The Paquete Habana case brief

The Paquete Habana, 175 US 677 (1900).

• Ancient practice that fishing vessels pursuing their vocation are exempt from capture as a prize of war.  Here, the US captured two Spanish fishing vessels as a prize of war.  
• How did customary international law arise in this case?
• The outcome of the case turned on the enforcement (or non-enforcement) of customary law prohibiting the capture of fishing vessels.
• The court concluded that:
• The above practice had become customary international law
• Thus the court demonstrated that customary international law can provide the controlling rule of a decision in some cases in US courts
• “International law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction, as often as questions of right depending upon it are duly presented for their determination.  For this purpose, where there is no treaty, and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations; and, as evidence of these, to the works of jurists and commentators, who by years of labor, research and experience, have made themselves peculiarly well acquainted with the subjects of which they treat.”
• WHAT to get out of the case: there is a vagary in the case, that is important: there are two interpretations of this case:
• 1) Customary international law is subordinate to self-executing treaties and acts of congress (only binding in the absence of a treaty, an act of congress or the executive, etc.)
• 2) Customary international law is on the same level as self-executing treaties and congressional acts, and therefore the later-in-time rule applies

Missouri v. Holland Case Brief

Missouri v. Holland, 252 US 416 (1920);

• Missouri wanted to stop enforcement of laws written by Congress to implement a treaty in which the United States agreed not to capture, sell or kill endangered migratory birds
• Missouri’s objection was that this law violated the Tenth Amendment (that the powers not granted to the federal government were reserved to the states)
• Missouri argued that the bids were in their territory and thus they were entitled to regulate treatment of the birds
• The Court found that the treaty and statute implementing it must be upheld
• How could a law of Congress become constitutionally valid by the fact that it is made to implement a treaty when that very same law would be invalid under the Tenth Amendment if it were not implementing a treaty?
• Article II gives treaty-making power, and Article VI says that the Constitution and treaties are the supreme law of the land
• If there is a treaty in force in the US that is inconsistent with state law, the treaty will prevail over the state law
• Necessary and Proper clause: Art. I, Section 8, cl. 18
• Congress has the power to enact legislation which is necessary and proper to execute all powers vested in the government by the Constitution, including the laws of treaties made by the government
• Holding
• “Acts of Congress are the supreme law of the land only when made in pursuance of the Constitution, while treaties are declared to be so when made under the authority of the United States.”
• This language raises the possibility that the exercise of the treatymaking power is not subject to the same constitutional limitations as acts of Congress
• Thus, this case indicates the possibility that an act of Congress which would otherwise be unconstitutional can become constitutional when made pursuant to a treaty
• However, this case does not resolve this question

Reid v. Covert case brief

Reid v. Covert, 354 US 1 (1957)

• Defendants were civilian dependents of armed servicemen who murdered their husbands on the overseas bases where they were stationed.  They were tried by court-martial under the Uniform Code of Military Justice (UCMJ), where they were tried without a grand jury or a jury trial.  The dependents alleged that they were denied a right to a jury trial and right to have their indictment presented to a grand jury pursuant to the Constitution.  The right to try civilian dependents on the overseas base was granted by treaty.
• The United States argues Missouri v. Holland – the UCMJ was made because it was necessary and proper to execute a treaty, and thus it does not need to comply with the Constitution (though it might be unconstitutional without a treaty, it is ok because it was made pursuant to a treaty)
• The Supreme Court finds that “no agreement with a foreign nation can confer power on the Congress, or on any other branch of Government, which is free from the restraints of the Constitution.”
• Nothing in the language of Article VI’s supremacy clause intimates that treaties and laws enacted pursuant to them do not have to comply with the provisions of the Constitution – laws pursuant to treaties must comply with the Constitution
• The Supreme Court also says that treaties still prevail over inconsistent state law, and the Tenth Amendment is not a barrier to the federal government’s authority to make treaties
• So the dependents were entitled to their constitutional rights in trial
• The much more complicated question – what constitutional rights do people like these dependents have?  What rights to foreigners have abroad?
• Rule: if you have a treaty which conflicts with a subsequent Congressional act, the Congressional act prevails over the treaty unless it violates the constitution

Example of application of Reid: If the United States entered into a treaty in which it agreed that abortion was illegal, and Congress attempted to write implementing legislation for that treaty, that implementing legislation would be invalid because it violates the Constitution (Roe v. Wade)

Asakura v. City of Seattle case brief

Asakura v. City of Seattle, 265 US 332 (1924).

