Early Cases Flashcards
What are the facts of Filartiga?
➢ Filartiga family is from Paraguay, their son was tortured and killed by Pena in retaliation for his parents political beliefs→they bring suit in Paraguay, nothing happens, their lawyer is imprisoned and threatened with death
• 2 years later, Filartiga’s sister (Dolly) immigrates to the US and learns that Pena is also in the US on an expired visa
• Dolly reports Pena and while he is awaiting deportation she brings suit against him for violations of “wrongful death statutes, UN Charter, Universal Declaration on Human Rights, Declaration against Torture, documents and practices of customary international law,” and under 28 § USC 1350 Alien Tort Statute
What is the Alien Tort Statute?
establishes original district court jurisdiction over all causes where an alien sues for a tort only committed in violation of the law of nations or a treaty of the US”- the deliberate torture perpetrated under color of official authority violates universally accepted norms of international law
• Thus whenever an alleged torturer is found and served with process by an alien within our borders, §1350 provides fed jurisdiction
Why type of crime was Filartiga guilty of?
Those who torture are enemies of all mankind (Jus Cogens) the prohibition is clear and unambiguous, and admits of no distinction between treatment of aliens and citizens
Why is Filartiga important in terms of precedent for subsequent cases?
➢ It set the precedent for United States federal courts to punish non-American citizens for tortious acts committed outside the United States that were in violation of public international law (the law of nations) or any treaties to which the United States is a party.
What are the facts of Paquete Habana?
➢ 2 fishing vessels are captured off the coast of Cuba by an American blockade during the Spanish-American War
• Both vessels were owned by a Spanish subject of Cuban birth and commanded by a subject of Spain
• Neither vessel knew of the war nor attempted to resist the blockade or flee at the time of capture
➢ The US Admiral thought that since the men who commanded the vessels were liable for further service to Spain that they should be detained as prisoners of war
• The were captured as a prize of war and then auctioned off
How does the court in Paquete use customary international law?
➢ International law is part of our law, when there is no treaty and no controlling executive or legislative act or judicial decision, resort must be made to the customs and usages of civilized nations and works of jurists and scholars➢
The court looks to customary international law to see that for centuries as a general practice of international law, fishing vessels, pursuing their vocation of fishing have been recognized as exempt from capture as prize of war
• The US had been familiar with this custom since the time of the War of Independence
• Also showed up in treaties between the US and Prussia in 1785
If you only remember one thing form Paquete what should it be?
That this is one of the first times the court recognizes that international law does have some applicability to American law–>➢ No single nation can change the law of the sea, like all the laws of nations, it rests upon the common consent of civilized communities, it is of force, not because it was prescribed by any superior power, but because it has been generally accepted as a rule of conduct
What are the facts of lotus?
collison on the high seas between a french vessel (Lotus) and a Turkish vessel - 8 Turkish nationals on board were killed
The French boat arrives in Turkey and the captain is arrested and sentenced to jail and a fine- France is pissed they want him back
What is the issue in Lotus?
France claims that bc their flag is flying on board the ship they have sole jurisdiction over the French officer and that unless Turkey can point to some permissive international law giving them jurisdiction over the events on the high seas they must return the Officer
What did the court say in Lotus?
The court says a country may exercise jurisdiction in its own territory in respect of any case which relates to acts which have taken place abroad–> i.e. Turkey did not have to point to a rule of Int’l law bc the vessel involved was Turkish (remember ships flying the flag are the territory of the flag state)
What are the 2 Lotus principles?
1) A state may not exercise jurisdiction outside its territory unless there is a treaty or customary law permitting it to do so
2) Within its territory, a state may exercise so long as there is no prohibiting law
How has Lotus changed today?
Nationality of the victim alone is not enough–>• 1958 Geneva Convention on the High Seas says in cases involving collisions on the high seas, only the flag state or the national state of the accused may prosecute the officer in the case
What starts the problem in Texaco/Libya Arbitration?
➢ Libya nationalizes its oil fields→the Resolution of 1803 adopted by the General Assembly says nationalization is ok bc each state has the right to exercise full sovereignty over its natural resources, this is a legitimate and internationally recognized method to ensure the sovereignty of the state upon such resources AND After nationalization, appropriate compensation must be made
Libya wants to use Resolution 3171- Any dispute related to nationalization or its consequences shall be settled in accordance with provisions of domestic law of the State
➢ Texaco argues that it had a contract with Libya and in that contract Libya ensured that it would take all steps necessary to ensure that the Company enjoys all the rights conferred by this Concession, the contractual rights expressly created by this concession shall not be altered except by mutual consent of the parties
How was Libyan Law in conflict with Texaco’s wishes?
Libya tried to argue that Resolution 3171, a more recent revolution then 1803, which said to use domestic law to settle disputes, and their domestic law said they didn’t have to compensate
What was the ultimate resolution in Texaco/Libya?
Most Westernized nations did not vote on the dispute settlement in 3171, on which Libya relied
Instead most westernized states agreed with a compensation method and 1803 was supported by a majority of states and therefore it seems to reflect the state of customary international law existing in the field
Libya- pay up ya sons of bitches
