Amann_Benchbook

BENCHBOOK on International Law Diane Marie Amann ed. (2014)

Benchbook on International Law American Society of International Law Š 2014

The American Society of International Law dedicates this Benchbook on International Law to the memory of David J. Bederman

Summary Table of Contents1 Cover, Copyright, Dedication Preface

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Summary Table of Contents

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Detailed Table of Contents

vi

I. An International Law Primer

I.A-1

A.

I.A-1 I.A-3 I.A-3 I.A-3 I.A-3 I.A-4 I.A-5

International Law Defined 1. Private International Law 2. Foreign Relations Law 3. Foreign Law 4. Comparative Law 5. Transnational Law 6. Global Law

B. Sources and Evidence of International Law 1. Two Primary Sources of International Law 2. Secondary Source of International Law 3. Subsidiary Means of Determining International Law Rules 4. “Soft Law”

I.B-1 I.B-2 I.B-10 I.B-11 I.B-13

C. Uses of International Law in U.S. Courts 1. Direct Enforcement of Treaty Provisions 2. Statutory Implementation or Incorporation of International Law 3. Application of Customary Norms and Other International Law Sources 4. Consultation of International Sources As an Aid to Interpretation

I.C-1 I.C-1 I.C-5 I.C-7 I.C-9

II. Jurisdictional, Preliminary, and Procedural Concerns

II.A-1

A. Jurisdiction 1. Principles or Bases of Jurisdiction 2. Sources of Jurisdiction Under U.S. Law 3. Principles or Bases of Jurisdiction and U.S. Courts 4. Determining if Congress Intended to Give a Statute Extraterritorial Reach

II.A-1 II.A-2 II.A-4 II.A-6 II.A-11

B. Immunities and Other Preliminary Considerations 1. Immunities 2. Act of State Doctrine

II.B-1 II.B-1 II.B-16

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This Summary Table of Contents for Am. Soc’y Int’l L., Benchbook on International Law (Diane Marie Amann ed., 2014), is available at www.asil.org/benchbook/summarytoc.pdf. To access the entire volume, see www.asil.org/benchbook.

Benchbook on International Law Summary Table of Contents (2014)

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3. Political Question 4. Forum Non Conveniens 5. Time Bar 6. Exhaustion of Remedies 7. Comity 8. Choice of Law 9. Recognition and Enforcement of Foreign Judgments

II.B-18 II.B-20 II.B-22 II.B-22 II.B-23 II.B-24 II.B-25

C. Discovery and Other Procedures 1. Service of Process Abroad 2. Taking of Evidence Abroad 3. Discovery Requests from Non-U.S. Courts

II.C-1 II.C-1 II.C-4 II.C-11

III. International Law in U.S. Courts: Specific Instances

III.A-1

A. International Arbitration 1. International Arbitration Defined 2. How International Arbitration Matters Arise in U.S. Courts 3. Legal Framework: The Federal Arbitration Act 4. Distinguishing Domestic from International Arbitration Awards 5. Request for Injunctive or Other Provisional Measures 6. Request for Discovery Order 7. Request to Confirm, Recognize, Enforce, or Vacate Arbitral Awards 8. Additional Arbitration Research Resources

III.A-1 III.A-1 III.A-2 III.A-3 III.A-6 III.A-11 III.A-15 III.A-20 III.A-29

B. International Law Pertaining to Families and Children 1. Overview 2. Cross-Border Abduction of Children 3. Civil Aspects of Cross-Border Child Abduction 4. Criminal Aspects of Cross-Border Child Abduction: Federal Prosecution 5. Research Resources

III.B-1 III.B-1 III.B-4 III.B-5 III.B-37 III.B-46

C. International Sale of Goods 1. U.N. Convention on Contracts for the International Sale of Goods 2. Researching International Sales Law

III.C-1 III.C-2 III.C-21

D. International Air Transportation 1. History of International Aviation Law 2. Treaties Applicable in U.S. Courts 3. Key Treaties and U.S. Principle of Self-Execution 4. Inter-Carrier Agreements 5. Scope of Application of Treaties 6. Determining the Applicable Law 7. Federal Jurisdiction 8. Venue

III.D-1 III.D-1 III.D-2 III.D-4 III.D-4 III.D-5 III.D-6 III.D-9 III.D-11

Benchbook on International Law Summary Table of Contents (2014)

