ras outline public international law (missing fsia notes)

8/12/2019 Ras Outline Public International Law (Missing Fsia Notes)

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PUBLIC INTERNATIONAL LAW

Prof. Goldman – Spring 2013 – WCL

Outline

Overview:

I. Intro What is Int’l Law a. Definition

II. Sources of Int’l Law

a. Treaties

b. Customary International Law

c. Customary International Law & the US

III. International Dispute Resolutions

a. Negotiation, Mediation, Conciliation and Arbitration

b. International Court of Justice

IV. Recognition of States & Governments

a. What is a State

b. Recognition and SuccessionV. International Human Rights & State Responsibility

a. State Responsibility for Injury to Aliens

b. Human Rights and International Criminal Law

VI. Jurisdiction: Allocation of Legal Authority Among States

a. Jurisdiction to Prescribe

i. Territorial Jurisdiction

ii. Prescribe Nationality

iii. Protective Principle

iv. Passive Personality

v. Universal Jurisdiction

b. Jurisdiction to EnforceVII. Sovereign & Other Immunities

a. Sovereign Immunity

b. Diplomatic and Head-of-State Immunities

VIII. Act of State Doctrine



I. Introduction: What is International Law?

A. The Definition of “International Law”

- Public International Law – governs activities of states in relations with other states/governments.Sources: Treaties & Customary Int’l Law (CIL)

- Private Int’l Law – governs activities of individuals, corporations, other private entities across

national borders

- 3rd Restatement of Foreign Relations Law (1987), Sec. 101 (CB p.2)

- Statute of the International Criminal Court of Justice (ICCJ), Art. 38 (CB p.3)

o two ways to create new int'l law: 1. Treaties & 2. New Customary Law.

o In addition, lists as “evidence” (not source) of law: 1. General principles of law recognized

by civilized societies (extrapolating from state law) and 2. Treatises.

o NB: ICJ like civil system: no stare decisis; though precedent is still relevant, judicial

decisions are not a source of int'l law (except in human rights context)

- Restatement Sec. 102 (p.3)- Treaty provisions may give rise to CIL, eg non-signers follow what is agreed to in the T (custom)

o Example: beginning of Amb./Dip. Immunity, started as custom, now binding & codified by T

- Creation of int'l law: CIL Treaty agreements

- Treaty is primary means of law creation bc less uncertainty.

- NB: where a provision specifies choice of law (ie, Southern District NY), that’s NOT a treaty

- Parties to Treaties may only be states, otherwise just contracts. Also, must be in writing.

- Most disputes the US today tries to resolve wholly by application extraterritorially of US law (ie

either do business with Iran or with us, not both). Typically these disputes come down to

jurisdiction. Most clashes are with NATO allies and largest trading partners.

- Policy and politics are essential to understanding the context of int’l law: Int’l law not static,

doesn’t function in a vacuum.

B. Legitimacy: International Law & the Compliance Challenge: is it really Law?

- Threshold issue for int’l law is its legitimacy:

o No executive/legislative branches and no police or enforcement through force

o States must consent to be sued, due to the fiction of sovereign states on which it’s based

- BUT:

o Law derives its force not just from police and courts

o Countries comply w/ legal norms bc of expectation of reciprocal behavior and effective

sanctions

o Int’l travel, econ interdependence, and transnational cooperation signs global anarchy not athreat

- Legitimacy largely built on acceptance.

- Positivist view: no state can be compelled; Treaties are like consensual contracts. BUT, acceptance

and consent don’t account for everything: all states feel bound by custom. Thus even a newly

emerging state is bound by CIL.



- The modern view: no longer states as the only actors, thanks to human rights law, inter-

governmental and non-governmental organizations and civil society – all push int’l law which in

turn pushes states. (eg land mines)

- Louis Henkin, How Nations Behave: Law & Foreign Policy

- The Case of the S.S. “Lotus” (France v. Turkey) – Int’l Law permits what it does not prohibit

- II. Sources of International Law

A. Treaties

o create legal obligations, with corresponding duties of compliance and entitlement to

remedies including rights of retaliation in the event of a breach

o International Law: int'l legal obligations (from Treaty or CIL) supersede domestic legal

obligations, even a state’s constitution. A state cannot plead domestic law as an excuse for

non-compliance.

o US Domestic Law on Int’l Law: Supremacy Clause: SCOTUS interprets to mean Treaties are

equal to law of the land, and whichever is last in time trumps. (impt to understand how agiven state’s domestic law gives effect to int’l law)

o States have a duty to make int'l law found in treaties they are a party to the domestic law if

it isn’t already. US Courts will use techniques of construction / interpretation to honor

treaties over US laws where possible, ie where intent of Cong was not specifically to

overturn the Treaty.

FORMATION of TREATIES

- The Vienna Convention on the Law of Treaties (VCLT) (art. 2 & 11, CB p. 87)

o Where states have not covered something in Treaty, the VCLT is a default/gap filler.

o Provides background rules, attempts to stipulate to every contingency, so no ambiguity

o Modern trend is for incredible specificity by states in Treaties.o USA has signed but not ratified the Convention but US cts frequently rely on its terms

o Art. 2: States must be parties, the agreement must be governed by international law, and it

must be in writing

- Restatement Sec. 301

o Since an intern’l agreement does not require consideration, the obligation may be wholly

unilateral (peace treaty)

BUT unilateral statement is not a treaty (p 97)

BUT may be binding if the intent is present

- Today, updating int'l law tends to be done by UN bringing everyone together to conventions

creating treaties. Treaties can:

o Codify existing CILo Tweak CIL, or tweak an older treatythe “crystallization of new norms”

Treaties are only binding on signatories, but where a treaty codifies CIL, non-

signatories are bound to follow it as well.

o Contract principles apply:

Key Q: do the parties intend to be bound?

Art. 26: good faith is a much more important principle here than in civil contract

theory – pacta sunt servanda: agreements shall be observed in good faith.



Consideration is not required: Can have unilateral obligations.

States have great contractual autonomy, provided not contrary to public policy of

forum.

- Always identify what T purports to do, who signers/non-signers are, and what specifically they

commit to.

- Distinguishing Treaties from Political Commitmentso Political commitments are soft obligations, not binding, not treaties.

o NB: even though not binding, breach of a pol comm. may have worse consequences (on

political relations, trust, coordination down the road, etc.)

