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The Law of Nations in American Law

Case: Amerada Hess v. Argentine Republic (1989; US)

Facts: Hess was carrying oil from Alaska, around the southern tip of South
America, to the U.S. Virgin Islands. There was an armed conflict btwn Argentina &
UK, and to protect US interests, the US Maritime Administration gave both UK and
Argentina a list of vessels that would be passing through, and the list included
Hess's ship, Hercules, to ensure the neutral vessel wouldn’t be attacked. On a
trip back to Alaska, Hercules was attacked by Argentine aircraft. The damages
vessel sought refuge in Brazil, and in addition to the damages the vessel
sustained, there was an undetonated bomb in one of the tanks. It was determined
unreasonably hazardous to attempt the remove the undetonated bomb, so the Hercules
had to be destroyed. Plaintiff is suing for the destroyed vessel, and for the
fuel onboard, and it was brought in district court. District court dismissed the
case due to lack of jurisdiction. On appeal.

Issue: Whether a federal district court could exercise SMJ over Argentina under
the Alien Tort Statute.

Alien Tort Statute - establishes district court jurisdiction over any civil action
by an alien for a tort only, committed in violation of the law of nations or a
treaty of the United States.

Holding: Reversed.

Reasoning: Court examines the Alien Tort Statute and the Foreign Sovereign
Immunities Act, concluding that both statutes provide grounds for SMJ over
Argentina.
• Also, court says Argentina violated international law:
○ The Declaration of Paris of 1856 - "Neutral goods, with the exception of
contraband of war, are not liable to capture under enemy's flag"
○ Geneva convention on the High Seas of 1958 - Art.22 - a warship cannot
board a merchant vessel w/o grounds of suspecting her of engaging in piracy, slave
trade, or traveling under false colors. Even if there are grounds for suspicions,
an officer will first board and inspect the ship, but never to just commence an
attack. If the merchant vessel is found to be neutral, it shall be compensated
for any loss or damages sustained.
○ Law of Sea Convention of 1982 - explicitly incorporates above provisions,
and Argentina is a signatory, and US has endorsed the relevant sections of it.
○ Other international accords support this view of the rights of neutral
ships.
• Very clear that Argentina violated International law.

Notes
• This is a neutral US ship; Argentina damaged the ship
• Why is there jurisdiction to settle the claim in the US?
○ Alien tort Statute - US district court has jurisdiction for tort civil
action, committed in violation of the law of nations or a treaty of the US.
§ US has jurisdiction for violation of law of nations or treaty law
• 2 statutes (Alien tort statute & Foreign Sovereign Immunities Act) incorporate
CIL
• Elements of CIL
○ Practice (objective)
○ Opinion juris (subjective; psycological)

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