JURISDICTION
UNDER
INT’L LAW
Prof David K. Linnan
USC LAW # 783
Unit Eight
INT’L LAW JURISDICTION
JURISDICTION AS AUTHORITY TO AFFECT LEGAL
INTERESTS
1.
Legislative jurisdiction= to prescribe
2.
Judicial jurisdiction= to adjudicate
3.
Executive jurisdiction= to enforce
DIFFERENT FROM DOMESTIC CIVIL PROCEDURE VIEWS
OF JURISDICTION; REASONABLENESS REQUIREMENT
AS LIMITATION UNDER RESTATEMENT
[Off the record]
[Off the record]
[Restatement 401]
SOVEREIGNTY LIMITS
SOVEREIGNTY THEORY IN INT’L LAW TRADITIONAL LIMITATION
S.S. LOTUS (France v. Turkey 1927 PCIJ)
French vessel collided with a Turkish vessel on high seas, killing
seaman on Turkish boat; negligent French ship’s officer
subsequently arrested & tried in Turkish court for manslaughter with
issue couched in terms whether Turkey could criminalize act on
French vessel (nationality, hence territoriality), with analysis whether
this new apparent rule was permissible in terms of whether
sovereignty in int’l law system means acts like criminalizing French
officer’s behavior are permitted only if Turkey’s rule is accepted in
advance by other states or, rather, view that Turkey’s rule should be
respected unless specifically prohibited by international law
(Concept all things are permitted which are not prohibited, versus all
things are prohibited unless permitted)
[Off the record]
TRADITIONAL BASES
TRADITIONAL BASES OF JURISDISDICTION
1. Territorial
2. Nationality
3. Protective
4. Universal
[Off the record]
TERRITORIAL
TRADITIONAL BASES OF JURISDICTION (CONT’D)
TERRITORIAL
Subjective (e.g., territorial bias traditionally for US
criminal law only applying to act committed
locally)
[Opposing view?]
Objective (e.g., acts outside national territory with
local effects such as with economic regulation,
for example, an antitrust conspiracy abroad to
affect prices locally)
[Off the record]
[Do you agree?]
[Who cares?]
NATIONALITY
TRADITIONAL BASES OF JURISDICTION (CONT’D)
NATIONALITY
Active meaning covering actor such as perpetrator under
Continental criminal law codes regardless of location, or
state of incorporation for juristic person, most recently
under US law for sex tourism overseas
[Off the record]
[e.g., German Criminal Code Section 7]
[text of US anti-child sex tourism statute]
Passive general meaning vessel/aircraft
[US maritime jurisdiction]
[US aircraft jurisdiction]
Passive personality meaning of victim, most recently for
victims of terrorism under US law
[text of so-called Klinghoffer terrorist murder statute]
[Off the record]
PROTECTIVE
TRADITIONAL BASES OF JURISDICTION
(CONT’D)
PROTECTIVE
Protective jurisdiction is of state interests,
with traditional examples being
jurisdiction abroad for counterfeiting of a
state’s currency, or attacks on diplomatic
posts, or treason
[How much is based solely in protective jurisdiction?]
UNIVERSALITY
TRADITIONAL BASES OF JURISDICTION (CONT’D)
UNIVERSALITY
Universal jurisdiction traditionally extends to
piracy and slavery, more modern issues re antiterrorism & crimes against humanity/human
rights tied now to war crimes & ICC too
[Off the record]
[Off the record]
[Do you agree?]
[Do you agree?]
[Off the record]
[Opposing view]
PROBS JURISDICTION I
LEGISLATIVE, OPPOSED LEGAL
PRESCRIPTIONS BEFORE JUDICIARY
Ex:
Foreign bank with US branch and
account covered by banking secrecy law abroad
being subpoenaed by US attorney to reveal
accountholder (e.g., US v. Bank of Nova Scotia,
691 F2d 1384 (11th Cir 1982)); reasonableness &
balancing, but US weighting seems to
predominate practically
FOR INT’L LAW PURPOSES THE ACT OF A JUDGE
IS ATTRIBUTED TO THE US AS STATE SINCE
SEPARATION OF POWERS WITHIN US GOVT IS
NOT THE FOREIGNERS’ CONCERN
PROBS JURISDICTION II
LEGISLATIVE, OPPOSED LEGAL
PRESCRIPTIONS AT STATE LEVEL
Ex:
Problems of multinational
corporations with locally incorporated
subsidiaries, as with competing regulatory
schemes such as transeuropean Russian
pipeline case and gas turbine technology
licensing with US opposing and France
compelling GE licensing in 1970s
PROBS JURISDICTION III
LEGISLATIVE, CLAIMS OF TOO
EXTRATERRITORIAL JURISDICTION
BROAD
Ex:
Older issues of broad claims of US
antitrust or securities law under objective
territoriality (e.g., US v. Alcoa, 148 F2d 416 (2d Cir
1945), plus CFTC unrecognized claims to govern
London-based actions in commodities), now
reciprocated in worldwide reach of European data
protection laws for multinationals
[Do you agree?]
