LATELY IN US SUPREME COURT: KERR-FRISBIE, ATCA, ETC.

1. LATELY IN US SUPREME COURT: KERR-FRISBIE, ATCA, ETC. Prof David K. Linnan USC LAW # 783 Unit Four

2. FOUR THEMES RECENT SUPREME COURT SEPARATE THEMES 1. General issues about proper place of foreign courts’ views in US Supreme Court opinions (typically comparative law rather than international law, but human rights overlap) 2. Structural limitations of Judiciary dealing with foreign affairs/armed conflict versus individual/human rights claims (domestic law separation of powers issues, versus international law issues of law between states versus judicialization of individuals’ claims in human rights setting) 3. Technical issues of where international law fits in domestic law (Erie & federal common law question) 4. Home court advantage/hard cases bad law problem & resulting criticism (Alvarez-Machain S Ct 1992s DEA agent torture-murder)

3. FOREIGN COURTS’ VIEWS HIDDEN SOCIAL DISAGREEMENTS & FOREIGN COURTS’ VIEWS 1. During past 2-3 years, certain opinions changing S Ct caselaw (Atkins v. Virginia 2002, execution of mentally retarded violated 8th amend; Lawrence v. Texas 2003, sodomy statute violates due process clause) contain in their reasoning references to authorities like European Human Rights Court & UN High Commissioner for Human Rights (viewing positively typically Justices Kennedy/Souter/Breyer/O’Connor/Ginsburg) [Off the record] [Do you agree?] [Historical view: 5 years ago] 2. Dissents from Scalia/Thomas, maybe Rehnquist, that “foreign values” inappropriate with clear reference to worries about upholding capital punishment, which is viewed as human rights violation in much of world, e.g., Sosa v. Alvarez-Machain 2004, ATCA) [Off the record] [Do you agree?]

4. FOREIGN VIEWS TECHNICAL ISSUES 1. Distinguish “comparative law” persuasive authority use of material like EHRC precedents vs. claims about public international law precedent (despite technically no binding precedent in public int’l law, e.g., ICJ art 59) 2. Separate issue whether law applied is directly an int’l law norm, versus domestic law modeled on int’l law norm (common law vs. customary law) 3. The formal technical argument about persuasive vs. binding precedent may be misleading since the claims about judicial usurpation by Scalia vs. O’Connor et al saying take foreign views into account misleading on the basis that the underlying assumption is only states make law anyway, so arguing about this in terms of democratic theory beside the point unless claim no int’l law in fact in US courts (ICC type problems?)

5. STRUCTURAL ISSUES I SEPARATION OF POWERS PLUS 1. Hidden problem of traditional int’l law view (law between states) and human rights view (individual level enforcement) raising tensions with domestic separation of powers analysis 2. Traditional int’l law approaches led to diplomatic protection at individual level, kept disputes within the executive and let executive work own trade-offs in foreign relations terms in deciding whether to pursue individual citizen’s issue vs favoring nat’l interest

6. STRUCTURAL ISSUES II SEPARATION OF POWERS PLUS (CONT’D) 3. Serious separation of powers issues leads Judiciary in ordinary proceedings involving individual rights (individual claims, typically human rights or similar claims) to solicit and be deferential to executive views 4. But what does it mean to defer to the executive in an individual rights case? Thus the entire individual rights approach, as may be possible under an ATCA claim, heightens the structural issues in terms of separation of powers issues tied to foreign affairs

7. CUSTOMARY VS. COMMON LAW I WHAT IS PLACE OF INT’L LAW IN DOMESTIC LAW? 1. Reviewed earlier as dualism-monism question [Reminder] 2. Technical issue at common law/Erie doctrine level of state vs federal law with federalism & separation of powers overtones [Reminder domestic doctrine] [Int’l & US law issue]

8. CUSTOMARY VS. COMMON LAW II FEDERAL COMMON LAW POSITION 1. Back to traditional question whether int’l law part of common law, with parallel question whether state or federal if common law 2. Starting around Sabbatino (S Ct 1964, act of state doctrine as federal common law), idea that the federal common law analysis supported uniform national legal analysis

