Transnational Law Outline

ENFORCMENT (Int’l cts; Int’l arbitration; Domestic judiciaries)

– B. JURISDICTION TO ENFORCE AND ADJUDICATE PUBLIC LAW
o 1. Jurisdiction to Enforce (jxtoenforceoutline)
§ Though a state’s statute might be applicable to a person/act, it may not have enforcement jx (as distinct from prescriptive jx) abroad. Enforcement jx (i.e. jx to arrest, serve process, etc) is said to be territorial.
§ Rstmt 431. Jx to enforce (p. 722-4):
· (1) state can compel compliance/punish noncompliance only if it has jx to prescribe in accordance w/ 402 and 403.
· (2) enf measures must be reasonably related to laws/regs to which they are directed, punishment must be preceded by approp determination of violation and must be proportional
· (3) can employ enf measures against someone abroad
o (a) if person has reasonable notice
o (b) if person has opportunity to be heard before enforcement
o (c) if state has jx to adjudicate (if enf is through courts)
· (Cmt a) can’t enf law that you have no jx to prescribe, but can cooperate in law enf w/ state that does have prescriptive jx. Lack of jx to adjudicate does not nec mean lack of jx to enf through non-judicial means (see cmt C)
· (Cmt b) judicial enf measures are those determined through a court proceeding
· (Cmt c) nonjudicial enf measures: employed by exec/admin. denial of right to engage in export/import tranxns; denial of eligibility to bid on govt Ks; prohibition against asset txfer; denial of permission to engage in certain biz activicty; comparable denial of opportunities – note that tho not judicial, still involves determining violations of specific laws and application of legal standards. Does not encompass general policies and political tactics that impose barriers of various kinds on individuals and nations.
· (Cmt e) nonjudicial enf measures not subject to same procedural reqs as judicial enf but must not be arbitrary
§ Rstmt 432(2): can only exercise crim law enf in another state w/ consent of that state, and (cmt b) the procedural rules of enf of the state in which the enf is taking place will apply
§ US v. Alvarez-Machain (scotus, 1992 – p. 725)
· Facts: Mexican doctor abducted from Guadalajara by the DEA and brought to Texas to be tried for participation in the murder in Mexico of an American DEA agent. Mexico formally protested and D claimed no jx because abduction violated US-Mexico extradition trty, Art 22 of which says it shall apply to the offenses specified in Art 2, which include murder, whether committed before or after the trty enters force; and Art 9 of which says neither party is bound to deliver up its nationals to the other party and that if a party denies extradition it shall submit the case for prosecution under its own laws, if it has jx to do so.
· Other relevant laws
o Rausher (scotus 1886): found implied “specialty” clause in US-England ext. trty (i.e. clause prohibiting prosecution for anything other than the crime for which D had been extradited), bc 2 fed statutes had imposed the “specialty” doctrine on US ext. trties.
o Ker (scotus 1886): D forcibly abducted against US govt’s instructions (which were to present warrant for arrest under the ext. trty) but Peru didn’t protest. Ct found that forcible abduction was insufficient reason why D shouldn’t answer for a US crim offense when brought w/in jx of US.
· Ct of App: Held for D. Abduction violated purpose of trty and Mexico formally protested, thus giving D right to invoke trty violation to defeat jx of district ct.
· Holding: Reversed. District ct has jx.
o If trty can be interpreted to prohibit abduction, then under Rauscher the trty’s implied terms apply and US does not have jx
o If no such prohibition can be inferred, then there is no Rauscher exception and Ker applies (abduction not sufficient to defeat jx)
§ Art 22 just means trty applicable to offenses cmtted before and after trty’s passage – doesn’t say anything about meaning or scope of trty in relation to such offenses.
§ Art 9 just establishes that govts have no obligation to surrender their nationals except under certain circs identified in the trty – it doesn’t purport to specify the only way a party can gain custody of the other party’s nationals.
§ Even if forcible abduction (exercising cross-border law enf w/o consent of other govt) is prohibited by customary int’l law, that has no bearing on whether forcible abduction is prohibited by the treaty. We cannot assume it is implied here, bc:
· Unlike in Rauscher, the customary prohibition invoked here does not apply specifically to ext. trties…it’s a general prohibition. The specialty doctrine was also customary, but it applied specifically to ext trties.
· A forcible abduction clause was recommended by prominent scholars and was not ultimately included in the tryt.
· The executive branch can determine whether D must be returned to Mexico under int’l laws beyond the scope of the trty
§ No prohibition on abduction can be inferred from the language of the trty, so the trty does not provide grounds on which US jx can be defeated.
· Dissent:
o The ext trty is comprehensive and intended to govern all aspects of extradition. If a party could forcibly kidnap another party’s nationals, that would defeat the purpose of expressly delineating circs in which extradition is and isn’t required and is and isn’t permitted.
o The trty is intended to reinforce territorial sovereignty.
o It is a settled principle of int’l law, that has been recognized by US legal theorists, that states cannot apprehend individuals in other territories w/o permission.
o Ker can be distinguished on the basis that the kidnappers were private parties acting outside the scope of the govt’s orders.
