Tag: International Law

Preserving International Comity: The Foreign Sovereign Immunities Act of 1976 and OBB Personenverkehr AG v. Sachs – Note by Jason E. Myers

From Volume 90, Number 4 (May 2017)
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In accordance with a time-honored tradition, foreign sovereigns are generally immune from being summoned to court in another country. This doctrine of “sovereign immunity” was codified and modified in the Federal Sovereign Immunities Act of 1976 (“FSIA”). The FSIA divests United States courts of jurisdiction over defendants that are foreign states, subject to a number of general exceptions designed to provide a level of recourse for an aggrieved party against a foreign government. The FSIA codifies the long-standing attitude against suing foreign governments in the United States and “places in the federal courts the task of determining whether the general immunity provided by the Act attaches” in a given scenario, “weighing ‘the interests of justice’ and ‘the rights of both foreign states and litigants in United States courts.’” As such, the Act is designed to protect “both the rights of domestic litigants and foreign states.” However, the framers of the statute were, and those currently adjudicating disputes arising under the statute are, wary that “err[ing] in the former direction could implicate foreign policy concerns, while being overly solicitous of the status of foreign states could make it impossible for aggrieved parties to be made whole.” This virtual tug-of-war between these two interests was at the forefront of a case decided by the United States Court of Appeals for the Ninth Circuit in 2013, Sachs v. Republic of Austria, a battle that ultimately reached the Supreme Court.

The case involved Carol Sachs, a United States citizen who purchased a train ticket through an online travel agent located in Massachusetts. While using that ticket in Austria to enter a train operated by OBB Personenverkehr AG (“OBB”), a railway company owned by the Republic of Austria, Sachs fell between the platforms; the train crushed both of her legs, ultimately requiring a double amputation. Sachs subsequently sued OBB in federal district court in California, accusing OBB of negligence, among other things. In response, OBB filed a motion to dismiss the case, claiming sovereign immunity under the FSIA. Agreeing with OBB, the district court dismissed the case for lack of subject matter jurisdiction, citing the FSIA and its grant of foreign sovereign immunity. On appeal, the Ninth Circuit initially affirmed the district court’s ruling, but upon a rehearing en banc, a majority reversed, holding that the “commercial activity” exception to the FSIA applied in this case because OBB is a “common carrier . . . [that] engage[d] in commercial activity in the United States when it [sold] tickets in the United States through a travel agent.” In October 2015, the parties presented their case to the Supreme Court in OBB Personenverkehr AG v. Sachs, and after two months of deliberation, the Court unanimously reversed the Ninth Circuit’s decision, concluding that Sachs’s suit “[fell] outside the commercial activity exception” and was, therefore, “barred by sovereign immunity.”

At the forefront of the decision was a question regarding the interpretation and scope of one of the principal exceptions set forth in the FSIA, namely the commercial activity exception. The relevant portion of the exception states that “[a] foreign state shall not be immune from the jurisdiction of courts of the United States or of the States in any case in which the action is based upon a commercial activity carried on in the United States by the foreign state.” While the narrow exception provides a limited avenue for domestic litigants to pursue redress against a foreign sovereign, the Ninth Circuit erroneously expanded the scope of the exception to encompass a dispute arising entirely based on an event that took place abroad.

As such, the Supreme Court correctly reversed the Ninth Circuit’s grant of subject matter jurisdiction over the Republic of Austria vis-à-vis OBB, because Sachs’s claims, which arose entirely from an accident in Austria, were not “based upon” commercial activity engaged in within the United States. Furthermore, the Court’s decision was also correct in light of the policy interests at stake, specifically relating to global commerce and U.S. diplomatic relations. Finally, while the Court declined to address whether the express definition of “agency” in the FSIA, the factors set forth in First National Bank v. Banco El Comercio Exterior de Cuba (“Bancec”), or common law principles of agency control in defining an agent of a foreign state under the commercial activity exception set forth in the FSIA, the express definition of agency in the FSIA offers the best approach for future cases.

The Supreme Court’s decision will preserve the synergy of global commerce in an era of both e-commerce and the emergence of state-owned corporations. Just in the European railway industry alone, there are hundreds of state-owned railway and shipping companies and “[t]ens of thousands” of United States citizens who use the aforesaid companies annually. Had the Court affirmed the lower court’s far-reaching interpretation of the commercial activity exception, such state-owned enterprises may have seen their foreign sovereign immunity undermined “simply because an American passenger purchased a ticket through a travel agency in the United States.” As a result, “European railways could [have] be[en] forced to defend tort actions in the United States arising from accidents occurring entirely in Europe.” In addition, the Supreme Court’s decision upheld the long-standing policy of favoring sovereign immunity as a mechanism of preserving international comity, and thus, creates a stable platform for diplomatic relations going forward.

