Transnational Law Flashcards
Extradition
The formal process by which a state delivers an individual within its custody to another state that intends to prosecute or sentence that individual. (Determined by Treaties)
This is the preferred way of moving someone from the quested country to the requesting country (over rendition and Kidnapping)
Rendition
A state, by executive decision, may privately hand over an individual within its custody to another state without official inquiry or review.
Jurisdiction to Prescribe
The ability of a state to apply its substantive law to specific individuals or incidents.
Jurisdiction to Adjudicate
The ability of a state to subject individuals or entities to its judicial or administrative processes.
Jurisdiction to Enforce
The ability of a state actually to oblige individuals or entities to comply with the law and to sanction non-compliance.
Jurisdiction Generally - Basis for Jurisdiction
Courts of a state may exercise jurisdiction with respect to a person alleged to have committed a crime if the relationship of the state to that person makes the exercise of jurisdiction reasonable. Basis for jurisdiction include:
- Nationality -
- Territoriality – The person committed the crime in the state
- Physical Presence – The person is physically present in the state
- Passive personality – The victim is a national of the state
- Protective Principle – Offenses directed against the security of the state or that threaten states interests (such as espionage)
- Universal – The crime in question is of sufficient concern to the international community at large that any national court anywhere can prosecute
Conditions to Extradition
Double Criminality – Extradition is usually granted only for serious offenses criminalized by both the requested and requesting states.
No extradition without a treaty
o However, in the past countries have “self-helped” by kidnapping someone on foreign soil
Only the State department may make extradition requests on behalf of the US.
Once made, the request becomes subject to a judicial hearing (Not a trial) in the requested state.
The requested state may defer extradition if that state is prosecuting the individual in question for a crime over which that state’s courts have jurisdiction to adjudicate
Opino Juris
A sense of legal obligation
Jus Cogens
The principles which form the norms of international law
Sources of International Law
Three Primary Sources:
1. International Treaties (conventions, protocols, covenants, etc) (Purely Consensual)
- Customary International Law (Statutes in Int’l court of justice, behavior/conduct of states) - How do states act out of a sense of legal obligation?
- General principles of law within national legal systems (common principle of law that are recognized by a broad number of states)
Two Secondary Sources:
- Judgments by international and national Courts
- Works of eminent publicists
Treaties
a. Virtually all of international law today is based on international treaties. They are by far the first, best indicator of the content of international law
b. Treaties are like contracts between multiple states
c. Treaties only apply to the states that consent to them
d. Entry into Force Provisions - – Those provisions say that the treaty only enters into force (becomes fully binding) once a certain number of states have become treaty parties.
Treaty Vocabulary
Adoption - State takes a vote to adopt a treaty
Authentication - Adopted text is formally accepted as binding
Signature - When the executives/representatives of a state sign it
Ratification - Document goes to national legislatures which can adopt it legislatively through ratification
Accession - Countries that don’t ratify can submit it to domestic legislatures to enact into domestic law (same result as ratification)
Entry Into Force - When a treaty becomes fully binding
Denunciation - Leaving a bilateral treaty (It no longer exists)
Withdrawal - Leaving a multilateral treaty (Other states are still in the treaty)
Pacta Sunt Servanda
Agreements must be kept
Uti possidetis juris
As you possess under law
- Ex. Island of Palmas Case
Recognition
The capacity to engage in international relations
Stateless Person
A permanent tenant with no security, stability, or place. The ultimate form of disenfranchisement. You are a perpetual wanderer
Jus in Bello
How you legally wage war
Jus ad Bellum
When you can legal wage war
Foreign Cubed Case
Wrongdoer, Wrongdoing, and Victim are all foreign to the jurisdiction
Kindler v. Canada Facts
Kindler was convicted of Murder in Pennsylvania and given the death penalty. After trial he escaped to Canada. He was captured and the Canadian Minister of Justice surrendered Kindler to the US without first seeking assurances that Kindler would not be put to death. Minister wanted to discourage foreign murderers from seeking haven in Canada in order to escape death penalties abroad.
