scholarly journals The Abiding Relevance of Federalism to U.S. Foreign Relations

1998 ◽  
Vol 92 (4) ◽  
pp. 675-679 ◽  
Author(s):  
Curtis A. Bradley ◽  
Jack L. Goldsmith
Keyword(s):  
United States ◽  
Supreme Court ◽  
International Law ◽  
Foreign Relations ◽  
The United States ◽  
State Governments ◽  
Department Of Justice ◽  
The Supreme Court

The international law community has heavily criticized the United States’ handling of the Breard case. These criticisms are understandable. Perhaps because of the rush of time, the explanations by the Department of Justice and the Supreme Court for failing to stop Breard’s execution brushed over important issues of domestic and international law. In addition, Virginia’s decision to proceed with the execution, and the federal Government’s decision not to block it, may have reflected insufficient respect for international law and institutions. These decisions may also adversely affect U.S. relations with other nations and weaken consular protection of U.S. citizens abroad. These criticisms, however, tell only part of the story. In particular, they do not consider countervailing considerations grounded in the Constitution’s allocation of authority between the federal and state governments.

Sabbatino Resurrected: The Act of State Doctrine in the Revised Restatement of U.S. Foreign Relations Law

1985 ◽  
Vol 79 (1) ◽  
pp. 68-91 ◽  
Author(s):  
Malvina Halberstam
Keyword(s):  
United States ◽  
Supreme Court ◽  
International Law ◽  
Foreign Relations ◽  
Supreme Court Decision ◽  
The United States ◽  
Court Decision ◽  
Foreign State ◽  
The Supreme Court

Among the more controversial provisions of the Restatement of the Foreign Relations Law of the United States (Revised), are the sections dealing with the act of state doctrine in Tentative Draft No. 4. Section 428 provides: “Subject to §429, courts in the United States will refrain from examining the validity of an act of a foreign state taken in its sovereign capacity within the state’s own territory.” This provision, of course, is based on the Supreme Court decision in Sabbatino. The Court there stated, “the Judicial Branch will not examine the validity of a taking of property within its own territory by a foreign sovereign government” even if it is alleged that the taking is contrary to international law.

In Defense of the Supreme Court Decision in Alvarez-Machain

1992 ◽  
Vol 86 (4) ◽  
pp. 736-746 ◽  
Author(s):  
Malvina Halberstam
Keyword(s):  
United States ◽  
Supreme Court ◽  
International Law ◽  
Supreme Court Decision ◽  
The United States ◽  
Court Decision ◽  
Drug Enforcement ◽  
The Supreme Court ◽  
Criminal Suspects ◽  
The Media

In United States v. Alvarez-Machain, the Supreme Court sustained the jurisdiction of a U.S. court to try a Mexican national, charged with various counts of conspiracy, kidnaping and the murder of a U.S. drug enforcement agent in Mexico, even though his presence in the United States was the result of abduction rather than extradition pursuant to the Extradition Treaty between the United States and Mexico. The Court did not hold, as widely reported in the media, that the Treaty permits abduction, that abduction is legal, or that the United States had a right to kidnap criminal suspects abroad. On the contrary, the Court acknowledged that the abduction may have been a violation of international law. It stated, “Respondent and his amici may be correct that respondent’s abduction was ’shocking’ and that it may be in violation of general international law principles.”

The International Court of Prize

1911 ◽  
Vol 5 (2) ◽  
pp. 302-324
Author(s):  
James Brown Scott
Keyword(s):  
United States ◽  
Supreme Court ◽  
Foreign Relations ◽  
The United States ◽  
Judicial Power ◽  
Original Form ◽  
State Action ◽  
International Court ◽  
The Supreme Court ◽  
The Hague

On February 15, 1911, the Senate of the United States advised and consented to the ratification of the International Prize Court Convention adopted by the Second Hague Peace Conference and signed by the American delegates October 18, 1907. Although transmitted to the Senate with the various Hague conventions on February 27, 1908, and favorably recommended by the President and Secretary of State, action upon the convention was deferred by the Committee on Foreign Relations because the convention in its original form involved an appeal from the Supreme Court of the United States to the international court at The Hague. This feature of the otherwise acceptable convention raised doubts as to its constitutionality, because Article 3, section 1, of the Constitution provides that “ the judicial power of the United States shall be vested in one Supreme Court.” An appeal from the Supreme Court to the court at The Hague seemed to some inconsistent with this provision, for a court can not be considered supreme if an appeal lies from its decisions. To this it may be answered that the court to be established at The Hague is not a court of the United States, and, therefore, is not contemplated by the Constitution; for the Hague court is a diplomatic tribunal for the settlement of questions which would otherwise be adjusted by diplomacy, or referred to a mixed commission specially constituted for their determination, or which if not determined by either of these methods, might result in war.

