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Zschernig v. Miller and the Breard Matter

Published online by Cambridge University Press:  27 February 2017

Frederic L. Kirgis
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Extract

In 1968 the United States Supreme Court decided Zschernig v. Miller, a foreign relations case that has been characterized as unique. An Oregon probate statute provided for escheat of a decedent’s property in preference to a nonresident alien’s claim to inherit it unless the alien’s country (1) allowed United States citizens to inherit under similar circumstances, (2) allowed U.S. citizens to receive payment here of funds inherited there, and (3) gave foreign heirs the right to receive the proceeds of Oregon estates without confiscation. Residents of then East Germany, who were the heirs of an Oregon decedent, challenged the constitutionality of the statute. The Supreme Court struck down the statute, finding that Oregon probate and appellate judges were basing their decisions on “foreign policy attitudes, the freezing or thawing of the ‘cold war.’”

Type
Agora: Breard
Information
American Journal of International Law , Volume 92 , Issue 4 , October 1998 , pp. 704 - 708
Copyright
Copyright © American Society of International Law 1998

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References

1 389 U.S. 429 (1968).

2 See Richard B. Bilder, The Role of States and Cities in Foreign Relations, 83 AJIL 821, 825 (1989).

3 Zschernig, 389 U.S. at 437.

4 Id. at 440–41.

5 See Louis Henkin, Foreign Affairs and the United States Constitution 163–65 (2d ed. 1996); Bilder, supra note 2, at 825–26.

6 Henkin, supra note 5, at 165, asks whether it might be such a relic.

7 Zschernig, 389 U.S. at 437 n.8.

8 As of May 1998, there were apparently about 70 foreign nationals being held in U.S. prisons despite allegations that their rights under the Consular Convention had been violated. Nat'l L.J., May 4, 1998, at A12. See also S. Adele Shank & John Quigley, Foreigners on Texas's Death Row and the Right of Access to a Consul, 26 St. Marv's L.J. 719 (1995).

9 See Bilder, supra note 2, at 825 n.27, and authorities there cited.

10 International Covenant on Civil and Political Rights, Dec. 19, 1966, Art. 6(5), 999 UNTS 171.

11 See Peter J. Spiro, The States and International Human Rights, 66 Fordham L. Rev. 567, 572–75 (1997) (not discussing Zschemig, but pointing out the disinclination of federal political branches to correct state human rights practices). See also Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, UN Doc. E/CN.4/1998/68/Add.3, para. 145.

12 Restatement (Third) of the Foreign Relations Law of the United States §402 reporters' note 5 (1987); see also id., §1 reporters' note 5; Henkin, supra note 5, at 511 n.20.

13 Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. 480, 493 (1983).

14 First Nat'l City Bank v. Banco Nacional de Cuba, 406 U.S. 759, 765 n.1 (1972) (opinion of Justice Rehnquist).

15 See N.Y. Times, Apr. 14, 1998, at A14; id., Apr. 15, 1998, at A18.

16 See Professor Vázquez's contribution to this Agora, Carlos Manuel Vázquez, Breard and the Federal Power to Require Compliance with ICJ Orders of Provisional Measures, supra p. 683.

17 See Curtis A. Bradley & Jack L. Goldsmith, The Abiding Relevance of Federalism to U.S. Foreign Relations, supra p. 675.

18 See Richmond Times-Dispatch, Apr. 16, 1998, at B5.

19 Id. The ICJ expressly recognized in its Provisional Measures Order that its function was not to act as a court of criminal appeal. Case concerning the Vienna Convention on Consular Relations (Para. v. U.S.), Provisional Measures (Order of Apr. 9, 1998).

20 N.Y. Times, Apr. 15, 1998, at A18.

21 When the United States revoked its declaration accepting the Court's jurisdiction under Article 36(2) of the ICJ Statute in 1985, it nevertheless reaffirmed its “traditional commitment to international law and to die International Court of Justice in performing its proper functions.” Department [of State] Statement (Oct. 7, 1985), Dep't St. Bull., Jan. 1986, at 67, reprinted in 24 ILM 1743, 1744–45 (1985). See also statement of State Department Legal Adviser Abraham D. Sofaer (Dec. 4, 1985), Dep't St. Bull., Jan. 1986, at 67, 71.

22 See United States v. Alvarez-Machain, 504 U.S. 655 (1992), as well as Breard v. Greene, 118 S.Ct. 1352 (1998).

23 See Bilder, supra note 2, at 831; see also Spiro, supra note 11, at 578.