Memorandum on the State of Act Doctrine
This memorandum follows a series of misunderstanding on the jurisdiction of the courts mandate every time a case relating to the act of state doctrine appears. The memorandum may bring into effect the desired judicial changes to help deal with ambiguities relating to this act of state doctrine. The memorandum justifies its existence and proposes changes that would help restructure the approach of cases of this nature. The act of state doctrine has many limitations to the judicial mechanisms. Basically, it lacks a significant constitutional mandate and is an impediment to the international law.
The act was initially viewed as a representation of international law interests Oetjen v. Central Leather Co., 246 U.S. 297, 303-304, (1918). The act is not commensurate to the state immunity rules contained in the international set of laws. It is an impediment to the internal judicial mechanisms and though it has constitutional underpinnings it underrates some constitutional mandates of law courts especially due to interpretational constraints. The act is neither subject to the state immunity rules nor too similar considerations. Its constitutional underpinning, however, is derived from the interaction of the various arms of the government in a process of power separation. This doctrine results to implement specific decisions appertaining to international relations.
It dates back to as many as 90 years in history with specific years solidifying its constitutionality despite the confusion it causes during execution. Eerier formats of the doctrine did express the need to have a judicial system that could determine with finality the validity of alien acts of states. Such an approach may in one way or another hinder the countries constitutional mandate as well as interferes with the rights of other nations. It was established through the executive branch case laws and through federal legislation to give it a constitutional look. In Kirkpatrick, there was the reaffirmation of the courts ability to determine a case that has been properly presented before it.
Following the recent decision in the Sabbatino case, the act has continued to receive criticism from both national and international law practitioners. These criticisms have put various clauses in the law on the spotlight exposing its impediment to the judicial system. The bone of contention relates to the role of internal courts in upholding international practices as well as the interpretation of the act in specific situations. Relating to the international immunity rules, there raises a question whether the law is procedural or substantive and what rights does it provide in relation to accessing the court facilities. A suggested amendment to this ambiguity would be to subject the act to public scrutiny then have it passed through the congress to implement a clause defining its limitations. Such an amendment would be similar to the Hickenlooper Amendment,” 22 U.S.C. § 2370(e)(2) limiting the situations when the doctrine does not apply.
In relation to its limitation to internal court processes and in accordance to the jurisdiction of the court, there exists an ambiguity which ought to be resolved. The act of state doctrine limits the courts ability to make decisions on the foreign act of state. All that is provided in the act in such a situation are predetermined results, validity of the alien act limiting the process of justice where proceedings should yield the remedy. All it does, in this case, is to provide an immunization thus limiting further proceedings. This can be amended to commensurate with the international rules of immunity that provides specific exceptions. The doctrine is also infringing on individual rights. It negates individual rights and obligations that people might otherwise hold appertaining to the validity of foreign states acts. That is, the rights which such people may claim to have been violated.
In addition, it limits the right of an individual to access a court. The justice process is impeded in that the rule of procedural law that requires reasoning would not apply. Any dismissal would therefore be unacceptable else a justification would be required. This anomaly can be adequately corrected by subjecting it to the congress to match it to the bill of rights. Such a modification would benefit individual people against being molested by the act. It would also reduce the immunity offered to foreign acts as procedural reasoning would override the process rather than predetermined results. This change would affect cases relating to foreign acts especially to those denied immunity.
In case a state has been denied immunity by the international rules of immunity, such states should be barred from asserting the act of state doctrine. Immunities offered to such foreign states from other defense mechanisms would not be in line with the international rules of justice and this would mean that certain sectors would not receive due justice. This should be done to enhance the protection of individual’s whose rights may have been breached by such states.
In conclusion, the act of state doctrine goes beyond contradicting international laws. Amendments to the act to make it commensurate with international practices and hence enhance justice for all would be vital. Only immunities in accordance to international regulations should be allowed. Predetermined trends depicted in the act undermine fair trials and amendments commensurate to the bill of rights should be carried out to allow fair trials. The office of the clerk finds the implementation of the suggested changes a vital requirement in order to effectively handle future cases of this nature.
