Cases

Question 1

United States v. Alvarez-Machain (1992)

Answer 1

States are under no obligation to surrender foreigners in their custody to foreign authorities absent of an extradition treaty and that under international law there is no prohibition of abduction.

Question 2

Kindler v. Canada (Canada SC, 1991)

Answer 2

Extradition w/o seeking assurances that death penalty will not be imposed does not violate principles of fundamental justice enshrined in Canadian Charter of Rights.
Dissent: this is hypocritical.

Question 3

United States v. Burns & Rafay (Canada SC, 2001)

Answer 3

Canadian citizens convicted to death in US, question: extradite w/o assurances?
Extradition w/o seeking assurances that death penalty will not be executed violates principles of fundamental justice absent exceptional circumstances. Uses domestic foreign law, social sciences, and scholarship on the issue.
⇨ Amends treaty without the formal amendment procedure.

Question 4

Soering v. United Kingdom (ECHR, 1989)

Answer 4

Whether extradition to the US would give rise to breach by the UK of Article 3 of the ECHR (no one shall be subjected to torture/inhuman/degrading treatment or punishment).
The death row phenomenon would make it inhuman. Death penalty alone would not breach the ECHR. Extradition requires assurances.

Question 5

Roper v. Simmons

Answer 5

Roper Test on the use of international law in Constitutional arguments: foreign and int’l law can confirm the existence of a national consensus.
Is there a national consensus?
Yes -> Use non-binding int’l law to confirm the national consensus.
No -> No confirmatory strength.

Question 6

Abbott v. Abbott

Answer 6

When we interpret our binding treaty obligations, the way in which our treaty partners have interpreted the treaty language has considerable value to us in how we interpret the language. [Otherwise, the treaty would become obsolete/fall apart].

Question 7

The Paquette Habana

Answer 7

1. Example of the evidence to show int’l customary law (historical documents, treaties, scholars, military documents).
2. Constitutional supremacy clause gives customary int’l law binding strength in domestic law (this is no longer uncontroversial!).
3. Same model (strategically) as Simmons and Kindler.

Question 8

Medellin v. Texas

Answer 8

The court requires every int’l treaty to be totally self-executing or else the treaty is not part of domestic law. To become self-executing:

1. Congress passes domestic law and ratifies the treaty, explicitly stating that “this treaty is self-executing and this supersedes any other domestic law that may conflict with it” OR
2. When the treaty is ratified by Congress they expressly say 1. and list any domestic law that need to be changed so that the US is compliant with the treaty.

Question 9

The Island of Palmas Case: United States v. The Netherland (1928)

Answer 9

The US claim is based on Contract from Spain (there is a question as to whether Spain’s claim was valid, but that’s not decided here).
Dutch claim is based on occupation and use. Evidence: economic activity by the Dutch East Indie Comp. = official state company acting in the name of the Netherlands.
Court decides that Spain’s title doesn’t matter because of Dutch uninterrupted occupation and use.

Question 10

Nottebohm Case (Liechtenstein v. Guatemala) (ICJ, 1955)

Answer 10

Nottebohm wants a remedy to get his property back. On int’l level: only states deal with each other. Guatemala argues (court agrees) that LI lacks standing because Nottebohm does not have close enough ties to LI and that the grant of citizenship is illegitimate because Nottebohm is missing a “genuine link” with LI. LI cannot give Nottebohm diplomatic immunity because of this.

Question 11

The Barcelona Traction (Belgium v. Spain) (ICJ, 1970)

Answer 11

Incorporation=Canada, Shareholders=Belgian, Business=Spain. Only the state of nationality of the corporation can issue diplomatic protection over the corporation and its shareholders. The court finds that a corporation is the national in its place of incorporation.
Equity shareholder state only have standing IF the incorporating state is the one “wronging” the corporation.

Question 12

Prosecutor v. Radislav Krstić (ICTY, 2004)

Answer 12

Substantiality Test: The segment killed must be substantial part of overall population of a group.

