1 / 22

Class 6 Sources of IL and ATS

Class 6 Sources of IL and ATS. POLS 363 International Law P. Brian Fisher Spring 2011. Bodhi Jesse Fisher (9 lbs, 22 in). International Law.

ringo
Download Presentation

Class 6 Sources of IL and ATS

An Image/Link below is provided (as is) to download presentation Download Policy: Content on the Website is provided to you AS IS for your information and personal use and may not be sold / licensed / shared on other websites without getting consent from its author. Content is provided to you AS IS for your information and personal use only. Download presentation by click this link. While downloading, if for some reason you are not able to download a presentation, the publisher may have deleted the file from their server. During download, if you can't get a presentation, the file might be deleted by the publisher.

E N D

Presentation Transcript

  1. Class 6Sources of IL and ATS POLS 363 International Law P. Brian Fisher Spring 2011

  2. Bodhi Jesse Fisher (9 lbs, 22 in)

  3. International Law • Traditional Def’n: “concerns the legal relationships between sovereign states and covers a wide variety of topics such as the law of the sea or the laws of war” (p3) • More modern defn’s would include IOs, MNCs, individuals and groups.

  4. Le Grande Case (Germ v. US)2001 ICJ 466 • Facts: German Nationals living in US commit armed burglary killing a person. Subsequently, found guilty. Appeal in Fed court: rejected on procedural default (issues can’t be raised in fed ct unless first in state courts). LeGrands appeal to ICJ, which grants a stay (of execution). Then file claim in US Sup Ct for compliance with stay. USSC rejects b/c of 11th A—which prohibits federal courts from hearing lawsuits of foreign states against a U.S. state. In ICJ, Germany argues that they should have been apprised of their legal right to consular assistance. US argued that the Vienna Convention did not grant rights to individuals, only to states. Also argued that at the convention was subject to the laws of each state party, which meant they are subject to the doctrine of procedural default • Holding: For Germany (rejected all US arguments). • Reasoning: (1) granted rights to individuals on the basis of its plain meaning, and that domestic laws could not limit the rights of the accused under the convention, but only specify the means by which those rights were to be exercised. (2) The ICJ found that its own temporary court orders were legally binding and that the rights contained in the Vienna convention on Consular Relations could not be denied by the application of domestic legal procedures (here ‘procedural default’). • Import: (1) Intergovernmental organizations, even individuals—albeit to a more limited extent, can be “subjects” of rights and obligations of IL; (2) Supremacy of ILnon performance of an int’l obligation cannot be excused on basis of national law.

  5. Modern Defn of IL • Law that deals with “the conduct of states and of int’l organizations and with their relations inter se, as well as with some of their relations with persons, whether natural or juridical.” --Amer Law Instit (restatement of the Foreign Relations Law of the US (3rd) § 101

  6. Who are ‘subjects’ to IL? • Legal “subjects”: who enjoys legal capacity at the international level. Traditionally the state. Other Subjects: • IOs • at times individuals (see LeGrande) • Indiv direct responsibility (war crimes) indicate that indivs have legal capacity not derivative in the traditional sense • UN • Regional Orgs (Int’l Labor Org/Council of EU)

  7. Ways to View IL • IL applies generally to states and governments remain “responsible” for IL obligations • However, other entities can can be affected and hold rights/duties from IL. If a citizen is said to hold an international right, then there is some obligation to ensure that right (e.g. human rights). • Think about a municipality authorizing chopping off hands of “thieves”—HRs law would give individual rts to prohibit this punishment. • Also, death penalty in the US. • In addition, many other global entities can rely on and utilize IL instruments and processes for adjudication of grievances. • Also, many individuals and groups have challenged the sovereignty-based context of IL (e.g. terrorism and paramilitary groups)

  8. Sources of ILICJ Art 38(1) • 3 Primary Sources (in order) • International Conventions or Treaties • Customary IL • General Principles of IL • 2 Secondary Sources • International Cases and Caselaw • Scholarly opinion and judicial dicta

  9. Paquete Habana175 US 677 (1900) • Facts: During Spanish-Amer War, US President ordered naval blockade of Cuban coast “in pursuance to the laws of the US, and the law of nations applicable to such cases.” Blockade commander captured 2 small fishing vessels and sold them (as prize vessels). Owners sue for recovery. • Issue: legal seizure? To what degree is IL part of US law? • Holding: NO, significant evidence that the custom was to exclude fishing vessels from “prize capture.” • Reasoning: “IL is part of our law, and must be ascertained and administered by the courts…for this purpose, where there is no treaty, and no controlling exec or legis act or judicial decision, resort must be had to the customs and usages of civilized nations.” (p700).

