Monism- All one large hierarchy with international law at the top and domestic law at the bottom

Dualism- International and domestic law are two separate equal legal systems (in order to apply international law, must be encoded into domestic)

Roper v. Simmons-->Scalia's dissent and Kennedy's decision

Article VI-->Supremacy Clause

10th Amendment

Horizontal Separation- Statutes, Judicial Decisions, Administrative Regulations, Treaties

Common Law

Reasoning: Inductive rule comes from previous decisions/precedents

Education: How to practically interpret the law (research compare cases/ skill oriented)

Judges: Appointment or election

Decisions: Cases, restatement, analogies 

Civil Law

Reasoning: Deductive/codes

Education: Theories--Scientific

Judges: Get trained to be a judge, treated as a career path

Decisions: Code, use other cases as instructive or reinforcement

North Sea Continental Shelf Cases--equidistant rule is not custom and Germany did not sign on to the Geneva Convention therefore

- Parties must delimite the continental shelf in accordance w/ equitable priniciples

Jus Cogens: accepted by int'l community of states as norms to which no derogation is ever required

Siderman v. Argentina (torture of US citizen by Argentinian military)--Ø  Right to be free from official torture is a fundamental and universal right, deserving of the highest status under international law (a norm of jus cogens).

US v. Ray--Ray tried to establish nation on reef off the coast of FL

State Requirements (Montivideo Convention)

1. Defined territory

2. Permanent population

3. Capacity to enter into foreign relations with other states

4. Effective and function government 

** Meeting definitional requirments alone is not enough BUT it is very important

1. States created

2. By treaty

3. Own organs

Reparations Case: IO is an international person and may bring claims on behalf of individual members

Roberts v. United Mexican States: minimum standard for the treament of aliens "ordinary standards of civilization"--Mexico's conditions fell below these standards

-"an outrage, to bad faith, to willful neglect of duty, or to an insufficiency of governmental action so far shor to international standards that every reaonable and impartial man owuld readily recognize its insufficiency."

Nottebohm Case (citizenship): Lichtenstein?Germany?Guatamala?--> Nationality is not enough.  In order for state to bring a claim on a person's behalf there must be a "genuine link" b/w the person and the state

Barcelona Traction Case: where corporation can bring claim depends on corporation's PPB (Canada?) not where shareholders are located (Belgium)

Presbyterian Church of Sudan v. Talisman: Corporations are obligated to respect basic human rights of individuals

SEX: do not require some kind of implementation (i.e through ratification or other legislation)

Edwards v. Carter: Power of congress to transfer property is not exclusive--Treaty (executive agreement) giving land to Panama was not in conflict with constitution

Asakura v. City of Seattle: US treaty with Japan is Supreme Law of the land (self-executing) and overrules Seattle city ordinance that is directly in conflict

Non-Self Executing Treaties

NonSEX: require some other sort of implemenation to be enacted

Sei Fujii v. California: UN Charter 55/56 are not self executing, therefore CA law preventing aliens from owning land

Missouri v. Holland: Treaty b/w Canada and US prevented the hunting of migratory birds (executed by subsequent legislative action), supercedes local law allowing the hunting of migratory birds

U.S v. Belmont: Exec. agreement that USSR turn over all assets in NY to US, NY prevents from taking Belmont's money-->Article VI power w/o advice and consent of senate, state law is always trumped by exec. agreements

Reid v. Covert: Exec. agreement b/w US, UK, and Japan allowing military personnel to be prosecuted under military law-->wives of military men guilty of murder (cannot waive right to trial by jury)

Breard v. Greene (Vienna Convention on Consular Relations v. federal Antiterrorism and Effective Death Penalty Act): Authorities failed to inform Breard that he had the right to contact the Paraguayan Consulate upon arrest

- By failing to bring this claim in state court he defaulted on the ability to bring it as a defense

- AEDPA: Breard does not get an evidentiary hearing if failed to develop factual basis for the claim in state court

