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7 - Civil Remedies and American Statutes

Terms in this set (27)

Alien Tort Statute
United States statute that provides a cause of action in U.S. courts for breaches of law of nations for foreigners.

Was inactive for a long time until human rights activists saw a potential to provide universal civil accountability for the customary international crimes.
Two thresholds for the ATS
Must prove that the wrongdoing rises to the level of customary international law.

American court must be able to exercise jurisdiction over the dispute.
Kiobel
Nigerian protestors against Royal Dutch Petroleum.

SCOTUS adopts restricted view of ATS's extraterritorial reach - facts of case must touch and concern the U.S.

Case cannot be foreign cubed.

Concurrece - The tort, tortfeasor, or victim must have contact with U.S.

Don't want to mess with comity.
Sosa
Abduction by U.S. of Mexican national - doesn't violate international law.

Customary international law violations are not limited to the customary international law violations when ATS was enacted.

Must observe what crimes are illegal under customary international law today that have the same mutual condemnation as customary international crimes in 1789.
Arab Bank
U.S. and foreign nationals alleging injuries from Palestinian terrorist organizations, funded by the Arab Bank.

Funding acts of terrorism against a civilian population is a customary international crime under ATS
Jezner
Corporations can't be used under ATS because they lack international legal personality
Major ATS cases
Foreigners who claim they have suffered violations by private military contractors committing war crimes in Iraq.

Guantanamo claims.
Are U.S. statutes extraterritorial?
There is a presumption against the extraterritorial application of U.S. statutes unless contrary intent appears in the statute
Morrison
Securities Act has no extraterritorial jurisdiction for Australian stockholders suing an Australian company for fraudulent acts on Australian stock market (Morrison).

Transactional Test - U.S. has jurisdiction if the purchase or sale of stock was on an exchange in the U.S.

Two prongs:
Whether the purchase or sale was made in the U.S.,
or
Involves a security listed on a domestic exchange.
RJR
Some of the criminal predicate offenses in the Racketeer Influence and Corrupt Organization Act defeat the presumption against extraterritoriality because they plainly apply to foreign conduct in context.

Engaging in monetary transactions in criminally derived property, hostage taking, and killing U.S. nationals are extraterritorial.

The civil remedy part of the statute does NOT have extraterritorial reach.
Daimler
U.S. courts can't subject foreign national corporations to general jurisdiction due to an instate subsidiary because this would be too invasive of comity.

SCOTUS restricts direct foreign citizen access to private remedies for wrongdoings.
Bond
Federal criminal law ratified from a Convention on Chemical Weapons does not apply to the prosecution of purely local crimes in U.S. unless there is clear indication to do so.

Dramatically intrudes on the traditional state criminal jurisdiction.

When ambiguous, treaty should be read narrowly.
Improbably broad that "chemical weapon" includes individual activity of a woman putting non-life-threatening chemicals on door handles.
Bank Markazi
Congress can set a predetermined outcome for the judiciary by creating funds to payout litigants who are victims of terrorism.

Does not violate the separation of powers because international context allows the court to give more deference to the legislature.
Foreign Sovereign Immunities Act
Gives foreign states, and certain instrumentalities of the state, immunity from the U.S. court's jurisdiction, unless an exception applies.

Only way to sue a foreign state.
Exceptions:
Commercial activity exception - state acts as a private corporation

Property exception - state takes the property of a foreign national
OBB v. Sachs
Woman's legs chopped off in Austria.

State's commercial activity must be the essence of the claim; the dispute must be based upon the particular conduct that constitutes the entire essence of the suit.

State selling train tickets in the U.S. does not fall into the exception where the plaintiff fell onto the track and was injured in that state - plaintiff must sue in the state where the tort occurred.
Germany v. Phillip
Nazi art expropriations.

Property exception does not cover a foreign state's domestic takings concerning their own citizen
Samantar
FSIA does not protect individual state officials, only states and their instrumentalities.

From plain language, FSIA was only meant for state immunity, not individual immunity.
Samantar Footnote 14
International law has recognized personal immunity for heads of state from lawsuits initiated outside that state's jurisdiction.

If official is making public statements or doing public things on behalf of the state, they usually have immunity under customary law (act of state doctrine).

This immunity may be decreasing or gone (Pinochet and Congo example).

States can waive immunity away from officials involved in an instrumentality.
Animal Science Products
When foreign law is at issue in U.S. court, the federal court is not bound to adopting the foreign government's characterization of its own law.

Federal court can consider other relevant material.

Relevant considerations:
Statement's clarity, thoroughness, and support
Context and purpose
Transparency of foreign legal system
Role and authority of the entity or official offering the statement.
Statement's consistency with foreign govt's past positions.
Manco
When there's no treaty between the U.S. and foreign state and a plaintiff seeks U.S. court's enforcement of foreign judgments, the Uniform Foreign Monetary Judgment Recognition Act requires that the judgment be conclusive - must be part of an impartial judicial system that provides due process, and that system has been exhausted.

If there's no extrinsic evidence of fraud, the judgment will likely be enforced.

If there's a treaty for judicial enforcement between the U.S. and the state, the state's judgment will automatically be enforced.
What are the Articles of State Responsibility?
A snapshot of the relationship of states for tortious breaches of serious obligations under international law.

About politeness and not contractual obligations.
State responsibility principle
Act in question that's harmful must be attributable to the state; states bear the responsibility, along with their instrumentalities, organs, and individuals acting at the direction of the state.

Effective Control Test - if the state has effective control of the actors, their actions are attributable to the state.
Breach principle
Complaining state must show a violation of international obligation
Defenses
Consent - state can consent to serious violations of intentional acts against it.

Countermeasures - State A breaches international obligation, so in return State B breaches international obligation.
Some things cannot be justified as a countermeasure including - no breaches of humanitarian or jus cogens violatoins.

Distress - can breach an international obligation to save a life.

Necessity - prevents greater evil.

Force Majeure - impossibility or impracticability.
Remedies for breaches:
Specific performance

Reparation
Three types reparation:
Restitution - re-establish the previous situation.
Compensation - quantify and pay in money damages.
Satisfaction - apologize.
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