Chapter 7 Part II The Domestic Legal Effect

Chapter 7 Part II The Domestic Legal Effect

Chapter 7 Part II The Domestic Legal Effect of Customary International Law and Jus Cogens Remember, this is about the domestic enforcement of customary international law and jus cogens Can a plaintiff get a US court to issue an order enforcing these agreements, absent any authorization in the form of a statute, i.e., if

they have not been executed by Congress? There may very effect international enforcement and still no domestic enforcement Committee of US Citizens living in Nicaragua v. Reagan, 859 F2d 929 (1988) Continued The Paquete Habana, 175 U.S. 677 (1900)

In what war did this case arise? What type of vessels were seized? What did the owners cite as law prohibiting the seizures? Did the court find any contrary law? What did it rule? international law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction. Justice Gray's Limitation What did Justice Gray say limits this finding? While the courts have not directly considered

subsequent statutes overruling international law norms, what have they considered that is analogous? since violation of a treaty is essentially a violation of the principle of customary international law requiring that treaties be observed. Nuremberg Jus Cogens

What is jus cogens? How is it established? What does this mean: A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law . . . [which] is a norm accepted by the international community of States as a whole as a norm from which no derogation is permitted. . . . How does jus cogens transcend the consent of states? ICJ Judgments and Customary International Law

Customary international law results from a general and consistent practice of states followed by them from a sense of legal obligation. Restatement (Third) of Foreign Relations Law 102(2) (1987) Finally, in order for such a customary norm of international law to become a peremptory norm, there must be a further recognition by the international community . . . as a whole [that this is] a norm from which no derogation is permitted. Why do ICJ Judgments fail this test?

Do all nations accept them? What are Universal Norms? The recently revised Restatement acknowledges two categories of such norms: the principles of the United Nations Charter prohibiting the use of force, and fundamental human rights law that prohibits genocide, slavery, murder, torture, prolonged arbitrary detention, and racial discrimination. Possible Effect of Jus Cogens

Such basic norms of international law as the proscription against murder and slavery may well have the domestic legal effect that appellants suggest. That is, they may well restrain our government in the same way that the Constitution restrains it. Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980) One citizen of Paraguay sued another for torture

done while he was a police chief. Both were in the US, and jurisdiction was through the Alien Tort Claims Act, which we will study later. The court found that official torture violated jus cogens and was a valid claim under the ATCA See why the Republicans were so nervous about Holder saying water boarding is torture? Fifth Amendment Claims What is the basis for the 5th amendment claim? Why does the court say that the key is that they

must prove that the actions of the US were arbitrary? Is Rejecting the ICJ Arbitrary? (1) Nicaragua had not itself consented to, and therefore could not invoke, ICJ jurisdiction; (2) the dispute with Nicaragua was one involving armed conflict, collective self-defense and preservation of regional stability, and thus fell outside the ICJs

jurisdiction as set forth in the U.N. Charter and in the ICJs own precedents; and (3) the United States itself had never consented to jurisdiction over this type of conflict since, by reservation, it had expressly excluded disputes arising under multilateral treaty from the scope of its consent. Sosa v. Alvarez-Machain, 542 U.S. 692 (2004)

What are the facts? What is the Federal Tort Claims Act and what does it provide? Why does his claim fail under the FTCA? Would it still fail under the FTCA if he was in the US? What claim would you use in the US? History of the Alien Tort Statute

What claims were the Framers familiar with? Blackstones three primary offenses: violation of safe conducts, infringement of the rights of ambassadors, and piracy. When the original Alien Tort Statute (ATS) was passed, who did congress envision using it? Were there many cases before Filartiga?

1350. Alien's action for tort "The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States." [this is the whole law] Does this spell out what a violation is? Justice Souter and Federal Common Law

Does Souter think common law is found or made by judges? How does Eire limit the role of the federal courts in developing common law? Has Congress passed any laws that would provide a basis to assume that it wants the courts to create law expanding foreign rights under the ATS? Does he close the door, as Scalia does? It would take some explaining to say now that federal

courts must avert their gaze entirely from any international norm intended to protect individuals. Texas Industries, Inc. v. Radcliff Materials, Inc., 451 U.S. 630, 641 (1981) ...recognizing that international disputes implicating . . . our relations with foreign nations are one of the narrow areas in which federal common law continues to exist.

Why is international law a more appropriate area for federal common law than domestic cases? What did Congress do after the courts found jurisdiction in Filartiga v. Pena-Irala, 630 F.2d 876 (C.A.2 1980)? Why does Souter say this is important? Does Snatching Alvarez Violate Long Accepted Norms? Universal Declaration of Human Rights (Declaration), G.A. Res. 217A (III), U.N. Doc. A/810 (1948).

