In 2019, the United States indicted Turkiye Halk Bankasi (Halkbank), a Turkish state-owned bank, alleging a multiyear scheme to evade US sanctions against Iran by using fraudulent transactions to transfer the proceeds of oil and gas sales to Iran. This chapter evaluates the charges against Halkbank under both US domestic law and customary international law. After briefly reviewing the charges against Halkbank and the US district court’s analysis of the extraterritoriality questions, the chapter considers the application of the US presumption against extraterritoriality, concluding that all the charges except for the bank fraud charges survive this analysis. The conclusion with respect to customary international law, however, is quite different. Under customary international law, the United States lacks jurisdiction to prescribe when its only connection to the foreign defendant is the clearing of transactions through banks in the United States. Because the International Emergency Economic Powers Act authorizes sanctions on financial transactions only when the person or property is subject to the jurisdiction of the United States, the sanctions regulations cannot lawfully be applied to Halkbank.

Introduction

The twenty-first century's first decade was an extraordinarily active one for international law in the Supreme Court, with the Court issuing more than thirty decisions implicating international law. Many of these decisions came in high-profile cases, and many made important contributions to the Court's jurisprudence. In Sanchez-Llamas v. Oregon and Medellin v. Texas, the Court considered the domestic legal status of treaties and the domestic effects of decisions by the International Court of Justice. It considered the federal judiciary's role in applying customary international law under the Alien Tort Statute in Sosa v. Alvarez-Machain. In a series of cases including Lawrence v. Texas, Roper v. Simmons, and Graham v. Florida, it turned in part to international law and foreign practice to decide the scope of domestic constitutional rights. In F. Hoffman-La Roche Ltd. v. Empagran S.A., Morrison v. National Australia Bank Ltd., and other cases, it used principles originally rooted in international law to constrain the global reach of federal statutes. And in prominent cases arising in the aftermath of the September 11, 2001 terrorist attacks, the Court grappled with questions of individual rights and separation of powers in a new kind of international warfare.

Many of these decisions were deeply controversial, provoking strong dissents from Justices not in the majority and strong criticism from academic and political commentators. Critics and supporters often differed sharply as to whether the Court's decisions were faithful to or a radical departure from prior precedents.

The first decade of the twenty-first century was a busy one for international law in the U.S. Supreme Court. The essays in Part V address the Court's most significant decisions during this period under five headings: (1) treaties, (2) customary international law, (3) constitutional interpretation, (4) statutory interpretation, and (5) the war on terror. Because these decisions are so recent, Part V addresses them differently – with shorter and more opinionated essays. This introductory note provides a brief overview of the decade's international cases under each of these headings. The essays that follow give more detailed accounts, opinions, and analyses regarding the leading cases.

Treaties after 2000

The Court most starkly confronted the role of treaties in two 2006 cases – Sanchez-Llamas v. Oregon and its companion case Bustillo v. Johnson – and in Medellin v. Texas two years later. All three cases involved individuals who were convicted of criminal offenses after state governments violated the provision of the Vienna Convention on Consular Relations (VCCR) mandating that foreign nationals arrested in the United States shall have the opportunity to speak with their nation's consulate. State law enforcement in the United States routinely failed to grant this right, a matter that first came to the Court at the end of the twentieth century in Breard v. Greene. But the significance of the issue escalated in 2004 when the International Court of Justice (ICJ) found, in the Avena case, that violations of the VCCR required defendants' sentences and convictions to be revisited and that procedural defaults under domestic law should not stand in the way.