1
World Law Cases
119 Legal Status of Eastern Greenland (Denmark v. Norway) 1933
Permanent Court of International Justice
An oral declaration by the Norwegian foreign minister was binding, when he
ceded sovereignty over Greenland to Denmark, for apparent consideration
312 Case of Certain Norwegian Loans (France v. Norway) 1957
International Court of Justice
the French declaration submitting to the ICJ included a reciprocity clause and a
domestic concerns/ "self-judging" clause. The Norwegian declaration contained a
reciprocity clause but not a "self judging" clause. The Norwegians argued that their
reciprocity clause meant they were only bound to the extent to the French were bound,
and applying the self-judging clause to themselves in a bond dispute.
Held: no jurisdiction
 the basis for jurisdiction is "the common will of the parties"
 therefore, "jurisdiction is conferred upon the Court only to the extent to which the
Declarations coincide in conferring it" 314
 (problem: see questions)
 see also Nicaragua 316,331
332 Advisory Opinion On Nuclear Weapons
1158 Naulilaa case: Germany v. Portugal 1928 Versailles Swiss arbitral panel
Portuguese accidentally killed three Germans in Africa, so Germans invaded,
which led to a native uprising.
Held: not a legitimate reprisal, because reprisals must:
 constitute retaliation for a breach of international law
o here, retaliation for an accident
 be preceded by an unsuccessful demand for redress
o none made here
 be reasonably proportionate to the injury suffered
o this section out of proportion
generally accepted doctrine
719 Lotus case (France v. Turkey) 1927 Permanent Court of International Justice,
French ship collided with Turkish ship and killed eight Turkish nationals. Turkey
captured the French ship and applied Turkish criminal law.
Held: within Turkey’s jurisdiction
 “the rules of law binding upon States… emanate from their own free will.”
o States are assumed to have prescriptive jurisdiction, unless a custom or
convention specifically says they do not.
741 Netherlands case evaluating U.S. trade protection 1983
U.S. limitations are illegal. Therefore, the Company is not excused from contract
based on U.S. limitations.
2
United States Cases
177 Missouri v. Holland 1920
U.S. Supreme Court
Federal duck hunting law had been declared unconstitutional by some courts.
Federal government then signed a treaty with Canada to the same effect, and then
justified new legislation as necessary and proper to carry out the treaty.
Held (Holmes): just because Congress could not pass a certain law in derogation of state
sovereignty, does not necessarily mean it cannot sign a treaty which has the same effect.
 in "matters of the sharpest exigency" the federal government has a power inherent
in every government, to make treaties which may affect the states
179 Reid v. Covert 1957
U.S. Supreme Court
Defendants Civilians killed their husbands on overseas military bases and were
tried by court-martial. Under treaty, the United States had jurisdiction. Government
argued that the Uniform Code of Military Justice, which did not include all Bill of Rights
protections, was "necessary and proper" to carry out the treaty.
Held: Bill of Rights still applies
 the Constitution restricts the United States government "when it acts outside of
this country, as well as here at home" within one
 "no agreement with a foreign nation can confer power on the Congress, or on any
other branch of Government, which is free from the constraints of the
Constitution."
 **" when a statute which is subsequent in time is inconsistent with a treaty, the
statute to the extent of conflict renders the treaty null
 no conflict with Missouri v. Holland, because the treaty there was not inconsistent
with any specific provision of the Constitution. 182 (bottom-line? Treaty power
given by states to federal government sometimes extends beyond other powers,
but is nonetheless restrained by the Bill of Rights)
192 Asakura v. City of Seattle 1924
U.S. Supreme Court
Asakura is Japanese, and will lose his business under a law that only grants
licenses to citizens. He claims this law is a violation of a treaty with Japan calling for
equitable economic treatment of respective citizens.
Held (Butler): treaty forbids this law
 the treaty making power "does not extend so far as to authorize what the
Constitution forbids" but "does extend to all proper subject of negotiation
between our government and other nations" (i.e. defined by international law not
Constitution)
People of Saipan v. United States Department of the Interior 1974 Ninth Circuit
Held: trusteeship agreement required by U.N. Charter is a valid source of law for U.S.
court, and is self-executing.
 self-executing ability determined by reference to purpose and objective of the
treaty, preexistence of domestic procedures and institutions, immediate and longrange social consequences of self-or non self-execution.
