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  • 1. Public International Law CasesThe Schooner Exchange v. MFaddon, 11 U.S. (7 Cranch) 116 (1812) US executive branch and courts accepted idea of absolute immunity. French warship was seized in US waters, and US citizens tried to claim it. Held France has absolute immunity against claims by US citizens.Rich v. Naviera Vacuba, SA, 295 F.2d 24 (1961) A ship sailed from Cuba with a cargo of sugar, and its master and ten crewmen held the crew hostage and directed the boat to Virginia, where it was met by the Coast Guard. Various suits were filed against the Republic of Cuba charging that Cuba had taken over the vessel and that the sugar was owned by another company. Evidence was introduced to show that the sugar was the property of the United Fruit Sugar Company, expropriated form the companys plants in cuba. There was a clause in the Mayan Lines, S.A. contract that waived sovereign immunity. The Coast Guard prevented service from being served on the vessel. Held The State Department can grant Cuba immunity, although it would be suitable for the State Department to investigate the waiver.Argentine Republic v. Amerada Hess Shipping Corp., U.S. Supreme Court, 488U.S. 428 (1989) A Liberian company sent its ship near the Argentine Republic, at war with Great Britain. Argentine Republic attacked the ship, even though it was in international waters, it repeatedly radioed that countrys authorities, and it raised a white flag. The company sued the Argentine Republic in a US District Court for a tort under the Alien Tort Statute, 28 U.S.C. � 1350, but the court dismissed the case because the Foreign Sovereign Immunities Act of 1976 (FSIA) does not authorize jurisdiction over a foreign state in this situation. Does FSIA override the Alien Tort Statute and provide immunity? Held Rehnquist: Yes. The decision must be upheld, because Congress intended FSIA to be the sole basis for obtaining subject matter jurisdiction in federal court over a foreign state in this country. None of its exceptions apply. Concur Blackmun: The Court of Appeals didnt decide whether an exception applies, so the case should be remanded.Saudi Arabia v. Nelson, U.S. Supreme Court 507 U.S. 349 (1993) The King Faisal Specialist Hospital, owned by the Kingdom of Saudi Arabia, hired Nelson to work in a hospital in Saudi Arabia. Nelson kept reporting safety violations, so the Kingdom arrested and tortured him. Nelson sued under FSIA for intentional torts and failure to warn of the potential of his being arrested and tortured for such actions. Is the Kingdoms arrests and tortures commercial activities under FSIA, removing the Kingdoms immunity? Held Souter: No, the actions were sovereign actions and were not "based upon" commercial activities. Should immunity be removed for failure to warn? Held No, because otherwise any sovereign activity could be turned into a "failure to warn" by semantic sleight- of-hand. Concur White, Blackmun: This was a commercial activity, but it did not
  • 2. have a sufficient nexus to the United States. Dissent Kennedy: The failure to warn claim should be remanded for further consideration.Yessenin-Volpin v. Novosti Press Agency, 433 F.Supp. 849 (1978) Yessenin-Volpin sued the TASS Agency and the Novosti Press Agency for libel, but they claimed sovereign immunity. Does TASS qualify as a foreign state?Held Tenney: Yes, the USSR ambassador says that TASS is an "organ of the Soviet State." Is Novosti a foreign state? Held Yes, even though the relationship of the Soviet Union to Novosti is "something less than ownership, but something more than giving orders," the socialist structure of the USSR makes public ownership and control of Novosti something like an "agency or instrumentality of a foreign state" as required by the FSIA. Are TASS and Novosti exempt from immunity because of commercial transactions? Held The publications in the Soviet Union were not commercial in nature. TASS and Novoti are therefore immune from jurisdiction.Jackson v. The Peoples Republic of China, United States Court of Appeals for theEleventh Circuit, 794 F.2d 1490 (1986) The Imperial Government of China in 1911 issued bonds to finance building of a railway, but after the revolution the PRC declined to pay on the bonds. Jackson sued and the PRC claimed sovereign immunity and did not appear. The district court found jurisdiction and entered a default judgment; set aside the default judgement; and then found no jurisdiction and dismissed the case. Was it appropriate to set aside the default judgment? Held Godbold: Yes. The US did not recognize or communicate with the PRC from the revolution in 1911 until 1979. The PRC was not familiar with US practices, and did not appear because it believed that international law meant that the proceedings did not apply to it. Does