JURISDICTION UNDER INT’L LAW Prof David K. Linnan USC LAW # 783 Unit Eight

INT’L LAW JURISDICTION JURISDICTION AS AUTHORITY TO AFFECT LEGAL INTERESTS 1.Legislative jurisdiction= to prescribe 2.Judicial jurisdiction= to adjudicate 3.Executive jurisdiction= to enforce DIFFERENT FROM DOMESTIC CIVIL PROCEDURE VIEWS OF JURISDICTION; REASONABLENESS REQUIREMENT AS LIMITATION UNDER RESTATEMENT [Off the record] [Off the record] [Restatement 401]Off the recordOff the recordRestatement 401

SOVEREIGNTY LIMITS SOVEREIGNTY THEORY IN INT’L LAW TRADITIONAL LIMITATION S.S. LOTUS (France v. Turkey 1927 PCIJ) French vessel collided with a Turkish vessel on high seas, killing seaman on Turkish boat; negligent French ship’s officer subsequently arrested & tried in Turkish court for manslaughter with issue couched in terms whether Turkey could criminalize act on French vessel (nationality, hence territoriality), with analysis whether this new apparent rule was permissible in terms of whether sovereignty in int’l law system means acts like criminalizing French officer’s behavior are permitted only if Turkey’s rule is accepted in advance by other states or, rather, view that Turkey’s rule should be respected unless specifically prohibited by international law (Concept all things are permitted which are not prohibited, versus all things are prohibited unless permitted) [Off the record]Off the record

TRADITIONAL BASES TRADITIONAL BASES OF JURISDISDICTION 1.Territorial 2.Nationality 3.Protective 4.Universal [Off the record]Off the record

TERRITORIAL TRADITIONAL BASES OF JURISDICTION (CONT’D) TERRITORIAL Subjective (e.g., territorial bias traditionally for US criminal law only applying to act committed locally) [Opposing view?]Opposing view? Objective (e.g., acts outside national territory with local effects such as with economic regulation, for example, an antitrust conspiracy abroad to affect prices locally) [Off the record] [Do you agree?] [Who cares?]Off the recordDo you agree?Who cares?

NATIONALITY TRADITIONAL BASES OF JURISDICTION (CONT’D) NATIONALITY Active meaning covering actor such as perpetrator under Continental criminal law codes regardless of location, or state of incorporation for juristic person, most recently under US law for sex tourism overseas [Off the record]Off the record [e.g., German Criminal Code Section 7]e.g., German Criminal Code Section 7 [text of US anti-child sex tourism statute]text of US anti-child sex tourism statute Passive general meaning vessel/aircraft [US maritime jurisdiction] [US aircraft jurisdiction]US maritime jurisdictionUS aircraft jurisdiction Passive personality meaning of victim, most recently for victims of terrorism under US law [text of so-called Klinghoffer terrorist murder statute] [Off the record]text of so-called Klinghoffer terrorist murder statuteOff the record

PROTECTIVE TRADITIONAL BASES OF JURISDICTION (CONT’D) PROTECTIVE Protective jurisdiction is of state interests, with traditional examples being jurisdiction abroad for counterfeiting of a state’s currency, or attacks on diplomatic posts, or treason [How much is based solely in protective jurisdiction?]How much is based solely in protective jurisdiction?

UNIVERSALITY TRADITIONAL BASES OF JURISDICTION (CONT’D) UNIVERSALITY Universal jurisdiction traditionally extends to piracy and slavery, more modern issues re anti- terrorism & crimes against humanity/human rights tied now to war crimes & ICC too [Off the record] [Off the record] [Off the record]Off the record [Do you agree?] [Do you agree?] [Opposing view]Do you agree? Opposing view

PROBS JURISDICTION I LEGISLATIVE, OPPOSED LEGAL PRESCRIPTIONS BEFORE JUDICIARY Ex:Foreign bank with US branch and account covered by banking secrecy law abroad being subpoenaed by US attorney to reveal accountholder (e.g., US v. Bank of Nova Scotia, 691 F2d 1384 (11 th Cir 1982)); reasonableness & balancing, but US weighting seems to predominate practically FOR INT’L LAW PURPOSES THE ACT OF A JUDGE IS ATTRIBUTED TO THE US AS STATE SINCE SEPARATION OF POWERS WITHIN US GOVT IS NOT THE FOREIGNERS’ CONCERN

PROBS JURISDICTION II LEGISLATIVE, OPPOSED LEGAL PRESCRIPTIONS AT STATE LEVEL Ex:Problems of multinational corporations with locally incorporated subsidiaries, as with competing regulatory schemes such as transeuropean Russian pipeline case and gas turbine technology licensing with US opposing and France compelling GE licensing in 1970s

PROBS JURISDICTION III LEGISLATIVE, CLAIMS OF TOO BROAD EXTRATERRITORIAL JURISDICTION Ex:Older issues of broad claims of US antitrust or securities law under objective territoriality (e.g., US v. Alcoa, 148 F2d 416 (2d Cir 1945), plus CFTC unrecognized claims to govern London-based actions in commodities), now reciprocated in worldwide reach of European data protection laws for multinationals [Do you agree?]Do you agree?

