Transnational cases & articles Flashcards
Kindler v. Canada
Kindler is convicted of murder, Canada (which doesn’t have capital punishment) should surrender him to the US where he will be executed. Execution is not cruel and unusual punishment, death penalty wouldn’t shock conscience of Canadians (voted down by relatively narrow margin which reflects public values), Canada shouldn’t expel lesser criminals but keep those who committed serious crimes that call for the death penalty which might make Canada a more attractive destination for American fugitives, the US criminal justice system is similar in many ways, deference to executive in foreign policy matters (judicial restraint)
United States v. Burns and Rafay
Canadian citizens committed murders in the US and went to Canada. In the absence of exceptional circumstances (not listed), assurances in death penalty cases are constitutionally required. Canada advocates abolition of the death penalty. There are wrongful convictions, other countries also require assurances before extradition, the death penalty is irreversible (whereas the judicial system changes), principles of fundamental justice. There’s no evidence that requiring assurances will undermine Canada’s good relations or that fugitives will flock to Canada. Balance changed from Kindler (extradition without assurances) to the unconstitutionality of it
Soering v. United Kingdom
German applicant killed girlfriend’s parents in Virginia. Surrendering him to the US without assurances would risk going against Article 3 of the European Convention. Consider factors: manner in which it is imposed or executed, personal circumstances of the condemned person (18 y/o) and a disproportionality to the gravity of the crime committed, conditions of detention awaiting execution (6-8 years in VA, mounting anguish)
Canada-US extradition treaty Art. 13
when there are competing requests
Canada-US extradition treaty Art. 17bis
a fugitive may commit a crime in both the requesting and requesting state
Abbott v. Abbott
does a parent have a right of custody by their ne exeat right (authority to consent before the other parent takes the child out of the country)? Yes, father has right of custody under the Convention and ne exeat rights are the rights of custody. Use the Convention’s text (right of custody includes determining child’s place of residence and care of the child), view of Department of State, other states’ definitions, and Convention’s purposes. Convention ensures international consistency. Decisions regarding custody rights should be made in the country of habitual residence for the best interests of the child. Abduction causes harms, want to deter child abductions and require a return remedy
Roper v. Simmons
is it constitutional to execute a juvenile for capital crime? 8th/14th prohibit executing a mentally disabled person. No, there’s no national consensus for juvenile capital punishment, all other countries are against it, minors aren’t as mature/developed/have strong values and are more susceptible to pressure. Retribution isn’t as strong for a minor, and it’s unclear if the death penalty is a deterrent for juveniles. Interpret 8th cruel and unusual punishments to include juvenile capital punishment. UK abolished it and the 8th has origins in English Declaration of Rights. US values of individual freedom and human dignity
The Paquete Habana
Spanish fishing vessels and cargoes were seized as prize of war by the US. It violated customary IL. Considering history, treaties, other countries, writers. Unarmed and peaceful fishing vessels are exempt from capture as a prize of war
Treaty formation articles
Adoption (Art. 9) first stop in treaty making. Then authentication (Art. 10), signature (Art. 12), ratification (Art. 16)
ICJ Art. 38
3 sources of IL (treaty, customary IL, general principles), subsidiary sources (judgments of courts, publicists)
ICJ Art. 19
reservation - state ratifies except for a few things. It’s fine as long as it doesn’t fundamentally change treaty/go against purpose/object
In response to another state’s reservations, other states can say: 1) I accept 2) I accept in which it changes your relationship with me and I will issue the same reservation with respect to you (e.g. rights of diplomats - immune from criminal prosecution - want chauffeurs to also be immune, I want that for me too) 3) I object but I don’t care 4) I object and I consider you to be a party of the treaty with respect to me because non-conforming reservation (you aren’t bound to me but you can be bound to others)
VCLT Art. 41
amendments - renegotiate if treaty allows and amendment doesn’t affect enjoyment by other parties of their rights under treaty and it doesn’t derogate from object/purpose of treaty
two or more of the parties to a multilateral agreement can agree to modify the treaty as amongst themselves IF the treaty permits it, the modification is not prohibited by the treaty AND it doesn’t ‘affect the enjoyment by the other parties of their rights under the treaty or the performance of their obligations’ AND the modification does not relate to a provision ‘derogation from which is incompatible with the effective execution of the object and purpose of the treaty as a whole’
Medellín v. Texas
ICJ held that the US violated Article 36(1)(b) of the Vienna Convention on Consular Relations by failing to inform Mexican nationals of their Vienna Convention rights. Neither Avena nor the President’s Memorandum were directly enforceable federal law that preempts state limitations on the filing of successive habeas petitions. Treaty isn’t binding domestic law unless Congress enacts statutes implementing it or if it’s self-executing. President can’t rely on non-self-executing treaty to establish binding rules of decision that preempt contrary state law
Vienna VCCR Art. 36