Act of State and Department of State: First National City Bank v. Banco Nacional De Cuba

1972 ◽  
Vol 66 (4) ◽  
pp. 795-814 ◽  
Author(s):  
Andreas F. Lowenfeld
Keyword(s):  
United States ◽  
Supreme Court ◽  
International Law ◽  
United States Supreme Court ◽  
The United States ◽  
United States Supreme ◽  
Recent Issue ◽  
Department Of State ◽  
The Supreme Court ◽  
Formal Communication

No recent issue has so divided lawyers and writers in the field of international law as the question whether courts of one nation should sit in judgment on the acts of other nations with respect to foreign held property—sometimes, always, or never. The United States Supreme Court in Banco Nacional de Cubav. Sabbatinosaid the answer was never—or at least hardly ever—thus upholding and reaffirming the “act of state doctrine”. The Congress in the Hickenlooper (or Sabbatino) Amendmentmade an effort to reverse that ruling, an effort that has proved largely unsuccessful. Now the State Department has taken its turn, arguing in a formal communication to the Supreme Court that when it perceives no objection to adjudication on foreign policy grounds, the courts should judge the validity of the foreign nation's acts under international law standards—at least as to counterclaims.

scholarly journals New Methods in Due-Process Cases

1918 ◽  
Vol 12 (2) ◽  
pp. 241-250
Author(s):  
Albert M. Kales
Keyword(s):  
United States ◽  
Supreme Court ◽  
Due Process ◽  
United States Supreme Court ◽  
The United States ◽  
State Governments ◽  
House Of Lords ◽  
The Social ◽  
The Supreme Court ◽  
Fundamental Requirement

In addressing the court in due-process cases one should not commence with the usual salutation “May it please the Court.” Instead, one should say “My Lords.” Backed by and charged with the enforcement of the due-process clause of the fifth and fourteenth amendments, the Supreme Court of the United States is the American substitute for the British house of lords. It constitutes the real and only conservative second chamber of the federal government. It is a second conservative chamber for each of the state governments.The time has come when the political scientists of the country should recognize, in the decisions of the United States Supreme Court under the due-process clause, the functioning of a second chamber, organized to defeat the popular will as expressed in legislation when that will appears to endanger what the court may regard as a fundamental requirement of the social structure itself.Like all conservative second chambers, the Supreme Court and the due-process clause are in a hopeless dilemma. If the popular will were frustrated as often as the dissenting opinions of Mr. Justice McReynolds indicate that it should be, the second chamber function of the court would be assailed by the recall of judicial decisions. If the court bowed to the popular will as often as the dissenting opinions of Mr. Justice Holmes indicate that it should, the second chamber function of the court would cease to be exercised.

Zschernig v. Miller and the Breard Matter

1998 ◽  
Vol 92 (4) ◽  
pp. 704-708
Author(s):  
Frederic L. Kirgis
Keyword(s):  
United States ◽  
Supreme Court ◽  
Foreign Relations ◽  
United States Supreme Court ◽  
The United States ◽  
Policy Attitudes ◽  
The Supreme Court ◽  
The Right ◽  
The Cold War ◽  
To Receive

In 1968 the United States Supreme Court decided Zschernig v. Miller, a foreign relations case that has been characterized as unique. An Oregon probate statute provided for escheat of a decedent’s property in preference to a nonresident alien’s claim to inherit it unless the alien’s country (1) allowed United States citizens to inherit under similar circumstances, (2) allowed U.S. citizens to receive payment here of funds inherited there, and (3) gave foreign heirs the right to receive the proceeds of Oregon estates without confiscation. Residents of then East Germany, who were the heirs of an Oregon decedent, challenged the constitutionality of the statute. The Supreme Court struck down the statute, finding that Oregon probate and appellate judges were basing their decisions on “foreign policy attitudes, the freezing or thawing of the ‘cold war.’”