9. CUSTOMARY VS. COMMON LAW III FEDERAL COMMON LAW POSITION (CONT’D) 3. Starting around Filartiga v. Pena-Irala (2d Cir 1978, modern ATCA rebirth), idea of modern int’l law human rights violation arising under US Constitution art III, plus possibility of President being bound by int’l law viewing it under art II due execution clause 4. Perhaps better understood as self-executing kind of issues, since hidden argument of Supremacy clause effect/superceding law effect analogous to Whitney v. Robertson in terms of whether can supercede other federal/state law and the special problem of human rights treaties that Senate agrees to but then states no changes in US law necessary (different from separation of powers or federalism analysis), now visible in Sosa v. Alvarez-Machain (S Ct 2004, odd discretionary common law language, meaning presumably control)

10. HOME COURT ADVANTAGE I US v. ALVAREZ-MACHAIN, 504 U.S. 655 (1992) DEA agent kidnapped, tortured & killed with some evidence defendant participated in torture; defendant kidnapped from Mexico, argued US prosecution should be dismissed because kidnapping illegal & in violation of extradition treaty; held charges should not be dropped, then prosecuted in US below, but freed when D Ct judge directed verdict after prosecution’s case CLASSIC HARD CASE ON FACTS, OR JUST PRIOR TO PAST 2-3 YEARS?

11. HOME COURT ADVANTAGE II US v. ALVAREZ-MACHAIN, 504 U.S. 655 (1992) (CONT’D) 1. Older Ker-Frisbie doctrine saying does not matter how jurisdiction of court obtained 2. Embarassingly weak argumentation that because extradition treaty did not expressly prohibit kidnapping, okay (constitutionally, US S Ct can decide but probably failure as Vienna Convention interpretation)

12. HOME COURT ADVANTAGE III US v. ALVAREZ-MACHAIN, 504 U.S. 655 (1992) (CONT’D) 3. Beyond formalism, simplest test is to ask how US govt would react to kidnapping its citizen from US territory for trial abroad (analogy to current efforts to shield from ICC jurisdiction) ORIGINAL ALVAREZ-MACHAIN CASE ALMOST EMBARASSING IN INT’L CLAIMS IT UNDERCUT RULE OF LAW, ANALOGOUS SENSE AGAIN ON BREADTH OF EXECUTIVE POWERS CLAIMS UNDER HAMDI & PADILLA

13. ALIEN TORT CLAIMS ACT I ATCA 1789, 28 USC 1350 1. ATCA originally jurisdictional, targeting 18th century customary law problems following Blackstone of piracy, diplomatic protection, violation of safe conducts 2. Following Filartiga 1978 modern rebirth, aimed initially at torturers by victims, problems then with foreign affairs effects but some Congressional cover via Torture Victims Protection Act of 1991 (for example, ATCA & Former Yugoslavia, then ATCA corporate responsibility for apartheid suits opposed by current South African govt)

14. ALIEN TORT CLAIMS ACT II ATCA 1789, 28 USC 1350 (CONT’D) 3. Most recent ATCA suits are “emerging law” environmental claims, sometimes indigenous rights also to challenge MNC corporate behavior in developing country primary industries (oil & mining) 4. ATCA “emerging law” largely based in sources of law terms on very broad general principles of international law approaches in terms of ICJ Statute art 38 terms, following views of law like in CIEL “emerging law” paper Unit 3 problem (issue of law as process rather than norms too)

15. ALIEN TORT CLAIMS ACT III ATCA 1789, 28 USC 1350 (CONT’D) 5. Politically, last 10 years ATCA targeting changed to MNCs, either extractive industry or very recently past sins approach (apartheid, Holocaust) and started to become lucrative general civil rights bar focus as opposed to pure human rights activist tradition (foreign countries suspicion of private attorney general theories) 6. Sosa hyped as great clash to resolve ATCA’s many issues implicating most of initial 4 themes