3
197 United States v. Postal 1979
Fifth Circuit
United States violated article 6 of the Convention on the High Seas to catch drug
dealers. Question: does this invalidate conviction?
Held: this treaty is not self-executing, so conviction is not invalidated
 "Treaties affect the municipal law of the United States only when those treaties
are given effect by congressional legislation or are, by their nature, selfexecuting." 199
 "self-executing treaties may act to deprive the United States, and hence its courts,
of jurisdiction over property and individuals that would otherwise be subject to
that jurisdiction" 199
 self-executing status is determined by intent
o language of the treaty or circumstances surrounding it
o negotiations, history, practical construction adopted by the parties
o people of Saipan factors
o consult U.S. legislative and ratification history page 201
 there is nothing to indicate that the United States intended to limit its own
jurisdiction with this treaty 200 it would have to "make the intention clear"
209 Goldwater v. Carter 1979
D.C. District Court
The President cannot terminate a treaty without the consent of Congress, because
a treaty is the law of the land and the president must uphold the law of the land.
4
224 United States v. Curtiss-Wright Corp. 1936 U.S. Supreme Court
Congress gave the president the right to forbid arms sales in South America. Defendant,
convicted, alleges this was an unconstitutional delegation of authority.
Held: delegation of authority was OK
 "the broad statement that the federal government can exercise no powers except
those specifically enumerated in the Constitution, and such implied powers as are
necessary and proper to carry into affect the enumerated powers, is categorically
true only in respect of our internal affairs" 225
 "the states severally never possessed international powers" 225
 the right to conduct foreign affairs derives from the Declaration of Independence,
not from the Constitution, and was taken from England, not from the states. 225
 "government's end and forms of government change; but sovereignty survives"
the United States has rights as a nation in the "family of nations" 226
 president needs "a degree of discretion and freedom from statutory restriction"
228 United States v. Pink 1942
U.S. Supreme Court
Soviet government nationalized private property in 1917. The U.S. essentially froze
assets of the first Russian insurance Corp. in New York. In 1933 the Soviets assigned the
assets to the United States, which planned to use them to compensate Americans whose
property and Russia had been nationalized.
Held: a legitimate exercise of executive authority
 "what government is to be regarded here as representative of a foreign sovereign
state is a political rather than a judicial question, and is to be determined by the
political department of the government"
 negotiating to remove obstacles to reciprocal recognition is "a modest implied
power"
231 Youngstown Sheet & Tube Company v. Sawyer 1952 U.S. Supreme Court
President ordered a secretary of commerce to take possession and operate most of the
nations steel mills.
Held: not within implied powers.
 Justice Jackson seems to question Curtiss Wright 235
239 Dames & Moore v. Regan 1981
U.S. Supreme Court
Presidential executive agreement with Iran terminated U.S. claims under the Foreign
Sovereign Immunity Act, submitting them instead to an international tribunal.
Held: a valid exercise of power
 Congress could not have foreseen the situation in detail
 statutes cited did not specifically authorize this action, but they are indicative of
"congressional acceptance of a broad scope for executive action" in national
emergencies.
 Congress can't think of everything. In areas of foreign policy and national
security, "the enactment of legislation closely related to the question" suggests
congressional approval for "independent presidential responsibility"
 also important: Congress has approved this type of thing before 242
 quoting Youngstown: "a systematic, unbroken, executive practice, long pursued
to the knowledge of the Congress and never before questioned... may be treated as
a gloss on executive power invested in the president by § 1 of article II"
5
253 Paquete Habana 1900
U.S. Supreme Court
Cuban fishing vessels seized during the Spanish-American war.
Held: seizure was unlawful under international law
 "ancient usage among civilized nations... gradually ripening into a rule of
international law": fishing vessels are exempt from Prize
 rule goes back to Henry IV... 255
 "international law is part of our law"-where there is no treaty, controlling
executive or legislative act, or judicial decision, research must be had to the
Customs and usages of civilized nations:
o the works of jurists and commentators on what the law really is, and not
on what it ought to be (me: so it ruins the game when you try to start a
new custom)
256 Filartiga v. Pena-Irala 1980
Second Circuit
Filartiga is a Paraguayan dissident. Pena killed his son and threatened him. There
was a sham trial in Paraguay. Question: they caught him in New York, can he be
prosecuted here?