The Case of the Appam

1916 ◽  
Vol 10 (4) ◽  
pp. 809-831
Author(s):  
James Brown Scott
Keyword(s):  
United States ◽  
Great Britain ◽  
Supreme Court ◽  
International Law ◽  
The United States ◽  
District Court ◽  
Newport News ◽  
The Supreme Court ◽  
High Seas

On July 29,1916, the United States District Court for the Eastern District of Virginia entered a decree to restore to the British claimants the steamer Appam, formerly an English merchant vessel, captured by the German cruiser Moewe upon the high seas and sent into Newport News to be laid up pending the war between Great Britain and Germany. In a very elaborate opinion, the court held that the Appam had no right under international law or the treaty with Prussia of May 1, 1828, to use an American port as an asylum; that it did not have a right under the circumstances to enter an American port at all; that by so doing it violated the neutrality of the United States, and was therefore, with the proceeds of the cargo, to be restored, according to the American practice, to the British owners at the date of capture. The case is a very interesting one from the standpoint of international law, and by reason of its importance, it is to be appealed to the Supreme Court of the United States in order that, as far as the United States is concerned, a definite decision may be reached upon the points of law involved. The facts of the case and the reasoning of the District Court will, however, be set forth at this time and in this place.

Application of Fifth Amendment to U.S. Constitution in international context—fear of foreign prosecution as ground for invoking privilege against self-incrimination—relevance of growing international law enforcement cooperation—role of U.S. judiciary in foreign relations

1998 ◽  
Vol 92 (4) ◽  
pp. 759-764
Author(s):  
Bernard H. Oxman ◽  
Diane Marie Amann
Keyword(s):  
United States ◽  
Law Enforcement ◽  
Supreme Court ◽  
International Law ◽  
Foreign Relations ◽  
The United States ◽  
International Context ◽  
Open Question ◽  
Domestic Law

United States v. Balsys. 118 S.Ct. 2218.U.S. Supreme Court, June 25, 1998.Resolving a long-open question, the U.S. Supreme Court held in this 7-2 decision that a witness in a domestic proceeding may not invoke the constitutional privilege against self-incrimination if the witness fears that the testimony may be used in a prosecution outside the United States. Although grounded in domestic law, the three opinions in Balsys reveal tension between the judiciary's traditional deference to the political branches in foreign relations matters and its concern over the risk that individuals subject to prosecution abroad will suffer deprivation of liberty because of that deference.

John Marshall and Treaty Law

1956 ◽  
Vol 50 (1) ◽  
pp. 69-80 ◽  
Author(s):  
Edward Dumbauld
Keyword(s):  
United States ◽  
Supreme Court ◽  
International Law ◽  
The United States ◽  
Current Interest ◽  
Chief Justice ◽  
The Supreme Court ◽  
Treaty Law ◽  
John Marshall

The enduring value of Chief Justice John Marshall’s contributions to international law is shown by the fact that during the bicentennial year of his birth the Supreme Court of the United States has had occasion in the course of current litigation to apply principles set forth in well-known decisions rendered by Marshall more than a century ago. Likewise there is timeliness, in view of current interest in “treaty law,” in Marshall’s pronouncements on that topic.

Case Of Víctor Velásquez Reyes

1991 ◽  
Vol 85 (2) ◽  
pp. 352-357
Author(s):  
Stefan A. Riesenfeld
Keyword(s):  
United States ◽  
Supreme Court ◽  
International Law ◽  
Constitutional Law ◽  
The United States ◽  
International Agreements ◽  
The Other ◽  
Administrative Authority ◽  
Holy See ◽  
The Supreme Court

The judgment of the Supreme Court of Colombia, rendered upon the petition by a citizen to declare Law 20 of 1974, approving the concordat between the Holy See and Colombia, to be unconstitutional, deals with one of the most controversial aspects of the interface between international law and constitutional law under many modern constitutions. In most contemporary constitutional systems, the conclusion of international agreements requires parliamentary participation. In the United States only one house—the Senate—must give its advice and consent, but in the majority of states with bicameral systems, including Colombia, the approval must be given by both houses, usually in the form of a statute, the so-called ratification law. According to Article 120, subsection 20, of the Constitution of Colombia, it is the task of the President, as head of the state and highest administrative authority, to conduct the diplomatic and commercial relations with the other nations and entities under international law … and to conclude with other nations and entities under international law treaties and conventions, which are to be subject to approval by Congress.

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