1.) Should be interpreted in GOOD FAITH

- Ordinary meaning

- In context

- In light of object and purpose

2.) Look at in context

- Any agreement relating to the treaty

3.) In addition to context, can take into account

-->subsequent agreements, subsequent practice, any relevant rules in international law

4.) Can give special meaning to a term if the parties intended the special meaning

Supplemental means of interpretation-->may look to ONLY AFTER interpreting under the Article 31 if the term is still ambiguous or leads to a result that is MANIFESTLY ABSURD OR UNREASONABLE

Treaties, Custom, General Principles of International Law, Judicial Decisions, Jus Cogens

Interpretation of Treaties authenticated in two or more languages--->MUST LOOK TO OFFICIAL TEXT

Treaty Interpretation (Cases)

Eastern Airlines v. Floyd :)

- Court followed steps of treaty interpretation to a T; in good faith, ordinary meaning, looked beyond treaty to confirm meaning (lesion corprelle)

- Supplemental Materials to clear ambiguity (dictionary, french legal materials b/c Warsaw convention in french <original text>)

Sale v. Haitian Centers Councils :/

- Article 33 of UN Convention: Return does not mean return? (refouler) Treaty must first be construred according to its "ordinary meaning"

- Negotiating history takes delegates statements out of context and it cannot alter the plain meaning of the treaty (too much weight given to negotiating history, only if it is ambiguous)

- The word return was used multiple times with no indication it had a special meaning

US v. Alvarez-Machain :(

- Court reasons that according to the plain meaning requiring Mexico to try and extradite does not explicitly address kidnapping (no express agreement on forcible abductions), therefore extradition is optional?

- Not in good faith

- Or in object and purpose of the treaty

Flores v. Southern Peru Copper Co: American company pollution causing harm to human beings violates customary interntional law?

- "right to life, health, and right to sustainable development" is too ambiguous and indefinite

Jus Cogens: any non-derogatory norm that trumps inconsistent reaties or other int'l agreements

Hawkins v. Comparet-Cassini: 1.) Is there a peremptory norm involved as a matter of international law? 2.)If so does π have a cause of action to invoke it in US courts

- In the absence of a clear existence of a cause of action US courts will “hesitate” to “imply” a cause of action “in the absence of affirmative action by Congress” creating a cause of action to complain about torture by the US government

Buell v. Mitchell (capital punishment doesnt violate any international agreement entered into by US and is not jus cogens therefore US okay to pursue it

Lex Fori

Lex Loci (vested rights)

Governmental Interests

Governmental Interest and PP

Vested Rights: law of the place whre the event occured (wherever the right vests is where the law should apply)

Slater v. Mexican National Railroad

- Slater works for Mex. railroad, injured while working and sues in US (b/c he would not be able to collect as much in Mexico)

- Slater was using Mexican law to have a cause of action (it was their law that said it was neg. occurance), therefore that is where the right to sue vested

Babcock v. Johnson--NY citizen, NY insurance on weekend trip to Canada and had car accident in Ontario (Canada law prohibts passengers to collect from driver but US allows)

- Look to "most significant contacts" or to the "center of gravity"-->NY had most contacts (policy behind Canada law was to prevent insurance fraud)

Governmental Interest Test (Qualitative)

D'Agostino v. Johnson--> fired for not taking bribe, NJ corporation, Swiss resident, Swiss employment contract, happend in Switzerland

- Quality of contacts should ultimately apply-->more about regulatory rights of parent companies in NJ, concern with Foreign Corrupt Pracitces Act

McGhee v. Arabian American Oil--M ran blockbuster type store in violation of Saudi law saying foreigners cant own businesses--Court looks at 3 things

1.) Proposed foreign rule of decision differs from the foreign rule?

2.) Does a "true conflict" exist?

---cannot just look similar but must actually be in conflict and more than one state has a legitimate interest

3.) Comparative Impairment (Which state would be hurt the most if their law wasn't applied?)