PROBS JURISDICTION IV ADJUDICATIVE, BASED ON CONSENT Ex:Status of Forces Agreements (SOFA) for troops based abroad with issues of locally tried vs. court-martial proceedings typically based upon whether alleged act committed in course of official duties (e.g., Wilson v. Girard, 354 US 524 (1957); subsidiary issue of differing procedure/lack of constitutional protections in foreign court if tried locally)Status of Forces AgreementsWilson v. Girard, 354 US 524 (1957)

PROBS JURISDICTION V ADJUDICATIVE, COMPLAINTS ABOUT UNIVERSAL JURISDICTION REACH Ex:Controversial issues Alien Tort Claims Act reach attempting to police multinational conduct worldwide civilly, recent issues re US & Belgian jurisdictional statute, current dispute re ICC and extradition of US troops criminallyAlien Tort Claims Actrecent issues re US & Belgian jurisdictional statute REMEMBER SOSA CASE AND UNIT FOUR, BUT LOOK PARTICULARLY AT THE SOSA AMICUS BRIEF OF UK, SWITZERLAND & AUSTRALIA FOR JURISDICTIONAL COMPLAINTS UNDER ATCASOSA CASE AND UNIT FOURSOSA AMICUS BRIEF

PROB JURISDICTION VI ADJUDICATIVE, COMPLAINTS ABOUT US PROCESS REACH Ex:Problems of broad discovery abuse resulting in anti-discovery laws in Western Europe criminalizing depositions, etc. abroad; not completely resolved in Hague agreements [Off the record] Off the recordOff the record

PROBS JURISDICTION VII ADJUDICATIVE, COMPLAINTS ABOUT US ACTIONS VIOLATING DOMESTIC OR INT’L LAW Ex:Problems of Kerr-Frisbie doctrine and procuring accused’s presence via kidnapping as opposed to extradition, plus claims violating Hague agreements in interpretation of broad US reach for US courts (precisely US v. Alvarez- Machain, 504 US 655 (1992))US v. Alvarez- Machain, 504 US 655 (1992) [Off the record]Off the record

PROBS JURISDICTION VIII ADJUDICATIVE, COMPLAINTS ABOUT US LAW VIOLATING LOCAL FORUM POLICY & FOREIGN ENFORCEMENT OF US JUDGEMENTS Ex:Problems of enforcing US judgments abroad, for example Germany where punitive damages are against the policy of the forum (e.g., in Germany partially enforceable, but often and elsewhere not enforceable at all or only if damages clearly divided in judgment) [Off the record]Off the record

LIMITATIONS THEORIES OF SOVEREIGN IMMUNITYSOVEREIGN IMMUNITY 1.Traditional absolute (Schooner Exchange) 2.Modern restrictive form (Dralle) [Off the record]Off the record

ABSOLUTE IMMUNITY VIEW ABSOLUTE FORM Schooner Exchange v. McFadden, 11 US 116 (1812) Claim by US citizens of property in a ship driven into port by storm and now being a French warship, that French seizure improper (no prize court) 19 th century saw research vessels, etc., but pressure in 20 th century with large state-owned merchant fleets (growing state commercial activity) 20 th century Soviet view of immunity still as sovereignty problem rather than activity based (trade delegations)

RESTRICTIVE IMMUNITY VIEW RESTRICTIVE FORM Dralle v. Republic of Czechslovakia (1950) German company with branch in Bohemia, registered owner in Austria of trademarks used in Austria by German company for products, then Bohemian branch nationalized and Czechs claimed trademarks excluding Austrian use Claims state practice has changed generally with increasing commercial activity (starting with shipping) US changed to restrictive theory 1952 [Off the record] Off the recordOff the record [Head of State immunity as sovereign immunity?]Head of State immunity as sovereign immunity? MORE SOVERIGN IMMUNITY DETAILS TO COME IN UNIT 14, HERE JUST QUICK JURISDICTIONAL INTRODUCTION

DIPLOMATIC & CONSULAR IMMUNITIES THEORIES OF DIPLOMATIC IMMUNITY Older views, personal representation or extraterritorial character for mission & representative character for diplomats as embodiment of foreign sovereign Newer view, functional necessity to conduct business (e.g., Iranian Hostage Case)

DIPLOMATIC & CONSULAR IMMUNITIES DIPLOMATIC VERSUS CONSULAR IMMUNITIES Diplomatic absolute to protect from pressure in political activities Consular limited to protection within scope of activities only, as commercial activities only (but still in criminal context other restraints such as no arrest & detention pretrial except for “grave crime” under judicial authority, exceptions for real property [Off the record] [Vienna Convention on Diplomatic Relations 1961]Off the recordVienna Convention on Diplomatic Relations 1961 [Vienna Convention on Consular Relations 1963]Vienna Convention on Consular Relations 1963