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

International Law Unit 2: International and Domestic Law2 Treaties in US Law Distinguish types of treaties Treaties (formal) Executive agreements (other)

Fall 2005 International Law Unit 2: International and Domestic Law3 Treaties Making and ratification (art. II) Made by President Senate (2/3) “advises and consents” President ratifies “Supreme Law of the Land” (art.VI) Supercedes prior law Can be overriden by later statute Interpret to avoid conflict

Fall 2005 International Law Unit 2: International and Domestic Law4 Treaties, cont’d Self-executing treaties Does the treaty confer rights, or only require legislative action to create rights Usually a question of interpretation Modern interpretations less generous Some areas presumed not self-executing Criminal law; appropriations Senate sometimes adds proviso requiring non-self-executing status

Fall 2005 International Law Unit 2: International and Domestic Law5 Treaties, cont’d Scope of treaties Can enhance federal powers. Missouri v. Holland, 252 U.S. 416 (1920) Cannot violate constitutional norms. Reid v. Covert, 354 U.S. 1 (1957) Termination of treaties Distinguish domestic and international effects

Fall 2005 International Law Unit 2: International and Domestic Law6 Executive agreements International agreements not submitted to Senate process Bases— Authorized by Statute Authorized by Treaty Supported by long practice E.g., claims settlement President’s sole authority

Fall 2005 International Law Unit 2: International and Domestic Law7 Executive agreements May override state law, U.S. v. Pink, 315 U.S. 203(1942) Question about status with fed’l law Subject to other treaty limits

Fall 2005 International Law Unit 2: International and Domestic Law8 Judicial enforcement “International law is part of our law.. “ Pacquete Habana, 175 U.S. 677 (1900) BUT, you need Standing A cause of action Jurisdiction No immunity from jurisdiction

Fall 2005 International Law Unit 2: International and Domestic Law9 Judicial enforcement Alien Tort Claims Act. 28 U.S.C Filartiga v. Pena-Irala, 630 F.2d 876 (2dCir.1980) Claims of U.S. citizens Limits on such claims Sosa v. Alvarez-Machain, 542 U.S. 692 (2004) What torts are still covered?

Fall 2005 International Law Unit 2: International and Domestic Law10 Act of State doctrine... “the Judicial branch will not examine the validity of a taking of property within its own territory by a foreign sovereign government, extant and recognized at the time of suit, in the absence of a treaty or other unambiguous agreement regarding controlling legal principles, even if the complaint alleges that the taking violated customary international law” --Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 428 (1964)

Fall 2005 International Law Unit 2: International and Domestic Law11 Act of State doctrine Bases for the doctrine Respect for political branches Reluctance to impose U.S. view on disputed international question

Fall 2005 International Law Unit 2: International and Domestic Law12 Act of State doctrine Exceptions— Statutory. Hickenlooper amendment. 22 U.S.C. 2370(e)(2) Treaty. Kalamazoo Spice Extraction Co. v. Ethiopia, 729 F.2d 422 (6thCir.1984) Commercial activities. Alfred Dunhill of London v. Republic of Cuba, 425 U.S. 682 (1976) Extraterritorial. Iraq v. First National City Bank, 353 F.2d. 74 (2d Cir.1965) Counterclaims. First National City Bank v. Banco Nacional de Cuba, 406 U.S. 759 (1972)

Fall 2005 International Law Unit 2: International and Domestic Law13 Jurisdictional immunities Sovereign (State) immunity A new convention is proposed Head of State immunity Customary Diplomatic immunity Vienna Convention on Diplomatic Relations Consular immunity Vienna Convention on Consular Relations International organization immunity Privileges and Immunities Agreements Includes both organization and staff

Fall 2005 International Law Unit 2: International and Domestic Law14 Jurisdictional immunities Approaches Absolute immunity Qualified immunity (within scope of duty) Immunity is that of State (or international organization), not of the individual Temporal question (how long?)

Fall 2005 International Law Unit 2: International and Domestic Law15 U.S. immunity law Sovereign immunity Foreign Sovereign Immunity Act, 28 U.S.C 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 Includes both organization and staff

Fall 2005 International Law Unit 2: International and Domestic Law16 FSIA 28 USC Definition of a “foreign State” 1603 Includes 50%+ owned entities General rule of immunity 1604 Exceptions 1605 Waiver Commercial activities Rights to property taken in violation of international law Succession or inheritance Money damages for certain torts in the U.S. To require arbitration Torture, extrajudicial killing, aircraft sabotage, hostage taking, etc.

Fall 2005 International Law Unit 2: International and Domestic Law17 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