• Plaintiff alleges that a Seattle ordinance regulating the business of pawnbroker violates a treaty
• plaintiff directly invokes a treaty provision (“…thou shalt not discriminate between the citizens of these two countries…”)in this case, which is before a US court; he can only do this if the treaty is self-executing
• how to determine whether the treaty is self-executing:
• look to the language to see if it says
• if the language is unclear, then look to the intent of the parties: look to the Senate (domestic legislation), presidential statements concerning the treaty
• The court implicitly ruled that the treaty was self-executing by finding that the local ordinance that violated the treaty was invalid
• Language indicating that the treaty is self-executing: “It operates of itself without the aid of any legislation…and it will be applied and given authoritative effect by the courts….”

Breard v. Greene Case Brief.

Breard v. Greene, 523 US 371 (1998)

• Breard wanted to invoke the Vienna Convention on Consular Relations (VCCR) so as to avoid his own execution.  However, he did not follow the proper procedures for such invocation.  
• later-in-time argument – p. 187
• the Court finds that the VCCR was preempted by a new 1996 domestic law, the Antiterrorism and Effective Death Penalty Act, and thus the new law prevented the plaintiff from establishing that the violation of his Vienna Convention rights was a problem
• the court decided to apply the procedural default rule: because Breard did not follow the necessary procedural rules for bringing a claim under the VCCR, he was not entitled to the protection of the VCCR.

United States v. Curtiss-Wright Corp. case brief

United States v. Curtiss-Wright Corp., 299 U.S. 304 (1936).

• Congress enacted a joint resolution delegating to the President the power to prohibit the sale of arms from the US to Bolivia
• The Constitutional issue in this case was whether there had been an unconstitutional delegation of authority by Congress to the President
• The opinion begins by assuming that the delegation of authority would have been unconstitutional had the matter been about internal affairs
• However, because it is about external affairs, it may be ok
• Why is it significant that the matter is about external affairs?
• The Constitution gives the federal government certain legislative powers and leaves the rest to the states
• The powers pertaining to foreign affairs go to the federal government (president and congress); the states could never have these powers because the power to conduct foreign affairs passed directly to the federal government from the Crown; the colonies never possessed the power to conduct foreign affairs severally
• Additionally, the opinion says that the President is the sole organ of the nation in external relations and its sole representative with foreign nations
• Was there an unconstitutional delegation of power?
• NO – because the president has the power to conduct foreign affairs, he has the powers relating to the creation of laws that deal with foreign affairs, regardless of whether Congress gives him their blessing; thus the Congressional authorization was just icing on the cake.

Made in the USA Foundation v. US case brief

Made in the USA Foundation v. US, 242 F.3d 1300 (11th Cir. 2001)

• plaintiffs challenged a trade agreement made by the President with the authorization of Congress (NAFTA Implementation Act) (we’re in Jackson category 1)
• plaintiffs allege that this has to be concluded as an Article II treaty, and is not legitimate in its current form
• the court rules that the trade agreement was legitimate:
• Constitution textually commits the commerce power to Congress, and the NAFTA Implementation Act deals with commerce
• Further, the president, in negotiating the trade agreement, was acting pursuant to his constitutional powers to conduct the Nations’ foreign affairs AND pursuant to a grant of authority from Congress (Justice Jackson’s framework: we have a presumption of validity because President acts within his own Constitutional powers and with the authority of Congress)

United States v. Pink case brief

United States v. Pink, 315 US 203 (1942) p. 213

• facts: US settles dispute with Russia by accepting lump sum payment for recognition of Russia’s new government; Congress tacitly recognized that policy
• Why was the Litvinov assignment valid?
• The President has the power to receive ambassadors, which, according to the court, contains the implied power to make agreements concerning the recognition foreign governments
• “The authority is not limited to a determination of the government to be recognized.  It includes the power to determine the policy which is to govern the question of recognition.”  
• Because the Litvinov assignment was a part of the agreement of recognition of the Soviet Government, it was within the power of the president to make this agreement alone
• Justice Jackson category 1:
• President concluded an agreement on his own authority, and Congress tacitly consented

Dames & Moore v. Regan case brief

Dames & Moore v. Regan, 453 US 654 (1981).

