The Supreme Court, International Law and President
Bush.
By STUART S. MALAWER
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.