provides for communication and contact between a state’s consular officials and nationals of that state who are arrested or detained in a foreign jurisdiction
Art. 31(a)
treaties interpreted in good faith in ordinary terms in context/purpose. Plain meaning rule
Only if plain language leads to result that is absurd or meaning is obscure, Art. 32 supplementary means of interpretation (parole evidence) includes preparatory work, conversations, circumstances
US v. Netherlands (Palmas case)
Palmas is a single, isolated island, and the US claims title through Spain’s discovery and ceded Philippines to the US while the Netherlands first colonized by the East India Company and made conventions with native princes. Netherlands has title - continuous and peaceful display of territorial sovereignty, suzerainty, open and public display whereas Spain didn’t exercise sovereignty. Netherlands won, even if Spain discovered it didn’t actually occupy/use
Liechtenstein v. Guatemala (Nottebohm case)
Nottebohm, a German national, engaged in substantial business in Guatemala and applied for naturalization in Liechtenstein. He was arrested in Guatemala and deported to the US, denied readmission to Guatemala, and went to Liechtenstein. Liechenstein exercised right of diplomatic protection against Guatemala because it arrested, detained, expelled, and refused to admit Nottebohm. Guatemala didn’t need to recognize his Liechtenstein nationality and Liechtenstein wasn’t entitled to extend its protection to him. Nottebohm was more attached to Guatemala and wanted to return there whereas he wasn’t settled in Liechtenstein. His naturalization lacked genuineness and was so he could substitute his status as a national of a belligerent state for a neutral state and be protected under Liechtenstein
He wants his property back from Guatemala, but Liechtenstein doesn’t have standing to bring his claim (their grant of nationality to him was illegitimate). Liechtenstein can give him citizenship but in order to have international diplomatic protection, there needs to be more connection
Belgium v. Spain (Barcelona Traction company)
Belgian shareholders in the Barcelona Traction company incorporated in Canada (for over 50 years) wanted reparation. Should Belgium exercise diplomatic protection of their shareholders? No, corporate entity is within domestic jurisdiction/municipal law, the national State of the company alone makes the claim. Canadian government exercised diplomatic protection over the company. If people on whose behalf the State is acting consider their rights aren’t protected, they don’t have a remedy in IL but in municipal law. State has discretionary power to grant or refuse diplomatic protection for their nationals. Even though 88% of shareholders were Belgian, don’t want to open the door to confusion and insecurity in international economic relations. Company was probably in Canada for tax or other advantages, it’s not equitable advantage should be balanced by the risks. Belgian government doesn’t have just standing, reject claim
Need to determine company’s nationality. Theories: where it was incorporated (good for clarity), “brain” test, where is the equity ownership, where most of business is conducted. ICJ chooses where it’s incorporated (which would encourage forum shopping)
Rome Statute of ICC Art. 6
genocide
Rome Statute of ICC Art. 7
crimes against humanity
Rome Statute of ICC Art. 8
war crimes
Rome Statute of ICC Art. 8bis
crimes of aggression
Prosecutor v. Krstić
Srebrenica in eastern Bosnia/Herzegovina was a so-called safe area but the Bosnian Serb Army (VRS) removed women/children/elderly from the enclave and killed 7-8k Bosnian Muslim men. VRS general-major Krstic was guilty of genocide. A substantial part of the group was killed (⅕), men were prominent, emblematic, and essential to group’s survival (spouses couldn’t remarry). Srebrenica was of immense strategic importance to Bosnian Serb leadership and would send a signal, most Muslim inhabitants in the region had sought refuge there. There was intent-VRS didn’t differentiate between men of military status and civilians. The fact that they didn’t kill women and children could have been because of public opinion/international censure
US v. Belfast
defendant convicted in US for torture and firearms offenses in Liberia. Torture Act was valid (even though it may have been more broad than the Convention Against Torture), defendant was subject to prosecution under it and sentence was reasonable. Act was rationally related to treaty
Congress made Torture Act more broad than CAT, changes mens rea/actus rea, changed it to be broader than state official. But in ratifying, broadened torture definition to include more people
Torture Act was valid, not material changes. Test for when Congress properly enacts treaty: rational relationship test, related to treaty
Art. 6 Rome Statute
genocide
Azanian Peoples Organisation (AZAPO) and Others v. President of the Republic of South Africa and Others
South Africa Truth and Reconciliation Act started Committee on Amnesty which had powers to consider applications for amnesty if applicant made a full disclosure of facts and it was associated with a political objective. Once amnesty was granted, offender couldn’t be held criminally or civilly liable. Amnesty impacts fundamental rights to redress and safety. But most of the acts of brutality and torture weren’t well recorded and couldn’t be verified, much was shrouded in secrecy and loved ones as witnesses wouldn’t provide necessary objective and corrobrorative evidence. Amnesty in order to discover the truth and move on/reconcile/reconstruct democracy. Amnesty only if perpetrator made a full disclosure and had real political objective. Other countries required amnesty to facilitate transition, truth. Crimes were during internal struggle under command. They should be absolved from civil liability too because truth wouldn’t be effectively revealed. Legislation in the epilogue allows for amnesty that protects a wrongdoer who told the truth both from criminal and civil consequences
