Midterm 1 Flashcards
General rule: immunity of a foreign state from jurisdiction
absolute: par in parem non habet (protect the foreign state at all costs)
Restrictive: yes for acts iure imperii (no for acts iure gestionis)
- exceptions: 28 U.S.C. section 1605 and 1607
Immunity: international law solutions
European Convention on State immunity
UN Convention on Jurisdictional Immunities of states and their property
Immunity: national law solutions
USA, Cuba, Iran, Libya, Russian Federation, Sudan, Syria
How can a US Court Assert Jurisdiction over a foreign state or its instrumentality?
-claims arising out of activities of the kind that may be carried on by private persons - 451 Restatement 3rd Foreign Relations Law of the U.S.
-Unless, and to the extent that, one of the exceptions set forth in 1605-1607 applies
28 U.S.C. 1604
political subdivisions and state instrumentalities
a state instrumentality includes a corporation, association, or other juridical person a majority of whose shares or other ownership interest are owned by the state, even when organized for profit
applying the expropriation exception
- US courts have jurisdiction with respect to claims to property taken by a foreign state
- in violation of international law
- If the property or the proceeds thereof) is present in the US with a commercial activity carried on by the state in the US.
- Or, the property (or the proceeds thereof) is owned or operated by an instrumentality of the state and that instrumentality is engaged in commercial activity in the US
- NEWEST: the justice against sponsors of terrorism Act 28 USC 1605B
how did the justice against sponsors of terrorism act get passed?
- presidential veto
- bill returned to Congress within 10 days
- Senate overrides veto 97-1
-House of Rep. overrides veto - Promulgated as Law despite the presidential veto
article I section 7 const.
What is the purpose of the FSIA?
To regulate the amenability of foreign nations to suit in the US - Venezuela v. Helmerich & Payne
To grant a sovereign entity immunity from suit in U.S. what do the courts recognize?
Sovereignty: the absolute independence of every sovereign authority
comity: helps induce each nation state as a matter of international comity to respect the independence and dignity of every other, including our own.
What is the act of state doctrine?
act of state:
-public act
-emanated from a recognized foreign government
-Carried out within the territory of the foreign state
Doctrine:
-Judicially created rule of decision
Every sovereign state is bound to respect the
independence of every other sovereign state, and the courts of one country will not sit in judgment on the act of the government of another done within its own territory. Redress of grievances by reason of such acts must be obtained through the means open to be availed of by sovereign powers as between themselves.
according to the US supreme Court the act of state doctrine is a principle of decision binding on federal and state courts alike….
does not protect us citizens from the confiscation of property they hold abroad by an official act,
which vitality is not compelled by int. law principles and by the US const.
that does not protect the right of US citizens from acts by a foreign gov. in a violation
that does not protect foreign nationals from the confiscation of property by a foreign government
What does the act of state doctrine do?
The act of state doctrine applies to prohibit United States courts from examining the validity of a taking by a foreign sovereign government of property within its own territory, in the absence of a treaty or other unambiguous agreement regarding controlling legal principles, even if the complaint alleges that the taking violates customary international law.
What is Goldwater v. Cater about?
carter rescinded a treaty with Taiwan to enter a treaty with China. China did not recognize Taiwan as a state. congressmen sued the president. and the court decided that the constitutionality of a unilateral action by the president to rescind a treaty without Senate involvement is a non-justiciable political question.
What was Medellin v. Texas about?
ICJ requires that signatories be notified of their right to contact their home country after arrest. Pres. Bush published a memorandum saying that we would follow the ICJ. SC held that a president cannot make binding domestic law through a treaty. (non-self executing). If the treaty says its binding law, then its self-executing. A decision of the International Court of Justice does not automatically constitute binding law in the United States.
