International Law: Unit 4 International and Domestic Law Mr. Morrison Fall 2005.

International Law: Unit 4International and Domestic

Law

Mr. MorrisonFall 2005

Fall 2005 International Law Unit 2: International and Domestic Law

2

Treaties in US Law

Distinguish types of treaties Treaties (formal) Executive agreements (other)


3

Treaties Making and ratification (art. II)

Made by President Senate (2/3) “advises and consents” President ratifies

“Supreme Law of the Land” (art.VI) Supercedes prior law Can be overriden by later statute

Interpret to avoid conflict


4

Treaties, cont’d Self-executing treaties

Does the treaty confer rights, or only require legislative action to create rights

Usually a question of interpretation Modern interpretations less generous

Some areas presumed not self-executing Criminal law; appropriations

Senate sometimes adds proviso requiring non-self-executing status


5

Treaties, cont’d

Scope of treaties Can enhance federal powers. Missouri

v. Holland, 252 U.S. 416 (1920) Cannot violate constitutional norms.

Reid v. Covert, 354 U.S. 1 (1957) Termination of treaties

Distinguish domestic and international effects


6

Executive agreements International agreements not

submitted to Senate process Bases—

Authorized by Statute Authorized by Treaty Supported by long practice

E.g., claims settlement President’s sole authority


7

Executive agreements

May override state law, U.S. v. Pink, 315 U.S. 203(1942)

Question about status with fed’l law

Subject to other treaty limits


8

Judicial enforcement

“International law is part of our law . . “ Pacquete Habana, 175 U.S. 677 (1900)

BUT, you need Standing A cause of action Jurisdiction No immunity from jurisdiction


9

Judicial enforcement Alien Tort Claims Act. 28 U.S.C.

1350 Filartiga v. Pena-Irala, 630 F.2d 876

(2dCir.1980) Claims of U.S. citizens Limits on such claims

Sosa v. Alvarez-Machain, 542 U.S. 692 (2004)

What torts are still covered?


10

Act of State doctrine . . . “the Judicial branch will not examine the

validity of a taking of property within its own territory by a foreign sovereign government, extant and recognized at the time of suit, in the absence of a treaty or other unambiguous agreement regarding controlling legal principles, even if the complaint alleges that the taking violated customary international law”--Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398,

428 (1964)


11

Act of State doctrine

Bases for the doctrine Respect for political branches Reluctance to impose U.S. view on

disputed international question


12

Act of State doctrine Exceptions—

Statutory. Hickenlooper amendment. 22 U.S.C. 2370(e)(2)

Treaty. Kalamazoo Spice Extraction Co. v. Ethiopia, 729 F.2d 422 (6thCir.1984)

Commercial activities. Alfred Dunhill of London v. Republic of Cuba, 425 U.S. 682 (1976)

Extraterritorial. Iraq v. First National City Bank, 353 F.2d. 74 (2d Cir.1965)

Counterclaims. First National City Bank v. Banco Nacional de Cuba, 406 U.S. 759 (1972)


13

Jurisdictional immunities Sovereign (State) immunity

A new convention is proposed Head of State immunity

Customary Diplomatic immunity

Vienna Convention on Diplomatic Relations Consular immunity

Vienna Convention on Consular Relations International organization immunity

Privileges and Immunities Agreements Includes both organization and staff


14

Jurisdictional immunities

Approaches Absolute immunity Qualified immunity (within scope of

duty) Immunity is that of State (or

international organization), not of the individual

Temporal question (how long?)


15

U.S. immunity law Sovereign immunity

Foreign Sovereign Immunity Act, 28 U.S.C. 1602 et seq. Head of State immunity

Common law Diplomatic immunity

Vienna Conv. on Diplomatic Relations and 22 U.S.C. 254a-e

Consular immunity Vienna Convention on Consular Relations

International organization immunity Privileges and Immunities Agreements and 22 U.S.C.

288+ Includes both organization and staff


16

FSIA 28 USC 1602+ Definition of a “foreign State” 1603

Includes 50%+ owned entities General rule of immunity 1604 Exceptions 1605

Waiver Commercial activities Rights to property taken in violation of international

law Succession or inheritance Money damages for certain torts in the U.S. To require arbitration Torture, extrajudicial killing, aircraft sabotage,

hostage taking, etc.


17

FSIA Special rules of process and procedure

1608 Counterclaims limited 1607 Limited execution of judgment 1610 Some property totally exempt 1611

Central bank Military

Jurisdiction in federal district court (non-jury trial) 28 U.S.C. 1330

International Law: Unit 4 International and Domestic Law Mr. Morrison Fall 2005.

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