Part of law says you can’t do anything to him because he’s head of state, others might say he’s a prisoner of war

US v. Alvarez-Machain (1992), p. 372

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  Alvarez-Machain case: whether kidnapping that is violation of int’l law makes it illegal to try D
  
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  USSC: it doesn’t matter how you get here, once you’re here, we try you
  
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  This led to protests from Mexico and other nations
  
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  A-M is tried, but there was no case, he was innocent of what he was accused
  
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  In the next phase of the litigation, A-M as P has civil rights claims in courts
  
  • 
    Among his claims are those against Mexicans who aided US in his kidnapping
    
  • 
    Asserting that his kidnapping was a violation of law of nations
    
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  Issue: court clearly has jx, but can it use ATCA as a cause of action?
  

Book: 314

Trajano v. Marcoa- summary judgment awarded against Marcos’ daughter, she appeals claiming that the court did not have subject matter jx, court denies that claim and says that the district court did not err in founding its jx on a violation of the jus cogens norm prohibiting official torture.

Says §1350 was intended to provide a forum for transitory torts- torts that follow the tortfeasor wherever they go.

Act of State Doctrine: p. 316- US doctrine that says domestic courts should generally refrain from judging the validity of another state’s sovereign/gov’t acts taken within its own territory, even if the acts violate international legal norms. This is premised on the juridical equality of all states and that doing so would cause problems amongst states.
Marcos- p. 325

In republic of Phillipines suit to recover public funds that Marcos allegedly stole- on appeal the 9^th circuit held that the act of state doctrine bars consideration of the Republic’s claims.

Dissent argues that the majority failed to distinguish between Marcos’official acts which may be insulated by the act of state doctrine, and his private acts, which are not acts of state. Rehearing en banc- on the present record, the act of state doctrine is NOT applicable because no determinations had been made regarding the capacity in which Marcos was acting when the alleged unlawful conduct occurred- See book for more detail on what facts would have made it applicable. (Kirkpatrick??)

INTERNATIONAL LAW OF JX

(329-334, 338-346, 350-366)

Int’l Law Limits on Jurisdiction, Types of Jx asserted, p. 329

Book: Limiting the reach of domestic law

- disputes arise when states seek to assert authority over persons, property or even events abroad- involve the extraterritorial application of domestic law in ways that harm the interests of other states and at times are contrary to international legal limits on the exercise of jx.

- litigants frequently aske domestic courts to address the international legality of extraterritorial assertions of jx. Legislative and executive branches also address the issue.

Legal limits on a state’s exercise of jx implicate both domestic and international legal norms- which may or may not be consistent with each other.
When states assert their authority over people, things and events, for international law purposes, these assertions of authority fall within one of 3 categories:

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  Prescriptive jx
  
  • 
    Limits on state’s ability to prescribe conduct, regulate (refers to a state’s authority or competence to promulgate new law applicable to persons or activities, typically exercised by legislative bodies but also used by gov’t authorities other than legislature)
    
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  Adjudicative jx
  
  • 
    Limits of courts; what matter is it appropriate for a court to litigate (refers to a state’s authority or competence to subject persons or things to its judicial process)
    
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  Jx to enforce
  
  • 
    May be possible for a court to adjudicate something, but impermissible for it to enforce something, especially if enforcing would mean relying on an extraterritorial process (refers to a state’s authority or competence to induce or compel compliance with its law through its courts as well as through executive, administrative or police action. )
    

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  Int’l law perspective is added to the domestic perspective
  
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  Internal questions in determining whether jx exists
  
  • 
    What did Congress intend?
    
  • 
    What does the Constitution permit?
    
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  What are the limits that int’l law imposes on state jx?
  
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  Even if state doesn’t have jx according to int’l law, it doesn’t necessarily mean the state will stop the case; enforcement measures of int’l law are sometimes limited
  

Lotus case- Permanent Court of International Justice (1927) (p. 330)

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  Collision between French and Turkish ships
  
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  Casualties on Turkish side
  
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  Turkish court tries French watch officer under Turkish law
  
• 
  France argues that Turkey doesn’t have jx to try the captain
  
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  The accident occurs on the sea, not in the territory of either country
  
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  The Lotus pulled into Istanbul, watch officer Demons was arrested
  
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  Issue: can Turkey criminalize an act that took place outside Turkey’s territory?
  
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  Had this very accident taken place within Turkish waters, this would not have been a controversial case
  
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  Problem here is that the act took place outside Turkey’s territory
  
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  We predicate the exercise of prescriptive jx on territory: generally, countries can prescribe behavior within their territory
  
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  It only becomes remarkable when we don’t have territoriality as a theory
  
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  A number of strange fictions go on when we’re in int’l waters
  
  • 
    We attribute the status of territory to ships, according to the flag they fly
    
  • 
    Ship that flies French flag is legally considered France when it’s in int’l water
    

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  Issue: can Turkey try a French person for an act that occurs outside of Turkey?
  
• 
  French argument: burden is on Turkey to identify a legal theory on which it can exercise jx; no presumptive ability to prescribe
  
• 
  Turkey’s response: they can exercise jx as long as it doesn’t conflict with int’l law
  
• 
  The positions are basically mirror images of each other
  
• 
  Seems like a burden of proof case
  
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  Permanent Court: agrees with Turkey; this is the modern position in int’l law (they can exercise jx as long as it doesn’t conflict with int’l law)
  
• 
  If Turkey’s argument is right, it gives rise to what is the predicament of int’l law today: concurrent jx
  
  • 
    Concurrent jx: there may be many acts that may be prescribed by more than one nation-state (each country may exercise jx)
    
  • 
    This case: no one would argue with France’s right to try Demons; Turkey has jx because Demons’ act caused effects in Turkey
    

• 
  P. 333-334: effectively through series of initiatives, ultimately concluding in language that is now part of the modern UN Convention on the Laws of the Sea, the substantive result in this case has been reversed
  
  • 
    Modern rule: exclusive jx for penal liability of marine officers lies with the state of the flag the ship flies
    
  • 
    BOOK: NGO plays quite an important role here in making law.
    

Extending the Reach of the Territorial Principle

Book p. 338- the governing assumption in the early 1900s was that jx was territorial. With increasing internationalization of commerce and industry, gov’t increasingly viewed the territorial test as overly restrictive. Courts in US and elsewhere replaced the territorial test with one that examined whether the foreign conduct had an effect in the forum state.

Following case is a landmark in the US development of the effects doctrine. Suit arose out of the gov’ts attempts to break up Alcoa’s aluminum holdings and to prohibit them and Aluminum limited, a Canadian corp, from engaging in international cartel. 2^nd circuit adreeses whether the Sherman Act reached the Canadian corps participation in the cartel, even though most of their cartel-related activities occurred outside of the US.