- Obligation Not to Defeat the Object and Purpose (VCLT Art. 18)

o Usually exec branch signs treaty, then awaits legislature to approve before it has the force

of law

o Article 18 : State may not commit acts against the treaty if:

Signed the treaty, or subject to ratification, or has not made clear that it won’t be a

party

Or it has expressed its consent to be bound

o Example: US with the Rome Statute (p 93) Pres Clinton made it clear the US believed there were flaws in the treaty but never

transmitted it to Senate;

Bush Admin sent letter to UN saying no longer intended to become a party to the

treaty

- Observance and Interpretation of Treaties (VCLT Art. 31 & 32, p.96)

o Pacta sunt servanda – GOOD FAITH assumed at core of every treaty

o Article 32: look to “Supplementary means of interpretation,” such as prep work of treaty

and circumstances of its conclusion, when general rule of interpretation (Art. 31):

Leaves meaning ambiguous or obscure; or

Leads to results that are “manifestly absurd or unreasonable”

o Restatement Sec. 325 (p. 97)- Reservations

o Parties may wish to accept most of its obligations, but not all of them: Country might not

agree with a provision, might not want to accept a dispute settlement provision.

o Vienna Convention definition of “reservation” (Article2(1)(d))

A unilateral statement, however phrased or named, made by the State, when

signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports

to exclude or modify the legal effect of certain provisions of the treaty in their

application to the State.

o Reservations increase as difficulty in fashioning agreed rules applicable to all parties to an

int’l agreement increases based on growing number of parties to treaties.

o Reasons for reservations: May wish to be a party BUT not yield to points against its interests not bind itself to certain procedural oblig i.e. compulsory settlement dispute

make sure treaty obligations are compatible w particularities of local law

preclude a treaty’s application to subordinate political entities in a fed system or

foreign terrorist for which State would otherwise have int’l responsibility

- VCLT Articles 19, 20, 21, 23 (p.101)

o Article 19 – No Reservations when:



Prohibited by treaty

Treaty provides that only specified reservs occur

Reserv is incompatible w the object & purpose of treaty

o Article 20 – Acceptance of and Objection to Reservs

o Article 21 – Legal Effects of Reservs and of Objections to Reservs

o Article 23 – Procedure Regarding Reservations Must be formulated in writing and communicated to all the contracting States

o Declaration of the Netherlands & Declaration of the UK and Northern Ireland (p102)

- Termination and the Suspension of the Operation of Treaties (p.105)

o Article 60: detailed criteria for getting out of treaty obligations (breach)

If material breach of treaty:

affected party may unilaterally terminate the treaty or

suspend performance of its own obligations

o Article 61: impossibility of performance as basis for terminating or withdrawing fr treaty

o Article 62: Permissibility of terminating a treaty because of a “fundamental change in

circumstances” (doctrine of rebus sic stantibus):

fundamental changes cannot be invoked as grounds for terminating, unless existence of those circum constituted an essential basis of consent of the

bound parties and ;

effect of the change was radically to transform the scope of obligations still to

be performed under the treaty

BUT 2 exceptions:

o Cannot be invoked regarding the establishment of a boundary

o Cannot be invoked if the change was the result of a breach

Hungry v. Slovakia (ICJ 1997) (p.108)

treaty regarding a proj on bordering Danube River

Hungry: impossibility of perf and changed

circumstances

Ct: No impossib bc Hungry stopped working first

Ct: No changed circum bc purpose of treaty not closely

linked to political conditions

- Withdrawal from or Denunciation of a Treaty

o Most recent treaties provide basis for withdrawal from or denunciation of treaty

o Usually specify duration of termination and/or conditions that allow termination

o If no provision regarding termination then

Apply Article 56: Treaty is not subject to denunciation or withdrawal unless:

Parties intended to admit the possibility of denunciation or withdrawal

Right to denunciation or withdrawal may be implied by the nature of thetreaty

- Jus Cogens (p.112)

o Definition (Black’s): A mandatory or peremptory norm of general international

law, accepted and recognized by the international community as a norm from which no

derogation is permitted. A peremptory norm can be modified only by a later norm that has

the same character.

o Preemptory norms are not an independent source of int'l law

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o So fundamental they bind all states

o How to identify them is not clear, but they likely include: right to self-defense, prohibitions

against genocide, torture, crimes against humanity, slavery, piracy, racial discrimination,

and hostilities directed at civilian populations.

B. Customary International Law & General Principles of LawFORMATION of CIL

- Restatement Sec. 102 (p.116) – CIL doesn’t have to be universally followed (peremptory), but

practice must be general & consistent.

- International Law Association statement (p.122)

- General practice accepted as law – ICJ statute requires presence of 2 elements:

- 1 – State practice

o Phys and “verbal acts” of States constitute practice, contributes to creation of CIL Battlefield behavior, use of certain weapons, national legislation, military manuals,

official statements made Phys and verbal acts must be considered official to contribute to creation of CIL

o Exec, legislative, judicial organs of State can contribute to formation of CILo Practice has to be public or communicated to some extent

At least should be communicated to one other State or int’l org in order to give

opportunity for other States to react

o Int’l courts are not part of creation of State practice technically because not considered

state organs, but are included in the process anyway because the courts: Make determinations that CIL exists, and

influence the practice of States and int’l orgs that contribute to emergence of CIL

o Int’l orgs: although independent of States they contribute to formation of CIL

Negotiation & adoption of resolutions by int’l orgs

Acts of the State involved

Not binding in themselves but depend on degree of state acceptanceo Assessment of State Practice

Whether it is sufficiently “dense” to create a rule

Must be virtually uniform, extensive, and representative

Diff states must not have engaged in substantially diff conduct

But it is enough that the practice is sufficiently similar

Contrary practice does not prevent formation of rule if condemned by other

States or denied by govt

No need to be “universal” just general; depends also which States more so

than how many

No precise amount of time is required

If all “specially affected States” are represented no need for majority but if they don’t

accept the practice cannot become CIL

- 2 – Opinio Juris - 2nd Requirement for rule of CIL – Belief that such practice is required, prohibited

or allowed, as a matter of law. Good description by ICRC page 118

o The principle that for conduct or a practice to become a rule of customary international

law, it must be shown that nations believe that international law (rather than moral

obligation) mandates the conduct or practice.

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o May be inferred from acts or omissions.

- Whose Practice? Who is Bound? P.126

o States can react to new custom in three ways: Reject, Accept, or Silence.

In Bush OLC memos on torture, argument that the activities were not torture. Had

the effect of underscoring/reaffirming the existence of the treaty and the

peremptory norm. Admitting to torture would have created an exception, which states would respond

to. If states remained silent, would have effect of crystallizing emerging norm, risks

creation of new rule of CIL

BUT: torture is a peremptory norm, so in this example not possible for exception

unless affirmed by entire int’l community.

o Persistent objector: If state is present at the creation of the norm, it can be a “persistent

objector” if persistent and open from beginning of development of rule

However, a state cannot be a persistent objector to a peremptory norm.

o Creation of new rule of CIL depends also on density – consistent, uniform practice by states

especially the specially affected states.

o “specially affected” states (p. 126) depends on subject matter of the rule, some states mayplay a disproportionate role in creation of CIL if important actors in an area of activity do not accept the practice, it cannot mature

into a rule of general CIL.

Particularly important where a treaty might give rise to a rule of CIL that binds non-

signers. (eg US opposition to land mine treaty) – open question

- The Effect of Treaties and Customary International Law p.129

o Restatement Sec. 102

o What is the treaty doing: defines relationship with non-signers

Is it codifying existing CIL? Then even non-signers are bound.

