Int'l Law in Domestic Cases

Question 1

Alien Tort Statute

Answer 1

The Alien Tort Statute (ATS) [shortest statute: 32 words, passed by 1st Congress] gives federal courts original jurisdiction over tort suits that arise out of violation of the law of nations anywhere. ATS = laboratory in which federal judges decide whether alleged conduct violates int’l law.
Two central components:
1. Substantive wrong: does it amount to a violation of (customary) int’l law?
2. Jurisdiction.

Question 2

Policy reasons for the Morrison Transaction Test

Answer 2

1. Conflicts with other country’s national sovereignty of other legal systems b/c they do not deliver as much (ex: punitive damages).
2. SCOTUS should not be int’l SC for securities.
   Drumbl pontification: limits to universal. It would be culturally insensitive to apply American law. Acknowledges = pluralities of legal systems.
   Here, the transnational nature of the harm limits the reach of the courts.

Question 3

The ICJ

Answer 3

Int’l Court of Justice:

• Adjudicates state to state disputes.
• Statute contains valid sources of international law [Art. 38].
• The ICJ can award civil damages or asked for specific performance. There are no punitive measures.
• No rule of stare decisis.

Question 4

ICJ Jurisdiction

Answer 4

Three paths for contentious cases:
1. Purely consensual: both states agree the court is the place for resoling the issue.
2. Treaty clause: treaty has a clause postulating ICJ as the arbiter if two member states have a dispute regarding something in relations to the treaty subject matter.
3. Grant of general jurisdiction: states can give general jurisdiction to the ICJ to adjudicate any dispute they are involved in. Can only sue a state under this if your state has given it and the other state has too (mirror image rule).
2 + 3 -> may argue about this.

Question 5

ICJ Advisory Opinion

Answer 5

ICJ is asked to clarify what the int’l law is on a particular issue. Brought/requested by states and some int’l organizations if their founding docs allow it. Can be very influential (ex: nuclear weapons opinion).
Other common law countries have an analogue to advisory opinions => references (legislature may asked about the legal ramification of a proposed law).

Question 6

History of ATS

Answer 6

Put into place to deal with piracy. Filartica case: Human Rights groups used ATS to seek redress for human rights violations. First, suit against individual under the ATS in the 80s/90s. Second, in 1990s, try to sue corporations for their role in aiding and abetting. -> initially successful, but courts attempted to unwind the ATS procedure to not allow that.

Question 7

Foreign Affairs Summary

Answer 7

Summary: For fed US courts to have jurisdiction, the subject matter has to sufficiently touch and concern the US. This only reaches individuals, however, b/c international criminal law does not recognize the protection of corporations. But under national law, corporations incorporated nationally may be sued for remedies.

Question 8

Immunities

Answer 8

Foreign immunity must be circumvented by a FSIA exception.
Immunity reflects a more diplomatic view of international relations than plaintiff’s diplomacy. Immunization became clear to be under inclusive and protective with respect to the roles that foreign sovereigns may play.

Question 9

Plaintiff’s diplomacy

Answer 9

Extraterritorial lawsuits may influence foreign conduct. Court: major conceptual difference between pursuing a wrongdoing publicly vs privately.

Question 10

Exceptions to immunity

Answer 10

FSIA allows certain lawsuit to continue to go forward by creating a set of exceptions to immunity:

1. Commercial activities exception: recognizes that foreign governments may engage in commercial activity not unlike private corporations do (more the case in mixed market economies where state entities may conduct regular business affairs).
2. Taking/Expropriation exception
3. Material support of terrorism exception: lists states that have been deemed to support terrorist groups.
4. Fundamental breach of jus cogent norms exception.

Question 11

History of Immunities

Answer 11

London Charter after WWII = personal liability for head of states and their state crimes. Int’l law was silent on this until the ICC/ICTY = explicit provisions.
ICC = applies to states that consented other Rome Statute. ICTY/R = applies only to the limited territory of their jurisdiction.