· Notes/Questions (p. 733)
o On what prescriptive basis does the US have jx over D for his activities in Mexico?
o Why does the ct not apply principles of cust. Int’l law? Is this a case in which the exec has acted? (see discussion of US courts in Ch 3.C)
o Why is the trty necessary if it doesn’t assume that abduction is prohibited? In other words, why does it matter whether and when a party is or isn’t obligated to surrender a national if another party can just kidnap him under any circs?
o Clinton and Mexico amended the trty to explicitly prohibit abduction but the amend was never submitted to the senate for advice/consent
o Before this case, the US govt had formally established a policy permitting cross-border apprehension of individuals who had violated US crim laws.
o 2. Jurisdiction to Adjudicate (p. 737)
§ Rstmt 421. Jx to adjudicate.
· (1) jx to adjudicate extends to a person/thing if the relationship btwn the state and the person/thing makes such jx reasonable
· (2) it’s reasonable if, at the time the jx is asserted:
o (a) the pers/thing is in the state’s territory other than transitorily
o (b)(c)( d) the person, if natural, lives in the state, is a resident or is a national
o (e) if a corp, the pers is organized pursuant to the state’s laws
o (f) if vehicle, registered under state laws
o (g) the person has consented to jx
o (h) the person regularly conducts biz in the state
o (i) the person has carried on activities in the state, but only in respect of such activity
o (j) the person carried on activities outside the state w/ substantial, direct, and foreseeable effect w/in the state, but only w/ respect to such activity
o (k) the thing is owned, possessed or used in the state, but only w/ respect of to a claim reasonably connected to the thing
· (3) Appearance generally waives a jx defense unless it’s a special appearance.
§ Notes/questions
· Sometimes US courts refrain from exercising jx even when such jx exists
o Comity: doctrine permitting ct to decline to exercise jx in deference to laws and interests of a foreign state
o Forum non conveniens: permits ct to dimiss case where adequate alternative forum exists and public and private interests favor hearing the case in that forum. (see factors on p. 739)
o Exhaustion of local remedies: customary int’l law prohibiting foreign state froming hearing a case if the P hasn’t exhausted it’s possible local remedies (unless such remedies are clearly a sham or inadequate or unreasonably prolonged)
§ See case examples on p. 740-41
– INTERNATIONAL COURT OF JUSTICE (p. 298)
o 1. Structure and Organization (p. 298)
§ Governed by its statute, which is an annex to and integral part of the UN Charcter (Arts 92-6), so all UN member states are party to the ICJ statute
§ 15 judges elected to 3 yr terms (staggered elections) by gen assembly and sec council from candidates nom’d by nat’l groups appointed by gov’ts (but independent from govt’s). No two judges can be nationals of the same state.
§ Statute says composition of judges should roughly parallel regional distribution of seats on the sec council.
§ If no judge from a party’s nation is sitting on its case, the party can select a judge.
§ Some studies show that judges are largely impartial w/ respect to national affiliation of parties, but others show some bias
§ Cases usually heard in plenary sessions of all 15 judges, but sometimes by chambers of 3 or 4, depending on the parties’ wishes (but that’s rare)
§ Rulings only apply to parties
§ Rulings enforced by security council
§ Phases of adjudication: (1) jx/admissibility, (2) merits, (3) reparations. The pace is glacial!
§ Compliance: states “undertake” to “comply w/ the decision” of the ICJ in any case to which they’re parties (Art 94) – There’s a substantial rate of compliance, but sometimes states (e.g. the US) don’t comply.
· Two types of order: provisional measures: the ct shall have the power to indicate any rovisional seaures which ought to be take to preserve the respsective rights of either party. Final orders: ultimate decision.
o 2. Jurisdiction of ICJ in Contentious Cases (p. 300)
§ Only states can be parties, and only UN member states, and only w/ consent of the parties manifested in some way articulated by Art 36, by special agreement, or in a dispute-settlement clause in a tryt. i.e., there are 3 ways for ICJ to have jx:
§ (a) ICJ Statute Art 36(2) Optional Clause
· Parties can recognize the compulsory jx of the ct in relation to any other state accepting the same obligation, in all disputes concerning: the interp of a trty; any question of int’l law; facts which establish breach of int’l obligation. [me: this is general consent – not consent re: a specific trty or dispute] · Recognition of jx can be conditioned on reciprocity on party of several or certain states or for a certain time (and often is).
§ (b) Jx by special agmt (p. 302)
· Parties submit a “compromis” to the ct defining the question/dispute the parties seek to resolve
o Sometimes, but rarely, intent of parties not clear: Qatar and Bahrain had territorial dispute over islands and wrote minutes delineating oral agmts on the question in dispute and the time at which the question would be submitted to the court, but the translations had different formulations and when Qatar filed and appl w/ the court Bahrain argued that it was not bound by the minutes. The court concluded that the minutes were a legally binding agreement.
§ Note: re-read this! And consider the diff btwn trties and political commitments. What is this?
§ (c) Jx under a dispute settlement clause in a trty (p. 304)
· In a trty, parties can agree to submit disputes concerning interp and application of trty to the ICJ. This is common (called “compromissory clauses”
· One of these was included the US-Iran Treaty of Amity, Ec Relations and Consular Rights (1955)
o Oil Platforms case (Iran v. US, 1996, p. 305)
§ Toward end of war btwn Iraq and Iran in 80s, Iran challenged lawfulness of US destruction of Iranian oil production platforms after Iran had increased attacks on commercial ships trading w/ Arab countries in the Gulf, which Ir