1.) Territorial Principle

2.) Effects Test

3.) Nationality Principle

4.) Passive Personality Principle

5.) The Protective Principle

6.) Universality Principle

Can only assert jursdiction over people and events within its territory

American Banana v. United Fruit Company: US company was planning monopoly, in Costa Rica and took over the plantation of its biggest competitor-->does Sherman Antitrust give US jurisdiction over anticompetitve activities in Panama

- NO b/c TERRITORIAL PRINCIPLE

US v. Aluminum Company of America-->Alliance agreed not to compete amonst themselves and asked ALCOA to be a partof it

- Conduct outside the borders that effects inside the borders will give the court jurisdiction

EEOC v. Arabian American Oil Co: American citizen fired while working in Saudi Arabia and files a charge of discrimination with the EEOC-->court presumes Congress only intends that its statutes apply to things that happen w/in the US (have to show affirmative intent of Congress for it to apply outside the US)

1.) General Practice of States (can be positive or negative acts)

2.) Acceptance of practice of the practice as law-->must be discernible sentiment among states generally that three is requirement of law, sense of legal obligation

-->North Sea Continental Shelf Cases

Tomoya Kawakita v. US: Arrested for treason and torturing American POWs in Japan.  Claimed he wasnt a citizen but never renounced US citizenship and renewed his passport multiple times--> US had jursidicion b/c of Nationality Principle

State may assert jurisdiction over persons and events outside a state's territory on the basis of its citizens being harmed (always tossed aside--but it changes in the world of terrorism)

US v. Roberts: US citizen was sexual abused by an employee on a cruise line-->US claims jurisdiction under PPP

US v. Yosef--Bombed WTC and fled to Pakistan, US has jurisdiction based on the protective principle since the offender was "trying to influence US foreign policy"

US v. Yunis--> US asserted jurisdiction based on PPP and universality, PPP rejected because Americans werent targeted simply b/c they were Americans

- US has jurisdiction based on Universality

- "certian offenses recognized byt he community of nations as of universal concern, such as piracy, slave trade, attacks on or hijacking of aircraft, genocide, war crimes, adn perhaps certian acts of terrorism

Allegation of conspiracy to affect the American Insurance Market

- Sherman Act covers activities in Lond b/c of effects doctrine

Conflicts of Law Analysis?

- No real conflict b/c the reinsurers can abide by both US and UK law

DISSENT

Should refrain from exercising jursidiction if unreasonable-->factors= nationality, residence, economic activity, character of activity to be regulated, importance of reguation, extent to which another state may have an interest in regulating the activity, liklihood of conflict with another state

(Yahoo and Yahoo France)-->sued for providing links to purchase Nazi memorablia on their webpages

- Lex Loci/Lexi Fori applied?--must pay French damages--effect in France

Yahoo! v. LIRCA

- Issue: is it consistent w/ Constitution and laws of US or another nation to regulate speech by a US resident within the US on the basis that wuch speech can be accessed by Internet users in that nation

Lumber company wants to set up in Honduras, used foreign process to put Timberlane out of business (bought out Bank of America's interest in failing business)--company was its biggest competitor

- Effects Doctrine applies in antitrust law (See factors on Harford Insurance card)

Definition:  Precludes courts of this country from inquiring into the validity of the public acts a recognized foreign sovereign power committed within its own territory à NY court decided that this Doctrine does not apply because Cuba violated international law.

Banco National de Cuba v. Sabbatino

Facts: 

ØHolding: Sovereign states cannot determine if acts don’t in another’s state are illegal; leave states to their own sovereignty

1. Link of Activity with regulating state.

2. Connection b/w person involved with regulation and place regulating (nationality)

3. Character of activity being regulated (extent to which it can be regulated by states)

4. Importance of regulation (to international systems)

5. Regulation consistent with traditions of international system (does it violate IL?)

6. Extent to which another state might have an interest

7. Liklihood of conflict with regulation by another state (conflict with foreign law or policy)