the FSI, passed in 1976, retroactively apply to actions from 1911? Held No. The United States originally only applied absolute immunity, and the FSIS simply codified restrictive immunity. Statutes should have a presumption that they are not retroactive, and nothing in the language of the FSIA claims that it should be retroactive. In fact, the "henceforth" language could be construed to deny retroactivity.Banco Nacional de Cuba v. Sabbatino, Receiver U.S. Supreme Court, 376 U.S. 398(1964) In response to a US sugar quota, Cuba expropriated Compania Azucarera Vertientes-Camaguey de Cuba (C.A.V.), in which mostly US citizens held stock. Its fully-owned subsidiary had contracted to sell sugar to Farr, Whitlock & Co., a U.S. commodities broker. Farr, Whitlock made a second contract with the Cuban government, then refused to take payments from its customers and refused to accept the sugar. Banco Nacional de Cuba had been assigned the Cuban governments rights under the second contract and sued Farr, Whitlock in US District Court. The Cuban government invoked the Act of State Doctrine, urging the US not to review its sovereign expropriation of property. The District Court gave summary judgment in favor of Farr, Whitlock because the expropriation invalid because it was motivated by a retaliatory and not a public purpose; it discriminated against American nationals; and it failed to provide adequate compensation. Should the Act of State Doctrine be invoked? Held Harlan,
  • 3. Warren, Black, Douglas, Clark, Brennan, Stewart, Goldberg: Yes. Precedent says that the Act of State doctrine applies, even if international law has been violated. International law does not require application of the Act of State doctrine. The interests of the state in dealing with international disputes are best addressed by the executive, not the judicial. The judicial branch does not negotiate with foreign countries, and judicial decisions might alter the flow of trade. Judicial decisions would not protect investors by enhancing trade in, for example, newly independent developing countries because judicial decisions are so sporadic. Dissent White: The Court should wait for the State Department to give an opinion and, if there is no objection, the Court should examine the case on its merits. The majority should not create new precedent by deciding 1) the examination of international law is for the executive branch and outside the realm of the courts; 2) that acts of a foreign state regarding property of aliens domestically is beyond the reach of the domestic courts; and 3) the courts must adjudicate a claim regarding foreign law if the claim is properly before it, and is thereby forced to rule and validate any lawless act.First National City Bank v. Banco Nacional de Cuba, U.S. Supreme Court, 406 U.S.759 (1972) Petitioner Bank loaned Banco $15 million. $5 million was paid off. The Castro government came to power in 1959 and in 1960 the Cuban militia seized all branches of the Bank in Cuba, so the Bank sold Bancos collateral and realized a $1.8 million excess. Banco sued for the excess, but Bank countersued to keep it as damages. Following Sabbatino, should Cuba be granted immunity? Held Renquist: No. Before Sabbatino, the State Department had written a letter saying that it expressed no opinion in the case, but it has since written a letter that "no opinion" does not mean to invoke the act of state doctrine. The act of state doctrine (along with sovereign immunity) is judicially created so as not to interfere with state diplomacy, so it would defeat the purpose of the doctrine to invoke it when the state department has indicate it that not allowing immunity would not interfere with diplomacy. Concur Douglas: The Bernstein case shouldnt govern. Instead, the decision should be based upon Republic of China, which says that counter-claims are allowed, as Cuba initially brought this case against Bank. Concur Powell: Bernstein is not valid, and Republic of China should not apply, but the court should hear the case because the whole idea of separation of interests between the judiciary and the executive is suspect to begin with, as it would require permission of the court from the judiciary before invoking jurisdiction. The court should hear apply international law where appropriate, including here. DissentBrennan, Stewart, Marshall, Blackmun:Sabbatino wasnt just about causing executive embarrassment—it stated that the judiciary should not become involved with political issues in general. Here there is an absence of consensus on the applicable international rules; there are no relevant treaties, the Cuban government is recognized, and the US government can create a remedy for those concerned; so this is a political question. The executive cannot turn this into a cognizable claim by "simple stipulation".