16. SOSA S CT 2004 SOSA V. ALVAREZ-MACHAIN, 2004 Follow up for 1992 Alvarez-Machain case comes up for Federal Tort Claims Act & Alien Tort Claims Act challenges of “unlawful” kidnapping 1. FTCA liability to be excluded formally because of concern about US govt liability if lex locus delicti applied to determine liability in Mexico [Your view, Abu Gharib application?] 2. ATCA upheld as jurisdictional basis, decision then that casuses of action discretionary federal common law but not including kidnapping as here

17. SOSA FTCA SOSA MAJORITY FTCA DISPOSITION 1. FTCA disposition should be noted as based on claim simply not desired that US govt should be subject to liability determination under foreign law 2. Close parallel in foreign govt amici briefs (CH-UK-OZ & EU) claiming that ATCA would expose them in US courts to liability on law not their own so pure int’l law standards substantively & in terms of prescriptive jurisdiction

18. SOSA MAJORITY ATCA I SOSA MAJORITY ATCA DISPOSITION 1. Concept that 1789 ATCA passed by Congress of Founding Fathers- Constitution drafters, finding meant to be jurisdictional & recognizing Blackstone’s three seeming individual claims (piracy, protection of diplomats & safe conducts)

19. SOSA MAJORITY ATCA II SOSA MAJORITY ATCA DISPOSITION (CONT’D) 2. No mention of “customary law” as such or dualism-monism problem, but formal resolution of federal common law in recitation of “discretionary,” seemingly narrow approach (odd jurisprudentially, but perhaps control of causes of action aim to avoid foreign affairs overtones, yet S Ct not an appeals ct)

20. SOSA MAJORITY ATCA III SOSA MAJORITY ATCA DISPOSITION (CONT’D) 3. Key standard subject to two interpretations in language “[W]e think courts should require any claim based on the present-day law of nations to rest on a norm of int’l law character accepted by the civilized world and defined with a specificity comparable to the 18th century paradigms we have recognized.” CONFLICT IS WHETHER STANDARD IS DEGREE OF AGREEMENT (MEANING NO “EMERGING LAW” CLAIMS IN PRACTICE) VS. CLOSE ANALOGUE TO OLDER 3 LIKE AIR CRAFT HIJACKING AS MODERN “PIRACY”

21. SOSA MAJORITY ATCA IV SOSA MAJORITY ATCA DISPOSITION (CONT’D) 4. Preferable view is degree of consensus, translating into a general downgrading in ICJ Statute art 38 terms of general principles & academic writings per se into traditional customary law (state practice & opinio juris) plus treaty, so informal sources doctrine overlap 5. Unresolved problem is still the structural limits of foreign affairs & separation of powers in moving from law between states & diplomatic protection to individual, enforceable rights claims as newer human rights approaches

22. SOSA CONCURRENCES SOSA CONCURRENCES (AGREEING IN RESULT, BUT…) 1. Scalia focused on technical issues of federal common law-Erie arguments plus foreign law-foreign society views, but strongest claims on structural limitations side that fed cts will now stumble into foreign affairs entanglements (conceptual dissent) 2. Other concurrences on ATCA result, would have reached same FTCA result but different reasoning (not highlighting US govt discomfort in being subject to non-US law

23. SOSA LOOKING FORWARD I DIFFERING INTERPRETATIONS 1. Differing interpretations by pro & anti-ATCA camps, re how much S Ct has really decided [Off the record] 2. Problem that is S Ct wants case-by-case adjudication to develop causes of action, next one will not come up for 10+ years arguably a. Scalia’s view of inviting bad cases b. Problem of what looks like non-self executing analogy but ultimate problem may be application of non-US standards issues

24. SOSA LOOKING FORWARD II 1. Issue whether the S Ct really understands public international law & sources of law issues, or whether they bought completely into domestic constitutional analysis of federal common law formalistically 2. Irregardless, did not clearly articulate idea but seemed to think only treaty & customary law suitable (reciting Paquete Habana as traditional leading US customary law precedent)

25. SOSA LOOKING FORWARD III 3. Continuing problems in US Senate treaty interpretation/reservation practice apparently conditionally consenting to human rights treaties but declaring no need to change int’l law [Off the record] 4. Argumentation on non-self executing treaties analogy but relatively strong Scalia structural limitations claims leaves the problem open of reconciling what now follows from judicializing individual rights [Do you agree?]