Is it making a completely new rule? Then if state renounces persistently, may not be

bound. US has objected early and often to the Law of the Sea Treaty.o “crystallization of new norms” – law of the see treaty is example of all three ways CIL

formed:

Treaty codified existing CIL

Treaty crystallized emerging CIL

Treaty created new provisions, creating new law

- Soft Law – p.131 (political commitments)

- Handout: Read Introduction (pp. xxviii –xlv) from ICRC study Customary International

Humanitarian Law and letter from Messrs. Bellinger & Haynes to ICRC’s President dated 3

November 2006 ( will be posted on MyWCL)

- General Principles of Law

C. Customary International Law in the United States

PART OF US LAW:



- Const is silent about formation and domestic status of CIL

- Const gives Congress power to define and punish offenses against the Law of Nations

- CIL: obligations inferred fr the gen and consistent practice of states followed out of a sense of

legal obligation (opinio juris). State practice may be found in state conduct, diplomatic

correspondence, official statements, military and admin practice, treaties, judicial decisions,

national legislation- Article I & III: involved in making cust intern’l law by the USA

- Article VI: treaties are the supreme law of the land

- Treaties preempt inconsistent state laws

- Last in time rule: treaties can override earlier inconsistent [fed] statute

- Admiralty or Maritime Law: Prize law: rights of persons to capture enemy vessels and cargoes

during wartime

- The Paquete Habana

- Facts: Each vessel engaged in fishing along the Cuban coast; owned by a Spaniard born in Cuba;

commanded by a Spaniard also living in Cuba; commanders entitled to shares and owned 2/3 ofthe catch. No arms or ammunition on board and made no resistance at time of capture. Each

vessel was then brought into Key West and sold at auction

- Issue: whether the fishing smacks were subject to capture by the armed vessels of the US during

the recent war w Spain

- Court looked to 500 years of practice, what today would be “verbal acts” or opinio juris

- Rule: CIL is part of US law and will be binding so long as we chose it to be.

o Where there is no treaty and no controlling executive or legislative act or judicial decision,

resort must be had to the customs and usages of civilized nations

o It is an established rule of international law that coastal fishing vessels, with their

implements and supplies, cargoes and crews, unarmed, and honestly pursuing peaceful

calling of catching and bringing fresh fish, are exempt from capture as prize of war.o Exceptions:

Does not apply to fishermen w vessels for war purposes

Does not apply to vessels who take whales or seals or only have salted fish

- Holding: The capture was unlawful w proceeds of sales of vessels and cargo restored to the

claimant w damages and costs

- Take away: US will apply CIL as part of domestic law, but selectively. Difficult to invoke CIL

directly against the executive or legislative branches, courts will invoke Paquete Habana!

- Filartiga v. Pena-Irala (2d Cir. 1980) (p.244)

- Alien Tort Claim Act (ATS = 28 USC 1350): creates original subject matter jurisdiction in the

federal courts over all causes of action where an alien sues for tort only violation of law.- Issue: does it also create a cause of action (or just jx)?

o Could open US to being a court of claims for the world, which could also have foreign policy

implications, particularly for our “friends” in torturing countries like S.A. …

- Facts: death by torture of the son of a Paraguayan human rights activist, Dr. Filartiga, opposed to

gov’t. Chief of police tortured and killed his son. Farther fled to US and filed claim for a violation of

the law of nations while Pena-Irala was awaiting deportation (years later)



- Court determined that torture was a tort in violation of the law of nations, cited CIL, but also and

remarkably, cited the statute itself as implying a cause of action. extraordinary use of the ATS.

- Given domestic situation in P, could not require them to exhaust internal legal remedies.

- Distinguish between acts committed “under color of official authority” (suits against

governments) vs. suits against individuals.

- Ct could have used Act of State doctrine, but didn’t (likely because no foreign relations problem toworry about with Paraguay – likely much different result if dealing with Saudi Arabia, for ex)

- For authority: Ct looked to Paquete Habana, then to circuit split, then to UN Charter, the Universal

Declaration of Human Rights, law review articles, etc. They look at lots of “soft law”, not binding,

also looked to American Convention on Human Rights (signed by Carter but not ratified, not

binding). And, crucially, State Department wrote an amicus to the court saying torture proscribed

- P. 249: it is a strict test, torture is a peremptory norm and one of universal jurisdiction.

- Bottom line:

o Paquete Habana looked to what states do/did.

o Filartiga looked to opposite, relied purely on “verbal acts”, pointed to consistent

renouncements of torture. All opinio juris. (the American Declaration of Duties & Rights ofMan is the only binding international law on the US that prohibits torture that the ct cited)

o Filartiga spawned huge amount of litigation, especially from latin America.

- In 1992, Congress passed the Torture Victim Protection Act, made express the implied cause of

action found in Filartiga. must give the state in which the act occurred the opportunity to

remedy, prior to relying on the ATS/TVPA.

- ATS can be invoked only by alien Ps; TVPA can be invoked by US citizens but it applies only when

the D has acted under the authority of a foreign nation

- Kadic v. Karadzic (2d Cir. 1995) (p. 252)

o ATS applied to private parties. Karadzic was president of self-declared, unrecognized

Bosnian-serb rebulic. Mess in Yugoslavia. Pleading in alternative: is he head of state orrebel head of insurgency?

o 3Hs: Extended scope of ATS to private individuals

Private individuals, as well as those acting under the color of foreign law, could be

liable under CIL and thus under ATS for genocide, war crimes, or other IHL violation

Non-state actors could not be liable for torture or execution under the ATS,

however, bc those acts, when not perpetrated in the course of genocide or war

crimes, are proscribed by int'l law only when committed by state officials or under

color of law.

BUT: court also held that a private individual could be considered a state actor, and

thus liable for claims like torture and summary execution that require state action, if

the individual acted in concert with state officials or with significant state aid.- PROBLEM: Kadic facilitated a waive of litigation against US corporations, held liable as private

entities for their violations of international law (eg union-busting).

- Sosa v. Alvaraez-Machain (US 2004) p.253 (Mexican working for DEA v. accused Mexican torturer)

- AM helped torture a DEA agent. The US didn’t follow its extradition treaty with Mexico, went in

and had him rendered. Big problem. Other countries all of a sudden wanted to renegotiate their

extradition treaties.



- US district ct found no evidence that AM was involved in torture. So he sued US under Federal

Tort Claims Act and sued Mexican national SOSA (worked with DEA to render him) under the ATS.

- SCOTUS determines ATS is largely jurisdictional.

- P. 261: court is concerned with private rights of action, leaves door ajar but sets a high standard,

going back to 1789.

- Ct affirms Paquete and Filartiga stating must look at int'l law as it is at the time case filed.- Test going forward:

o Is there a violation of CIL

o Does it meet the Sosa standard: serious violations of international law (like torture)

- Question 2, p. 265. Open question still wrt what meets Sosa standard, lower courts now addrssing

- FN 21 (p.261): even some cases that meet our standard may fail where foreign policy requires

deference to the executive branch.

- Case is also an example of court doing whatever it wants on int'l law: ignores completely AMs

claims that his abduction was in violation of int'l law, Universal Declaration, Int’l Covenant on Civil

& Pol Rights, etc. Court doesn’t recognize that after 60 years, Declaration may have become

binding CIL

- The Charming Betsy Canon and Statutory & Constitutional Interpretation p.267

o Only where there is ambiguity on part of congress, cts will, where fairly possible, construe

US law/statutes not to conflict with int'l law or with an int’l agreement of the US.

o Where congress has been clear, cts will uphold Cong over int'l law. Ie Congress / POTUS

may unambiguously chose to violate int'l law. Compliance with int'l law is optional.

