International Law: Unit 4
International and Domestic Law
Mr. Morrison
Fall 2005
Treaties in US Law
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Distinguish types of treaties
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Fall 2005
Treaties (formal)
Executive agreements (other)
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International and Domestic Law
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Treaties
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Making and ratification (art. II)
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Made by President
Senate (2/3) “advises and consents”
President ratifies
“Supreme Law of the Land” (art.VI)
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Supercedes prior law
Can be overriden by later statute
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Fall 2005
Interpret to avoid conflict
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International and Domestic Law
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Treaties, cont’d
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Self-executing treaties
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Does the treaty confer rights, or only
require legislative action to create rights
Usually a question of interpretation
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Some areas presumed not self-executing
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Fall 2005
Modern interpretations less generous
Criminal law; appropriations
Senate sometimes adds proviso requiring
non-self-executing status
International Law Unit 2:
International and Domestic Law
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Treaties, cont’d
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Scope of treaties
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Can enhance federal powers. Missouri v.
Holland, 252 U.S. 416 (1920)
Cannot violate constitutional norms. Reid
v. Covert, 354 U.S. 1 (1957)
Termination of treaties
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Fall 2005
Distinguish domestic and international
effects
International Law Unit 2:
International and Domestic Law
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Executive agreements
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International agreements not submitted
to Senate process
Bases—
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Authorized by Statute
Authorized by Treaty
Supported by long practice
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Fall 2005
E.g., claims settlement
President’s sole authority
International Law Unit 2:
International and Domestic Law
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Executive agreements
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May override state law, U.S. v. Pink,
315 U.S. 203(1942)
Question about status with fed’l law
Subject to other treaty limits
Fall 2005
International Law Unit 2:
International and Domestic Law
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Judicial enforcement
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“International law is part of our law . . “
Pacquete Habana, 175 U.S. 677 (1900)
BUT, you need
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Fall 2005
Standing
A cause of action
Jurisdiction
No immunity from jurisdiction
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International and Domestic Law
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Judicial enforcement
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Alien Tort Claims Act. 28 U.S.C. 1350
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Filartiga v. Pena-Irala, 630 F.2d 876
(2dCir.1980)
Claims of U.S. citizens
Limits on such claims
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Fall 2005
Sosa v. Alvarez-Machain, 542 U.S. 692
(2004)
What torts are still covered?
International Law Unit 2:
International and Domestic Law
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Act of State doctrine
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. . . “the Judicial branch will not examine the validity
of a taking of property within its own territory by a
foreign sovereign government, extant and recognized
at the time of suit, in the absence of a treaty or other
unambiguous agreement regarding controlling legal
principles, even if the complaint alleges that the
taking violated customary international law”
--Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 428
(1964)
Fall 2005
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International and Domestic Law
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Act of State doctrine
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Bases for the doctrine
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Fall 2005
Respect for political branches
Reluctance to impose U.S. view on
disputed international question
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Act of State doctrine
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Exceptions—
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Fall 2005
Statutory. Hickenlooper amendment. 22 U.S.C.
2370(e)(2)
Treaty. Kalamazoo Spice Extraction Co. v.
Ethiopia, 729 F.2d 422 (6thCir.1984)
Commercial activities. Alfred Dunhill of London v.
Republic of Cuba, 425 U.S. 682 (1976)
Extraterritorial. Iraq v. First National City Bank,
353 F.2d. 74 (2d Cir.1965)
Counterclaims. First National City Bank v. Banco
Nacional de Cuba, 406 U.S. 759 (1972)
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International and Domestic Law
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Jurisdictional immunities
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Sovereign (State) immunity
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Head of State immunity
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Vienna Convention on Diplomatic Relations
Consular immunity
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Customary
Diplomatic immunity
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A new convention is proposed
Vienna Convention on Consular Relations
International organization immunity
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Fall 2005
Privileges and Immunities Agreements
Includes both organization and staff
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International and Domestic Law
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Jurisdictional immunities
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Approaches
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Absolute immunity
Qualified immunity (within scope of duty)
Immunity is that of State (or
international organization), not of the
individual
Temporal question (how long?)
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International and Domestic Law
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U.S. immunity law
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Sovereign immunity
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Head of State immunity
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Vienna Conv. on Diplomatic Relations and 22 U.S.C. 254a-e
Consular immunity
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Common law
Diplomatic immunity
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Foreign Sovereign Immunity Act, 28 U.S.C. 1602 et seq.
Vienna Convention on Consular Relations
International organization immunity
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Fall 2005
Privileges and Immunities Agreements and 22 U.S.C. 288+
Includes both organization and staff
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International and Domestic Law
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FSIA 28 USC 1602+
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Definition of a “foreign State” 1603
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Includes 50%+ owned entities
General rule of immunity 1604
Exceptions 1605
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Fall 2005
Waiver
Commercial activities
Rights to property taken in violation of international law
Succession or inheritance
Money damages for certain torts in the U.S.
To require arbitration
Torture, extrajudicial killing, aircraft sabotage, hostage
taking, etc.
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International and Domestic Law
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FSIA
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Special rules of process and procedure 1608
Counterclaims limited 1607
Limited execution of judgment 1610
Some property totally exempt 1611
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Central bank
Military
Jurisdiction in federal district court (non-jury
trial) 28 U.S.C. 1330
Fall 2005
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International and Domestic Law
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