In an age of a conflict arising out of individual liberty and national security, the US Supreme Court has maintained a balanced approach towards interpreting the presidential actions concerning national security and in many instances, the court restrained to intervene following the principle that laws are silent during wartime. During major wars namely, civil war, World War I and World War II, the US Supreme Court restrained itself to intervene in matters relating to protection of individual liberty. The lower courts, however, invoked the political question doctrine as a basis for declining to decide issues concerning Vietnam War. Nevertheless, the Supreme Court, showed willingness to resolve cases of national security but interpreted presidential powers very broadly, for example, Curtis-Wright decision,1 and in the infamous Korematsu decision, the court showed broad deference to executive powers.2
It was the steel case in which the US Supreme Court held that President Trueman had exceeded his powers by seizing the steel mills in the country during the Korean War.3 The case marked a shift in the court's approach. The court took the view that during the war, President does not have a 'blank check'. Similarly, the decisions on war on terror lead to the development of contextual case-by-case approach.
Compared to the past and in order to decide national security cases, the US courts nowadays seek information on the subject matter in more detail. The US courts also consider the fact that how other countries in the world have sorted out similar problems, as their examples can enable the US courts to find out the real constitutional problems.
In American jurisprudence, the subject of international commerce revolves around four important cases, namely, F. Hoffmann-La Roche Ltd v. Empagran S.A.,4 Intel Corp v. Advance Micro Devices Inc,5 Morrison v. National Australia Bank Ltd,6 and Kirtsaeng v. John Wiley & Sons Inc 7 In these cases the Supreme Court was confronted with the following problems:
a) The extra-territorial application of the US anti-trust law;
b) The ability to obtain discovery of evidence relating to foreign proceedings;
c) Extra-territorial application of the securities fraud statute; and
d) Application of 'first sale' doctrine in the US copyright law in respect of goods first sold outside the United States.
In these cases, the US Supreme Court considered the reciprocity of the application of the US laws abroad and the court came to the following conclusions:
a) The US Supreme Court ordinarily construes ambiguous statutes to avoid unreasonable interference with the sovereign authority of other nations.8
b) The Supreme Court may consider the international comity in deciding whether and to what extent to apply US laws abroad. In the court's conception of comity, the view one emphasising the more formal objective of simple conflict avoidance to the more practical objective of maintaining co-operative working arrangements with corresponding enforcement authorities of different nations is generally favoured.
In the case of Filartiga v. Pena-Irala9, the US Supreme Court was confronted with the issue of human rights and in the case of Sosa v. Alvarez-Machain10 the court closed this open issue. The Sosa case was misinterpreted by lower courts as suits under ATS law against multinational corporations continued to increase and led to emergence of conflict in foreign relations.
Attention is drawn towards the US Supreme Court's decision namely, Kiobel v. Royal Dutch Petroleum Co11 in more detail where the Court had held that:
i. Under ATS law, the claims are subject to presumption against extra-territoriality;
ii. Relief sought in the case was refused as these claims demanded a relief for the violations of the laws of foreign nations occurring outside United States.12
Many readers interpreted this case in a narrow sense; the fact is that the decision does not bar claims by victims of foreign human rights abuses when brought against individuals residing in the United States.
In a few notable cases, the emphasis has been on the Hague convention and on the civil aspects of international child abduction.13 In another case, Abbott v. Abbott the US Supreme Court considered the custody right under the international convention.14 In Lozano v. Montoya Alvarez, the court considered whether or not in the given timeframe and under the convention, the case fell within the framework of equity.15 These cases show that how the court extended its learning scope with regard to foreign laws, customs and practices.
A special note had been taken by the Supreme Court in the case of BG Group PLC v. Republic of Argentina.16 In this case, the court concluded that:
I. A US court should give deference to an arbitral panel's interpretation of a local litigation requirement provided in an investment treaty arbitration clause.
II. How can courts exercise judicial review of arbitral decisions to ensure that awards are fair and consistent with domestic laws, without undermining the efficiency and neutrality of the arbitral system?