  • 4. Arango v. Guzman Travel Advisors Corporations, United States Court of Appeals,Fifth Circuit, 621 F.2d 1371 Appellants bought a vacation package with Compania Dominicana de Avacion, the national airline of the Dominican Republic. The Dominican republic turned them away because they were on the list of "undesirable aliens," so they had to be rerouted back to the US, but Dominicana did not issue refunds. Arango sued defendants and others for collaborating in a joint venture resulting in appellants losses. Should the Dominican Republic receive sovereign immunity?Held Reavley: No. Although the tort claims for false imprisonment and battery were not connected to a commercial activity, the claim of breach of warranty and contract are based upon the tour, a commercial activity of the Dominican Republic. Does the act of state doctrine preclude examination of the issues? HeldNo. The act of state only precludes investigation of the "legality, validity, and propriety of acts and motivations of foreign sovereigns acting in their governmental roles within their own boundaries; it does not preclude judicial resolution of all commercial consequences stemming from the occurrence of such public acts."Allied Bank International v. Banco Credito Agricola De Cartaga, United StatesCourt of Appeals for the Third Circuit, 757 F.2d 516 (1985) Allied, and agent for a syndicate of 39 creditor banks, sued three Costa Rican banks owned by the Republic of Costa Rica to recover on promissory notes issued after the failure of the Latin American Bank. Costa Rica had suspended external debt repayments in response to worsening economic problems. Costa Rica moved to dismiss, and Allied moved for summary judgment. The district court denied all motions because of act of state doctrine because deciding otherwise would embarrass the US government in its relations with the Costa Rican government. Should the court determine whether the act of state doctrine applies? Held Yes. Meskill: The act of state doctrine does not apply. The first decision assumed that holding the act contrary to international law would embarrass the executive branch, but the executive has since informed the court that such actions are against state policy in light of IMF principles. Does the act of state doctrine apply? Held No. The act of state doctrine does not apply to seizures of property outside the borders of the foreign state. Here, using act of state debt situs analysis, because Costa Rica could not wholly extinguish the obligations to Allied, the situs of the debt must not have been in Costa Rica. (Ordinary situs analysis would come to the same conclusion: Costa Rica agreed to pay the debt in New York City in United States dollars.) Held As there remains no defense against Allieds motion for summary judgment, the summary judgment should be granted.W.S. Kirkpatrick & Co. v. Environmental Tectonics Corp., U.S. Supreme Court 493U.S. 400 (1990) Kirkpatrick bribed Nigerian officials for a contract, and those officials in turn bribed the government. The US Attorney for the District of New Jersey brought charges against Kirkpatrick, which pleaded guilty. Kirkpatrick then sued defendants for racketeering, and the District Court accepted the act of state doctrine for Nigeria for fear Nigeria would be embarrassed. The Court of Appeals
  • 5. for the Third Circuit reversed because the State Department alerted the court that there would be no embarrassment. Should the act of state doctrine be invoked? Held Scalia: No. The doctrine only applies to official acts of state. This case would determine if certain events actually occurred, now whether a particular act of Nigeria is legitimate. The courts have an obligation to hear cases before them, and the act of state doctrine is not an exception for embarrassing cases, but merely a rule that says acts of a foreign sovereign in its own jurisdiction should be deemed valid.International Association of Machinists and Aerospace Workers (IAM) v. TheOrganization of Petroleum Exporting Countries (OPEC), United States Court ofAppeals, Ninth Circuit, 649 F.2d 1354 (1981) IAM sued OPEC for price-fixing. Is there sovereign immunity? Held Choy: No. That would depend on whether in determining whether there is a commercial exception to sovereign immunity the actual act (selling oil) or the purpose (managing a natural resource that is the nations main source of income) is considered. Sovereign immunity need not be found [?], though, because the act of state doctrine can be applied. Does the act of state doctrine apply? HeldYes. The executive and legislative branches have approached the issue of cartels with restraint, so the court should be hesitant as well. Declaring such actions illegal could be embarrassing.Kalamazoo