Held: yes-"whenever an alleged torturer is found and served with process by an alien
within our borders, § 1350 provides federal jurisdiction
 28 U.S.C. § 1350 gives the District Court jurisdiction when an alien sues for a tort
only in violation of the law of nations.
 The law of nations now includes some laws which govern a state's treatment of its
own citizens . See e.g. U.N. Charter article 55 (260 casebook)
 We find the law of nations in:
o the works of jurists ready on public law
o the general usage and practice of nations
o judicial decisions recognizing and enforcing that law (me: just ours)
o (unanimous general assembly resolution) 261
 the law of nations can ripen and evolve
 262: a declaration creates an expectation, and if the expectation is fulfilled by
practice, the declaration becomes custom (binding).
 District Court remanded trial: torts in violation of international law belong to
federal common law. Law of the relevant nation-here, Paraguay-also relevant.
264 Garcia-Mir v. Meece 1986
eleventh circuit
concerning detention of Cuban refugees. Congress intended this to occur,
according to the court, but such "prolonged arbitrary" detention violated international law
Held: international law does not control
 "courts must construe American law so as to avoid violating principles of public
international law" 269
 but the president, "acting within his constitutional authority, may have the power
under the Constitution to act in ways that constitute violations of international law
by the United States." Here, that authority is delegated to the Attorney General
6
725 Hartford Fire Insurance Company v. California
U.S. Supreme Court
British reinsurers are accused of violating the Sherman act. They and the British
government say their actions were illegal under British law.
Held (Souter): Sherman act applies
 international comity does not require the court to decline jurisdiction, because it is
outweighed by United States interest
 there is no conflict here, because going along with the requirements of American
law would not force the British reinsurers to break any British law
Dissent (Scalia):
 the question is not jurisdiction. Clearly, the court has jurisdiction because there is
a non-frivolous Sherman act claim
 the claim sales on the merits, because the Sherman act does not extend this far.
 Two canons:
o "legislation of Congress, unless a contrary intent appears, is meant to
apply only within the territorial jurisdiction of the United States"
o "an act of Congress ought never to be construed to violate the law of
nations if any other possible construction remains" 727. Though it clearly
has constitutional authority to do so, Congress is generally president not to
have exceeded those customary international law limits on jurisdiction to
prescribe.
 legislatures practice "prescriptive comity", and courts should assume that they do
so.
 We should assume that the Sherman act does not apply here, because there is no
specific language extending it that far.
o Reasonableness inquiry page 729
758 United States v. Romero-Galue 1985
11th circuit
Coast Guard boarded a boat in the Caribbean Sea, and found lots of marijuana.
Question is whether Congress intended for the act to authorize seizure and prosecution on
the high seas.
Held: yes
 Congress explicitly says the law is not supposed to conflict with the law of
nations
 we have a treaty that allows this type of seizure (with Panama)
 the protective principal allows the United States to engage in this type of
activity, because drugs threaten national security.
770 United States v. Yunis 1988
D. C. circuit
Yunis took hostages in the Middle East, including some Americans.
Held: United States courts have jurisdiction
 Universal Principle: heinous and widely condemned crimes.
o Many international agreements specify hostage taking as such a crime
 Passive Personal Principle: most controversial principle, but the hostage taking
convention specifically says states can prosecute those who take their people
hostage. 772
7
United States v. Alvarez-Machain 1992
U.S. Supreme Court
Alvarez is accused of murdering a United States agent. The Drug Enforcement
Agency was involved in his abduction. Mexico protested Question is, does the District
Court lack jurisdiction if the abduction was against international law (treaty)?
Held (Rehnquist): U.S. has jurisdiction
 treaty does not specifically prohibit abduction (me: but see page 784)
 history of negotiation and practice does not prohibit abduction, because Mexico
was aware of the Ker doctrine.
 Is an appropriate to apply terms to an extradition treaty based on supposed
international norms not related to extradition-i.e. an invasion of Mexico by the
United States would be illegal, but not a violation of the extradition treaty.
 The executive branch would have authority to return him to Mexico.
Dissent (Stevens): article 9 says that if extradition does not take place the parties "shall
submit" the case to authorities-i.e. not abducted them.
This case disappointed a lot of people-791