III. International Dispute Resolutions

A. Negotiation, Mediation, Conciliation, Arbitration (not tested on)

- most int’l disputes resolved peacefully through often creative means:

o diplomacy, both bilateral and 3rd party initiativeso arbitration

o int’l adjudicationhas not been primary method of resolution bc states are sovereign so

adjudication is always voluntary & slow w/less control: subjects resolution to 9 judges.

o war

B. International Court of Justice ICJ

- NB: ICJ, not the ICC. States do not have criminal liability.

- All states party to UN Charter automatically party to ICJ.

- ICJ decisions are not int'l law. May be powerful evidence of CIL, but :

o Not primary means of creating CIL and

o Not primary means of resolving disputes

- ICJ is like a civil system: no stare decisis, though precedent is still relevant.- 3 stages of ICJ cases:

o Admissibility & Jx (preliminary ejections stage)

supposed to be preliminary for jx, not a look at the merits.

But often hard for Ct to separate, not look at the merits. See oil platform (USv. Iran)

case as example of court having to look at the merits to determine preliminarily

whether had Jx

o Merits



o Reparations

- 2 areas of cases:

o Contentious Cases: real disputes, only states may be parties;

decisions are binding, though only binding on the parties (no stare decisis)

But ct cannot specify how a state will give legal effect to it in accordance with state’s

own domestic law.o Advisory Opinions: only to certain bodies of UN; come very close to being disguised

contentious cases.

- Jurisdiction of the ICJ in Contentious Cases

o Know difference between admissibility and jurisdictional issues:

Admissibility: is it a political body, does it deal w/military issues? Then admissibility

is key, for security council or political branches but not ICJ.

Jurisdictional: Where one party has not accepted or granted Jx to the ct. Jx’l issues

tend to not be waivable.

o Statute of the ICJ, Art. 36

o Jurisdiction by Special Agreement “compromis” (p 299) (Art. 36(1))

Once dispute arises, States may sign a “compromis” agreeing to submit matter to ICJ. Need not be a “legal” dispute.

o Jurisdiction under a Dispute Settlement Clause in a Treaty

There are over 300 bilat/multilat treaties with compromissory clauses, which

amount to dispute settlement clauses.

Ex: Treaty of Amity, Economic Relations, and Consular Rights Between the US & Iran

Contained a compromissory clause, became issue in:

Oil Platforms (Iran v. US) 1996 (p.301

o Jurisdiction under the Optional Clause (ICJ Article 36(2)) (p.306)

Consenting in advance to suits that are legal against you. Must be a legal dispute

Consent in advance, but states add reservations and insert exclusions.

US controversially withdrew its acceptance of optional protocol in Art. 36(2) in fortwo years wrt Latin America in 1985 without required 6month notice (see

Nicaragua v. US below), but countries continue to bring it before ICJ through

compromissory clauses

UK only permanent member of sec. council to accept compulsory jx of ICJ under

36(2), but did so with clever and valid exceptions. P. 307.

Certain Norwegian Loans (France v. Norway) (p.308)

NB your own reservation may be applied against you, applied to both parties.

France espoused the claims of their nationals based on K’s French citizens

had w/Norway. Citizens exhausted their remedies, France took it up

diplomatically, then to ICJ.

Norway filed a preliminary objection, based on notion of reciprocity applied

to France’s reservation, excluding matters exclusively under French Jx!

Norway successfully invoked France’s reservation against France (a “self -

judging reservation”) – ct held no jx, dismissed the case

If it is an invalid reservation, can court sever it? See p.310, #3

o Jurisdiction under the Optional Clause Applied: Nicaragua Litigation (Nicaragua v. US) p310



1984. Court played fast and loose to determine it had jurisdiction (one question was

whether Nicaragua was a party to the ICJ. P.27 312/313)

US also argued “modification” of their 36(2) acceptance. Ct again viewed JX at its

most narrow, per Norwegian Loans, to depend on will of the parties.

US: modification represents our will

Ct: even though states may act unilaterally, may not do so where detrimentalreliance. US estopped from modifying acceptance. Good faith underlies il

See notes for full description of admissibility and jurisdictional issues raised

Bottom line: US lost across the board, pulled out of 36(2); ended up a pyrrhic victory

for the court.

o Forum Prorogatum p.318

- Procedure in the ICJ

o Provisional Measures p.320

Statute of the ICJ Art. 41

PMs like an injunction under domestic law (used in La Grand case)

Issue: are they binding? Tension between need for urgent action and consensual

nature of ICJ. Ask: what is object and purpose of the Treaty? (p.321) Only 2 cts have explicit provisional measures – ICJ and Inter-Am Comm for HR. all

other cts interpret implied PMs.

PMs were issued against both US and Iran in Iran Hostage case. Carter’s attempted

rescue violated the PM. No formal damage but his SecState Vance resigned as result

o Admissibility

Nicaragua v. US (see above)

o Request for an Interpretation of a Judgement

Statute of the ICJ Art. 60

o Advisory Opinions: UN Charter, Article 96 / Statute of the ICJ Art. 65

Not binding. Only 16 or 17 UN agencies authoried to seek them

Increasingly look like contentious cases. Example: Israel (p.325-6)

o Jurisdiction (see Nicaragua, above)

o Discretionary Grounds for Declining to Give an Opinion

IV. Recognition of States and Governments (see notes)

A. States and Their Governments

- What is a state? Who Decides What is a State?

o Restatement 201

1 Defined Territory

2 Permanent Population

3 Government

4 Capacity to conduct int’l relations with other states

- What is the Effect of Being a State?

o Restatement 206 p.436 Being a state brings int’l capacity (to make int'l law), rights & duties

Non-recognized states are

Ordinarily denied acces to US cts



Not entitled to property belonging to that State located within the US

See notes just before 2/21/13

o Note on Holy See and Stat of Vatican City

- Who Governs a State? (recognition of government) p.438

o Recognition is a bilateral political act. But, if it IS a state (per definition above), you have

legal obligations to them, even if you don’t recognize them. P.434o Traditional approach:

Effectiveness of control

Stability & permanence

Popular support Ability & willingness to fulfill obligations

o Tobar Doctrine

o Estrada Doctrine (de factoism) (only new states recognized)??

o De jure recognition

- What is the Significance of Recognition of a Government?

o Restatement 205 p.440

o Note on Special Status of Taiwan p.443o Taiwan Relations Act

- When Governments Change, Who is Responsible for What?

- State Succession

o Restatement 209

o Doctrine of governmental succession: says it doesn’t matter, state’s still must observe

treaties and int’l commitments. But radically diff gov’ts….

o NIS’s: Clean slate doctrine (p.451) applies generally to Treaties made by colonial powers

o Odious Debt doctrine: in the eye of the beholder. Who owns the debt when

governments/states change? If determined odious, forgiven. See examples in notes.

Difficult doctrine, poses many problems. Where do you draw the line?

o Bottom line: p.450, #8

B. Territories and Other Entities

- Puerto Rico

- Trust Territory of the Pacific Islands

V. International Human Rights & State Responsibility

A. State (Civil) Responsibility for Injuries to Aliens p.721

- States are not responsible to other states or individuals criminally (unless they consent to ICC),

but are so civilly.

