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

Hartford Fire Insurance Co. v. CA (US Sup Crt-1993), p. 342

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  Insurance companies back the chance of making a payout to you by paying for reinsurance
  
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  Most of reinsurance market is in London
  
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  There was a financial crisis at the time, and reinsurers wanted to change the policies CA insurance holders had
  
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  Reinsurers only wanted to issue insurance to insurers that met certain specified conditions
  
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  There was a popular outcry against this in CA
  
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  CA Atty gen arg: insurance companies were colluding so that none would cover certain risks
  
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  This seemed like a cartel from the perspective of CA
  
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  British perspective: this is about the reinsurance market, and CA insurance companies are free to do what they want
  
  • 
    This is a little farfetched, since CA insurance companies react to the actions of the reinsurance companies
    
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  Issue: should the Sherman Act reach what these companies are doing in London
  
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  Timberlane approach would have asked about competing interest of CA in keeping consumer choice vs. UK for having a robust reinsurance market
  
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  The reason reinsurance market didn’t want to keep these policies is because they were paying out too much
  
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  USSC refuses to engage in a comity analysis
  
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  Instead, USSC asks whether there is a conflict between US law and British law, and finds that no conflict exists
  
  • 
    US may prohibit something, and so long as that which US prohibits is not mandated by UK law, there is no conflict
    
  • 
    In other words, a London reinsurance company can simultaneously comply with both laws
    
  • 
    This fails to recognize that there might be a British interest in having the reinsurers do what they did
    

Other Bases for Prescriptive Jurisdiction (p. 350)

States recognize several bases, in addition to territory, upon which to exercise jx:

Nationality principle:

Book: under this principle, states an exercise prescriptive jx over their own nationals, even when they are located outside national territory.

Defining nationality of person is easy but defining nationality of corporation is more difficult (see book p. 350 for more)
Protective Principle

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  0:00-3:00
  
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  Developed with respect to cases re currency
  
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  No argument among nations re this principle
  

Book: states recognize the right to regulate conduct outside their territyor by non nationals that is directed against hteir security or a limited number of other important state interests.
Universal Jx

Book: any state may exercise jx over an individual who commts certain heinous and widely condemned offenses, even when no other recognized basis for jx exiss.

Rationale: the prohibited acts are of an international character and are of serious concern to the international community as a whole. States accept that: piracy, war crimes, genocide and slave trade give rise to universal jx.

Debate on universal jx tens to center on whether to etend universal jx to other categories of acts, such as certain acts of terrorism, assaults on diplomatic personnel or kidnapping.

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  There are acts of such universal condemnation that by their nature, any state can exercise jx
  
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  Most serious int’l crimes
  
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  That a crime is universal doesn’t impose an obligation on any state; jx is permissive
  
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  What creates a legal commitment for a state to proscribe genocide would be a convention or treaty
  
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  Grew out of law of piracy, the first universal crime, since the nature of piracy was that pirates were very elusive; moved on high seas, which are outside of any country’s territory; it was more effective to say a pirate can be tried wherever found
  
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  It’s more theoretical than real at this point
  
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  There haven’t been many exercises of universal jx
  
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  Eichmann is most famous example
  
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  Other examples: Attempt to try Pinochet in Spain for crimes in Argentina, Tel-Oren (Torture Victims Protection Act creates civil federal cause of action in US for torture or terrorism taking place outside of US)
  

Israel v. Eichmann (Israeli Supreme Court1962), p. 353

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  7:30 re 2 questions
  
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  Eichmann had escaped Germany and was living in Argentina, so not a Nuremberg defendant (alleged to have been senior German official responsible for organizing the internment and extermination of jews)
  
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  Issue: Can Israel try Eichmann for offenses he was alleged to have committed outside of Israel?
  
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  Eichmann challenges Israel’s jx to try him
  
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  Israel’s justification for jx: universal jx
  
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  Israel Supreme Court gives accounting of various theories of universal jx
  
  • 
    Principle is universally acknowledged with respect to piracy
    
  • 
    Second school of thought: universal jx is only a secondary theory, only comes into play where the state where the harm occurred were to decline to try the offender
    
    • 
      Presumably in Pinochet, this test would have been met, since Chile had no interest in trying him
      
  • 
    Third theory: essential nature of universal jx is that territoriality isn’t relevant; although acts carried out in discrete territories, the nature of the crime is such that every state has an equivalent right to try the offender; can be tried wherever found
    
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  Court: doesn’t pick any one of these theories; finds that facts of case support any view
  
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  Universally agreed now that genocide supports universal jx
  
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  Not universally agreed that terrorism supports universal jx
  
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  Court uses universal jx to put to rest any claim that Germany had a greater claim to try Eichmann
  
  • 
    Court: even if ordinarily there was some claim that Germany had a greater claim, Israel is the forum conveniens, since most of the witnesses are there