Public international law cases

Public International Law Cases
The Schooner Exchange v. M'Faddon, 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 company's 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, 488
U.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 country's 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
didn't 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 Kingdom's arrests and tortures commercial
activities under FSIA, removing the Kingdom's 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

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 People's Republic of China, United States Court of Appeals for the
Eleventh 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
government's 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,

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 Banco's 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 shouldn't 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 wasn't 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".

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 States
Court 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 Allied's motion for summary judgment, the summary
judgment should be granted.
W.S. Kirkpatrick & Co. v. Environmental Tectonics Corp., U.S. Supreme Court 493
U.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

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. The
Organization of Petroleum Exporting Countries (OPEC), United States Court of
Appeals, 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 nation's 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 Military
Government of Socialist Ethiopia (PMGSE), United States Court of Appeals for the
Sixth 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 wouldn't 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, Yamashita's 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

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 prosecution's
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 it's 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 doesn't mean there aren't 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

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 president's 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 president's 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 president's 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 president's 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 president's agreement purport to
remove jurisdiction from the courts given in the FSIA? Held No, the agreement
doesn't remove jurisdiction, it just changes substantive law in pending cases. Is
the Algiers Accords within the president's powers? Held Yes, by drawing

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.

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Copyright © 2003 Garret Wilson

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