- “National Treatment” – many states said foreigners would be treated same as nationals of stateo but Western states weren’t satisfied, said state responsibility was part of CIL.

- The Law of Diplomatic Protection (p.721): traditionally, state of the injured individual would take

up the claim of the individual against the injuring state, providing its “diplomatic protection” –

however not the same as the individual having a claim. Claim belonged to the individual’s state.

- Restatement Sec. 711 (p.725) Responsibility for Injury to Nationals of Other States

o Note 2A lists what states have been held responsible for



- Law of State Responsibility: harmed individual’s home state will take up the individual’s claim

o Not until 1940s was individual considered a subject with standing in int'l law. Individual

could sue in foreign states, but often w/o effect. So fiction created: harm to individual is a

harm to the state.

o Biggest disputes tend to be over property (ie nationalization of an oil company)

o Posits a minimum standard: “Denial of Justice” (p.724) West insisted on as a matter of CIL.

Over time, states build up body of law of state responsibility wrt treatment of ppl

Treatment of property is still disputed: takings, nationalization, expropriations

o Each body, not just the executive, may be held responsible for violations, denials of justice.

Each body generates the international responsibility of the State.

o Procedurally and substantively, practice required by state responsibility has become part

of int’l Human Rights Law, mostly through consensual treaties.

o Prior exhaustion of domestic remedies – now a general rule in int’l HRL

Body of law has developed wrt exceptions to the prior exhaustion rule

Only must exhaust remedies that are legal, not discretionary.

Also, don’t need to exhaust political/lobbying remedies, such as havelegislature change law or take to the highest court if the latter already

previously ruled against you in other litigation, etc.

If normal process is corrupt

o Problems: individual loses control of their claim; cannot force gov’ts to take up their claim

o When officials act in official capacity (on-duty), even where they exceed the official limits,

the state will be held liable. Central gov’t held liable for acts of state at all lower levels.

o HRL applies to all persons w/in a state’s Jx. And at same time, law of state responsibility

also applies. So individual and their home state may have claims.

- Attribution of Conduct to the State

o Many latin American countries refuse to accept the doctrine: aliens enter voluntarily, thus

only entitled to the same treatment as nationals.o Gordon Christenson, p.728: 3 principles to separate state conduct from private conduct

o States may be held responsible for failure to act, as in allowing private death squads.

o Under what circumstances are the acts of a non-state actor attributable to the state? Effective Control Test: p.731. ICJ – high bar – burden is on plaintiff to show state

exercised effective control over direct actions. Nicaragua v. US

Overall Control Test: p. 732. ICTY – lower bar, looser test: so long as group is under

the overall control of the state, group’s action is attributable to the state

Human Rights Test: A state may be responsible for 3rd party acts if it effectively

tolerates, condones, or acquiesces to those acts. Lowest bar to holding State acctble

Query: under which tests were Taliban responsible for 9/11?. Not under 1 or 2, but

possibly under 3.

Which test employed depends on the forum/court

- Property Rights p.734

o Restatement 712

- “Link of Nationality” – citizen must have been a citizen of the state from time of injury through to

remedies/conclusion of claim

o Restatement 211



o Principle of Reasonableness: Where conflicts arise, states should yield to the state with the

greater interest. In practice, unclear how that operates.

o The Lotus Case: Int’l Law permits what it does not prohibit.

No restriction on the exercise of jx by any state unless that restriction can be shown

by the most conclusive evidence to exist as a principle of int'l law.

What does int'l law prohibit? Look to Treaties and CIL (p.645 bottom) State’s lack of self -interests will be the practical restriction on the exercise of jx,

won’t claim jx over matters it has no interest in.

US LOVES this case – the more novel the claim, the less likely prohibited. Allows US

to aggressively apply its laws, regulate the world.

Flipside: the case came out at a very different time, when world was simpler. May

not make sense today.

Ct. points to conduct without (conduct on the French boat), having effects within

Turkish territory (Turkish flagged boat).

- Territorial Rule: the normal working rule /basis for jurisdiction

o US legislation is presumed to be territorial in scope.

o Blocking and claw back provisions, p.649o Who has valid prescriptional basis to apply their laws: (p.641)

Objective effects of conduct

Conduct without, effects within (LOTUS)

Subjective territorial principle

o Morrison v. National Australian Bank stands for proposition that US law will be

presumed to be territorial unless Cong. Expressly says otherwise. P.650

o Restatement Sec. 403 (p.659) – rule of reasonableness: extraterritorial application of law

should be limited by an int’l law rule of reasonableness.

sec. 3: similar to Holmes Comity of Nations analysis (page 648.) a good faith effort

must be made by both sides to resolve in favor of the state has the greater interest.

o Hartford Fire Insurance Co. v. California Scalia’s dissent more accurately gets the law right today, produces analysis to use.

Facts: London reinsurers said there’s a conflict of law and bc they are UK Co’s

operating in London, on the basis of comity (deference to UK’s superior interest)

I: Whether the assertion of prescriptive (or legislative) jurisdiction by the US under

the Sherman Act was reasonable in this case. Does the law even apply to the

defendant’s conduct? If not, case isn’t dismissed for lack of SM Jx, but ruled on the

merits for failure to state a claim and the whole thing falls.

Did congress intend for the Sherman Act to reach this kind of conduct, apply

extraterritorially? Unclear

For Souter (Majority) no doubt the act reached this conduct. Totally different

approach Scalia: thinks congress could have reached the conduct, but did they intend to

Two step analysis: (2 canons of interpretation or construction)

1. Presumption against extraterritorial application (but in this context, long

established that Sherman Act can reach

2. Charming Betsy: an act of congress ought never be construed to violate

the law of nations if any other possible construction remains, where intent of



congress is not clear. Where there is ambiguity, interpret statute so as not to

violate int'l law,ie the principles of prescriptive jx.

3. Scalia then invokes concept of “reasonableness” in int'l law – see p.660 quote

from restatement (at top). Scalia: if it’s not reasonable, it’s not legal.

Perfect sequential analysis. But, then he screws up the application, saying he can’t

imagine how cong could have intended for the act to reach it, despite that it seemsreasonable that’s exactly what they intended.

If Scalia right, ct would instead decide the case on merits for failure to state a claim

Take-away: Hartford shows how cts may use and cong may legislate however they

want, won’t be restrained by int’l rules of jurisdiction; BUT, wherever they’re not

clear, wherever there’s ambiguity, there is a presumption against this

- Nationality Principle p.670 (see also state responsibility on page. 740)

o Nottebohm case p.740 – who may espouse a claim?

Genuine link

German national living in Guatemala. WWII breaks out. He moves to Lichtenstein

for quickie citizenship. Then back to Guatemala. Guatemala interned him as a

German national. Lichtenstein tried to espouse his claim. Ct. said no, no genuine linkto Lichtenstein.

o Corporate Nationality: p. 670-71

Most often, issues arise with nationality of corporations. P.741 Rest. § 213

A US corp. may be req’d or compelled t o set up & incorporate a subsidiary in country

X in order to be licensed to operate in X country. If so, subject to X’s Jx under

nationality principle. Otherwise, if doing business under regular name, subject to Xs

jx under territorial principle.

US, on other hand, has often “pierced the veil” so as to say US corp.’s country X

subsidiary is really a US citizen. This gets US in trouble.

