International Law: Unit 4 International and Domestic Law

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

2. Treaties in US Law • Distinguish types of treaties • Treaties (formal) • Executive agreements (other) 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 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 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 International Law Unit 2: International and Domestic Law

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 International Law Unit 2: International and Domestic Law

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 International Law Unit 2: International and Domestic Law

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 International Law Unit 2: International and Domestic Law

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? 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) International Law Unit 2: International and Domestic Law

11. Act of State doctrine • Bases for the doctrine • Respect for political branches • Reluctance to impose U.S. view on disputed international question International Law Unit 2: International and Domestic Law

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) 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 International Law Unit 2: International and Domestic Law

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?) International Law Unit 2: International and Domestic Law

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 International Law Unit 2: International and Domestic Law

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. International Law Unit 2: International and Domestic Law

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 2: International and Domestic Law