Part I of this Note explores the origins of the doctrine of sovereign immunity and the history and application of sovereign immunity in federal courts prior to the FSIA’s codification. Part I also examines the legislative intent underlying the FSIA as well as the Act’s well-defined rules.

In addition, Part I provides an in-depth analysis of the commercial activity exception and the seminal United States cases that have interpreted the scope and substance of this exception. Part II focuses on the Supreme Court’s decision in OBB Personenverkehr AG, a case that arose under the FSIA, particularly reviewing the facts that gave rise to the dispute, the legal issues arising from the incident, the procedural posture of the case, and the legal arguments set forth by each side. Part III begins by demonstrating why the Supreme Court correctly found that Sachs’s claims were not based upon a commercial activity engaged in within the United States. In addition, Part III illustrates why, from a public policy standpoint, the Supreme Court was correct in reversing the Ninth Circuit’s expansive interpretation of the commercial activity exception. Finally, Part III makes a case for the adoption of the express definition of agency set forth in the FSIA for determining when an entity is an agent of a foreign state. In so doing, Part III briefly addresses the alternative standards proposed for agency determinations under the FSIA. This Note concludes by illustrating the presence of other forms of redress for those injured abroad and reiterates why the Supreme Court was correct in reversing the lower court’s decision.

 

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The Prohibition of Chemical Weapons: Moving Toward Jus Cogens Status – Article by Charles Hyun

From Volume 88, Number 6 (September 2015)
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While the use of chemical weapons during the Syrian Civil War has once again brought chemical weapons use to the forefront of public discourse, the prohibition of chemical weapons use goes as far back as 1685, when French and German armies agreed “that no side should use poisoned bullets.” At the Hague Conferences of 1899 and 1907, Germany, France, England, the United States, and other nations formally agreed to regulate chemical weapons use by banning the use of poison gas. Unfortunately, these agreements were not respected during World War I, and the use of chemical weapons caused 1.3 million casualties. Since then, there have been several other notable uses of chemical weapons—Japan used poison gas against the Chinese in the 1930s, Mussolini used them in Abyssinia (now Ethiopia) during World War II, the Egyptian Air Force used them in Yemen in 1967, and the United States used Agent Orange during the Vietnam War. Perhaps the most horrific use of chemical weapons occurred in 1988 when Iraqi President Saddam Hussein used mustard gas and nerve gas on a Kurdish town in northern Iraq, “killing 5,000 people almost immediately.”

 

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International Law and the Limits of Macroeconomic Cooperation – Article by Eric A. Posner & Alan O. Sykes

From Volume 86, Number 5 (July 2013)
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The macroeconomic policies of states can produce significant costs and benefits for other states, yet international macroeconomic cooperation has been one of the weakest areas of international law. We ask why states have had such trouble cooperating over macroeconomic issues when they have been relatively successful at cooperation over other economic matters such as international trade. We argue that although the theoretical benefits of macroeconomic cooperation are real, in practice it is difficult to sustain because optimal cooperative policies are often uncertain and time variant, making it exceedingly difficult to craft clear rules for cooperation in many areas. It also is often difficult or impossible to design credible self-enforcement mechanisms. Recent cooperation on bank capital standards, the history of exchange rate cooperation, the European monetary union, and the prospects for broader monetary and fiscal cooperation all are discussed. Finally, we contrast the reasons for successful cooperation on international trade policy.

 

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Running Afoul of the Non-Refoulment Principle: The [Mis]interpretation and [Mis]application of the Particularly Serious Crime Exception – Postscript (Note) by David Delgado

From Volume 86, Number 1 (November 2012)
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Envision living with the constant fear of being tortured or killed for no other reason than having a different political opinion than those in power. While that may be difficult to imagine for those who live in the United States, unfortunately, many around the world must live with that fear or flee from their homes. That fear has mobilized an estimated 11,000 to 15,000 refugees to flee from Syria. The mass exodus followed Syrian President Bashar al-Assad’s siege of the western city of Homs, which is “the heart of an 11-month uprising against his rule.” In those early months of violence, only around 7000 Syrian refugees had registered with the United Nations High Commissioner for Refugees (“UNHCR”). However, given the persistent violence and the recent allegations that President al-Assad has used chemical weapons on or near civilian populations, it is unsurprising that current UNHCR projections estimate that there are over two million Syrian refugees. And according to the UNHCR, if current trends persist, there may be well over three million Syrian refugees by the end of 2013.