  10. Issues from Paquete Habana • Emphasis on 1st sentence: customary law is automatically and directly applicable to US courts; so, customary IL is one of the “Laws of the US” subject to supremacy clause • So, on one hand, Paquete stands for the proposition that US domestic law incorporates international customary law (provided it doesn’t conflict with pre-existing domestic law). • Most other developed countries take the same approach • On the other hand, it emphasizes 2nd sentence recognizing that president’s orders weren’t void simply because of customary IL, but because the president through “controlling executive act”, incorp limitations to customary IL into his orders. See Garcia-Mir v. Meese. • ** Countries (generally) are free to “disregard customary law” by passing contrary domestic legislation” (except for jus cogens) • US follows “later in time rule”—last item employed prevails • However, at Int’l level, a state may not rely on its internal law to excuse non-performance of an international obligation (p. 11)

  11. Jus Cogens • Jus Cogens= preemptory norm (allows no derogation) • States are generally free to reject or object to customary law as “persistent objectors” and are not bound by rule • However, jus cogensbinds ALL states—and allows no derogation • Vienna Convention on the Law of Treaties: “a preemptory norm…is a norm accepted and recognized by the int’l community of states as a whole as a norm form which no derogation is permitted.” • There is some disagreement over what qualifies, but candidates are: use of force by one state over another; genocide; war crimes; slavery; piracy; crimes against humanity, prohibition against torture.

  12. Garcia-Mir v. Meese788 F.2d 1446 (11th C, 1986) • F: Many Cubans came to US, but whom the US didn’t want to admit and whom could not be deported elsewhere. US Atty General ordered their detention (for months). Detainees sued in US Fed ct arguing that “prolonged detention was arbitrary and thus a violation of CIL. • Issue: Does detention violated CIL and does this this violation control US law? • Holding: Yes and No. It does violate CIL, but the AG’s decision trumps IL. • Reasoning: AG’s decisions trumps because it is a “controlling executive act” and custom is not jus cogens. • Compare with Paquete Habana.

  13. Conclusions • CIL is important and a part of US law (Paquete Habana). • But it does not necessarily “trump” all domestic law as supreme (Garcia-Mir). • So, when a CIL (int’l norm) is denied by the political branches, US cts usually will not give effect to the norm. In fact, domestic legislation can be enacted to override CIL, except for jus cogens. • Also, US courts give special weight to views of the executive branch in interpreting CIL

  14. ATS • Alien Tort Statute 28 USC § 1350: “The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the US.” • Filartiga: Fed ct used ATS to find juris over Paraguayan plaintiffs against a Para official for the torture (killing) of a family member in Para. • Issue: Is there juris? What law controls? • Holding: Yes, under ATS. IL should be used to interpret the crime itself. Would be interesting if IL conflicted directly with domestic law. • Reasoning: “torture” conducted under the color of law was a violation of the law of nations. “torture” is a tort under IL and is so reprehensible to be found a violation of the law of nations.

  15. ATS Cases • NOTE: However, ATS is a purely jurisdictional statute; it does NOT itself provide a cause of action (must look to IL or respective laws of nation). • 3 elements for a successful ATS claim • climate must be filed by an alien • claim must be for a tort • the action must have violated IL • NOTE: generally limited to individuals b/c suits against gov’ts must be brought under the Foreign Services Immunities Act. But can be US Corps (e.g. US corps involved in HRs violations Unocal in Burma, Shell in Nigeria)

  16. Jurisdiction Terms • Jurisdiction: Power to adjudicate case. 2 general elements. • Personal Jurisdiction: power to adjudicate over the person or persons involved in the dispute • Subject matter jurisdiction: power to adjudicate over the subject matter involved in the dispute • forum non conveniens: ct can refuse jurisdiction if there is a more convenient forum available (e.g. Paraguay or Nigeria in our cases)

  17. Filártigav. Peña-Irala630 F.2d 876 (2d Cir. 1980) • Import: US fed courts can punish non-American citizens for tortious acts committed outside the US if in violation of public international law (the law of nations) or any treaties to which the US is a party. • Thus US jurisdiction is extended based on the ATS to tortious acts committed around the world. • Exceptions? Limitations?

