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Opinio Juris
sense of legal obligation
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Customary State law =
uniform state practice + sense of legal obligation
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Concept of customary law has its origins in
civil law systems
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persistent objector doctrine
even though mass acceptance of an intl law, if a govt has persistently objected to this from day 1, they can object to this intl rule (theory but never evidenced)
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Peremptory customary norms
cts recognized some rules that are so important that they can never be violated
SUPERMAN NORMS
VCLT - Art. 54 = any T that conflicts w a norm of just cogens = void
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VCLT - Art. 54 = any T that conflicts w a norm of just cogens =
void
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Jus Cogens
peremptory law
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Paquete Habana; SCOTUS said: Intl law is part of
- OUR LAW
- it can bind states even when there is no relevant T
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does customary intl law have to be unanimous
no
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can customary law change and evolve over time
yes
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Foundation of customary intl norm:
combination of consistent state practice and ethics
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Alien Torts Statute 28 USC 1350 - establishes original jurisdiction over
any civil action by an alien for a tort only, committed in violation of the law of nations or a T of the US
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Law of nations =
customary intl law
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law of nations may be ascertained by consulting the works of
- jurists, writing professedly on public law; or
- by the general usage and practice of nations; or
- judicial decisions recognizing and enforcing the law Filartiga
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Is the law of nations an integral part of our common law system
yes
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do violations of a customary norm defeat the customary norm
no
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A settled rule of intl law =
by the general assent of civilized nations
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Evidence of consistent state practice against torture
UN Charter and Universal Declaration of Human Rights
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Universal declaration on human rights
general assembly resolutoin; used in many nations' constitutions, merely recommendations to member states they are not legally binding themselves; Universal declaration = evidence of a belief by states that they believe torture is not permitted
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Kiobel
ATS can NOT be applied to torts that occurred outside the US
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Sosa v. Alvarez
a human rights under customary intl law must be
widely recognized and defined w great precision
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UN Convention against torture
- (1) any act by which severe pain or suffering (physical or mental) is
- (2) intentionally inflicted
- (3) to obtain from him or a 3P info or a confession punishing him for an act he or a 3P has committed, OR
- (4) intimidating/coercing him or for any reason based on discrimination
- (5) when such pain/suffering is inflicted by the instigation of or w the consent/acquiesence of
- (6)a public official or person acting in official capacity
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Torture Victims Protection Act
- provides for a civil action against certain torturers but P must exhaust remedies in the place where the cause of action arose;
- 10 year SoL
- torturer under authority/color of law shall be liable to damages to that individual
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Federal Courts have SMJ through...
- 1331 - fed question
- 1332 diversity
- 1350 ATS
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Basis for PJ
- presence w/n the state (Filartiga)
- consent of ∆ (forum selection clause in K)
- under long-arm statutes (minimum contacts + constitutional)
- In rem (PJ over someone owning property here, can be sued at least involving the property)
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Rules on a Court's discretion not to hear a case over which it has jurisdiction
- Forum non conveniens
- political question doctrine
- act of state doctrine
- Comity
- other doctrines
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Act of State doctrine
every sovereign state is bound to respect the independence of every other sovereign state, and the Cts wont sit in judgment of another govts acts w/n its own territory
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Comity
legal reciprocity; one jurisdiction will extend certain courtesies to other nations (courts should not act in a way that demeans the jurisdiction, laws, or judicial decisions of another jurisdiction
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Basic conflict of laws concepts:
procedural rules; substantive law; internal law/local law
- procedural rules: a forum ct in a form state will apply its own procedural rules
- substantive law: forum ct may apply its own substantive law OR that of another state w an interest in the dispute
- internal law/local law: refers to all of a state's substantive law other than its conflict of law rules
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lex loci deliciti
law of the place where the tort was committed
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Restatement 2 of Foreign Relations adopted what rule to decide which law to use
Most significant relationship standard
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Most significant relationship standard:
considers needs of interstate and intl systems; relevant policies of the forum state and the other interested states; basic policies underlying that field of law; certainty, predictability, uniformity
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NE has adopted (conflict of laws)
R2CL §146: local law of the state where the injury has occurred unless some other state has a more significant relationship to the occurrence and the parties
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Other state cts under the full faith and credit clause of the US constitution - US states
must recognize and enforce a judgment duly rendered in another US state ct (not applicable to foreign cts - but in general do recognize them based on the principle of comity)
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