Relevance of customary international law in contemporary international law and practice
This documentation describes the role played by the customary international law in the contemporary international law. The internationally accepted rules and regulations can be categorized into two classes depending on how they were developed, and the levels at which they are implemented. International laws result from people’s ways of lives and are adopted to streamline interactions in terms of exchange and manipulation of different resources.
Definition of terms
Customary international law: set of rules and regulation derived from people’s customs, beliefs, and practices.
Contemporary international law: Generally accepted international rules and regulations governing people’s ways of life.
The contemporary international law recognizes the norms of individual states for a variety of reasons, therefore, describing the relevance of what is taken as the international customary law. Uniformity is only possible through comparison of various customs, norms, and taboos. These norms are generally contained in the customary international law. For any international law to be considered for adoption by individual nations it must be consistent with the customary practices of the people. Punishment to defaulters of the law should be consistent to the magnitude of the crime as generally viewed by the community. An international law only describes punishments in relation to the communities’ expectations a feature derived from the customary international law.
An international law should also recognize diversity in religious beliefs, traditional practices and taboos.These diversities results in different societies with different racial and ethnic backgrounds. The contemporary law recognizes these diversities and tries to harmonize them to fit the various communities. International laws derived from the customary laws recognize crimes of various categories such as those defined by the Hague statutes. Individual societies treat different crimes separately and this is harmonized in the international customary law. These crimes can only be identified through a comparison of different backgrounds which is achieved by the use of the international customary law.
In the implementation of the international laws, individual nation’s mechanisms such as judicial systems, police forces and modes of governance are vital. Such aspects consolidate to define the customary set of laws that the international contemporary law cannot do without. International and national foreign policies defining interactions between individual nations are defined in the customary international law. The international contemporary law is fully dependent of such foreign relations policies. The sense of obligation described by the customary set of laws defines the basis of the international contemporary law. Without an acceptance that the international law is meant to enhance interrelations between people, the international laws would prove irrelevant. Customary laws which have basic origin from community level recognize this aspect thus depicting the role of the international contemporary laws.
Information used to design the international contemporary laws originates from individual nations explaining what role the customary society norms play in defining the contemporary law. This information is derived from journals magazines, first-hand data from interview among others.Without this information relating to the customary laws of various people; it would prove extremely hard to define an internationally acceptable law. This describes the vital role of the customary law without which the contemporary law cannot exist. The legislative arms of individual nations come in handy both in designing and implementation of the international contemporary law. That is the contemporary law follows the general pattern of a customary law. Legislation is needed in individual nations to conform to the requirements of the international contemporary law. This legislation cannot be achieved without taking the patterns of the ways of lives for the different countries.
The international customary law defines the limitations of international contemporary law. The contemporary law depends on the customary law to define its limits and exceptions. The Muslim society, for example, expects certain exceptional treatment. This can only be done through the customary law that is based on peoples’ ways of life. The international contemporary law relies on evidence carried out in observation of the customary law. This can be attested to the international criminal courts ICC at The Hague. This court conducts its proceedings in accordance to the rules stipulated down by the international contemporary law. However, it relies on evidence collected in individual nations in accordance to the customary law.
The adoption of international customary law depends on the substantial number of states authenticating the international contemporary law. This rule of majority gives mandate to the international justice systems to deal with international crimes such as slavery, a crime against humanity among others. These crimes may be acceptable to some nations but not a majority. Training of international law personnel is dependent on individual nation’s training facilities. These individuals are trained on both the international contemporary law as well as the international customary law. This is a clear indication that the two are related and a decision in one should in most cases be commensurate to the provision of the other.
Diplomatic relations which are conducted in line with the international laws are defined by the customary ways of people from the various nations. The relations observe such provisions as immunity to heads of states defined in the customary international law. Humanitarian aids conducted in observance of the international contemporary law too depend on the requirements defined in the customary law. It is dependent to such factors as economic activities defining the customary society.
The contemporary international law is dependent on the international customary law in a variety of ways as described. The customary laws are defined from people’s ways of life. The adoption of various laws as international laws requires majority support from individual countries. The demands and procedures of the international contemporary law are generally coined from the international customary law.