Many international organisations have now taken over the traditional tasks of domestic governments. And an element of uncertainty did emerge that to what extent the National Constitution permits the role assumed by the international organisations or in other words, to what extent the Constitution permits delegation of authority to such international institutions. For example, in the case of NRDC v. EPA17 a circuit court questioned the validity and binding effect of a decision made on the basis of Montreal Protocol on certain chemical substances. The issue of international delegation has not yet been dealt by the US Supreme Court.18 In Sanchez-Llamas v. Oregon, the court gave respect and full consideration to the ICJ's reasoning concerning the effect of Article 36 on domestic rules of procedural default but ultimately disagreed with that reasoning.19
The issue, "whether or not a Judgement of the International Court of Justice was self executing," also came for consideration before the US Supreme Court in the case of Modellin v. Texes, and the Court took the view that commitment of the United States under Article 94 of the United Nations Charter to undertake to comply with ICJ's decision was not self-executing and did not cause to pre-empt state's law.20
In the US Supreme Court's decision in the case of Bond v. United States, the issue involved a federal criminal prosecution relating to chemical weapons convention.21 The court did not address the constitutional scope of treaty power and the earlier decision on this subject namely; Missouri v. Holland22 still remains valid in the field, in that case the court had held that the treaty power is not subject to constraints of federalism that apply to domestic legislation.23
One must keep in mind the fact that the Supreme Court of the United States is a domestic court, not an international court. And the court intended to learn and apply foreign laws and practices and in this regard, one justice of Supreme Court shows his sympathy towards this attitude of the court, and though he rejects the critics of the court's such practices on ground that new realities of the world are to be accepted, he is of the view that decision-making is a kind of problem solving.
The US institutions are showing interest that how they can take benefit from ECJ's practice of proportionality analysis and its approach towards regulations relating to commerce, and that of Indian court's experience with ADR to decrease the pendency.
In respect of the US Supreme Court's approach towards international cases, following trends are emerging:
a) A serious judicial engagement;
b) Contextual case by case deliberation26A
In many cases, the US Supreme Court has gone for a categorical approach rather than contextual.24 Even in cases related to war on terror, barring a few, the court allowed the government to work and avoided review on detention and use of force.25
Even in Kiobel case, the extra-territorial presumption though became applicable, yet in view of the majority; the claimants living in the United States could still sue for compensation.26 However, as per majority where the conduct under review took place outside US, the claims under ATS become liable for rejection.27
However, despite the said arguments, in Kiobel case, the decanting point of view states that:
a. The approach of limiting the ATS to situations in which relevant conduct occurs outside the United States is not correct;
b. The statute should be applied whenever defendant's conduct implicates an important American national interest28; and
c. The country is to be prevented from becoming a safe harbour for a torturer or other common enemies of mankind.29
(The writer is an advocate and is currently working as an associate with Azim-ud-Din Law Associates Karachi)
1. See United States v. Curtiss-Wright Export Corp, 299 US 304, 319 (1936). Recently in Zivotofsky v. Kerry, 135 S.Ct. 2076, 2090 (2015), the Supreme Court distanced itself from some of the dicta in Curtiss Wright.
2. See Korematsu v. United States, 323 US 214, 218-19 (1944).
3. See Youngstown Sheet & Tube Co V. Sawyer (Steel Seizure), 343 US 579 (1952)
4. Empagran, 542 US 155
5. Intel Corp v. Advanced Micro Devices, Inc, 542 US 241 (2004)
6. Morrison v. Nat'l Austl. Bank Ltd, 561 US 247 (2010)
7. Kirtsaeng v. John Wiey & Sons, Inc, 133 S.Ct 1351 (2013)
8. Empagran, 542 US at 164.
9. Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cit. 1980)
10. Sosa v. Alverez-Machain, 542 US 962 (2004)
11. Kiobel v. Royal Dutch Petroleum Co, 133 S.Ct 1659 (2013)
12. Id. At 1669
13. Convention on the Civil Aspects of International Child Abduction opened for signature October 25, 1980, TIAS 11,760, 1343 UNTS 98.
14. See Abbott v. Abbott, 560 US 1 (2010).
15. See Lozano v. Montoya Alvarez, 134 S. Cr. 1224 (2014).
16. BG Group PLC v. Republic of Argentina, 134 S. Ct. 1198 (2014)
17. See NRDC v. EPA, 464 F.3d 1, 9 (D.C. Cir. 2006) (discussing Montreal Protocol on Substances That Deplete the Ozone Layer, September, 16, 1987, S. Treaty Doc. No 100-10 (1987), 1522 UNTS 3, 26 ILM 1550 (1987).