1. Patriarchal society & destruction of important persons/leaders;
2. Eradicate group viability: gendered killing;
3. Symbolic importance: if UN “protected” population isn’t safe, who is?

Question 13

US v. Belfast

Answer 13

US prosecuted Belfast under the domestic version of the Convention Against Torture (CAT) incl. an extradite or prosecute provision. Torture is defined in broader terms.
Belfast’s argument: Medellin established a mirror image rule for domestic law and the Torture act is not the mirror image of the CAT, and thus is unconditional and void.
Test: Rational relationship between the domestic law and the int’l treaty (that is rejection of the mirror image rule) when the int’l treaty contains a provision setting a “floor” rather than a concretized/ceiling definition.

Question 14

AZAPO (Azanian People) v. President of South Africa

Answer 14

Sovereignty argument: Intrastate conflict = subject to lower level of scrutiny than violence between states in int’l law.
Other counties using truth commissions is evidence of state behavior contrary to the claimed int’l norm.
Conclusion: Custom. Int’l Law does not have a duty to prosecute and punish especially were about is an internal matter.

Question 15

Almog v. Arab Bank

Answer 15

Differing definitions do not matter because all share a common understanding of prohibited behavior, that is, widespread and systematic behavior to intimidate the civilian population to achieve a specific political goal. -> This has gelled into a sufficient customary international norm that plaintiff can bring an ATS action.

Question 16

Morrison v. National Bank of Australia

Answer 16

Rule: Congress can always declare a statute to have extraterritorial reach (this happens often through ratification of treaties).
If not -> Transaction Test:
(1) If the initial purchase or sale of the stock is made in the US -> US courts have jurisdiction, and the statutes applies extraterritorially OR
(2) If the corporation in question that does wrongdoing is listed on US stock exchanged -> US courts have jurisdiction, and the statutes apply extraterritorially.

Question 17

RJR Nabisco v. European Community

Answer 17

RICO assembles a series of pre-existing crimes = predicate offenses.
RICO doesn’t explicitly apply extraterritorially. RICO also give private right of actions for punitive damages, only allowed to stand if there is domestic injury to property/business.
Ginsburg (Dissent): Where there is intrinsic extraterritoriality of a crime, it would be logical to give private right of action for extraterritoriality.
The court is concerned about plaintiff’s diplomacy: extraterritorial lawsuits may influence foreign conduct.
Court: major conceptual difference between pursuing a wrongdoing publicly vs privately.

Question 18

Daimler v. Bauman

Answer 18

A claim brought by foreign plaintiffs against a foreign defendant based on events occurring outside the US cannot be litigated in the US UNLESS the company has at least substantial continuous and systematic contact.

Question 19

Bond v. United States (SCOTUS, 2014)

Answer 19

(Whether Congress has the constitutional power to do what is necessary and proper to implement an int’l treaty, to give Congress the power to trespass on their rights of small “s” states).
Court avoids the constitutional question, resolving it through statutory interpretation.
Court: use of the CWC here is so out of line, there is not even a plausible possibility that this is covered under the CWC.
⇨ Int’l nature of a treaty limiting the actual scope of the statute

Question 20

Sosa v. Alvarez (SCOTUS, 2004)

Answer 20

Court: When we assess customary int’l law violations today, we cannot use an originalist approach:
Transhistorical test: If the norm today has the same condemnation and clarity as the norm against piracy did in the 18th century, then it can count as a customary int’l law rule under ATS and gives us a right to bring a claim.

Question 21

Kiobel v. Royal Dutch Petroleum

Answer 21

ATS does not have extraterritorial applicability b/c it’s a statute that is presumed to have no extraterritorial reach -> no expressed extraterritorial application.
Test: For ATS the claims have to sufficiently touch and concern the territory of the US. Some evidences: physicalities occurs in the US, decision that leads to violence is made in the US, or persons against whom claim is brought is US American.

