INTERNATIONAL LAW
W.B. Fisch Fall 2008
Assignment #9

Ch. 4) INTERNATIONAL LAW AND MUNICIPAL LAW

B) Customary International Law in Municipal Courts

RESPUBLICA V. DE LONGCHAMPS, p. 227 (Pa. Ct. O&T 1784). French national charged under Pennsylvania law with violating the international law protecting diplomats, by assaulting the French consul-general in his residence in Philadelphia.

1. customary international law, incorporated into the common law of crimes in Pennsylvania!

a. would such a result be permissible today? (due process!)

b. is the international law rule in question still in force, and does violation of it constitute a crime under U.S. law?

i. Vienna Conventions on Diplomatic and Consular Relations have reduced this law to treaty form

ii. U.S. statutes make violation of those treaties a crime

2. what was the relevance of the issue of whether De Longchamps should be delivered over to the French authorities?

a. ought he to have been extradited to France for the trial itself?

b. once found guilty, ought he to have been delivered over to the French for punishment?

c. once found guilty, ought the punishment in Pennsylvania to have been subject to the direction of the French?

d. all basically answered “no”, reinforcing the notion that he was tried for violation of Pennsylvania law, incorporating international law for this purpose!

3. is customary international law, incorporated into a statutory definition of crime such as 18 U.S.C. §1651 on piracy, sufficiently well defined to satisfy present-day due process standards?

a. is there a core of clear meaning, such that one who is charged with that conduct has fair warning of its criminality?

b. if so, can it be enforced, even if the periphery of the law’s meaning is impermissibly vague?

AMERADA HESS V. ARGENTINE REPUBLIC, p. 232 (2d Cir. 1987)

1. did Argentina violate IL in attacking the U.S. merchant ship?

2. is a U.S. court a proper forum for this dispute, merely because the plaintiffs were owned by U.S. corporations? Because “international law is a part of our law”?

a. what law governs this decision? [federal law, since it is the jurisdiction of the federal courts that is at issue]

b. does it permit the assertion of jurisdiction in this case?

3. does IL provide an alternative basis for fed. ct. jurisdiction, along with the Foreign Sovereign Immunities Act?

U.S. V. ALVAREZ-MACHAIN, p. 210 (U.S. 1992). Criminal defendant, national of Mexico, challenges jurisdiction of U.S. federal court on the ground that he had been forcibly abducted from Mexico by persons acting for the U.S.

1. Did the abduction violate IL?

a. General international law

i. Was it done with the participation of US officials?

ii. Did that constitute a violation of Mexico’s sovereignty?

b. The U.S.-Mexico extradition treaty

i. Is the extradition treaty intended to be an exclusive method of acquiring custody of a prisoner located in the other party’s territory?

ii. Is it intended to be the exclusive method of acquiring custody of a citizen of the other party located in the latter’s territory?

iii. Does the treaty implicitly forbid use of other unlawful methods?

2. Assuming it did violate IL, would that be grounds for release of the prisoner?

a. Violation of GIL

i. Ker v. Illinois (1886) held that a private abduction, leading to custody to which the other state doesn’t object, doesn’t make the custody unlawful

ii. Should the involvement of the U.S. gov’t and the objection of Mexico make a difference? (Rehnquist didn’t think so)

b. Violation of the treaty

i. U.S. v. Rauscher (1886) held that violation of an extradition treaty does make the custody invalid, at least where it was acquired by extradition

ii. Does the fact that extradition wasn’t used here make the treaty inapplicable?

U.S. V. Palestine Liberation Organization, n4 p. 244 (SDNY 1988). U.S. seeks an injunction requiring the PLO to close its UN mission office.

1. On what authority did the US seek closure of the office?

2. If that authority is inconsistent with the US-UN Headquarters Agreement, which controls?

3. Is the ATA inconsistent with the Headquarters Agreement?

a. Does the Headquarters Agreement require the U.S. to permit Permanent Observers to maintain an office for its mission?

b. Did Congress intend to require the President to close this office?

c. Did Congress intend thereby to violate the Headquarters Agreement?

i. Does the ATA mention the Headquarters Agreement?

ii. Does it mention the PLO’s UN mission?

iii. Is there evidence that Congressmen were aware of the possible conflict?

d. What presumption applies to this issue, and how strong is it? Does the evidence of Congressional awareness tend to override it, or reinforce it?

SOSA V. ALVAREZ-MACHAIN, p. 245 (U.S. 2004). Alvarez’ civil claims against Mexican agents, U.S. agents, and U.S. under the Federal Tort Claims Act and the Alien Tort Claims Statute

1) Does exemption from the FTCA’s waiver of sovereign immunity from suit against U.S., for claims “arising in a foreign country”, apply to claims based on injury suffered abroad by reason of wrongful acts in the U.S.?

2) Does the Alien Tort Claims Statute (28 U.S.C. s. 1350, orig. 1789) authorize suit for the kind of internationally wrongful act alleged here?

a) Would this claim have been recognized in 1789 as a “tort in violation of the law of nations”?

b) If not, did Congress intend to foreclose recognition of any subsequently developed claims under the law of nations?

If so, is the claim one that is recognized today by the “civilized world” and defined with sufficient specificity to warrant inclusion in the limited range of the “federal common law” after Erie RR v. Tompkins?