8 Sovereign and Individual Official Immunity

This chapter discusses four types of immunity in U.S. litigation: the immunity of foreign governments and their agencies and instrumentalities; the immunity of international organizations; the immunity of diplomats and consular officials; and the immunity of other foreign officials. Foreign governmental immunity is addressed by an extensive statute that was enacted in 1976—the Foreign Sovereign Immunities Act—and both the historical practice predating the Act and its core provisions are considered here. Among other things, the chapter describes how courts have interpreted some of the exceptions to immunity in the Act, such as for commercial activity and noncommercial torts, and also for certain acts by state sponsors of terrorism. International organization immunity is discussed in light of the Supreme Court’s 2019 decision in Jam v. Int’l Finance Corp. Diplomatic immunity and consular immunity are addressed by multilateral treaties, and this chapter describes those treaties and how they have been applied by U.S. courts. The most unsettled category of immunity concerns suits against other foreign government officials, including against sitting and former heads of state. The chapter describes how the lower courts, since the Supreme Court’s 2010 decision in the Samantar case, have been developing a common law of immunity for these cases, while also often giving deference to the views of the executive branch. The chapter also notes various unresolved issues, including issues concerning the proper level of deference and the extent to which the violation of jus cogens norms of international law can qualify as official conduct for purposes of conduct-based immunity.

6 Extraterritorial Application of U.S. Law

This chapter considers the application of federal and state law to conduct that takes place outside the territory of the United States. It begins by discussing the territorial scope of U.S. constitutional rights. Special consideration is given to the extraterritorial application of the right of habeas corpus in light of the Supreme Court’s 2008 decision in Boumediene v. Bush, concerning the habeas corpus rights of detainees at the Guantanamo Bay naval base in Cuba. The chapter then discusses the “presumption against extraterritoriality” that the Supreme Court applies when interpreting federal statutes. For situations in which the presumption is overcome or is inapplicable, the chapter explains how customary international law principles relating to prescriptive jurisdiction can be relevant in U.S. litigation through application of the Charming Betsy canon of construction. In addition, the chapter discusses the role of “universal jurisdiction” in U.S. litigation and criminal prosecution. Possible constitutional limitations on the extraterritorial application of both federal statutes and state laws, based on due process and other considerations, are also considered.

10 War Powers and the War on Terrorism

This chapter considers the relevance of international law within the U.S. legal system to the United States’ initiation and conduct of war, and it also discusses a variety of international law-related issues that have arisen in connection with the “war on terrorism” following the attacks of September 11, 2001. After briefly reviewing some of the most relevant treaties relating to war and warfare, the chapter considers the Constitution’s distribution of war authority between Congress and the president, as well as the contours of the 1973 War Powers Resolution. It then discusses how international law, including the provisions in the UN Charter relating to the authority of the Security Council, as well as collective self-defense treaties, might affect the president’s war authority. The chapter also discusses legal issues relating to the placement of U.S. troops under foreign or UN command. The chapter then shifts to the “war on terrorism,” and discusses the relevance of international law, including the Geneva Conventions, to issues concerning the scope of the military’s detention authority in that conflict. International law and other issues relating to the use of military commissions to try terrorist suspects are also considered. The chapter concludes by discussing legal debates relating to coercive interrogation and targeted killing.

7 International Human Rights Litigation

This chapter focuses on litigation under the Alien Tort Statute, which provides for jurisdiction over suits brought by aliens for torts in violation of international law. The chapter begins by exploring Congress’s likely intent in enacting the Statute in 1789, and how the Statute may have related to Article III of the Constitution (concerning the powers of the federal courts). The chapter then describes how the Statute received little attention until the Filartiga decision in 1980, which allowed for it to be used by aliens to sue other aliens for human rights abuses committed abroad. The chapter proceeds to explore a variety of doctrinal issues relating to this human rights litigation, including the source of the cause of action, the standards for bringing a claim, and the ability to sue corporations. The chapter also considers the contours of the Torture Victim Protection Act, which Congress enacted in 1992 to facilitate certain human rights claims. The chapter then discusses limitations on Alien Tort Statute litigation imposed by the Supreme Court in its 2004 decision in Sosa v. Alvarez-Machain, as well as the rise of suits brought against corporate defendants brought under the Statute. The chapter concludes by discussing the Supreme Court’s 2013 decision in Kiobel v. Royal Dutch Petroleum, in which the Court substantially curtailed the territorial reach of claims that could be brought under the Statute, and the Court’s 2018 decision in Jesner v. Arab Bank, in which the Court disallowed suits under the Statute against foreign corporations.