Question 22

Jesner v. Arab Bank

Answer 22

Procedural: foreign corporations cannot be sued under the ATS in the US b/c under int’l law there is no int’l norm to sue corporations. Race to the bottom with respect to corporate responsibility in the ICJ statute.

Question 23

Nestle v. Doe (SCOTUS, 2021)

Answer 23

General corporate activity is not sufficient to give domestic courts jurisdiction.

Question 24

Samantar v. Yousuf (SCOTUS, 2010)

Answer 24

FSIA: foreign instrumentalities cannot be sued UNLESS (1) they fit in exceptions OR (2) they are natural persons (FSIA does not apply to individuals).
Int’l law still recognizes certain individual personal immunities that individuals can bring up as barriers to lawsuits: (1) diplomatic immunity and (2) head of state immunity.
=> This is a limit to full jurisdiction of international law.

Question 25

Obb v. Sachs

Answer 25

There has to be a connection between the commercial act, in injury, and the plaintiff “based on the commercial act”

Question 26

Germany v. Phillip

Answer 26

Property/taking/expropriation exception apply when the taking is not domestic, when it involves a foreign taking.

Question 27

Bank Markazi v. Peterson (SCOTUS, 2016)

Answer 27

Legislature seizes assets belonging to Iran as basis for payout for people who suffered under the regime.
Arg: this violates the separation of powers.
Court: there is no impingement on the judiciary -> otherwise this would have invalidated the entire legislative structure regulating these transnational disputes. Judicial function are more restraint in foreign affairs spaces.

Question 28

Animal Science v. Hebei Pharma

Answer 28

Arg: have no choice, compelled to act this way by a governmental regime.
Court: FRCP 44.1: a foreign governments interpretation of its own domestic law is not binding of US courts. Court is acting imperially. In transnational litigation -> the court can come to its own conclusions.

Question 29

Manco Contracting Co. v. Bezdikian (SCOTUS, 2013)

Answer 29

Rule: to be enforceable a foreign judgment has to be conclusive. Conclusiveness requires that the judgment was rendered by an impartial judicial process and with due process. But we are not going to give the defendant a trial de novo.

Question 30

Methanex Corporation v. United States (Arbitration Tribunal NAFTA)

Answer 30

11. 05 Arg: Min. standard of treatment does not preclude governmental differentiations between national and aliens. Show much more than that you were negatively affected.
12. 10 Arg: Arbitrators accept scientific evidence. The legislations should not be a surprise, Methanex entered the market knowingly, and Cal. never misrepresented regulatory structure.
13. 02 Arg: domestic producers were treated differently: hinges on what is a like product MBTE producers were treated the same. Methanex: like product is not just what is the same, but one that can fully replace even if it looks different. Not accepted.

Question 31

The Loewen Group Inc. v. U.S. (Arbitration Tribunal NAFTA)

Answer 31

1. Judge failed to control the courtroom = national treatment violation.
2. Panel doesn’t decide issue b/c Loewen did not appeal within US.

Question 32

United States—Import prohibition of certain Shrimp products—Shrimp/Turtle Case (WTO Appellate Body)

Answer 32

1. Arg: Turtles ≠ “exhaustible natural resource” under (g). Challenging party: not inanimate, so not exhaustible [when GATT was negotiated this was true, no longer so]. Appellate panel takes a purposive language/living treaty approach => species can be exhausted by overuse (use case law from other dispute resolution entities).
2. Arg: “relating to” meaning: Appellate panel defines it as “aimed at”
3. Arg: even-handedness (national treatment): “separate impact” discussion, none here.
4. Arg: Chapeau part of the GATT: What did the US do wrong?
5. 1. Side deals: treated some countries better than others -> favoritism, preferentialism. Inverted “most favorite nation”
6. 2 Rigid and unbending standard: no consultative process = disguised restriction => If Congress really cared would have made int’l agreement.