Articles Posted in International Law

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In January 2017, President Trump signed executive order EO-1, "Protecting the Nation From Foreign Terrorist Entry," suspending, for 90 days, entry of foreign nationals from Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen, and suspending the United States Refugee Admissions Program (USRAP) for 120 days. The Ninth Circuit upheld a nationwide temporary restraining order. The government revoked EO-1. EO-2 issued on March 6, describing conditions in six countries that “demonstrate ... heightened risks to [U.S.] security.” EO–2 section 2(a) directs Homeland Security to determine whether foreign governments provide adequate information about nationals applying for U.S visas and to report those findings to the President within 20 days; nations identified as deficient will have 50 days to alter their practices (2(b)). EO–2 2(c) directs that entry of nationals from Iran, Libya, Somalia, Sudan, Syria, and Yemen, be suspended for 90 days; section 3(c) provides for case-by-case waivers. Section 6(a) suspends decisions on applications for refugee status and travel of refugees under the USRAP for 120 days; 6(b) suspends refugee entries in excess of 50,000 for this year. The order’s stated effective date is March 16, 2017. The Ninth Circuit again declined to stay a temporary injunction. The Supreme Court stayed the order in part, with respect to sections 2(c), 6(a), and 6(b). An American individual or entity that has a bona fide relationship with a particular person seeking to enter the country can legitimately claim concrete hardship if that person is excluded, even if the 50,000-person cap has been reached. As to these individuals and entities, the Court did not disturb the injunction; as to those lacking any such connection, the balance tips in favor of the government’s compelling interest in security. The Court noted a June 12 Ninth Circuit decision vacating the injunction as to 2(a) and stated that the Executive should conclude its work and provide adequate notice to foreign governments within the 90-day life of 2(c). View "Trump. v. International Refugee Assistance Project" on Justia Law

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In 2010, a U.S. Border Patrol agent standing on U.S. soil shot and killed Hernandez, an unarmed 15-year-old Mexican national, standing on Mexican soil. Hernandez had been playing a game that involved running up the embankment on the U.S. side of the border. After the Justice Department closed an investigation, declining to file charges, Hernandez’s parents filed suit, including a “Bivens” claims for damages against the agent. The Fifth Circuit affirmed dismissal. The Supreme Court vacated and remanded. A “Bivens” implied right of action for damages against federal officers alleged to have violated a citizen’s constitutional rights is not available where there are special factors counselling hesitation in the absence of affirmative action by Congress. In light of recent Supreme Court precedent (Abbasi), the Fifth Circuit must consider “whether the Judiciary is well suited, absent congressional action or instruction, to consider and weigh the costs and benefits of allowing a damages action to proceed.” The Court noted that the Fourth Amendment question is sensitive and may have far-reaching consequences. Qualified immunity shields officials from civil liability if their conduct does not violate clearly established constitutional rights of which a reasonable person would have known. The lower court concluded that the prohibition on excessive force did not apply to Hernandez, as a foreign national on foreign soil, but the Court noted that Hernández’s nationality and the extent of his ties to the U.S. were unknown to the agent at the time of the shooting. View "Hernandez v. Mesa" on Justia Law

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Lexmark holds patents on the components of toner cartridges that it manufactures and sells. Lexmark allows consumers to buy a cartridge at full price, with no restrictions, or to buy a cartridge at a discount through Lexmark’s “Return Program,” by signing a contract agreeing to use the cartridge only once and to refrain from transferring the cartridge to anyone but Lexmark. Remanufacturers acquire empty Lexmark cartridges—including Return Program cartridges—from purchasers in the U.S. and overseas, refill them, and resell them in the U.S. Lexmark sued remanufacturers with respect to Return Program cartridges that Lexmark had sold within the U.S. and cartridges that Lexmark had sold abroad and that remanufacturers imported into the country. The Federal Circuit ruled for Lexmark with respect to both. The Supreme Court reversed. Lexmark exhausted its patent rights (35 U.S.C. 271(a)) in all of the cartridges. A patentee’s decision to sell a product exhausts all of its patent rights in that item, regardless of any restrictions the patentee purports to impose. If a patentee negotiates a contract restricting the purchaser’s right to use or resell an item, it may be able to enforce that restriction as a matter of contract law, but may not do so through a patent infringement lawsuit. The exhaustion doctrine is not a presumption about the authority that comes along with a sale; it is a limit on the scope of the patentee’s rights. The Patent Act just ensures that the patentee receives one reward—of whatever it considers satisfactory compensation—for every item that passes outside the scope of its patent monopoly. View "Impression Products, Inc. v. Lexmark International, Inc." on Justia Law