3 Executive Agreements and Political Commitments

This chapter considers the status in the U.S. legal system of “executive agreements”—that is, international agreements concluded by the United States outside of the senatorial advice-and-consent process specified in Article II of the Constitution. After describing the substantial growth during the twentieth century in the number of executive agreements, the chapter discusses the different types of these agreements: executive agreements concluded pursuant to authorization in a prior treaty; ex ante congressional–executive agreements concluded with prior authorization from Congress; ex post congressional–executive agreements concluded with congressional approval after they are negotiated; and sole executive agreements concluded by the president. The chapter also discusses the extent to which executive agreements are interchangeable with Article II treaties for purposes of domestic law, with respect to the preemption of state law, displacement of federal statutes, and federalism limitations. The chapter concludes with a discussion of the growing phenomenon of non-binding political commitments.

1 Courts, Foreign Affairs, and the Structural Constitution

This chapter provides an overview of some of the constitutional, statutory, and common law doctrines that govern the adjudication of foreign affairs-related disputes in the United States. These doctrines include jurisdictional requirements, “justiciability” limitations such as the political question doctrine, the Erie doctrine concerning federal court application of state law, and the common law “act of state” doctrine. The chapter also discusses more general interpretive principles such as the Charming Betsy canon of construction and deference to the executive branch. The chapter concludes by describing the constitutional authority of U.S. government institutions other than the courts, including the situations in which state law that concerns foreign affairs will be preempted.

5 Customary International Law

This chapter considers the status in the U.S. legal system of customary international law, which was historically referred to as part of the “law of nations.” After considering what the text of the Constitution suggests about this issue, the chapter discusses how courts historically applied customary international law in cases in which it was relevant and how courts referred to it (in cases such as The Paquete Habana) as “part of our law.” The chapter also recounts the modern debates and uncertainties about the current domestic legal status of customary international law. In particular, the chapter explores the possibility that customary international law might have the status of post-Erie “federal common law” and what such a status might mean for questions of jurisdiction, preemption of state law, and limitations on congressional and executive authority. It also discusses various ways in which customary international law can be important in the U.S. legal system even if it is not applied directly by the courts, such as through the Charming Betsy canon of construction. The chapter concludes by discussing controversies concerning the Supreme Court’s consideration of foreign and international law materials when interpreting the U.S. Constitution.

4 Decisions and Orders of International Institutions

This chapter considers the status in the U.S. legal system of decisions and orders of international institutions to which the United States is a party. It begins with a description of various constitutional doctrines and principles that are potentially implicated by delegations of authority to international institutions, as well as general concerns that have been raised about such delegations relating to democratic accountability. The chapter also recounts the long history of U.S. engagement with international arbitration and the constitutional debates that this engagement has sometimes triggered. Extensive consideration is given to litigation concerning the consular notice provisions in the Vienna Convention on Consular Relations, including efforts by criminal defendants to enforce decisions by the International Court of Justice (ICJ) interpreting these provisions. The U.S. relationship with other international institutions, such as the World Trade Organization and the International Criminal Court, are also considered. The chapter concludes by discussing the extent to which constitutional concerns relating to international delegations can be adequately addressed by presuming that the orders and decisions of international institutions are non–self-executing in the U.S. legal system.

9 Extradition and Other Means of Criminal Law Enforcement

This chapter considers the extradition of criminal suspects to and from the United States, as well as other issues relating to international criminal law enforcement. The chapter begins by describing early U.S. practice relating to extradition. It then describes the respective roles of the courts and the executive branch in modern extradition cases. The chapter further describes some of the common limitations in U.S. extradition treaties, such as the dual criminality requirement, the political offense exception, and the specialty doctrine, and how these limitations have been applied by the courts. In addition, the chapter considers special issues that have arisen in some cases involving extradition to the United States where the federal government or a state government is likely to seek the death penalty. Besides extradition treaties, the chapter also discusses Mutual Legal Assistance Treaties and prisoner exchange agreements. The chapter concludes by discussing the domestic legal implications of both international abduction of criminal suspects and “extraordinary rendition” of suspects in the war on terrorism.

2 Treaties

This chapter considers the status of treaties within the U.S. legal system. The focus is on international agreements concluded through the senatorial advice-and-consent process specified in Article II of the Constitution. The chapter describes that process, including the Senate’s ability to condition its consent through reservations and other qualifications. It also discusses the role of treaties as supreme law of the land, including the situations in which treaties will be considered “self-executing” and “non–self-executing,” as well as the later-in-time relationship of treaties to federal statutes. The chapter also discusses the relationship of treaties to constitutional limitations concerning the separation of powers and federalism, including the implications of the Supreme Court’s 1920 decision in Missouri v. Holland. The chapter concludes with a consideration of the president’s constitutional authority to withdraw the United States from treaties.