See implementing regs of Int’l Emergency Economic Powers Act (IEEPA) p.671 –

“person subject to the jx of the US” includes (the last one is controversial): Individual who is a citizen or resident of US (nationality)

Person within US (territoriality)

Any corporation organized under the laws of the US (corporate nationality)

Any corporation or association, wherever organized or doing business, that is

owned or controlled by persons specified in the first three bullets. (Fruehauf)

US has used latter to aggressively control trade and sanctions. US sanctions fulfill US

foreign policy objectives, but other states, including allies, don’t nec. want to further

our foreign policies at their economic expense.

o S.A. Fruehauf-France case p.672

Fruehauf (US parent) established a French subsidiary, maintained majority of

shares, and Board was 5 Americans, 3 French. US Policy at the time (1965): isolate PRC/China. In order to trade with China, must

obtain a waiver/license from US. US called in execs of parent co., ordered they

rescind the K with Berliet of France. Latter to case to the French cts. French foreign

policy was not to isolate PRC.

Case presented a true jurisdictional conflict.



Resolution: in effect, the government of France itself carried out the transaction,

letting Fruehauf off the hook.

Example of US “piercing the veil” – treating foreign subsidiary as US national.

o Pipeline Sanctions case p.673

US extended Jx in an innovative way – absolutely no link with US, but that the

foreign subsidiaries used US technology in its manufacturing, licensed from a UScompany.

Previously, depended on objective territorial principle (conduct without having an

effect within the territory). But this came in the midst of the cold war. No Détente

yet. Wanted to make sure USSR didn’t get any additional money

But EU depended on gas/energy from USSR and EU was in favor of détente

US went one step further than Fruehauf, only link was technology used.

EU took position US could not validly exercise jx.

US relied on LOTUS case (int'l law permits what it doesn’t prohibit)

Provoked resignation of Al Haig (SecState). Before next SecState could lift sanctions,

Sensor case came up. P.674

o Sensor case, p.674 (The Netherlands: District Court at the Hague Judgment in Compagnie Europeenne des

Petroles S.A. v. Sensor Nederland B.V.)

Court assesses, at 7.3 (p.676), the various possible bases for US jx, only to find nonoe

apply.

Ct rejects notoion that the US can use its foreign policy to dictate the behavior of

non-US nationals. Effect would be to enlist foreign corporate citizens as soldiers in

the fight for US foreign policy.

Ct ordered specific performance. Shultz got sanctions dropped, but this case is still

on the books – so unclear area of law.

NB: problem here, someone has to yield. In Hartford , compliance with US law

wouldn’t have caused insurers to violate UK law. But here, compliance with US lawwould have caused violations of Dutch law.

o Congress and Cuba: Helms-Burton Act ( 1996)

Cuba nationalized corporations, like casinos and hotels. After, invited foreigners

(non-US) to operate the property.

Helms-Burton Act, Part III: Property in Cuba, Litigation in America (p.679) –

designated the foreigners as “traffickers” in stolen property and went after them

Considered a secondary boycott. Primary boycott is okay under int'l law; secondary

boycott is less clear. Basically saying either you do business with us, or you do

business with them.

Act included a 6-month waiver provision and has been used by all presidents

consistently, so Part III has never come into force. Part III was based – for jurisdictional purposes - on effects doctrine. The foreign

companies knew the property was confiscated so they were on notice.

Lowenfeld counters that rationale:

o anytime US citizen loses money, does that give US jx?

o And Cuba caused the problem, so don’t penalize 3rd parties.

o And this prescriptive Jx is unreasonable by any standard (see

Restatement on Reasonableness!)



P.683 #8 – EU reaction: EU countries gave a “claw back” action to its

nationals. If a US co brought an action against a Canadian co, the Canadian co

would have a cause of action against US.

Also shows: nothing in int'l law takes place in vacuum, makes sense w/o politics

- Protective Principle p.684 – where seeking to protect legitimate state (US) interests

o Restatement 402(3) – a state has jx to prescribe law with respect to ….certain conductoutside its territory by persons not its nationals that is directed against the security of the

state or against a limited class of other state interests.

Can be seen as a special application of the effects principle

But different from effects principle because does not require effects in the US

Distinction:

Effects Principle: generally private, civil actions

Protective Principle: generally criminal, where crime is committed

immediately, ie with the printing of counterfeit currency. Currency doesn’t

have to make it to the US.

o Ecample: counterfeiting could affect the integrity of government operations.

o PP is growing, especially in area of terrorism. US invokes it where attempts are madeagainst US interests.

o US v. Romero-Galue (11th Cir. 1985) p. 684 (see RAS notes after Helms Burton)

Marijuana on the High Seas Act Did cong intend to reach the conduct (possession by foreigners on foreign vessel on

the high seas)

Opposite of Scalia approach: this ct uses PP, uses int'l law (PP) to extend the US

Statute criminalizing action.

But bad case to demonstrate PP: what if all the pot was going to Canada, not US?

Protective Principle only reaches things where an effect in the US

- Passive Personality

o Restatement 402, comment (g). – a state may apply law, particularly criminal law, to an actcommitted outside its territory by a person not its national where the victim of the act was

its national. The principle has not been generally accepted for ordinary torts or crimes, but

it is increasingly accepted as applied to terrorist and other organized attacks on a state’s

nationals by reason of their nationality, or to assassination of a state’s diplomatic

representatives or other officials.

o Far more accepted today, along with Universal Jx. Partly a response to terrorism

o Terrorism: see p.691, hostage taking statute

A Treaty can’t be basis for criminal convictions, so Cong codifies in statutes

US is party to the hostages convention. But prosecution under terms of statute

18 USC 1203(b)(1) supported by multiple bases of prescriptive jx

o US v. Columba-Collela (5th Cir. 1979) p.687 (see RAS notes) (poorly decided) I: did cong intend for statute to apply in this situation? Not can cong reach it, but did

they intend to reach it? Court should have applied Scalia’s analysis from Hartford

(something similar, since Hartford came later).

Poorly decided because J. reasoned defendants acts were byond Cong’s power to

reach, thus they could not have intended to reach it. Bad logic!

- Universal Jurisdiction p.694



o Restatement 404 – Universal Jx to Define and Punish Certain Offenses: a state has jx to

prescribe punishment for certain offenses recognized by the commity of nations as of

universal concern, such as piracy, slavery, attacks on aircraft, genocide, war crimes, certain

acts of terrorism, even where none of the bases of Jx in §402 are present. Not limited to

Criminal law, though that’s where most of these norms are.

o No link to the parties is necessary, merely that they engage in the proscribed areao Whether cts can try the cases depends on home country’s willingness to pass laws

criminalizing the acts.

o Crimes of universal jx are usually established by treaty. Including for jx to try terrorists

CIA agents tried in absentia in Italy for torture

NB: p.697- Belgium had a universal jx statute, but NATO seated in Brussels. Bush

Admin was frequently sued there as a result. US reminded Belgium that NATO could

move, and Belgium gutted the statute. Most countries do not have statutes

o Alien Tort Claims Act / Filartiga case essentially established a civil cause of action of

universal jx (“sue for violations of the law of nations”).

o Universal Jx & US Law – Universal Jx is growing, particularly through Treaties like the

Hostage Treaty that give multiple bases for jx.o So int'l law allows a state to create Universal Jx, but a state must then do it.

