International Law: Unit 4 International and Domestic Law Mr. Morrison Fall 2005.
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Transcript of 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)
Fall 2005 International Law Unit 2: International and Domestic Law
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
Fall 2005 International Law Unit 2: International and Domestic Law
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
Fall 2005 International Law Unit 2: International and Domestic Law
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
Fall 2005 International Law Unit 2: International and Domestic Law
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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
Fall 2005 International Law Unit 2: International and Domestic Law
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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
Fall 2005 International Law Unit 2: International and Domestic Law
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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
Fall 2005 International Law Unit 2: International and Domestic Law
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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?
Fall 2005 International Law Unit 2: International and Domestic Law
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)
Fall 2005 International Law Unit 2: International and Domestic Law
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Act of State doctrine
Bases for the doctrine Respect for political branches Reluctance to impose U.S. view on
disputed international question
Fall 2005 International Law Unit 2: International and Domestic Law
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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)
Fall 2005 International Law Unit 2: International and Domestic Law
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
Fall 2005 International Law Unit 2: International and Domestic Law
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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?)
Fall 2005 International Law Unit 2: International and Domestic Law
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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
Fall 2005 International Law Unit 2: International and Domestic Law
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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.
Fall 2005 International Law Unit 2: International and Domestic Law
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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