Kindler v. Canada Holding
Court found that it was not cruel or unusual punishment because the potential execution would be taking place in the US under US law against a US citizen for an offense that took place in the US.
Kindler v. Canada Dissent
Canada has made a commitment to support human dignity and the abolition of the death penalty. They can’t on one hand give a commitment to abolishing the death penalty to the international community and on the other hand extradite a fugitive without seeking assurances that he won’t be put to death.
Question from Kindler v. Canada
To what extent should law made internationally that we have either chosen to avoid, or that we can’t join (because it’s not formal hard law), or is made in jurisdictions of which we can’t be a member. To what extent is our national consensus of who we are, to be informed by international law and “law like stuff” that is not formally binding.
US v. Burns and Rafay Facts
Burns and Rafay were accused of Murdering Rafay’s family in Washington State. They were arrested in BC and were going to be extradited. The Minister of Justice did not seek death penalty assurances.
US v. Burns and Rafay Holding and Reasoning
Holding: Absent exceptional extraordinary circumstances, assurances are always required for an extradition from Canada to be constitutional
Reasoning: Seems to follow the dissent in Kindler. Canada has been at the forefront of denouncing the death penalty internationally, which is at odds with allowing Canadian Citizens to be extradited to the US where they will face the death penalty.
Soering v. United Kingdom Facts
Soering, a German, was detained in England pending extradition to the US for murder charges in VA. Soering alleged that his extradition (and possible death sentence) would breach Art. 3 of the European Convention of Human Rights which read that “No one shall be subjected to torture or inhuman or degrading treatment or punishment.” The UK government did not believe that the risk of death penalty was sufficient to bring article 3 into play. The UK believed that since at least 4 of the 5 mitigating factors for avoiding the death penalty applied to Soering, it was unlikely (but not impossible) that Soering would be put to death. However the VA commonwealth attorney made it clear that he would indeed seek the death penalty
Soering v. United Kingdom Holding
The likelihood of the exposure to the death penalty for the defendant would breach Article 3 if he were extradited. Article 3 doesn’t prohibit the death penalty explicitly, but each case must be liked at differently.
Roper v. Simmons Facts
17-year-old Christopher Simmons committed murder and was sentenced to death. He did not argue his innocence, but rather that it was unconstitutional to sentence a minor to death.
Roper v. Simmons Rules
Rule - The execution of a minor is cruel and unusual punishment under the 8th amendment.
More important Rule for this class - International law and foreign practice, particularly when near-universal in support of a common doctrine or policy, may be considered in interpretations of the Eighth Amendment to the United States Constitution by American courts.
Roper v. Simmons Reasoning
Foreign or international law can confirm the existence of a national consensus. The majority judgment sets up a clear test or definition of the use of foreign and nonbinding international law in ascertaining our constitutional principles.
Test:
Is there a national consensus on a Constitutional matter? If the answer is yes, then the court can consider non-binding foreign and international law to confirm that intuition.
Roper v. Simmons Dissents
Dissent – O’Connor - Genuine national consensus against the juvenile death penalty has not been developed and there is no justification for an age-based constitutional rule
Dissent – Scalia - We should never look to international law for the answers, especially if we have not ratified the international treaties that we seek to use in our argument. It’s not that other countries don’t put minors to death, they just say that they don’t. A jury can withhold the death penalty after considering a specific case and its circumstances.
