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Jurisdiction and Immunities in U.S. Foreign Relations Law

Published online by Cambridge University Press:  28 February 2017

Barry E. Carter  and
David P. Stewart
Barry E. Carter
Affiliation:
Center for Transnational Business and the Law, Georgetown University Law Center
David P. Stewart
Affiliation:
Center for Transnational Business and the Law, Georgetown University Law Center
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Type
Updating the Restatement
Information
Proceedings of the ASIL Annual Meeting , Volume 104 , 2010 , pp. 307 - 311
Copyright
Copyright © American Society of International Law 2010

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References

1 The Restatement (Third) states that U.S. foreign relations law consists of “international law as it applies to the United States” as well as “domestic [U.S.] law that has substantial significance for the foreign relations of the United States or has other substantial international consequences.” (Section 1.) As its Introduction notes, “the particular rules of law need to be reviewed, revised, and restated at least once in every generation.”

2 Jurisdiction can be defined briefly as “the authority of states to prescribe their law, to subject persons and things to adjudication in their courts and other tribunals, and to enforce their law, both judicially and nonjudicially.” Restatement (THIRD), Part Iv, Introductory Note at 230. Nonjudicial enforcement can be by administrative or executive action.

3 The comprehensive Restatement (Third) had a Part on Jurisdiction and Judgments as just one of its nine Parts. That Part’s discussion of jurisdiction included, among other matters, some chapters on the principles of jurisdiction to prescribe, adjudicate, and enforce, as well as chapters on the immunities of foreign states and officials.

4 F. Hoffmann-La Roche Ltd. v. Empagran S.A., 542 U.S. 155 (2004) (re: extraterritorial jurisdiction under the U.S. antitrust laws); Sinochem Int’l Co. v. Malaysia Int’l Shipping Corp., 549 U.S. 442 (2007) (U.S. district court not required to decide jurisdiction before considering a forum nonconveniens plea). Jurisdictional issues have also arisen in some of the recent cases involving Guantanamo detainees. See Boumediene v. Bush, 128 S. Ct. 2229, 2252-55 (2008); Rasul v. Bush, 542 U.S. 466, 480-81 (2004).

5 Permanent Mission of India to the United Nations v. City of New York, 551 U.S. 193 (2007) (addresses an immunity exception of the Foreign Sovereign Immunities Act (FSIA); Republic of Austria v. Altmann, 541 U.S. 677 (2004) (retroactivity of Fsia). The question of the possible immunity of foreign officials under the Fsia is pending before the Court, as discussed below (see text at footnote 18).

6 Restatement of the U.S. Law of International Commercial Arbitration (ongoing); Intellectual Property: Principles Governing Jurisdiction, Choice of Law, and Judgments in Transnational Disputes (2007); Foreign Judgments: Analysis and Proposed Federal Statutes (2005); and Ali/UNIDROIT Principles and Rules of Transnational Civil Procedure (2004).

7 Id.

8 Id. at §402, cmt. g.

9 Section 1083 of the National Defense Authorization Act for Fy 2008, Pub. L. No. 110-181 (2008), recodifying 28 U.S.C. § 1605(a)(7) as Section 1605A.

10 See also United States v. Usama Bin Laden, 92 F. Supp. 2d 189 (S.D.N.Y. 2000) (court relies in part on the universal jurisdiction principle to interpret certain U.S. statutes to reach conduct by foreign nationals in foreign countries).

11 509 U.S. 764 (1993).

12 542 U.S. 155 (2004).

13 E.g., Dow Jones & Co. v. Gutnick [2002] Hca56 (Dec. 10, 2002) (High Court of Australia) (holding that a cause of action for defamation could be brought in Australia by a plaintiff who downloaded material in Australia that had been prepared in New York and uploaded by Dow Jones onto its server in New Jersey). See Ehrenfeld v. Mahfouz, 518 F.3d 102 (2d Cir. 2008) (in a N.Y. declaratory judgment action, American author who had a default libel judgment entered against her in England was found unable to obtain jurisdiction over the plaintiff who had won the judgment in England).

14 See, e.g., Tachiona v. U.S, 386 F.3d 205 (2nd Cir. 2004), cert, denied, 547 U.S. 1143 (2006). See also, e.g., the decision of the International Court of Justice in Case Concerning the Arrest Warrant of 11 April 2000 (Dem. Rep. Congo v. Belg.), Judgment of 14 February 2002, at http://www.icj-cij.org (“in international law it is firmly established that... certain holders of high-ranking office in a State, such as the Head of a State, Head of Government and Minister for Foreign Affairs, enjoy immunities from jurisdiction in other States, both civil and criminal”)

15 E.g., Permanent Mission of India to the United Nations v. City of New York, 551 U.S. 193 (2007); Republic of Austria v. Altman, 541 U.S. 677 (2004).

16 E.g., Velasco v. Gov’t of Indonesia, 370 F.3d 392 (4th Cir. 2004); Jungquist v. Nahyan, 115 F.3d 1030 (D.C. Cir. 1997); Chuidian v. Philippine Nat’l Bank, 912 F.2d 1095 (9th Cir. 1990).

17 E.g., Yousef v. Samantar, 552 F.3d 171 (4th Cir. 2009), cert, granted, 130 S. Ct. 49 (Sept. 30, 2009) (No. 08-1555); Enahoro v. Abubakar, 408 F. 3d 877 (7th Cir. 2005).

18 [Update: on June l, 2010, the Court decided unanimously (with three Justices concurring) that the Fsia’s definition of “foreign state” does not include in its coverage a foreign official acting on behalf of that state. Samantar v. Yousuf, No. 08-1555, 2010 U.S. Lexis 4378, at *36 (U.S. June 1, 2010).]

19 G.A. Res. A/59/508, Art. 2.1(b)(5), U.N. Doc. A/RES/59/508 (Dec. 2, 2004).

20 Sections 443-44.

21 493 U.S. 400 (1990).

22 This new analytical approach has been a critical factor in a number of cases. See Born, Gary B. & Rutledge, Peter B., International Civil Litigation in United States Courts 783 (4th ed. 2007)Google Scholar.

23 E.g., United States v. Reynolds, 345 U.S. 1 (1953).

24 E.g., El-Masri v. United States, 479 F.3d 296 (4th Cir.), cert, denied, 552 U.S. 947 (2007) (state secrets privilege successful as defense against claims of U.S. government rendition and torture).

25 542 U.S. 692, 732 n. 21 (2004) (Alien Tort Statute).

26 541 U.S. 677, 702 (2004) (Foreign Sovereign Immunity Act).

27 Part Iv of the Restatement (Third) included not only six chapters on jurisdiction and immunities, but also a chapter on international cooperation in adjudication and enforcement. While there was also a chapter on foreign judgments and arbitral awards, this proposed project would not go deeply into either issue. The Ali recently completed its exhaustive work on Foreign Judgments: Analysis and Proposed Federal Statute (2005), and no new work on enforcing foreign court judgments seems appropriate. As for international arbitral awards, the Ali has recently begun a new Restatement on the law of international commercial arbitration.

28 See, for example, the new U.S.-U.K. Extradition Treaty, which came into force in April 2007, and the Treaty on Mutual Legal Assistance in Criminal Matters between France and the United States, which entered into force in December 2001.