B. Jurisdiction to Enforce (p698)

- Assumes there’s prescriptive Jx. Ex: pipeline sanctions. A state can only enforce a law it can

validly prescribe.

- Largely territorial.

- Rule of reasonableness as limitation: p.699

- Restatement 431

- Restatement 432

- Restatement 433

VII. Sovereign Immunity and Other Immunities

A. Sovereign Immunity

- Absolute Theory of Immunity – originally, immunity of states was nearly absolute, premised on

sovereign state equality. Some state actions in nature of sovereignty: eg raising taxes –but:

- Restrictive Theory of Immunity – (p.538) immunity will not attach when states acting in personal

capacity (ie actions, like contracting, buying, selling, that can be done by individuals and states

alike).

o Jurisdictional issues, not merits issues.

o Tate Letter – 1952 – p.538 – supposed to adopt restrictive theory, but didn’t really,

inconsistent application to various states, politicizedo Purpose test: state can justify anything it does. EG: state contracts to buy aspirin for troops

Nearly anything a state does, it will be able to say it is done for the purpose of state

business.

o Nature test (conduct test): FSIA codifies this approach: what was the nature of the

conduct? Is what they did inherently commercial activity?

o Prior to FSIA, cts deferred to Executive.

- Sovereign Immunity is a doctrine compelled by int'l law



- Sovereign Immunity is an affirmative defense, must be plead in timely manner, burden on

defendant foreign state - Prior to FSIA, no orderly process to sue a foreign gov’t. Gov would have to waive SI.

o Most commonly: where property came under jx of another state, in rem seizure, foreign

Amb. would then go to State Dep ask for a “suggestion of immunity”. In deference to

separation of powers and conduct of foreign affairs, SCOTUS said what DoS suggested wasto be law. So Executive Branch would adjudicate.

File suggestion of immunity

File letter recommending no immunity (“Tate Letter” p.538)

Say/do nothing, leave to cts. But cts would just try to guess what DoS would do.

o SI was governed by the Federal Common Law, made by Cts, that gave decision to DoS

- Foreign Sovereign Immunities Act (FSIA): (p.543 overview)

o Essentially a jurisdictional statute, does not touch merits of the cases.

o Makes all actions in personum jx. Prior to FSIA, had to seize “in rem”

o Issues of cong’s intent arose. Did Congress intend for:

1. foreigners to be able to sue foreign states? (yes, Verlinden) 2. Act to apply to pre-enactment conduct too? (yes, Altmann) 3. foreign officials to be treated as foreign states? (no, Samantar v. Yousuf)

o Verlinden B.V. v. Central Bank of Nigeria – who may invoke FSIA? (p.544)

Dutch corp. v. Nigeria

Opened US courts to foreigners

o Amerada Hess case (p.550)

if you want to sue a foreign state, can ONLY invoke FSIA

P. 551 – highlighted paragraph: until and unless Cong creates an express exception,

immunity is not waived and state cannot be sued.

- Entities Covered by FSIA p.552

o FSIA presumes immunity for Foreign states Political subdivisions

Agencies or instrumentalities of the state (easiest to get Jx here than for state itself)

o Dole Food v. Patrickson p.552 – determine status of defendant at time of suit, not action

o There is also a presumption of separation between acts of state and acts of subdivisions or

instrumentalities. Can be overcome: Banec test (p.553).

o Mohamed Ali Samantar v. Bashe Abdi Yousuf et al. (p.554) – held cong did not intend to

cover foreign officials in definition of foreign state for FSIA.

Exception: for suits where not really suing the former head of state in a personal

capacity but really suing state itself

NB: CIL says can’t sue sitting heads of state.- Retroactivity p. 562

o Republic of Austria v. Altmann (2004)

FSIA applies to pre-enactment conduct

But put ball back into DoS court ((p565)

- Waiver Exception

- Counterclaim Exception

- Commercial Activity Exception p.570 n.8



o House Report No. 94-1487

o Weltover case p. 572 SCOTUS interprets definition of commercial activity

o Saudi Arabia v. Nelson

- Noncommercial Torts

o Letelier v. Republic of Chile

- Expropriation- Enforcement of Arbitral Agreements

- Terrorist Acts

o Murphy v. Islamic Republic of Iran

- Immunity from Attachment or Execution

o House Report No. 94-1487

o Section 1609: Immunity from Attachment and Execution of Property of a Foreign State

o Section 1610: Exceptions to Immunity from Attachment or Execution

o Section 1611: Certain Types of Property Immune from Execution

- Current Status of FSI Outside the US

B. Diplomatic and Head-of-State Immunities

- Legal Status of Embassies and Consulates- Personal Immunity for Diplomats and Consuls

- Head-of-State Immunity

o US v. Noriega

VIII. The Act of State Doctrine

- Historical Background

- Sabbatino Decision: Banco Nacional de Cuba v. Sabbatino, Receiver

- Limitations and Exceptions

o W.S. Kirkpatrick & Co. v. Environmental Tectonics Corp.

- The Act of State Doctrine in Other States



Federal Act of State Doctrine notes

- AoS is open to politics, so the history and politics of the time matter greatly

- Key question: what is the scope/applicability of the doctrine? To which acts should it apply?

- Exists in many countries

- In US, It is a judge-made doctrine, beginning with SCOTUS.- Unlike jurisdictional FSIA (which always is raised first), AoS is a merits defense

o Where it applies, the court does not abstain (not a political question, which is pre-merits, as

suggested in Sabbatino), but rather the court decides the case on the merits, through

application of foreign law, whereby the act of the foreign sovereign becomes the rule of

decision in the case. (Ricaud)

o Presumption that acts are valid

Certain acts of a foreign state will be presumed to be valid and the court will not sit

in judgement on them.

Because it’s a presumption, the acts historically were expropriation.

o Can also look at it as a special rule of conflict-of-law situations

Court typically applies law of the state where the pricipal acts occurred or where thecenter of gravity of the act is. An exception to this rule is where the law chosen (a

communist countries law on Takings) would violate an important public policy of

the forum state (US – allowing an expropriation of private P without just

compensation, violates US Constitution)

- Available as a defense for private parties as well

- Early AoS:

o Underhill: rationale was int'l law & int’l comity

o Involved FS taking P, where FS had prescriptive and enforcement jurisdiction based on the

territorial principle – ie the court would not sit in judgment on the validity of duly executed

acts within the territory of the FS.o US has held a state’s expropriation of nationals P is not a violation of law

o Technically, AoS did not apply to extraterritorial takings where the FS does not have

prescriptive jurisdiction.

- Example: a state expropriates the P of an alien without the compensation the US understands to

be required (____what compensation required?____). When the FS sells the property to someone in

the US, original owner sues, claiming taking (the state act) was invalid bc

o violates the public policy of the forum, or

o violates FS’s domestic law, or

o violates CIL.

- The effect of the AoS doctrine is to preclude all of that, for fear it would be missued and out of

respect for the useful fiction of the sovereign, equal states.