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Water Splash sued Menon, a former employee, in Texas state court. Because Menon resided in Canada, Water Splash obtained permission to effect service by mail. Menon declined to answer or enter an appearance. The trial court issued a default judgment. Menon argued that service by mail was impermissible under the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters (Hague Service Convention). Vacating a Texas Court of Appeals decision in Menon’s favor, the Supreme Court held that the Convention does not prohibit service of process by mail. Article 10(a) uses the term “judicial documents” and the ordinary meaning of the word “send” is broad enough to cover the transmission of any judicial documents. The Convention’s drafting history strongly suggests that the drafters understood that service by postal channels was permissible; in the half-century since the Convention was adopted, the Executive Branch has consistently maintained that it allows service by mail. Other Convention signatories have consistently adopted that view. That Article 10(a) encompasses service by mail does not mean that it affirmatively authorizes such service; service by mail is permissible if the receiving state has not objected to service by mail and if such service is authorized under other applicable laws. View "Water Splash, Inc. v. Menon" on Justia Law

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A case falls within the scope of the Foreign Sovereign Immunities Act, 28 U.S.C. 1604, “expropriation exception” and may be pursued against a foreign state in U.S. federal courts only if the property in which the party claims to hold rights was indeed “property taken in violation of international law.” The Supreme Court held that the exception should not be evaluated under the “nonfrivolous-argument standard” and remanded to the District of Columbia Circuit. The case was filed by a wholly-owned Venezuelan subsidiary and its American parent company that supplied oil rigs to entities that were part of the Venezuelan Government, claiming that Venezuela had unlawfully expropriated the subsidiary’s rigs by nationalizing them. A court should decide the foreign sovereign’s immunity defense at the threshold of the action, resolving any factual disputes as near to the outset of the case as is reasonably possible. The expropriation exception grants jurisdiction only where there is a legally valid claim that a certain kind of right is at issue (property rights) and that the relevant property was taken in a certain way (in violation of international law). Simply making a nonfrivolous argument to that effect is not sufficient. View "Bolivarian Republic of Venezuela v. Helmerich & Payne Int’l Drilling Co." on Justia Law

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The Racketeer Influenced and Corrupt Organizations Act (RICO), makes it a crime to invest income derived from a pattern of racketeering activity in an enterprise “which is engaged in, or the activities of which affect, interstate or foreign commerce,” 18 U.S.C. 1962(a); to acquire or maintain an interest in an enterprise through a pattern of racketeering activity, 1962(b); to conduct an enterprise’s affairs through a pattern of racketeering activity, 1962(c); and to conspire to violate any of the other three prohibitions, 1962(d). Section 1964(c) creates a private right of action. The European Community and 26 member states filed a RICO civil suit, alleging that RJR participated in a global money-laundering scheme in association with organized crime groups, under which drug traffickers smuggled narcotics into Europe and sold them for euros that—through black-market money brokers, cigarette importers, and wholesalers—were used to pay for large shipments of RJR cigarettes into Europe. The Second Circuit reversed dismissal of the claims, concluding that RICO permits recovery for a foreign injury caused by the violation of a predicate statute that applies extraterritorially. The Supreme Court reversed, first noting the presumption against extraterritoriality. While allegations under Sections 1962 (b) and (c) do not involve an impermissibly extraterritorial application of RICO, Section 1964(c), creating private remedies, does not overcome the presumption against extraterritoriality. Allowing recovery for foreign injuries in a civil RICO action could create a danger of international friction that militates against recognizing foreign-injury claims without clear direction from Congress that is not present in Section 1964(c). View "RJR Nabisco, Inc. v. European Cmty." on Justia Law

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American nationals may seek damages from state sponsors of terrorism in U.S. courts, 28 U.S.C. 1605A, but face difficulties enforcing their judgments. Concerned with specific terrorism cases, Congress enacted the Iran Threat Reduction and Syria Human Rights Act of 2012, making designated assets available to satisfy judgments underlying a consolidated enforcement proceeding (identified by docket number), 22 U.S.C. 8772. Section 8772(a)(2) requires a court to determine,“whether Iran holds equitable title to, or the beneficial interest in, the assets.” Plaintiffs obtained default judgments and sought turnover of about $1.75 billion in bonds held in a New York bank account, allegedly owned by Bank Markazi, the Central Bank of Iran. Bank Markazi maintained that Section 8772 violated the separation-of-powers doctrine, contending that Congress had usurped the judicial role by directing a particular result in a pending enforcement proceeding. The district court, Second Circuit, and Supreme Court disagreed, concluding that Section 8772 permissibly changed the law applicable in a pending litigation. Although Article III bars Congress from telling a court how to apply pre-existing law to particular circumstances, Congress may amend a law and make the amended prescription retroactively applicable in pending cases. Nor is Section 8772 invalid because it prescribes a rule for a single, pending case identified by caption and docket number. Measures taken by the political branches to control the disposition of foreign-state property, including blocking specific foreign-state assets or making them available for attachment, have never been rejected as invasions upon the Article III judicial power. View "Bank Markazi v. Peterson" on Justia Law