Spice Extraction Co. (Kal-Spice) v. The Provisional MilitaryGovernment of Socialist Ethiopia (PMGSE), United States Court of Appeals for theSixth Circuit, 729 F.2d 422 (1984) The PMGSE in 1974 came to power in Ethiopia and took over the Ethiopian Spice Extraction Company (ESESCO), of which Kal-Spice, and American corporation, owned about 80%. Kal-Spice wouldnt accept the PMGSE Compensation Commission offers for compensation and sued ESESCO as the alter ego of PMGSE seeking damages for the expropriation of ESESCO. Does the act of state doctrine apply? Held Keith: No, because, analogous to the sovereign immunity doctrine, there is a "treaty exception" regarding controlling legal principles. The 1953 Treaty of Amity and Economic Relations (Treaty of Amity) precludes the government taking property for any but a public purpose; and the taking without prompt effective compensation.In Re Yamashita, Supreme Court of the United States, 327 US 1 (1946) [Lawbooks say that this case sets a standard that if a commander "knew or should have known" of his troops actions.] In 1945, while Japanese commander Yamashita and his troops were constantly under attack by American forces on an island, Yamashitas troops committed atrocities against civilians. Quickly after his surrender and the ending of hostilities, the United States charged Yamashita with failing to control his troops. Should constitutional due process apply to Yamashita? Dissent Murphy: Yes; after the end of hostilities, due process should apply to everyone, regardless of nationality. Do these charges afford Yamashita due process? Dissent No; These charges are not specific and reflect the passion surrounding the war. Do Hague Convention and other international documents allow charging a commander for the crimes of his/her troops? Dissent No. The
  • 6. cited documents were not intended to charge "a fallen commander for excesses committed by his disorganized troops while under attack."U.S. v. Calley, 48 CMR 19 (1979) First Lieutenant Calley led a group of soldiers into a village thought to contain only the enemy. Old men, women, and children were rounded up and posed no threat. Captain Medina allegedly ordered Calley to kill everyone. Calley ordered his soldiers to kill everyone, and he participated. The judge instructed the jury that acting on orders would exonerate Calley unless the orders were illegal and Calley either knew they were illegal or a "man of ordinary sense and understanding" would have known them to be illegal. Calley was found guilty. Did pretrial publicity bias the trial? Held No. Was there insufficient evidence to establish guilt beyond a reasonable doubt? Held Yes. If the prosecutions evidence is to be believed, there is "ample evidence" to support the conclusion that Calley ordered and participated in killing the villagers. Should the judge have instructed the jury that evidence of actual malice is needed? Held No, the Uniform Code of Military Justice does not require malice for the mens rea of murder—it only requires a premeditated design to kill. Was the correct jury instruction given for determining the mens rea of the defense of following illegal orders? Held Yes, it followed the Manual for Courts-Martial. Even if the instructions were to be different, it is presumed Calley would have known the orders to be illegal. Concur Duncan: Narrow disagreement: there should not be a presumption that Calley knew he should not have killed the people. Dissent Darden: The Manual is substantive law and not binding on the court, and is too strict for combat environment. The weight of the authority is that there should be a standard of whether almost every member of the armed forces would have known that the order was illegal. Although its tempting to think that Calley would still have met this standard, the case should still be retried because of the incorrect jury instruction.Reid v. Covert, U.S. Supreme Court, 354 U.S. 1 (1957) Civilian dependents of armed servicement murdered their husbands while overseas. A US-UK treaty allowed the US jurisdiction, but the UCMJ court- martial, which sentenced them to death, did not include a grand jury indictment or a jury. Does Article VI allow treaties to override Constitutional rights? Held Black: No. The United States only exists and has power through the Constitution, so if it acts overseas it still must provide citizens all Constitutional rights. The reason Article VI does not indicate that treaties must be made in pursuance of the Constitution is that the Constitution wanted to allow treaties already enacted under the Articles of Confederation. Concur Harlan: Jury trials should be required here, but that doesnt mean there arent some cases in which a Constitutional right may not apply, if it is impractical, for instance.United States v. Curtiss-Wright Corp., U.S. Supreme Court, 299 U.S. 304 (1936) A Congressional Joint Resolution allowed the president to prohibit the sale of arms to Bolivia. The president made such a prohibition, and several were charged of violating this prohibition. May such a resolution delegate legislative powers regarding foreign affairs to the president? Held Sutherland: Yes. Such a delegation might not be proper as regarding internal or domestic affairs because
