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                                                                                  Volume: 5   Number: 33_monday

                                                                                                  August 9, 2004

 

               Opinion - The Supreme Court, international law and President Bush.

 

                                                                                             By STUART S. MALAWER
                                                                                          Special to the Daily Record

 

 

While overshadowed by rulings concerning the rights of detainees, executive power and judicial review in the “war on terror,” the Supreme Court recently issued three surprisingly significant decisions on international law.

These cases show a realistic reaffirmation by the Supreme Court of international law’s central importance to U.S. jurisprudence, the rejection of a post-war conservative belittlement as well as an apparent disdain for it, and a prudent determination of Congressional intent and judicial precedent in global commerce.

While dealing with quite technical issues of the federal courts’ subject-matter jurisdiction in alien torts, sovereign immunity and antitrust, these three decisions suggest a return to pragmatism by the Supreme Court. Taken together they provide a sensible balancing of foreign policy concerns within the context of the separation of powers and foreign relations. They also serve as a counterweight to the political degradation of international law that started with the Reagan-Bush era and continued through the current Bush administration.

The trilogy.

The slightly better-known of this trilogy of international law cases is Sosa v. Alvarez-Machin (2004), which involved the Alien Tort Statute of 1789. The court considered the one-day illegal detention of an alleged Mexican drug-murderer captured and detained in Mexico by private Mexican nationals at the request of U.S. authorities in violation of Mexican law and his subsequent turning over to officials in the United States.

The court decided whether the detention amounted to an international law violation actionable in the United States. The Supreme Court held that U.S. courts had subject-matter jurisdiction under the Alien Tort Statute. It determined that at the time of the passage of the statute in 1789 common law included torts in violation of customary international law. Thus, a foreign plaintiff can sue in the United States for a foreign actor’s tort committed outside of the United States. But the one-day detention did not amount to a violation of international law.

This decision has great significance to the ability of foreign plaintiffs to bring actions against multinational corporations for violations of international law committed by them outside of the United States.

The only issue then would seem to be whether there was a violation of international law — either conventional or customary — such as the rules against torture. Thus, the Supreme Court did expand the extraterritorial reach of U.S. jurisdiction, but only as a means of implementing clearly developed rules of international law.

The second case raises an issue of great concern: historical wrongdoing. Republic of Austria v. Altmann involved the Foreign Sovereign Immunity Act of 1976. The court considered an American’s claim to art works expropriated by the Nazis in Austria and whether sovereign immunity bars the suit. The Supreme Court held that under the Foreign Sovereign Immunities Act, the courts had subject-matter jurisdiction.

Specifically, it held that the “expropriation exception” (also known as the “international law exception”) within the statute was applicable and the statute was retroactive. But since this issue was raised on a denial of a motion to dismiss, the court confined its decision to the general applicability of the statute.

Again, the Supreme Court extended the reach of U.S. jurisdiction acting pursuant to Congressional legislation only when there is a violation of international rules. In this case, it concerned expropriation.

The third case raises an important issue in global antitrust litigation. Hoffman-La Roche v. Empagran of 2004 addressed the application of the Foreign Trade Antitrust Improvements Act (1982) to the Sherman Act. It resolved a conflict among the circuits. The Supreme Court assessed claims by purchasers of vitamins outside of the United States against foreign firms participating in global price-fixing.

The Supreme Court found that that there was no subject-matter jurisdiction. The Supreme Court held that the Foreign Trade Antitrust Improvements Act (amending the Sherman Act) did not provide such jurisdiction when a strictly “foreign harm” is suffered by a foreign plaintiff in the context of a foreign price-fixing conspiracy. There needs to be a direct domestic effect or at least a nexus between that effect and the foreign harm.

Unless mandated by Congressional legislation to the contrary, international comity precludes such interference with the legal system of another country. But international comity permits such interference when there is a reasonable connection to the United States. As the court noted, finding otherwise would be an act of “legal imperialism.”

The case was remanded to determine if the foreign injury was not in fact independent of the domestic effects. The Supreme Court was particularly concerned about the intent of Congress to limit the extraterritorial application of U.S. antitrust laws when it enacted the 1982 legislation. In this case the Supreme Court recognized expanding U.S. jurisdiction but only when there was an impact or direct domestic effect within the United States as mandated by Congress.