Abbott v. Abbot Facts
Timothy Abbott (plaintiff) and Jacquelyn Vaye Abbott (defendant) had a child, A.J., in 1995 and moved to Chile in 2002. The couple separated in 2003. Chilean law granted Jacquelyn daily care and control of A.J., but granted Timothy regular visitation rights and a ne exeat right—a joint parental right that Timothy could use to prevent Jacquelyn from removing A.J. from Chile. While the custody case in Chile was still pending, Jacquelyn had taken A.J. to Texas without consent from Timothy or the Chilean court. Jacquelyn filed for divorce in Texas and sought full control over A.J.’s place of residence. In 2006, Timothy filed suit in the United District Court for the Western District of Texas, seeking a court order mandating that A.J. be returned to Chile, pursuant to the Hague Convention on the Civil Aspects of International Child Abduction (Abduction Convention). Jacquelyn argued that a right of custody must be capable of being exercised. Therefore, as a ne exeat right cannot be exercised unless and until the other parent attempts to remove the child from the country, a ne exeat right is not a right of custody. The district court denied Timothy’s request, holding that Timothy’s ne exeat right was not a right of custody. The United States Court of Appeals for the Fifth Circuit affirmed, holding that the return of the child is not a remedy for a violation of a ne exeat right.
Abbott v. Abbott Rule
A ne exeat right is a right to custody. Under the treaty, a unilateral decision to remove the child violates that custodial right.
Paquete Habana - Question and Analysis
Question: How do you prove custom? What is the evidence?
Analysis: One way is by looking at the number of states that act a certain way out of a sense of legal obligation. The longer the duration, the more likely it is a customary norm
Another way is the language that states use – Imperative vs. Conditional language
How do states that don’t adhere to the norm act? Are they ashamed? Do they do it in secret?
(Ex. Prohibition on torture is a customary norm, yet torture exists. But states generally do it in secret or say that they’re not torturing.)
Medellin v. Texas Rule and Analysis
Rule: A decision of the ICJ does not automatically constitute binding law in the US
Analysis: In order to provide clarity, we have the change the assumptions in our domestic ratification processes. Congress must show the special intent to render the international treaty fully self-executing so that when enacted, it supersedes all other domestic law that it touches to be immediately operative. This can happen in two ways
1. Congress Says So - “by enacting the treaty, we commit to ensure that it is automatically operational and executed. Any other domestic law that might present a contradiction is to be changed.” 2. Better way is to say - “We’ve done our homework, here’s a list of every other statute on the federal books that relates to the subject matter of this new international treaty we just ratified”
Since Medellin: Senate has altered pro-forma language that is used when a treaty is submitted to congress. That language explicitly references the intent of self-execution.
Island of Palmas Case Facts
An island was in dispute between the US and Netherlands
i. US bases claim on Treaty of Paris where they acquired land from Spain (whose claim is rooted in discovery)
ii. Dutch claim is based on occupation and use – They had contracts with the Princes of the island and conducted a lot of economic activity there via the East India Trading Company
Island of Palmas Case Rule
Territorial sovereignty over land may be gained by a State which is not the first discoverer of the land if that State peacefully and continuously possesses the land for a period of time.
Uti possidetis juris – Disputes arose out of decolonization. Independent states emerged from empires and those states conflicted with each other. Doctrine says that in the interest of stability and certainty in the international legal order, newly independent states coming out of decolonization are presumed to inherit the boarders and territorial understandings that were imposed on them in the colonial period.
Nottebohm Case Facts
Nottebohm was a German national who received citizenship through Liechtenstein through naturalization and performed substantial business dealings in Guatemala. Nottebahm was arrested in Guatemala. Guatemala said that Lichtenstein doesn’t have standing to assert diplomatic protection for Nottebohm. Guatemala said the grant of nationality that Lichtenstein gave to Nottebohm was illegitimate.
Nottebohm Case Holding/Rule
Citizenship granted through naturalization requires a real affective, genuine connection with a nation. There needs to be a nexus and the court says that is lacking. Therefore, whatever Guatemala did, Lichtenstein cannot assert diplomatic protection over him.