- rationale has changed and use expanded – it’s almost an entirely different beast from original

- after Cuba’s nationalizations, court moved toward a rationale based in separation of powers

o After Sabbatino, goal was to avoid embarrassing the executive in foreign affairs

o DoS was complicit in growth – unlike pre-1977 binding recommendations with FSIA, the

recommendations for AoS were not binding by federal common law, but still influential

given post-Sabbatino rationale for the doctrine



o After Sabbatino, the use of the doctrine increased tremendously.

o In practice, the court treated the doctrine as a non-justiciable political question (but wrong

to have done so!)

- Sabbatino: Ct changed rationale to constitutional sep of powers: don’t embarrass the executive

o Banco National de Cuba (BNC) sued Sabbatino in US Court to get them to hand over themoney for the sugar.

o BNC argued that the Cuban nationalization was an official Act of State and should be

honored by the US.

The Act of State Doctrine says that the propriety of decisions of other countries

relating to their internal affairs would not be questioned in US courts.

o Sabbatino argued that the Act of State Doctrine was inappropriate because:

The act in question was a violation of international law, not duly executed;

The doctrine should not be applied unless the Executive branch asks the court to do

so;

Cuba had brought the suit as a plaintiff and had given up its sovereign immunity .

- The Trial Court found for Sabbatino. BNC appealed.- The Appellate Court affirmed. BNC appealed.

- The US Supreme Court reversed.

o The US Supreme Court found that the policy of US Federal courts would be to honor the Act

of State Doctrine.

The Court found that the Cuban seizure did not violate international law, because

there was no clear international opinion that a seizure of land or property in a

country by the government of that country was illegal.

The Court found that there was no need for the Executive branch to ask the courts to

apply the Act of State Doctrine.

The Court found that it should be assumed to apply because if even a single

court made a mistake and failed to apply it, it could mess up US relations withother countries.

The Court found that the Act of State Doctrine still applied, even thought the State

was a plaintiff. It had not waived its right to the doctrine.

- Bernstein exception is discussed but implicitly dismissed by the court. (court doctrine, after all)

o Court technically does not decide the issue.

o Court might be open to a reverse Bernstein exception, but logic of majority rejects the

standard Bernstein exception (p.623 bottom)

o NB: in the Bernstein case, the letter was used to underscore how inconsistent US policy

was with application of the doctrine in that case (dealing with Nazi acts).

In Sabbatino, the letter amounted to “no comment”

- H1: Post Erie, the Ct wanted to preempt state cts from being able to do what fed cts couldn’t, somade it a uniquely Federal Act of State doctrine, binding on fed & state courts.

- H2: p.621: very narrow, and carves out some exceptions:

o Only applies to

a current government recognized at the time of suit by US

taking of property within its own territory

o Treaties may validly supersede AoS



o J. White: Narrow majority holding: the courts will require a formalized act of state (ie must

be clear act is an actual act of the state itself) – but don’t spell that out, so easy to get

around, State just needs to put out a decree or something similar.

“no statute, order, decree or resolution of the Cuban government itself was offered

in evidence indicating that Cuba had repudiated its obligations in general or any

class thereof or that it had as a sovereign matter determined to confiscate theamounts due three foreign importers.”

o 4 justices: Justice White part IV: wanted to create a commercial act exception to the AoS.

“the concept of an act of state should not be extended to include the repudiation of a

purely commercial obligation owed by a foreign sovereign or by one of its

commercial instrumentalities.”

o - How can an illegal state action become the rule of decision in a US court? That’s why the original

rationale required use only where duly executed acts.

- After Sabbatino, before Kirk, expansion of the doctrine to acts that:

o Not took place in territory of the stateo Not a taking of P

o Where StateDep had great influence

o Where StateDep didn’t even weigh in

o Cases with facts that looked nothing like Sabbatino (court made, so why not expand)

- Lots of inconsistency and confusion among lower courts. Doctrine looks like Swiss cheese.

- Harder and harder to sue foreign states

- Kirkpatrick – Unanimous

- Kirkpatrick and ETC were both trying to win a construction contract in Nigeria.

o ETC won by bribing Nigerian officials.

o Bribery is technically illegal in Nigeria.- Kirkpatrick sued ETC in US Federal Court for damages.

o ETC claimed that since the contract was an official act of the country of Nigeria, suits in US

Courts were barred by the Act of State Doctrine.

- The Trial Court dismissed the case. Kirkpatrick appealed.

o The Trial Court found that the suit was barred by the Act of State Doctrine.

o The Court found that a judicial inquiry into the motivation of a sovereign act might result in

embarrassment to the sovereign, or constitute interference with the conduct of US foreign

policy.

o The Court found that allowing Kirkpatrick to make a bribery claim would require a finding

that foreign officials were criminals, and that might embarrass the Executive Branch in its

conduct of foreign relations.- The Appellate Court reversed. ETC appealed.

- The US Supreme Court affirmed and allowed the case to proceed.

o The US Supreme Court found that the Act of State Doctrine did not apply because nothing in

the suit required a court to declare invalid the official act of a foreign sovereign.

o "The Act of State Doctrine does not establish an exception for cases and controversies

that may embarrass foreign governments, but merely requires that, in the process of

deciding, the acts of foreign sovereigns taken within their own jurisdiction shall deemed



valid."

- Scalia framed the issue: whether AoS bars court from hearing case where at issue is not the

validity of an official act of a foreign sovereign, but a cause of action that requires possible (likely)

embarrassment of the foreign sovereign.

- Scalia: Sabbatino suggested a balancing of the underlying policies of the AoS doctrine to consider

when the courts should NOT apply it/accept the FS act as the rule of decision. So when ifpresumption that it applies and then ct can balance policies to see where it does not apply, that’s

okay with the court. BUT

o Where not appropriate for expanding judicial incapacity to look at issues where the FS act

is not directly or even indirectly involved.

- To state it again:

o Where AoS is technically available (facts similar to Sabbatino), it is okay for Ct to use its

discretion in NOT barring the suit by considering the policies underlying the doctrine and

whether they would be served by barring the suit.

o Where AoS is not technically available, no AoS. That’s the case here. The underlying

policies are not a doctrine unto themselves.

- So: no AoS unless you have the factual predicate.- Both lower courts assumed the case involved the doctrine because it might deal in

embarrassment, and the DoS played a persuasive role, with each letter it sent.

- In all past AoS cases, the applicability turned on whether the court would have to declare an

official act of a foreign sovereign invalid.

- NB: significantly, the court took issue with the AoS as an int’l political question, instead stating

when we apply the doctrine, we decide the case. A return to the good old days?

- Also NB: the bribe took place outside the territory of Nigeria. Back to old rule?

- The DoS asked the court to leave open the possibility of the doctrine applying in future cases

where the case turns on motivation of the state’s act, not only “validity”. They could imagine

situations where embarrassment and foreign policy could matter a lot

o significantly, the court rejects this: will not turn the policy underlying the doctrine(embarrassment of executive) into an expansion of the doctrine itself.

NB: Letelier v. Republic of Chile, 488 F. Supp. 665 (D.D.C. 1980)

- Act of State doctrine does not here apply because this case does not ask the court to pass judgment on

an act that occurred in Chile – it asks the court to pass judgment on an act that occurred in the US

ras outline public international law (missing fsia notes)

Documents