international law

McCann v. United Kingdom

Exhaustion of domestic remedies; emphasis on state responsibility in situations in which individuals don’t necessarily do anything wrong

Filartiga v. Pena-Irala

Pena-Irala was at least on US territory at the beginning of the case; ATCA: civil claim brought by an alien for a violation of the law of nations or a US treaty obligation; forum non conveniens: makes no sense for US to hear case because its an inconvenient forum, presumes that there is a more convenient forum; torture: a person acting under the color of authority upon another

Reservations to the Genocide Convention

A reserving state can still be party to a multilateral treaty if the reservation is compatible with the object and purpose of the treaty

If a party objects to a state’s reservation it can consider that state not party to the treaty but if it accepts the reservation as compatible it can consider that state party to the treaty

Eastern Airlines v. Floyd

The language of treaties should be read so that it is consistent with their primary purpose

Gabcikovo-Nagyamaros Project

Treaty termination

Eastern Greenland

Says the same thing as NT

Public statement from high-ranking public official in a formal setting is legally binding

Nuclear Tests

Says the same thing as EG

Free Zones of Upper Savoy

In order for a third state to acquire rights, the intention to give rights must be declared and that third state must accept those rights

Once acquired, those rights cannot be taken away without the third state being party to the treaty

The Pacquete Habana

Will apply customary law as long as there is not a conflict between US and customary law

Best-known decision of a US court finding and applying customary law

Asylum

Creates a high standard (positivist view) for customary intl law: must show that the other party accepts/practices that customary law

Opens possibility for regional customary intl law

Lotus

Passive nationality: claims jurisdiction over an incident happening outside your territory because of the effect on your nationals

Objective territoriality: action outside territory with effect within territory gives jurisdiction

AM & S

How do you find a general principle of law: looks to the common practice among European countries and common logic for why those practices exist

How general does the principle need to be?

General principles and customary law are both part of general international law, which applies to everyone, opposed to treaty law which only applies to specific countries

Customary law deals with how nations deal with each other

General principles deal with how nations deal with cases internally

United States v. Smith

The rules of the law of nations may be ascertained by consulting the works of jurists, writing on public law, or by general practice of nations, or by judicial decision recognizing and enforcing that law

Universal jurisdiction because piracy is a violation of ajus cogens norm

Prosecutor v. Furundzija

Erga omnes: obligations owed to the entire intl community, anyone who can catch a violation can prosecute, countries can’t protect individuals

Michael Domingues: US Argument and IACHR Report

Jus cogens: the US argues that everyone, including the US, must accept the norm

Cayuga Indians

Consensual basis (treaty to form tribunal) for applying a nonconsensual source (equity)

The Meuse

Under Article 38 of the Statute of the PCIJ, principles of equity can be considered part of intl law

An important principle of equity is that where two parties have reciprocal obligations, a party engaged in non-performance cannot bring a claim against the non-performance of the other party

North Sea Continental Shelf

Since Germany is not party to the convention which presents the principle of equidistance and since equidistance is not customary state practice, the countries must divide coastline based on principles of equity

Ware v. Hylton

Under treaty law supremacy clause, treaties take precedence over all inconsistent state law

Missouri v. Holland

Logic overturned by Reid v. Covert

Implied that you could do something by treaty which is beyond the limits of the Constitution

Whitney v. Robertson

Later in time rule: between treaty law and acts of congress, whichever is later is the applied one, even if the act of congress puts the US into conflict with intl law

Reid v. Covert

All US international obligations have to agree with the Constitution

Edwards v. Carter

Congress’ exclusive powers include money distribution and tax

Congress and the President have concurrent power to admit new states to the union

The language of the property clause was not intended to preclude self-executing treaties as a means for disposing of US property

Foster and Elam v. Neilson

When the language of the agreement imports a contract, it addresses the political instead of the judicial and becomes non-self-executing

 

Dualistic- legal duty on an intl law is different from domestic

Monistic- assumes all treaties are self-executing (international and domestic are one)

Asakura v. Seattle

A treaty is self-executing is the president is engaged in a proper subject for negotiation (foreign affairs etc)

Sei Fujii v. California

A treaty only supersedes local laws when it is self-executing

Some parts of a treaty may be self-executing while others are not

United States v. Belmont

Only the President can recognize the legitimacy of a new State, and no state policy can be interposed as an obstacle to the effective operation of a federal constitutional power

The executive agreement was self-executing because it was a valid exercise of the foreign affairs power of the President

Dames and Moore v. Regan

The President’s power to issue executive agreements stems either from an act of Congress or from the Constitution itself

Youngstown presidential power continuum: zenith of power when acting pursuant to an express or implied authorization from Congress, lowest ebb when acting in contravention of the will of Congress, middle is a zone of twilight in which he and Congress may have concurrent authority or in which distribution is uncertain

Congress may support through its acquiescence

Medellin v. Texas

Treaties are not domestic law unless congress has either enacted statutes or the treaty is self-executing

Executive agreements are not domestic law if they fail the Youngstown framework

Respublica v. De Longchamps

Asserts that the law of nations is part of the law of the US

Created the foundation for the ATCA

Murray v. Schooner Charming Betsy

An act of Congress ought to never directly conflict with the law of nations; if there is a potential conflict, do everything within power to stay within the law of nations

Sosa v. Alvarez-Machain

Claims under the ATCA must be seen to be as clear of a violation of norms of customary international law as piracy was back when it was signed

Kiobel v. Royal Dutch Petroleum Co.

Roberts: Presumption against extraterritorial application without clear indication otherwise, doesn’t touch the US with sufficient force for the US to hear it

 

Kennedy: Congress could make norms that we could integrate into ATCA

 

Alito: if the US was to hear the case, it REALLY has to touch the US, Roberts’ argument is a craven watchdog

 

Breyer: Jurisdiction is found when the alleged tort occurs on US territory, the defendant is American, or the defendant’s conduct substantially and adversely affected an important American national interest

Over the Top

Unless it is clear that it should be interpreted otherwise, statutes will be interpreted within the bounds of international law