Helms-Burton Act, p. 356 (SEE BOOKp. 356-366- not even looked at** talks about EU taking US to WTO and also GA resolution) -
Most recent enactment by US targeted against Cuba and Castro
-
Passed after the shooting down by Cuban fighter of Cuban-American group alleged to be dropping leaflets on Cuba
-
UN found the Cessna plane was in int’l waters when shot down
-
Act stiffened sanctions against Cuba; also creates cause of action in US courts permitting US citizens to sue companies who use property in Cuba that had been confiscated in Cuban Revolution
-
People who use confiscated property are called traffickers
-
Who are the traffickers in confiscated property? They tend to be large European hotel chains that have hotels on land that belonged to someone else prior to revolution
-
International outcry over the Act since it wasn’t aimed at Cuba but at these hotel chains
-
Any person who traffics shall be liable to any US national who owns the claim to such property for money damages
-
Viewed outside US as being inappropriate exercise of US jx: proscribing acts by European companies in Cuba
-
Opinion of Inter-American Juridical Committee, p. 360
-
When a national of a foreign state is unable to obtain effective redress in accordance with international law, the state of which it is a national may espouse the claim through an official state-to-state claim
-
Claims against a state for expropriation can’t be enforced against private persons, except where the property is within the claimant state (US)
-
Use by nationals of a third state of expropriated property is not against int’l law
-
Successful enforcement of such a claim against the property of nationals of a third state in a manner contrary to int’l law could itself constitute a measure tantamount to expropriation and result in responsibility of the claimant state
-
This law hasn’t ever gone into effect; passed by Congress but has automatic suspension feature that Pres can exercise
-
Design of the law was not to create money damages but to intimidate European companies who want to do business in US and Cuba to have to choose
-
Int’l view: pretty consistent in condemning the act
-
Inconsistency: US expropriated land from British; how far back do we want to go? Would be destabilizing
-
EU took US to WTO, p. 361
-
Political compromise preventing EU from bringing claims against US
JX to adjudicate and jx to enforce
Book p. 366- states have long accepted the general norm that one state cannot exercise its judicial functions within the territory of another state without that state’s consent.
They have also accepted that international law prohibits the agents of one state from enforcing, without permission, their criminal law within the territory of another state.
Sometimes though a state or some of its citizens may try to enforce its laws through direct actions in another state’s territory- ex: abduction or luring of a suspect from one state to another to stand trial.
Seizing War criminals: Dokmanovic case, p. 366 -
Dokmanovic was lured into an area where he could be arrested, handed to Hague to stand trial. He files a preliminary motion for release on the grounds that his arrest had been unlawful and therfor the ICY lacked jx over him
-
This is a luring case
-
Eichmann case, p. 368
-
Genocide gives universal jx; but does Israel have adjudicatory jx over Eichmann’s person when they get him in a manner inconsistent with int’l law?
-
Israeli agents kidnapped Eichmann and forcibly brought him to Israel to stand trial for his actions during the war. (In previous discussion he argued that Israel didn’t have jx to prescribe, then he argues here that due to the kidnapping, the Israeli courts lacked jx to adjudicate.
-
Eichmann captured in Argentina by Israeli agents
-
US law: How the person gets before the court doesn’t defeat the court’s jx
-
This is OK as matter of internal law, but there is still int’l law question over whether there should be repercussions
-
UN SC Resolution: suggests that act not be repeated, and that Israel give reparation to Argentina; but doesn’t condemn the abduction of Eichmann
-
Israel says its apology is enough reparation, Argentina thinks it isn’t (not the decision in Rainbow warrior which said that making FR look bad was punishment enough)
-
An agreement between the 2 countries regards incident as closed: this is legally important because it effectively cures any violation that may have taken place
Kidnapping or Extradition? Alvarez-Machain (p. 372)
- one way that states can avoid disputes like those arising out of the Eichmann case is by entering into extradition treaties which set forth the procedures by which one state can request another sate to send it individuals charged with a crime in their state.
Alvarez Machin is a Mexican citizen and doctor- indicted in the US for participation in a torture and murder of a DEA who was working in Mexico. A-M was forcibly kidnapped from Mexico and flown to TX where he was arrested by DEA agents. The DEA approved the use of Mexican nationals to apprehend A-m.
A-M moved to dimiss the complaint on the grounds that the abduction violated an extradition treaty between the US and Mexico and divested the court of jx over him.
US v. Alvarez-Machain (1992), p. 372 -
1985, a US DEA agent is tortured and murdered in Mexico
-
Exercise of police power in another country is usually considered an affront, but DEA is there under agreement with Mexico
-
DEA operates in many countries with consent of host governments
-
Low level DEA officers conduct operation; find out about Guadalajara doctor A-M having participated in the torture
-
Proper legal recourse: give info to Mexican officials, let them prosecute A-M
-
DEA agents instead abduct A-M, take to El Paso, where he is arrested and charged
-
In US before US court, through an abduction that is against US law
-
Issue: can US court try someone under this circumstance?
Dostları ilə paylaş: |