Doctrine of Incorporation Affirmed.

These three cases posit a more clearly enunciated, yet controversial, view that U.S. court jurisdiction should expand and is co-extensive with the development of international law.

In each case the Supreme Court was applying and interpreting Congressional legislation. The court determined that Congressional intent, whether in 1789, 1976 or 1982, was to provide subject-matter jurisdiction in various international scenarios (international torts, international expropriations and international antitrust).

It found that as international law develops and expands so do the domestic rules concerning jurisdiction. And as global commerce expands with greater actions by corporate groups, so U.S. jurisdiction also may in measured steps.

These cases have forcefully rejected the long-standing and growing conservative disdain for the U.S. courts’ application of international law. The Scalia-Bork diatribes suggest that if law is not American born-and-bred, we don’t want it. But the Supreme Court has forcefully addressed the issue of customary international law as being the law of the land.

From the earliest days of the new nation up through the seminal case of The Paquete Habana (1900) to the present, the “Doctrine of Incorporation” is well accepted. From the incorporation of admiralty law to rules of treaty interpretation to the incorporation of rules against torture, this doctrine has been acknowledged as a means of further developing a global society in which national courts enforce cardinal principles of behavior.

This doctrine is principally important in a system in which there is limited international adjudication and enforcement of these rules. In this critical juncture in U.S. activism worldwide, it is important to recognize that the Supreme Court has reaffirmed this doctrine again in a meaningful way in 2004.

These decisions also challenge the conservative disdain of international law as practiced in foreign affairs by the Reagan and both Bush Administrations. In 1988 I wrote an article published in the Harvard International Law Journal and then reprinted in the Congressional Record outlining the disregard of both Constitutional and international law by the Reagan Administration. The Iran-Contra Scandal is only one illustration of this disregard.

The current Bush Administration has continued this crusade by its illegal attack on Iraq in violation of the most basic tenet of the U.N. Charter. Article 51 of the U.N. Charter permits the use of military force only in self-defense when there is an armed attack.

A minority of jurists and international lawyers, including myself, acknowledge a right of anticipatory self-defense in very rare circumstances, where there is a very real threat of imminent attack. Anything other than this interpretation makes this right of self-defense too subjective and the prohibition against the use of force in international relations illusory. This right of self-defense does not involve the preemptive use of force when an attack may occur and certainly does not apply in order to prevent one that might occur sometime in the future.

A “preemptive war,” or perhaps more correctly a “preventive war,” as well as a “just war” are simply not permissible by standards championed by the United States during and after World War II. The Bush administration, then, prosecuted the Iraqi war illegally by violating a wide-range of cardinal norms concerning rights of detainees and prohibitions against torture. These actions should come as no surprise. The culture of avoiding international law, degrading our allies, and ignoring multilateral institutions set the tone. The Bush administration claimed an outrageous right of self-defense, ignored our traditional allies, claimed the U.N. to be impotent, and equivocated about the laws governing the conduct of war. The military and intelligence communities, including unfortunately some soldiers in the field and those maintaining U.S. detention centers worldwide, only responded with their own actions unencumbered by legal rules.

Upholding Integrity.

In conclusion, the Supreme Court’s rulings in these three cases play a critical role in upholding the honor, integrity and the exceptional character of the United States. Moreover, these decisions answer the caustic refrain posed by President Bush during a photo opportunity when questioned about the international legality of U.S. operations. The president said, “I guess I need to call my lawyer.” He should have. The Supreme Court has reminded us all that international law is applied by U.S. courts and that the Supreme Court applies the rule of law as enacted by Congress. The Supreme Court’s application of these laws in the recent three cases concerning subject-matter jurisdiction sets the stage for it, if called upon, hopefully, to apply international law to areas of even greater national importance — going to war and its prosecution.

Yes, President Bush should have called his lawyer — one beholden to the Constitution and the laws of the land, including international law. And the Congress should have insisted upon compliance with international law rather than simply acquiescing to outrageous presidential actions.

Stuart S. Malawer is Distinguished Professor of Law & International Trade at George Mason University in Virginia.