Barcelona Traction Facts
Barcelona Traction, Light and Power Company, Ltd. (Company) was a corporation organized under the laws of, with a registered office in, Canada. Several citizens of Belgium (plaintiff) were shareholders in the Company. Belgium brought suit against Spain (defendant) in the International Court of Justice (ICJ) on the ground that the Spanish government violated international law and caused injury directly to the Company and indirectly to its Belgian shareholders by reducing the value of their shares. Belgium argued Spain should be held responsible for these injuries to its citizens.
Barcelona Traction Holding, and Things to Note
Holding: Under int’l law, corporate nationality is based on the place of incorporation
Note: Just because a state is the one of which you’re a national, doesn’t mean that it has to exercise diplomatic protection over you. It’s discretionary.
Note: If the incorporating country is doing the wrong, equity permits a third-party state to bring a claim on behalf of shareholders.
Note: ICJ says that if you want to play the game of transnational business, you have to accept the risks of it falling apart. International law is not an insurance policy when your business doesn’t work out.
Prosecutor v. Krstic Facts and Holding
Facts: Krstic is a Bosnian general who’s charged with aiding and abetting the genocide of roughly 7000 Bosnian Muslim men of military age in Srebrenica. The goal of the surge is to attach land to ethnicity (Ethnic cleansing). Purify the land (violent form of gerrymandering). Krstic claims that he didn’t commit genocide because he only killed the military age, Muslim, men.
Holding: The court imports an elasticity into the definition of genocide and the “wipe out” component to say you don’t have to wipe out the group indiscriminately. If the targeted group is substantial to the population as a whole genocide could apply.
US v. Belfast
a. Convention Against Torture (CAT) requires prosecution or extradition and operates extraterritorially.
i. Torture act is the domestic ratification of the torture convention. Under the “Rational Relationship Test” as long as the ratification bears a rational relationship to the treaty, it’s valid. (Rejects the mirror-image rule)
ii. CAT is the floor, and not the ceiling on legislation. A broader interpretation does not defeat the spirit of the CAT
b. From Medellin we learned that everything has to be self-executing, and here we learned that there only needs to be a rational relationship. It’s a contradiction, but the CAT itself permits that
Azanian People’s Case
a. South Africa allowed for amnesty for penal and civil action (Two Conditions)
i. Full Disclosure of all facts relating to the offense
ii. Offense was associated with a political act
b. Azanian people were against amnesty, they wanted offenders to be liable
i. They claim that int’l law requires SA to prosecute and use customary international law to support their argument
c. Why this case matters
i. Plaintiffs rely on customary international law to seek litigation outcomes
ii. Recognition of how under Article 17 of Rome Statutes – truth commissions and trials are not on equal footing. Trials are preferred
Holding: Customary international law does not have a duty to prosecute, especially in a state’s attempt to police violence in its own borders. Intrastate violence is subject to lower scrutiny in regards to international law.
Jesner v. Arab Bank Background and Facts
a. Looks at what evidence a court will use to determine what is/is not a customary international norm
b. Paradox – Tension between humanitarian aid, and human rights perspective.
i. Humanitarian aid is allowed into a restricted area and sees horrible things. They promise to the “warlord” that they won’t talk about anything they see. However later they’re subpoenaed to testify against that warlord.
Facts – Arab Bank is national bank of Jordan accused of funding terrorism
Jesner v. Arab Bank Question, Holding, and Rule
Question: Is terrorist financing a customary international crime?
i. This is important because ATS only triggers if it is
Holding: Different definitions of terrorism share a common kernel of prohibited behavior
i. Widespread and systematic uses of violence against civilians to secure a political outcome are broadly prohibited.
Rule: Foreign corporations cannot be sued under the ATS
i. Note – This is the only case of ATS litigation against a corporation where the executive did not try and intervene
Morrison v. National Australia Bank Facts
FL company owned by Aussie bank. FL company did sleazy stuff. Aussie stockholders sued Aussie bank in NY.
Securities & Exchange Act provides no cause of action unless there was a domestic transaction (contractual sale in U.S. or sale involving corporate entity on domestic market)
Note: This is a foreign Cubed case