  18. Abdullahiv. Pfizer, Inc (562 F.3d 163, 2nd Cir. 2009) • F: Pfizer recruited 200 Nigerian children who were felled by meningitis during the epidemic, and treated half of them with a new antibiotic, Trovan. The other half, they allege, were given Ceftriaxone, an FDA-approved drug. Plaintiffs allege that, Pfizer in partnership with Nigerian govt, failed to notify children or guardians of the drug testing (no informed consent) that possible life-threatening side effects of using Trovan. It is also alleged that a deliberately low dose of Ceftriaxone was administered to boost the apparent effectiveness of Trovan. Plaintiffs allege that the experiment resulted in the deaths of 11 children and left many others blind, deaf, paralyzed or brain damaged. In 1998, FDA approved Trovan only for adult emergency care (after adult patients developed liver failure) • PH: consolidated appeal from Dist Ct, which dismissed two complaints for lack of SMJ under ATS. • I: Do Plaintiffs have valid CofA under CIL based on involuntary medical experimentation? • Secondary Issue: Is there proper SMJ under ATS—forum non conveniens?

  19. Abdullahiv. Pfizer, Inc (562 F.3d 163, 2nd Cir. 2009) • H: Yes. Yes. Reverse district ct. • R: District Ct misapplied the Sosa Test, and this analysis requires a more “fulsome and nuance inquiry” to examine how the specificity of a norm meets the level necessary to be an actionable claim pursuant to CIL. Specifically, ATS COA must go beyond whether norm is binding or expressly authorizes the COA. Rather, must examine how the specificity of the norm compares with 18th C paradigms, whether norm is accepted globally, and states universally abide by norm out of mutual concern. • 2nd Cir said this stnd is satisfied here. Looked at Nuremburg Code, where judgments concluded that “manifestly human experiments under such conditions are contrary to the principles of law of nations as they result from usages established among civilized peoples…” US Code has adopted this standard (US v. Stanley), recognizing that “the medical tribunals at Nuremburg deeply impressed upon the world that experimentation with unknowing human subjects is morally and legally unacceptable.” also, looked at ICCPR, Helsinki Code of Ethics, and US Law (and laws of 84 countries, that require informed consent. In US, it’s firmly embedded for last 45 yrs. • D: “Majority defined a ‘firmly established’ norm of IL, heretofore unrecognized by an American Court or treaty obligation, on materials inadequate for the task. In deviating from our settled case law, the majority identifies no norm of CIL, it creates a new norm out of whole cloth. Because the maj’s analysis misconstrues—rather than vindicates—CIL, I respectfully dissent.” (p19) • Dissent argues that none of the sources of CIL cited demonstrate that a norm against non-consensual medical experimentation exists against PRIVATE actors is universal and obligatory.

  20. Wiwav. Royal Dutch Petroleum(226 F.3d 88) • 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.

  21. forum non conveniens • In assessing whether forum non conveniens dismissal is appropriate, courts engage in a two-step process (Piper Aircraft Co. v. Reyno, 454 U.S. 235, 254 n.22 (1981)): • 1. The first step is to determine if an adequate alternative forum exists • 2. If so, courts must then balance a series of factors involving the private interests of the parties in maintaining the litigation in the competing fora AND any public interests at stake. • NOTE: “The defendant has the burden to establish that an adequate alternative forum exists and then to show that the pertinent factors ‘tilt strongly in favor of trial in the foreign forum.’” R. Maganlal & Co., 942 F.2d at 167. "The plaintiff's choice of forum should rarely be disturbed." Gilbert, 330 U.S. at 508.

  22. 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. The TVPA thus reinforces juris through ATS and expressly forbids torture as an international customary norm. • 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.

More Related