Presentation Transcript

1. Class 7ATS and IL Fundamentals

   POLS 363 International Law P. Brian Fisher Spring 2011
2. Sources of ILICJ Art 38(1) 3 Primary Sources (in order) International Conventions or Treaties Customary IL General Principles of IL 2 Secondary Sources (in order) International judicial decisions and Caselaw Scholarly opinion and judicial dicta
3. ‘Customary Int’l Law’(or CIL) Defn: CIL results from a general and consistent practice of states followed by them from a sense of legal obligation” CIL is demonstrated by evidence of general practice accepted as law--created by fusion of an objective element (state practice) and subjective element (opiniojuris) Consistent state practice (obj) + opiniojuris (belief practice is required) To establish can look to: National legislation Diplomatic notes/correspondence Statements and votes by gov’ts Ratification of treaties Opinions of legal advisors Restatements of the law (e.g. ILC) Drawbacks: Takes time to crystallize one issue at a time Usually carefully restricted to specific factual scenarios
4. Relationship of IL to US The IL system does not rule/govern the US courts, but rather it is based on the rules/principles/procedures of IL that are incorporated into US domestic law. US Constitution: Supremacy Clause: “This Constitution, and the Law of the US which shall be made in Pursuance thereof; and all Treaties made, or which shall be made under the authority of the US, shall be the supreme law of the land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” Treaties therefore the equivalent of federal statute Conflicts between Treaties and Fed Statute resolved through “last in time” rule.
5. Sosa v Alvarez-Machain542 US 692 (2004) The Drug Enforcement Administration (DEA) approved using petitioner Sosa and other Mexican nationals to abduct respondent Alvarez-Machain (Alvarez), also a Mexican national, from Mexico to stand trial in the United States for a DEA agent’s torture and murder. He was acquitted, and filed suit (against the US under the Fed Tort Claims Act) but also against Sosa under the ATS a claim for violating the law of nations under the Alien Tort statute (ATS), Since federal cts have discretion—under the rubric of a federal common law that persists in ‘havens of specialty’ and ‘interstitial areas’ of particular federal interest (pub policy)--to create new customary international law—based Causes of Action that fall within ATS jurisdiction, SCt seeks to guide the parameters of fed court’s discretion in ATS cases.
6. Outcome from Sosa v. Alvarez-Machain CIL is part of US Fed Common law: SCT affirms that “for 2 centuries we have affirmed that the domestic law of the US recognizes the Law of Nations.” (p729). Only a jurisdictional statute; it does not provide a COA (cause of action). Emphasized that courts should exercise discretion “in considering a new COA” Basically, SCt is attempting to limit the ways in which ATS can be used… The substantive COA does not have to be found in fed statutes, so look to treaties and CIL. “we think courts should require any claim based on the present-day law of nations to rest on a norm of int’l character accepted by the civilized world and defined with specificity comparable to the features of the 18th C paradigms we have recognized.” Cite favorably Filartiga in decision, reinforcing the ATS and implying that states-sponsored torture is a “norm of int’l character accepted by the civilized world and defined with specificity comparable to 18th C paradigms. Recall: Torture Victim Prevention Act (TVPA) instituted by legis in 1991.
7. Supremacy of CIL (to domestic)? Controversy: the supremacy of CIL (as US dom law) over pre-existing Treaty or pre-existing fed statute. Argument against supremacy of CIL: Fed common law is inferior (as judge-made law) to legis acts—even if later in time. Argument for supremacy: CIL is special in that it is based on the conduct/practices of states globally. Thus it should be akin to treaty law, and supersede prior treaties or statues. What is clear: when US political branches (legis & exec) deny the existence of a specific int’l norm, the courts follow suit.
8. Kadicv Karadzic70 F3d 232 (2d Cir 1995) Facts: alleged torture, rape, and other abuses orchestrated by Serbian military leader. Generally, ATS only applies to individuals (not foreign govts), however the indiv must be acting under the “color of law” or in a gov’tal capacity (since only states can violate IL). Recall the expanding traditional definition of IL… However, recent case law distinguishes this general rule, and in Kadic, ct allowed claims against private persons to the extent that COA is particularly egregious, rising to jus cogens. In Kadic, court reasoned that this is true because individuals are separately liable for these acts under IL.
9. Wiwav. Royal Dutch Petroleum(226 F.3d 88 2000) Facts: 3 Nigerian immigrants and another Nigerian Woman file suit in US district ct under ATS for human rights abuses. They allege abuse by Royal Dutch Petroleum and Shell for abuses carried out by the Nigerian gov’t and Shell Nigeria but “instigated, orchestrated, planned, and facilitated by Shell” under the direction (and knowledge) of the Royal Dutch. Procedural Disposition: Dist ct denies suit because of forum non conveniens. Plaintiffs appeal. Defendants argue not only for FNC but that dist ct lacked personal jurisdiction. Issue(s): 1. Does US Dist Ct have (personal) jurisdiction over Defs? 2. Should the case have been dismissed over FNC? Holding.1. Yes. Through an agent/subsidiary of Shell doing investing relations, there was sufficient evidence of “doing business” in NY for personal juris. 2. No (dist ct has juris). We believe that, as a matter of law, in balancing the competing interests, the district court did not accord proper significance to a choice of forum by lawful U.S. resident plaintiffs or to the policy interest implicit in our federal statutory law in providing a forum for adjudication of claims of violations of the law of nations.