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The Sex Offender Registration and Notification Act (SORNA) makes it a crime for certain sex offenders to “knowingly fai[l] to register or update a registration,” 18 U.S.C. 2250(a)(3), and requires that offenders who move to a different state “shall, not later than 3 business days after each change of name, residence, employment, or student status,” inform, in person, at least one "jurisdiction involved" pursuant to 42 U.S.C. 16913(a) of all changes to required information. Section 16913(a) refers to “each jurisdiction where the offender resides, . . . is an employee, and . . . is a student.” Nichols, a registered sex offender, moved from Kansas to the Philippines without updating his registration, was arrested, and returned to the U.S. The Tenth Circuit affirmed his SORNA conviction, holding that Kansas, remained a SORNA “jurisdiction involved.” The Supreme Court reversed. Section16913(a) uses the present tense. Nichols once resided in Kansas; after moving, he “resides” in the Philippines. The Philippines is not a SORNA “jurisdiction.” Nichols could not have appeared in person in Kansas “after” leaving the state. SORNA’s drafters could have required sex offenders to deregister in their departure jurisdiction before leaving the country had that been their intent. The Court noted that recent federal legislation, with existing registration requirements, offer reassurance that sex offenders will not be able to escape punishment for leaving the country without notifying their departure jurisdictions. View "Nichols v. United States" on Justia Law

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Respondent, a California resident, filed suit against OBB, an Austrian state-owned railway, after she suffered injuries from falling off the railroad tracks at the Innsbruck, Austria, train station. Respondent had purchased a Eurail pass over the Internet from a Massachusetts-based travel agent. The district court granted OBB's motion to dismiss pursuant to the Foreign Sovereign Immunities Act (FSIA), 28 U.S.C. 1605(a)(2). The Ninth Circuit reversed, concluding that the Eurail pass sale by the travel agent could be attributed to OBB through common law principles of agency, and that respondent’s suit was “based upon” that Eurail pass sale. The Court held, however, that respondent's suit falls outside the commercial activity exception and is barred by sovereign immunity where the suit is not "based upon" the sale of the Eurail pass for purposes of section 1605(a)(2), and respondent's contention that her claims are "based upon" OBB's entire railway enterprise is forfeited. In this case, respondent's action is "based upon" the railway's conduct in Innsbruck. Therefore, the Court reversed the judgment of the Ninth Circuit. View "OBB Personenverkehr AG v. Sachs" on Justia Law

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Zivotofsky was born to U.S. citizens living in Jerusalem. Under the Foreign Relations Authorization Act, 2003, 116 Stat. 1350, his mother asked Embassy officials to list his place of birth as “Israel” on his passport. Section 214(d) of the Act states for “purposes of the registration of birth, certification of nationality, or issuance of a passport of a United States citizen born in the city of Jerusalem, the Secretary shall, upon the request … record the place of birth as Israel.” Embassy officials refused to list Zivotofsky’s place of birth as “Israel,” citing the Executive Branch’s position that the U.S. does not recognize any country as having sovereignty over Jerusalem. The D. C. Circuit held the statute unconstitutional. The Supreme Court affirmed. The President has the exclusive power to grant formal recognition to a foreign sovereign. The Court cited the Reception Clause, which directs that the President “shall receive Ambassadors and other public Ministers,” and the President’s additional Article II powers, to negotiate treaties and to nominate the Nation’s ambassadors and dispatch other diplomatic agents. The Constitution assigns the President, not Congress, means to effect recognition on his own initiative. The Nation must “speak . . . with one voice” regarding which governments are legitimate in the eyes of the United States and which are not, and only the Executive has the characteristic of unity at all times. If Congress may not pass a law, speaking in its own voice, effecting formal recognition, then it may not force the President, through section 214(d), to contradict his prior recognition determination in an official document issued by the Secretary of State. View "Zivotofsky v. Kerry" on Justia Law