• President suspended claims pending in American courts pursuant to the Algiers Accords, a presidential-executive action wherein the US agreed to terminate all legal proceedings in US courts involving claims against Iran
• How does the president have authority for this?  It is a sole executive agreement (Presidential-executive agreement)
• there is no congressional authorization for the president’s actions (neither the IEEPA nor the Hostage Act constituted authorization of the president’s actions suspending claims)
• however, both acts give the president broad discretion in emergency situations (see p. 217), and Congress acquiesced to the President’s action
• there is a longstanding history of congressional acquiescence, enabling the president to settle claims with foreign states
• this is why the court believes that the executive agreement was acquiesced to by Congress
• although the court validated the president’s conduct, the court made clear that it did not give the president a blank check in the exercise of presidential decrees, because neither the IEEPA or the Hostage Act or the executive agreement authorized the settlement in and of themselves – it was the combination of the executive agreement, the acts, and the congressional acquiescence that made the agreement constitutional under the Jackson test
• so we end up in Jackson’s category 1
• this is a liberal interpretation of the Jackson framework

Garcia-Mir v. Meese case brief

Garcia-Mir v. Meese, 788 F.2d 1446 (11th Cir. 1986) 

• Cuban refugees were accorded special immigration status, and had been detained in the Atlanta Penitentiary for a long time
• The Cuban refugees claim that customary international law was violated by their prolonged arbitrary detention
• Here, there was a relevant act of Congress, saying that the refugees could be detained
• The court found that the rule of Congress trumped the rule of customary international law, in regard to the first group of detainees
• As to the second group of detainees, the court found that an executive act by the Attorney General also trumps customary international law
• Legally, how is this possible?
• Either the congressional acts generally trump customary international law, or the  congressional acts were later-in-time – it is not clear
• The later-in-time interpretation is not as likely to have been the intended interpretation of the court in this case.
• The United States would still be in breach of customary international law, despite the fact that the law could not be enforced domestically
• Two quotes:
• “The public law of nations was long ago incorporated into the common law of the United States.” Paquete Habana
• “To the extent possible, courts must construe American law so as to avoid violating principles of customary international law.” Charming Betsy Cannon

Five bases for prescriptive jurisdiction under international law

Five bases for prescriptive jurisdiction under international law

1. territory
• State has jurisdiction over property, persons, acts, or events occurring within its territory
• not a controversial basis of jurisdiction
2. (active) nationality
• states may regulate the conduct of their nationals wherever they are in the world
• not a controversial basis of jurisdiction
3. passive personality
• a state may prescribe law for situations where its nationals are a victim of the conduct being regulated
• this has limited scope, and is pretty well accepted with regard to terrorist attacks
4. protective
• a state can legislate crimes that it considers to be a threat to its security, integrity, or economic interests
• common examples: espionage, counterfeiting (maybe terrorism)
• this one is controversial – makes some countries nervous because of the possibility of arbitrary enforcement
5. universal
• a state may legislate certain crimes that are contrary to the interests of the international community
• in theory, every state has an interest in prescribing laws relating to these crimes
• the only clear-cut cases of universal jurisdiction are piracy and war crimes (according to the book), but Orentlicher says the list is longer now, and terrorism is in the “maybe” category

Hartford Fire Insurance Co, v. California case brief

Hartford Fire Insurance Co. v. California, 509 US 764 (1993).