10. Import from Wiwa: Is there a public “policy interest”? 1. Torture Victim Prevention Act, in 1991, Congress expressly ratified our holding in Filartiga that the United States courts have jurisdiction over suits by aliens alleging torture under color of law of a foreign nation, and carried it significantly further. Therefore, TVPA recognizes explicitly what was perhaps implicit in the ATS that the law of nations is incorporated into the law of the United States and that a violation of the international law of human rights is (at least with regard to torture) ipso facto a violation of U.S. domestic law. Whatever may have been the case prior to passage Wiwa Ct: we believe plaintiffs make a strong argument in contending that the present law (TVPA), in addition to merely permitting U.S. District Courts to entertain suits alleging violation of the law of nations, expresses a policy favoring receptivity by our courts to such suits. So, the US has a public policy interest in adjudicating international human rights violations.
11. ATS Expanded to MNCs:Khulumaniv Barclay Nat'l Bank (2008) Plaintiffs sued dozens of major corporations, both U.S. and foreign, alleging liability for aiding and abetting the South African system of apartheid, suing for $400b. See also, Doe v Unocal and Wiwa. Doe v Unocal, the Central California District Court held for the first time that ATS actions “could lie against private corporations.” In Khulumani, the 2nd Cir held that "a plaintiff may plead a theory of aiding and abetting liability” under the ATS. This brought MNCs alleged of “aiding and abetting liability” (particularly for results that end in human rts violations) into the scope of ATS.
12. Sosa Implications: Foreign Affairs In Justice Souter’s opinion, he stated that "the determination [of] whether a norm is sufficiently definite to support a cause of action should (and, indeed, inevitably must) involve an element of judgment about the practical consequences of making that cause available to litigants in the federal courts.” He then dropped the following footnote (famous fn 21): This requirement of clear definition is not meant to be the only principle limiting the available of relief in federal courts for violations of customary international law, though it disposes of this action. . . . Another possible limitation that we need not apply here is a policy of case-specific deference to the political branches. For example, there are now pending in Federal District Court several class actions seeking damages from various corporations alleged to have participated in, or abetted, the regime of apartheid that formerly controlled South Africa. See In re South African Apartheid Litigation. . . . The Government of South Africa has said that these cases interfere with the policy embodied by its Truth and Reconciliation Commission, which "deliberately avoided a ‘victors’ justice’ approach to the crimes of apartheid and chose instead one based on confession and absolution, informed by the principles of reconciliation, reconstruction, reparation and goodwill." . . . The United States has agreed. . . . In such cases, there is a strong argument that federal courts should give serious weight to the Executive Branch’s view of the case’s impact on foreign policy . . .
13. Territory and Title Terra nullis: if a territory is unclaimed, a country can claim it as its own. However, in many cases, a territory was inhabited, but they were subjugated and forced to sign treaties of cession. IL now prohibits “the subjection of people to alien subjugation, domination and exploitation” (1960)…and “all peoples have the right to self-determination.”
14. Island of Palmas (US v. Neth)2 UN Rep. Int’l Arbitral Awards 829 (1928) F: territorial dispute between US and Dutch over small island near the Philippines in 1928. US claim is based on Treaty of Paris where Spain ceded the Philippines to the US (of which Palmas was within territorial boundary), and they also claim that Palmas is closer to Phil than Indo (Dutch). Dutch claim is based actual assertion of sovereignty over territory. I: What takes precedence: assertion of sovereignty or first discoverer (even if sovereignty is not asserted). H: Assertion of sovereignty is paramount. R: Spain didn’t assert sovereignty over Palmas, so lacked authority to cede it to US (never exercised “authority”), and no positive IL on terra firma. Dutch did exercise authority through Dutch East India which had negotiated treaties and prices on Palmas (since 1677). Import: The exercise of continuous and actual sovereignty is paramount consideration in determining territorial authority. The title of “discovery” (by Spain here) only provides inchoate title and title of contiguity “has no foundation in IL” (p40).
15. Sovereignty over PedraBranca, et al. (Malaysia v. Singapore) 2008 ICJ ____ F: Dispute over 3 islands. PedraBranca was well known to sailors and Brits controlled it since 1850 (and Singapore thereafter), usurping Malaysian governance. In 1979, Malaysia published a map with PB within its territory. I: Who exercised authority over each of the islands. H: PB to Singapore; Middle Rocks and South Ledge to territorial waters. R: Brits (and Singapore) exercised control over the PB in 1850 and it continued until today, and as a result, despite original Malaysian control, Singapore now has sovereignty over the territory. On Middle Rocks, Brits/Singapore never exercised control over it, therefore sovereignty lies with its original territory.