18. Vienna Convention on Consular Relations, Article 36, Apr. 24 1963, 21 UST 77596 UNTS261. The closest that it has come has been in cases considering the effect of decisions by the International Court of Justice (ICJ) concerning. US non-compliance with Article 36 of the Vienna Convention on Consular Relations, which provides that when a party country arrests nationals from another party country, the former is supposed to advise them of their right to have their consulate notified of the arrest and to communicate with the consulate.
19. Medellin v. Texas, 552 US 491, 508-10 (2008) (quoting UN Charter Art. 94 (1)). Despite being a dissenter in Sanchez Llamas, Justice Breyer fairly presents the majority's reasoning and usefully underscores that the majority was not claiming that the United States may ignore ICJ judgements.
20. Modellin v. Texas 552 US 491, 508-10 (2008) (quoting UN Charter Art. 94 (1)). Again despite not having joined the majority opinion, Justice Breyer treats it with respect noting: "Naturally, since I wrote the dissent, I am persuaded by its reasoning, but that is beside the point. The Courts majority opinion is authoritative, not the dissent. So it is more important to consider the significance of that opinion".
21. See Bond v. United States, 134 S. Ct. 2077 (2014) (discussing ratification of the Convention on the prohibition of the Development, Production, Stockpiling and use of Chemical Weapon and on their Destruction, January 13, 1993, S. Treaty Doc. No 103-21 (1993), 1974 UNTS 45, 32 ILM 800 (1993)).
22. Missouri v. Holland, 252 US 416 (1920)
23. See Bond, 134 S. Ct at 2091; see also Curtis A. Bradley, Bond, Clear Statement Requirements, and Political Process, AJIL. UNBOUND (June 3, 2014). Instead, the Court in Bond made use of statutory interpretation to cut back on the domestic application of the Chemical Weapons Conventions, reasoning that even a statute implementing a treaty should not be presumed to alter the usual balance of federal and state power absent a clear indication of congressional intent to do so.
26A In Morrison and Kiobel the court opted for a categorical approach to extra territoriality rather than more contextual approach.
24. Compare Medellin, 552 US at 550-51 (Breyer, J., dissenting), with id. At 514-15 (majority opinion) (rejecting the dissent's proposed approach on the ground that it is too indeterminate and ad hoc).
25. See Curtis A. Bradley, Foreign Relations Law and the Purported Shift Away from "Exceptionalism," 128 HARV. L. REV. F. 294, 298-99 (2014)
26. Kiobel v. Royal Dutch Petroleum Co, 133 S.Ct 1659, 1669 (2013)
27. Id. (emphasis added).
28. See Id at 1674 (Breyer, J., concurring) (emphasis added).
29. Id at 1671
It was the steel case in which the US Supreme Court held that President Trueman had exceeded his powers by seizing the steel mills in the country during the Korean War.3 The case marked a shift in the court's approach. The court took the view that during the war, President does not have a 'blank check'. Similarly, the decisions on war on terror lead to the development of contextual case-by-case approach.
Compared to the past and in order to decide national security cases, the US courts nowadays seek information on the subject matter in more detail. The US courts also consider the fact that how other countries in the world have sorted out similar problems, as their examples can enable the US courts to find out the real constitutional problems.
In American jurisprudence, the subject of international commerce revolves around four important cases, namely, F. Hoffmann-La Roche Ltd v. Empagran S.A.,4 Intel Corp v. Advance Micro Devices Inc,5 Morrison v. National Australia Bank Ltd,6 and Kirtsaeng v. John Wiley & Sons Inc 7 In these cases the Supreme Court was confronted with the following problems:
a) The extra-territorial application of the US anti-trust law;
b) The ability to obtain discovery of evidence relating to foreign proceedings;
c) Extra-territorial application of the securities fraud statute; and
d) Application of 'first sale' doctrine in the US copyright law in respect of goods first sold outside the United States.
In these cases, the US Supreme Court considered the reciprocity of the application of the US laws abroad and the court came to the following conclusions:
a) The US Supreme Court ordinarily construes ambiguous statutes to avoid unreasonable interference with the sovereign authority of other nations.8
b) The Supreme Court may consider the international comity in deciding whether and to what extent to apply US laws abroad. In the court's conception of comity, the view one emphasising the more formal objective of simple conflict avoidance to the more practical objective of maintaining co-operative working arrangements with corresponding enforcement authorities of different nations is generally favoured.