Azanian wanted people to be prosecuted. They argue customary IL has a duty to prosecute human rights abusers. They try to use IL to win
Distinction between interstate and intrastate. Because this was interstate, IL not as strong. If the Azanian people could’ve relied on other law not IL, they would have
Almog/Afriat-Kurtzer v. Arab Bank
1600 plaintiffs bring claims for damages against Arab Bank for knowingly providing banking to terrorist organizations that sponsored suicide bombings and murderous attacks on innocent Israeli civilians. It’s a violation of the law of nations under the ATS. The conduct is internationally condemned - bombing convention, states have ratified. No consensus on definition of terrorism, but organized systematic suicide bombings and murdering innocent civilians are universally condemned. Not self-determination of a people
Bank argues there’s no universal definition of terrorism and there’s an exception for people’s self determination (against repressive state)
Pull out norm of not killing innocent civilians among various definitions
Morrison v. National Australia Bank
does Securities Exchange Act provide cause of action to foreign plaintiffs suing foreigners and American defendants for misconduct? No, does not apply extraterritorially. Effects test (whether wrongful conduct had a substantial effect in the US) and conduct test (whether wrongful conduct occurred in the US). Congress didn’t have intention, policy reasons
Act applies extraterritorially in some parts but not in this area, so claim can’t go forward
If unclear, up to court to determine
Transaction test: in financial transactions involving foreign securities: 1) if initial purchase of stock is in US or 2) involves a corporation listed on US stock exchange. If so, the Act will have extraterritorial application
Policy discussion - don’t encourage forum shopping, not reduce national sovereignty of other states
Daimler v. Bauman
22 Argentinians filed a complaint against Daimler, a German public stock company, and alleged MB Argentina collaborated to kidnap, detain, torture, and kill workers. MB USA was a Daimler subsidiary. Does a court in the US have the authority to entertain a claim brought by foreign plaintiff against foreign defendants based on events occurring entirely outside of the US? No, didn’t have personal jurisdiction as MB USA wasn’t connected enough
Bond v. US
Petitioner Bond sought revenge against woman with toxic chemicals, woman suffered minor chemical burn but assaults were otherwise unsuccessful. Prosecutors charged Bond with violating the Chemical Weapons Convention Implementation Act. § 229 doesn’t reach Bond’s simple assault/local crime. The global need to prevent chemical welfare doesn’t require the federal government to reach into the kitchen cupboard. Congress didn’t intend it to, look at other statutes (regulating firearms), Congress should not intrude on state police power
RJR Nabisco v. European Community
The Racketeer Influenced and Corrupt Organizations Act (RICO) prohibits certain activities of organized crime groups in relation to an enterprise, covers predicate offenses (state and federal offenses). RJR violated RICO (money laundering through nicotine). Federal laws only have domestic application unless there’s clearly expressed congressional intent. 2-step framework for analyzing extraterritoriality: 1) whether the presumption against extraterritoriality has been rebutted—i.e., whether the statute gives a clear, affirmative indication that it applies extraterritorially (if statute is not found extraterritorial, then) 2) examine statute’s “focus” to determine whether the case involves a domestic application of the statute. If the conduct relevant to the statute’s focus occurred in the US, then the case involves a permissible domestic application. RICO applies extraterritorially/to foreign racketeering activity, more to criminal charges than civil damages
Makes predicate offenses (state/federal offenses) more criminalized
Narrower approach to civil damage than criminal charge
Like Morrison in terms of civil law but gives more extraterritoriality to criminal charges (prosecutors more likely to prosecute)
Kiobel v. Royal Dutch Petroleum
petitioners Nigerian nationals in the US filed suit against Dutch, British, and Nigerian corporations that aided the Nigerian government’s atrocities. All relevant conduct was outside of the US and mere corporate presence isn’t enough. Their claims were dismissed, presumption against extraterritoriality applies to claims under the ATS. Protects clashes between our laws and other countries, US shouldn’t be hospitable forum to enforce international norms, possible collateral consequences. Sosa limited federal courts to recognizing causes of action only for specific, universal, and obligatory alleged violations of IL. The presumption against extraterritoriality isn’t rebutted by the text, history, or purpose of the ATS. 3 principal offenses against the law of nations when the ATS was passed: violation of safe conduct, infringement of the rights of ambassadors, piracy (and applying US law to pirates has less foreign policy consequences). Defer decisions to political branches. Test if Congress is silent on extraterritoriality: claims have to touch and concern the US
ATS doesn’t have extraterritorial reach unless Congress explicitly says
Test if Congress is silent: claims have to touch and concern the US so as to oust the presumption of extraterritoriality
E.g. physicality of violation occurs here, decision that leads to violence elsewhere happens here, person against whom claim is brought (perpetrator) has immigrated to the US/became a citizen/lives here
