat rick contracted contr acted with Nigerian Nig erian govt to construct construc t an aeromedical aeromedi cal center. There was bribery involved in this agreement, and Kirkpatrick’s competitor finds out and tells Nigerian & US embassy. The court held that the act-of-state doctrine had no application to the case because the validity of a foreign sovereign act was notat issue. c. The act of state doctrine does not establish an exception for cases and and controversies controversies that may embarrass foreign govts, but merely requires that, in the process of deciding, the acts of foreign sovereigns sovereigns take take within their own jurisdictions jurisdictions shall be deemed valid. valid. That doctrine has not application in this case because the validity of no foreign sovereign act is at issue.