In the case of Filartiga v. Pena-Irala9, the US Supreme Court was confronted with the issue of human rights and in the case of Sosa v. Alvarez-Machain10 the court closed this open issue. The Sosa case was misinterpreted by lower courts as suits under ATS law against multinational corporations continued to increase and led to emergence of conflict in foreign relations.
Attention is drawn towards the US Supreme Court's decision namely, Kiobel v. Royal Dutch Petroleum Co11 in more detail where the Court had held that:
i. Under ATS law, the claims are subject to presumption against extra-territoriality;
ii. Relief sought in the case was refused as these claims demanded a relief for the violations of the laws of foreign nations occurring outside United States.12
Many readers interpreted this case in a narrow sense; the fact is that the decision does not bar claims by victims of foreign human rights abuses when brought against individuals residing in the United States.
In a few notable cases, the emphasis has been on the Hague convention and on the civil aspects of international child abduction.13 In another case, Abbott v. Abbott the US Supreme Court considered the custody right under the international convention.14 In Lozano v. Montoya Alvarez, the court considered whether or not in the given timeframe and under the convention, the case fell within the framework of equity.15 These cases show that how the court extended its learning scope with regard to foreign laws, customs and practices.
A special note had been taken by the Supreme Court in the case of BG Group PLC v. Republic of Argentina.16 In this case, the court concluded that:
I. A US court should give deference to an arbitral panel's interpretation of a local litigation requirement provided in an investment treaty arbitration clause.
II. How can courts exercise judicial review of arbitral decisions to ensure that awards are fair and consistent with domestic laws, without undermining the efficiency and neutrality of the arbitral system?
Many international organisations have now taken over the traditional tasks of domestic governments. And an element of uncertainty did emerge that to what extent the National Constitution permits the role assumed by the international organisations or in other words, to what extent the Constitution permits delegation of authority to such international institutions. For example, in the case of NRDC v. EPA17 a circuit court questioned the validity and binding effect of a decision made on the basis of Montreal Protocol on certain chemical substances. The issue of international delegation has not yet been dealt by the US Supreme Court.18 In Sanchez-Llamas v. Oregon, the court gave respect and full consideration to the ICJ's reasoning concerning the effect of Article 36 on domestic rules of procedural default but ultimately disagreed with that reasoning.19
The issue, "whether or not a Judgement of the International Court of Justice was self executing," also came for consideration before the US Supreme Court in the case of Modellin v. Texes, and the Court took the view that commitment of the United States under Article 94 of the United Nations Charter to undertake to comply with ICJ's decision was not self-executing and did not cause to pre-empt state's law.20
In the US Supreme Court's decision in the case of Bond v. United States, the issue involved a federal criminal prosecution relating to chemical weapons convention.21 The court did not address the constitutional scope of treaty power and the earlier decision on this subject namely; Missouri v. Holland22 still remains valid in the field, in that case the court had held that the treaty power is not subject to constraints of federalism that apply to domestic legislation.23
One must keep in mind the fact that the Supreme Court of the United States is a domestic court, not an international court. And the court intended to learn and apply foreign laws and practices and in this regard, one justice of Supreme Court shows his sympathy towards this attitude of the court, and though he rejects the critics of the court's such practices on ground that new realities of the world are to be accepted, he is of the view that decision-making is a kind of problem solving.
The US institutions are showing interest that how they can take benefit from ECJ's practice of proportionality analysis and its approach towards regulations relating to commerce, and that of Indian court's experience with ADR to decrease the pendency.
In respect of the US Supreme Court's approach towards international cases, following trends are emerging:
a) A serious judicial engagement;
b) Contextual case by case deliberation26A
In many cases, the US Supreme Court has gone for a categorical approach rather than contextual.24 Even in cases related to war on terror, barring a few, the court allowed the government to work and avoided review on detention and use of force.25
Even in Kiobel case, the extra-territorial presumption though became applicable, yet in view of the majority; the claimants living in the United States could still sue for compensation.26 However, as per majority where the conduct under review took place outside US, the claims under ATS become liable for rejection.27
However, despite the said arguments, in Kiobel case, the decanting point of view states that:
a. The approach of limiting the ATS to situations in which relevant conduct occurs outside the United States is not correct;
b. The statute should be applied whenever defendant's conduct implicates an important American national interest28; and
c. The country is to be prevented from becoming a safe harbour for a torturer or other common enemies of mankind.29
(The writer is an advocate and is currently working as an associate with Azim-ud-Din Law Associates Karachi)
1. See United States v. Curtiss-Wright Export Corp, 299 US 304, 319 (1936). Recently in Zivotofsky v. Kerry, 135 S.Ct. 2076, 2090 (2015), the Supreme Court distanced itself from some of the dicta in Curtiss Wright.