 

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Blood Electronics: Congo’s Conflict Minerals and the Legislation that Could Cleanse the Trade – Note by Shannon Raj

From Volume 84, Number 4 (May 2011)
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The law, when enforced, can be used to punish. It can be used to articulate social norms and standards, or to define and impose responsibilities. The law can also, however, be used to change incentives. When designed and implemented properly, a good law establishes an incentive structure to align legal responsibility with the actors most able to change a set of results–actors who possess the information, the institutional capacity, and the practical ability to make a difference in a situation our society seeks to improve. In the 111th Congress, Representative Jim McDermott proposed just such a law. The Conflict Minerals Trade Act took note of America’s role in the devastating humanitarian crisis it may be inadvertently fueling: the situation in the Democratic Republic of Congo (“DRC” or “DR Congo”), home to the minerals used in nearly every electronic product known to man. Indeed, as the conflict in DR Congo reaches catastrophic proportions, the interests of a broad range of actors have become affected–and not just those in the human rights sector. Mineral wealth extracted from DR Congo is likely inside of your cell phone, your laptop, and your iPod–raising issues of personal responsibility as well as corporate ethics. As individuals confront their consciences and investors contemplate their stock portfolios, issues once relegated to the realm of international human rights law have now entered many of our homes and purses without us realizing. The Conflict Minerals Trade Act, by altering an incentive structure, aimed to change that unawareness by bringing our trade legislation in line with both our best interests and our ethical responsibilities.

 

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“Trade in Force”: The Need for Effective Regulation of Private Military and Security Companies – Note by Stephanie M. Hurst

From Volume 84, Number 2 (January 2011)
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On September 16, 2007, allegedly without any provocation or justification, personnel from the security firm formerly known as Blackwater Worldwide1 fired into Baghdad’s crowded Nisoor Square and killed seventeen Iraqi civilians. To date, neither the firm nor its employees have been held accountable for this incident. Moreover, a report issued by a U.S. House of Representatives oversight panel in October 2007 indicated that “Blackwater employees had been involved in at least 196 firefights in Iraq since 2005, an average of 1.4 shootings per week.” The report also stated that in 84 percent of these incidents, Blackwater personnel were the first to fire even though, by contract, they were allowed to fire only in self-defense.

Unfortunately, Blackwater is neither the first nor the only security firm to commit human rights abuses. In the late 1990s, personnel from another security firm, DynCorp International, allegedly bought women and girls as sex slaves while deployed in Bosnia. The only punishment rendered on the personnel responsible for these human rights abuses was the termination of their employment contracts. Moreover, despite these allegations, the firm later received a contract in Iraq worth $250 million.

 

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Gender, Discourse, and Customary Law in Africa – Article by Johanna E. Bond

From Volume 83, Number 3 (March 2010)
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Around the world, efforts by states to accommodate cultural pluralism vary in form and vigor. Some multiculturalist states cede to cultural minorities the authority to govern in certain substantive areas, such as family law. Not surprisingly, feminists have raised concerns that a state’s reluctance to govern in areas traditionally seen as “private,” and leaving those areas of law to customary legal systems, leaves women within those minority communities vulnerable to discrimination. The potential clash between multiculturalism and equality has been the focus of much theorizing in the last decade. Much of the discourse has been abstract, polarizing, and minimally productive. Furthermore, the ways in which women act with agency, engaging with and reformulating cultural policy, has received insufficient attention. Many women value cultural identity, even as they work to eliminate discrimination within their cultural communities. 

The international human rights community, however, has not always viewed women as committed, active members of their cultural communities. By viewing African women almost exclusively as victims of their culture, the international human rights community has historically undervalued the potential for African women to reformulate cultural policies within their communities. The two primary human rights treaties for the promotion of gender equality in Africa, the Convention on the Elimination of All Forms of Discrimination Against Women (“CEDAW” or “the Convention”) and the African Charter on Human and Peoples’ Rights (“African Charter” or “the Charter”), are dismissive of culture and gender equality, respectively. The Protocol to the African Charter on the Rights of Women in Africa (“the Protocol”) attempts to remedy the shortcomings of CEDAW and the African Charter and offers new hope for promoting gender equality on the continent. In addition to strong substantive rights, the Protocol provides important procedural rights to ensure that women have a voice in the ongoing examination and reformulation of cultural practices and customary law.

 

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CFIUS as a Congressional Notification Service – Article by David Zaring

From Volume 83, Number 1 (November 2009)
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How can Congress play a role in formulating national security policy? This Article identifies one way that Congress already plays such a role: in its oversight of executive branch decisions regarding foreign investments in the United States. The executive’s role in this relationship is passive; it is best understood as a congressional notification service. This Article considers the implications of such a service, which could serve as a model for increased congressional involvement in other aspects of foreign affairs. It offers historical support for the descriptive claim that Congress plays a central role in policing foreign investments for national security concerns; the mildness of the executive role is shown both qualitatively and quantitatively through a content analysis of the “boilerplateness” of executive approvals of foreign acquisitions. The role Congress has played in national security and foreign direct investment policymaking has implications for theories of presidential administration and executive discretion in foreign affairs, and also for practicing lawyers interested in defining what exactly the scope of “national security” might be. The Article concludes with a review of these implications.

 

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