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9. Types of Claims Covered by Treaties 10. Limitation of Liability 11. Other Defenses 12. Treaty Interpretation E. Human Rights 1. Alien Tort Statute 2. Torture Victim Protection Act 3. Human Trafficking 4. Non-refoulement, or Nonreturn

III.D-12 III.D-13 III.D-15 III.D-16 III.E-1 III.E-2 III.E-26 III.E-36 III.E-50

F. Criminal Justice 1. Benchbook Sections related to Criminal Justice 2. Federal Criminal Statutes with Extraterritorial Reach 3. International Treaties Concerning Criminal Justice 4. Conclusion

III.F-1 III.F-1 III.F-2 III.F-3 III.F-4

G. Environment 1. Domestic Law and Jurisprudence 2. Treaties and Other International Agreements

III.G-1 III.G-1 III.G-7

IV. Research and Interpretive Resources

IV.A-1

A. Judicial Interpretation of International or Foreign Instruments 1. Vienna Convention on the Law of Treaties

IV.A-1 IV.A-1

B. Research Resources 1. Restatements and Other Print Resources 2. Online Databases

IV.B-1 IV.B-1 IV.B-2

V. Contributors

V-1

VI. Acknowledgments

VI-1

VII. Index and Tables

VII-1

A. Table of Treaties and Other International Instruments

VII-2

B. Table of Judicial Decisions 1. International Courts 2. National Courts

VII-5 VII-5 VII-5

C. Table of National Laws, Legislative Materials, Jury Instructions, and Uniform Laws VII-11 1. U.S. Constitution VII-11

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2. U.S. Statutes 3. U.S. Regulations 4. U.S. Legislative Materials 5. U.S. Jury Instructions 6. Uniform Laws

VII-11 VII-13 VII-13 VII-13 VII-13

D. Table of Scholarly Writings 1. Books 2. Chapters 3. Articles 4. Other

VII-14 VII-14 VII-15 VII-16 VII-17

E. Keyword Index

VII-18

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Recommended citation: Am. Soc’y Int’l L., “Preface,” in Benchbook on International Law (Diane Marie Amann ed., 2014), available at www.asil.org/benchbook/preface.pdf

Preface This Benchbook provides a hands-on introduction to international law as it arises in courts of the United States. Its primary audience will be U.S. District Judges, typically the first to encounter questions of international law in our system. Others too may find the Benchbook of use: Magistrate Judges who may handle discovery and similar matters in the first instance; federal appellate judges who review the work of the district courts; state court judges whose docket includes disputes for which there is concurrent federal-state jurisdiction; administrative law judges; law clerks, legal assistants, and staff attorneys who serve the judiciary; and litigants who seek clearly and accurately to present to judges pertinent issues of international law.

To aid judges in shaping litigation and resolving disputes, the Benchbook begins with a primer on international law’s sources and status in U.S. courts. Jurisdictional, preliminary, and procedural concerns, like immunities and evidence-gathering, next are treated. The Benchbook then provides discussions of concrete instances in which such issues may arise; for example, arbitration, child abduction, human rights, and the international sale of goods. It concludes with issues of interpretation and research resources. Later editions will enrich these discussions, described in the Detailed Table of Contents at http://www.asil.org/benchbook/detailtoc.pdf.

In keeping with the hands-on approach, an outline format is used as much as possible. In all circumstances, this Benchbook on International Law, like the Federal Judicial Center manual that inspired it, Benchbook for U.S. District Court Judges (6th ed., 2013), endeavors to discuss issues as they arise in U.S. courts.

This Benchbook uses the term “international law” in a broad sense. Classical international law, the body of legal obligations that independent nation-states assume in order to regulate their own interactions, is covered as it relates to federal trial courts. Also addressed are laws, norms, and judgments that have an international or cross-border component affecting a person, corporation, or other litigant. These may be labeled international, foreign or foreign relations, comparative, transnational – even global. In some cases, the law may supply a binding rule for the court; in other cases, a litigant may point to it as potentially persuasive authority.

This usage reflects evolution in the discipline for which the Benchbook’s publisher, the American Society of International Law, is the principal learned society. ASIL is a nonprofit, nonpartisan organization founded in 1906, chartered by Congress in 1950, and headquartered in Washington, D.C. Its 4,000 members – dozens of whom contributed to this Benchbook – include academics, corporate counsel, judges, representatives of governments and nongovernmental organizations, and international civil servants. Central to ASIL’s mission of promoting the establishment and maintenance of international relations on the basis of law and justice is its judicial outreach program, a part of which is this Benchbook on International Law. Benchbook on International Law (2014)

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