2. See Korematsu v. United States, 323 US 214, 218-19 (1944).
3. See Youngstown Sheet & Tube Co V. Sawyer (Steel Seizure), 343 US 579 (1952)
4. Empagran, 542 US 155
5. Intel Corp v. Advanced Micro Devices, Inc, 542 US 241 (2004)
6. Morrison v. Nat'l Austl. Bank Ltd, 561 US 247 (2010)
7. Kirtsaeng v. John Wiey & Sons, Inc, 133 S.Ct 1351 (2013)
8. Empagran, 542 US at 164.
9. Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cit. 1980)
10. Sosa v. Alverez-Machain, 542 US 962 (2004)
11. Kiobel v. Royal Dutch Petroleum Co, 133 S.Ct 1659 (2013)
12. Id. At 1669
13. Convention on the Civil Aspects of International Child Abduction opened for signature October 25, 1980, TIAS 11,760, 1343 UNTS 98.
14. See Abbott v. Abbott, 560 US 1 (2010).
15. See Lozano v. Montoya Alvarez, 134 S. Cr. 1224 (2014).
16. BG Group PLC v. Republic of Argentina, 134 S. Ct. 1198 (2014)
17. See NRDC v. EPA, 464 F.3d 1, 9 (D.C. Cir. 2006) (discussing Montreal Protocol on Substances That Deplete the Ozone Layer, September, 16, 1987, S. Treaty Doc. No 100-10 (1987), 1522 UNTS 3, 26 ILM 1550 (1987).
18. Vienna Convention on Consular Relations, Article 36, Apr. 24 1963, 21 UST 77596 UNTS261. The closest that it has come has been in cases considering the effect of decisions by the International Court of Justice (ICJ) concerning. US non-compliance with Article 36 of the Vienna Convention on Consular Relations, which provides that when a party country arrests nationals from another party country, the former is supposed to advise them of their right to have their consulate notified of the arrest and to communicate with the consulate.
19. Medellin v. Texas, 552 US 491, 508-10 (2008) (quoting UN Charter Art. 94 (1)). Despite being a dissenter in Sanchez Llamas, Justice Breyer fairly presents the majority's reasoning and usefully underscores that the majority was not claiming that the United States may ignore ICJ judgements.
20. Modellin v. Texas 552 US 491, 508-10 (2008) (quoting UN Charter Art. 94 (1)). Again despite not having joined the majority opinion, Justice Breyer treats it with respect noting: "Naturally, since I wrote the dissent, I am persuaded by its reasoning, but that is beside the point. The Courts majority opinion is authoritative, not the dissent. So it is more important to consider the significance of that opinion".
21. See Bond v. United States, 134 S. Ct. 2077 (2014) (discussing ratification of the Convention on the prohibition of the Development, Production, Stockpiling and use of Chemical Weapon and on their Destruction, January 13, 1993, S. Treaty Doc. No 103-21 (1993), 1974 UNTS 45, 32 ILM 800 (1993)).
22. Missouri v. Holland, 252 US 416 (1920)
23. See Bond, 134 S. Ct at 2091; see also Curtis A. Bradley, Bond, Clear Statement Requirements, and Political Process, AJIL. UNBOUND (June 3, 2014). Instead, the Court in Bond made use of statutory interpretation to cut back on the domestic application of the Chemical Weapons Conventions, reasoning that even a statute implementing a treaty should not be presumed to alter the usual balance of federal and state power absent a clear indication of congressional intent to do so.
26A In Morrison and Kiobel the court opted for a categorical approach to extra territoriality rather than more contextual approach.
24. Compare Medellin, 552 US at 550-51 (Breyer, J., dissenting), with id. At 514-15 (majority opinion) (rejecting the dissent's proposed approach on the ground that it is too indeterminate and ad hoc).
25. See Curtis A. Bradley, Foreign Relations Law and the Purported Shift Away from "Exceptionalism," 128 HARV. L. REV. F. 294, 298-99 (2014)
26. Kiobel v. Royal Dutch Petroleum Co, 133 S.Ct 1659, 1669 (2013)
27. Id. (emphasis added).
28. See Id at 1674 (Breyer, J., concurring) (emphasis added).
29. Id at 1671