• Defendants, acting in London, were charged with conspiring to restrict the terms of certain kinds of insurance available in the US, in violation of the Sherman Act
• Issue: is there prescriptive jurisdiction to apply the Sherman Act, or any US law, to conduct that occurs in another country?
• The Sherman Act has typically been interpreted according to the objective territorial principle – it deals with conduct that occurs outside the US but has a substantial and harmful effect inside the United States
• Previous decisions found that he Sherman Act extended overseas; the new question was how far the Sherman Act extended
• Majority Opinion (Souter): the Sherman Act does apply to the acts in question
• Does not address international law in depth; he merely addresses comity
• He frames the question as whether principles of comity ought to lead the court to exercise judicial restraint and not exercise jurisdiction over the London insurance companies
• He says that there is only an issue where the laws of two states conflict in such a way that one cannot comply with the laws of one country without violating the laws of the other country: “The only substantial question in this case is whether ‘there is in fact a true conflict between domestic and foreign law’.”
• He finds that there is no conflict between US and British law (seems though he almost jumps right to the third part of the Restatement test in Section 403)
• Though the US made illegal what was legal in England, compliance with US law would not require violation of British law, so it’s ok
• Is Souter right in suggesting that this is the only question that needs to be addressed?
• The Restatement reasonableness test says no – you still have to establish 1) that there is a recognized basis for prescriptive jurisdiction, and then 2) that it is reasonable for the state to exercise jurisdiction in the given case (look to reasonableness factors in Restatement); then you would perform Souter’s analysis

• Dissent: Scalia
• The principle question is whether the Sherman Act reaches the conduct in question
• First, he looks at two cannons of statutory construction in American law:
• 1) “legislation of Congress, unless a contrary intent appears, is meant to apply only within the territorial jurisdiction of the United States”
• Sherman Act was already found to apply extraterritorially
• 2) “an act of Congress ought never to be construed to violate the laws of nations if any other construction remains” (Charming Betsy)
• prescriptive jurisdiction
• He then performs the analysis Souter should have performed to determine if the Sherman act applies to the case at hand:
• you have to establish 1) that there is a recognized basis for prescriptive jurisdiction, and then 2) that it is reasonable for your state to exercise jurisdiction in the given case (look to reasonableness factors in Restatement); then perform an analysis similar to Souter’s analysis (can you apply the law of your state without requiring the defendant to violate the laws of the other state?)
• Reasonableness analysis:
• He recognizes that the UK has a great interest in maintaining jurisdiction over this issue
• He also says that the US interest in regulating here is slight, because of another act that allowed for the Sherman Act to be overridden (if the Sherman Act can be overridden, it can’t be that important)
• Scalia concludes that it is unreasonable for the United States to apply its law here
• Is it really unreasonable for the US to apply its law in this situation, given that the act in question was intended to have a negative effect on the United States?
• Why did Scalia reach this result?  Are there any advantages to the result he reached?
• It may be better to be certain which country gets to regulate the actions of companies
• It may be easier for US companies to compete on a level playing field in the UK if they aren’t subject to US regulation
• Flip the sides – do we want the UK to be able to do this to the US
• Whose opinion was better – Souter or Scalia?
• We think Souter’s outcome might have been better, but Scalia’s analysis was definitely better – follow this analysis

Compagnie Europeenne des Petroles S.A. v. Sensor Nederland B.V. case brief

Compagnie Europeenne des Petroles S.A. v. Sensor Nederland B.V. 

• US prohibited sales that would support the Soviet pipeline; this affected subsidiaries of US corporations and companies incorporated in Europe and elsewhere
• Dutch company (subsidiary of a US company) was sued by a French company because the Dutch company did not want to comply with the terms of a contract it made with the French company
• Dutch company said it was subject to US regulations prohibiting the sale, and would have to pay fines if it complied with the contract (International law comes up in this case through the defense asserted by the Dutch company)
• The Dutch court seems to assume that the Dutch company might have a valid defense if the US has the jurisdiction to prescribe this law
• Carefully analysis of bases for jurisdiction
• There is no choice of law clause in the contract, so then we look to see whether the US has prescriptive jurisdiction
• Nationality: if Sensor were a US corporation, the US could have regulated it even as it acted outside the US; test for nationality is not determined by ownership interest (as US would argue), but by incorporation and place of registered business, and the Dutch company was incorporated in the Netherlands
• Protective principle – protective principle does not justify one country’s forcing another country’s companies to advance US foreign policy
• Territorial (objective) – the court could not see how the export to Russia of goods not originating in the Untied States by a non-American exporter could have any direct and illicit effect in the US
• Note: remember that the US was indirectly limiting the operation of the French company by limiting the operation of the Dutch company; the connection between the US and the French company is even more tenuous