PROBS JURISDICTION IV
ADJUDICATIVE, BASED ON CONSENT
Ex:
Status of Forces Agreements
(SOFA) for troops based abroad with
issues of locally tried vs. court-martial
proceedings typically based upon whether
alleged act committed in course of official
duties (e.g., Wilson v. Girard, 354 US 524
(1957); subsidiary issue of differing
procedure/lack of constitutional
protections in foreign court if tried locally)
PROBS JURISDICTION V
ADJUDICATIVE, COMPLAINTS ABOUT
UNIVERSAL JURISDICTION REACH
Ex:
Controversial issues Alien Tort Claims
Act reach attempting to police multinational
conduct worldwide civilly, recent issues re US &
Belgian jurisdictional statute, current dispute re
ICC and extradition of US troops criminally
REMEMBER SOSA CASE AND UNIT FOUR, BUT
LOOK PARTICULARLY AT THE SOSA AMICUS
BRIEF OF UK, SWITZERLAND & AUSTRALIA FOR
JURISDICTIONAL COMPLAINTS UNDER ATCA
PROB JURISDICTION VI
ADJUDICATIVE, COMPLAINTS ABOUT US
PROCESS REACH
Ex:
Problems of broad discovery
abuse resulting in anti-discovery laws in
Western Europe criminalizing depositions,
etc. abroad; not completely resolved in
Hague agreements
[Off the record]
[Off the record]
PROBS JURISDICTION VII
ADJUDICATIVE, COMPLAINTS ABOUT US
ACTIONS VIOLATING DOMESTIC OR INT’L LAW
Ex:
Problems of Kerr-Frisbie doctrine and
procuring accused’s presence via kidnapping as
opposed to extradition, plus claims violating
Hague agreements in interpretation of broad US
reach for US courts (precisely US v. AlvarezMachain, 504 US 655 (1992))
[Off the record]
PROBS JURISDICTION VIII
ADJUDICATIVE, COMPLAINTS ABOUT US LAW
VIOLATING LOCAL FORUM POLICY & FOREIGN
ENFORCEMENT OF US JUDGEMENTS
Ex:
Problems of enforcing US judgments
abroad, for example Germany where punitive
damages are against the policy of the forum (e.g.,
in Germany partially enforceable, but often and
elsewhere not enforceable at all or only if
damages clearly divided in judgment)
[Off the record]
LIMITATIONS
THEORIES OF SOVEREIGN IMMUNITY
1. Traditional absolute (Schooner
Exchange)
2. Modern restrictive form (Dralle)
[Off the record]
ABSOLUTE IMMUNITY VIEW
ABSOLUTE FORM
Schooner Exchange v. McFadden, 11 US 116 (1812)
Claim by US citizens of property in a ship driven into
port by storm and now being a French warship, that
French seizure improper (no prize court)
19th century saw research vessels, etc., but pressure in
20th century with large state-owned merchant fleets
(growing state commercial activity)
20th century Soviet view of immunity still as sovereignty
problem rather than activity based (trade delegations)
RESTRICTIVE IMMUNITY VIEW
RESTRICTIVE FORM
Dralle v. Republic of Czechslovakia (1950)
German company with branch in Bohemia, registered owner in
Austria of trademarks used in Austria by German company for
products, then Bohemian branch nationalized and Czechs claimed
trademarks excluding Austrian use
Claims state practice has changed generally with increasing
commercial activity (starting with shipping)
US changed to restrictive theory 1952
[Off the record]
[Off the record]
[Head of State immunity as sovereign immunity?]
MORE SOVERIGN IMMUNITY DETAILS TO COME IN UNIT 14, HERE
JUST QUICK JURISDICTIONAL INTRODUCTION
DIPLOMATIC &
CONSULAR IMMUNITIES
THEORIES OF DIPLOMATIC IMMUNITY
Older views, personal representation or
extraterritorial character for mission &
representative character for diplomats as
embodiment of foreign sovereign
Newer view, functional necessity to
conduct business (e.g., Iranian Hostage
Case)
DIPLOMATIC &
CONSULAR IMMUNITIES
DIPLOMATIC VERSUS CONSULAR IMMUNITIES
Diplomatic absolute to protect from pressure in
political activities
Consular limited to protection within scope of
activities only, as commercial activities only (but still
in criminal context other restraints such as no arrest &
detention pretrial except for “grave crime” under
judicial authority, exceptions for real property
[Off the record]
[Vienna Convention on Diplomatic Relations 1961]
[Vienna Convention on Consular Relations 1963]