Does this declaration create any domestic legal rights? What was the US reservation when ratifying the treaty? Has Congress executed the treaty with legislation? Implications of Arbitrary Arrest as a Violation of International Norms His rule would support a cause of action in federal

court for any arrest, anywhere in the world, unauthorized by the law of the jurisdiction in which it took place, and would create a cause of action for any seizure of an alien in violation of the Fourth Amendment, supplanting the actions under Rev. Stat. 1979, 42 U.S.C. 1983 and Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971), that now provide damages remedies for such violations. . . . Souter's Holding It is enough to hold that a single illegal detention of less than a day, followed by the transfer of

custody to lawful authorities and a prompt arraignment, violates no norm of customary international law so well defined as to support the creation of a federal remedy. Scalia's View The question is not what case or congressional action prevents federal courts from applying the law of nations as part of the general common law; it is what authorizes that peculiar exception from Eries fundamental holding that a general common law does not exist. . . .

American lawthe law made by the peoples democratically elected representatives does not recognize a category of activity that is so universally disapproved by other nations that it is automatically unlawful here, and automatically gives rise to a private action for money damages in federal court. Customary International Law

What is customary international law? Is there a generally agreed to codification? What is the chief argument for executive power to override customary international law? Who overrode customary international law in FerrerMazorra v. Meese, 479 U.S. 889 (1986)? Did the court indicate that any executive branch official could do this? Can Congress ban the United States Supreme Court from considering customary international law as a precedent in US law cases? The Use of International Law as a Guide to Interpretation of the United States Constitution

The use of international law is even more compelling than most interpretive methods because it is not the subjective decision of a single judge, but a product of years of distillation of principles formed through international consensus." What are the weaknesses of this argument? What are the disadvantages of Scalia's position?

Recently Viewed Presentations

  • Skype for Business Networking

    Skype for Business Networking

    Test your Skype for Business knowledge with questions created by MVPs and enjoy the trivia fun tonight with complimentary food & drinks, and the chance to win great prizes! ... Protocol Based. Re-mark based on protocol (SRTP) at WAN Ingress.
  • Maths Hooks - MathsBot.com

    Maths Hooks - MathsBot.com

    Happy Numbers. Starting with any positive integer, replace the number by the sum of the squares of its digits, and repeat the process until the number equals 1, or it loops in a cycle.
  • Wound Healing Education July 17th 2013 Breda Cullen

    Wound Healing Education July 17th 2013 Breda Cullen

    Learning objectives :Pathophysiology of wound healing The role of proteases in healing & non-healing woundsWhich proteases predominate in chronic non-healing woundsMeasurement of protease activityWhat current treatments are available to deal with excessive proteases and clinical evidence How could a point...
  • Presentation by Alison Hooper Project Leader UWE Learning

    Presentation by Alison Hooper Project Leader UWE Learning

    CETTS team - Patrick Hall. IT team - FET IT, Mary McDonnell, Matt Smith, Neil Porritt. DEWIS team - Rhys Gwynllyw, Karen Henderson. Module team - Alison Hooper, Karen Henderson. Two meetings October-December 2014 before January Exam. Worked out responsibilities...
  • Security Planning and Transformation  Institutionalizing Transformation  Achieving Balance

    Security Planning and Transformation Institutionalizing Transformation Achieving Balance

    Requests for supply did not reach the depots in the rear. This generated two adaptations. At the theater level, the logisticians shifted to a "push" system. Using sitreps, operational and intelligence data, and working closely with the J-3 staffs, the...
  • Diverzitás előadás - IIF

    Diverzitás előadás - IIF

    Shannon-Weaver index (ugyanezt hívják Shannon-Wiener indexnek is): H = - Spi ln pi vagy H = - Spi log pi H értéke egyaránt függ a fajszámtól és az egyenletességtől (entrópia) Egyenletességi index (evenness): E = H/Hmax belátható, hogy Hmax =...
  • Learning BlackJack with ANN (Aritificial Neural Network)

    Learning BlackJack with ANN (Aritificial Neural Network)

    Goal Use Reinforcement Learning algorithm to learn strategies in Blackjack. Train MLP to play Blackjack without explicitly teaching the rules of the game. Develop a better strategy with ANN that beats the Dealer's 17 points rule. Blackjack Draw cards from...
  • PowerPoint-presentatie

    PowerPoint-presentatie

    /25. Suction caissons. CORMAN Gilles. Master Thesis. December 2017. Foundation system for OWT's. Hollow steel cylinder open towards the bottom. Monopod or tetra/tri-pod superstructure