  • 7. the Constitution allocates to the states all powers not explicitly allocated to the federal government. However, this does not apply to international affairs, as the states never had such powers of external sovereignty. From the moment the colonies were established by Great Britain to the establishment of the Articles of Confederation, the states interacted with the rest of the world collectively, not individually.United States v. Pink, U.S. Supreme Court, 315 U.S. 203 (1942) The executive branch created the Litvinov Assignment, a presidential executive agreement with the Soviet Union that recognized the Soviet Union and transferred ownership of certain assets in the US seized in response to Soviet nationalization of American-owned assets abroad. Is this executive agreement valid? Held Douglass: Yes. Executive agreements have just as much weight as treaties, as all constitutional acts of power have as much validity as acts of legislation.Youngstown Sheet & Tube Co. v. Sawyer, U.S. Supreme Court, 343 U.S. 579(1952) Steel workers across the nations were about to go on strike, so the president issued an order for the secretary of commerce to take over the steell mills in the interest of national defense to ensure steel production continued. Is the president allowed to issue such an order? Held Black: No. Any power of the president must stem from an act of Congress or from the Constitution. There is no act of Congress that allows such an order—in fact, legislation that would have allowed similar actions did not gain enough support to pass. This does not involve military action, so the presidents role as Commander in Chief does not provide authority. The executive power of the president does not grant the president legislative power, and this order was in effect legislation—it was even structured and written like leglislation. Concur Jackson: The presidents powers fluctuate on a continium of three categories, from the most power to the least: (1) acts pursuant to the authorization of Congress; (2) acts relying on the presidents independent powers; and (3) acts incompatible with the will of Congress, based upon his own constitutional powers minus the constitutional powers of Congress on the matter. This case must fall on the latter end, and neither the function of Commander in Chief nor the presidents executive powers apply.Dames & Moore v. Regan, U.S. Supreme Court, 453 U.S. 654 (1981) The president created an executive agreement, the Algiers Accords, that terminated US citizen claims for property against the revolutionary Iranian government, allowing them to be submitted to an ad-hoc tribunal in the Hague. Does the International Emergency Economic Powers Act authorize nullifying attachments and transferring assets in this case? Held Rehnquist: No, the IEEPA relate to Iranian assets in America, not vice-versa. Does the Hostage Act allow the president to take such actions? Held No, the Hostage Act dealt with Americans denying their citizenship, not Americans held hostage because of their citizenship, as is the case here. Does the presidents agreement purport to remove jurisdiction from the courts given in the FSIA? Held No, the agreement doesnt remove jurisdiction, it just changes substantive law in pending cases. Is the Algiers Accords within the presidents powers? Held Yes, by drawing
  • 8. inferences from the "character of the legislation Congress has enacted in the area, such as the IEEPA and the Hostage Act, and from the history of acquiescence in executive claims settlement ...." Congress has allowed similarly principled actions, and has passed no resolutions indicating it does not like the Algiers Accords.Trail Smelter Case (United States v. Canada), Arbitral Tribunal, 1941, III U.N. Rep.Intl. Arb. Awards 1905, 1907 (1949) An American company in Trail, B.C. was purchased by a Canadian company. The steel smelting plant emitted sulphur dioxide fumes into the air which caused damage in the state of Washington. Should an injunction be issued against the Canada? Held Yes. There is a serious consequence of environmental damage in another country, and the injury is established by clear and convincing evidence.Version 20030703Copyright © 2003 Garret Wilson