Public International Law

Public International Law applies primarily to sovereign states and intergovernmental organizations (IGOs) such as the United Nations.  Officials with foreign ministries and international organizations rely on that law when they advise their governments or organizations in international disputes or in the day-to-day conduct of diplomatic relations.  Public international law also affects the rights and interests of corporations and individuals when they are engaged in transnational commercial transactions and cross-border investments or in virtually any activity that involves more than one national jurisdiction.

Steptoe has a long history of involvement in public international law, and our lawyers have an unusual breadth and depth of experience in this area. Since 1962 Steptoe has been counsel to the Rule of Law Committee, a group of senior legal representatives of large US multinational corporations with a common interest in monitoring and shaping the development of important issues in public international law.  In the 1970’s a Steptoe partner served as Legal Adviser to US Secretary of State Henry Kissinger.  Following in this long tradition, current lawyers at Steptoe have had extensive experience developing and applying international law in senior positions at the US Departments of State, Defense, and Homeland Security, the Office of the United States Trade Representative, the Central Intelligence Agency, and the National Security Agency.  Other Steptoe lawyers have served as staff lawyers at the International Court of Justice (ICJ) and the World Trade Organization (WTO).  Members of Steptoe’s worldwide public international law team have authored books and articles on international law topics as diverse as the laws of war, human rights law, the laws of international trade, the law of the sea, and the immunities of states, officials, and IGOs.  Two Steptoe lawyers currently teach public international law at leading law schools in the US and the UK.

The firm's experience and expertise in public international law are particularly deep in the following areas:

State-to-State and IGO Disputes

Disputes between the governments of different states or involving IGOs are governed by public international law.  Steptoe has:

  • Represented the United States Government in the Nicaragua vs. United States case before the ICJ
  • Represented the International Fund for Agricultural Development, a UN specialized agency, in the Global Mechanism case before the ICJ
  • Counseled clients in connection with half a dozen additional ICJ cases
  • Advised the International Finance Corporation in connection with ICJ litigation affecting its lending program
  • Represented the US Government in more than 130 arbitrations with the Government of Iran, totalling more than $30 billion in claims, before the Iran-US Claims Tribunal
  • Represented or advised the governments of China, Korea, Argentina, and Canada, as well as private sector interests, in nearly two dozen WTO panel and Appellate Body proceedings and on matters related to international trade policy and international trade negotiations.  Chambers selected Steptoe as the International Trade Practice of the Year in 2007, and Law 360 conferred the same honor to the group in 2010-2013.  Steptoe’s WTO Dispute Settlement practice is described in more detail in our WTO practice description
  • Advised the Turkish Republic of Northern Cyprus with respect to its status in international law and its negotiations with the United Nations and advised on related litigation in the United Kingdom and before the European Court of Justice

Foreign Investment Protection and Investor-State Disputes

If the host country and the home state of a foreign investor are parties to a bilateral investment treaty (BIT) or a multilateral investment treaty, such as the North American Free Trade Agreement (NAFTA) or the Energy Charter Treaty (ECT), the investor may have the right to bring claims against the host country for improper interference with its investment. These claims are typically heard before an international arbitration tribunal established under the auspices of the International Centre for Settlement of Investment Disputes (ICSID), the World Bank’s arbitration institution based in Washington, DC, and the claims are governed, in whole or in part, by public international law.  Steptoe’s experience in investor-state arbitration is described more fully in our Arbitration Practice description.  In brief, Steptoe has:

  • Successfully represented private sector clients in ICSID arbitrations against the governments of Turkey, Zimbabwe, and Jordan, and defended sovereign respondents in other ICSID arbitrations.  The arbitration against Turkey resulted in a settlement of nearly $1 billion for Steptoe’s client Motorola
  • Represented Corn Products, Inc., in arbitration against Mexico, which resulted in one of the largest awards rendered in a NAFTA case.  We have successfully represented both private and government clients in NAFTA Chapter 11 arbitrations
  • Advised a leading US multinational on sovereignty over subsurface mineral deposits in a concession jointly administered by two sovereign states in the Middle East
  • Counseled clients on the implications of the dissolution of the former Soviet Union for pre-existing commercial relationships and investments in light of the international law applicable to succession of states
  • Successfully represented a consortium of US oil companies in a series of international arbitrations involving the largest private claims presented to the Iran-US Claims Tribunal
  • Worked with the Rule of Law Committee and the Private International Law Committee of the US State Department to formulate the terms of standard US bilateral investment treaties (BITs) so as to best protect US investors in their investments in other countries
  • Advised clients on how to structure their investments so as to ensure that any disputes with the host country will be subject to international arbitration under a BIT or other treaty

International Claims

When recourse to investor-state arbitration is unavailable, claims arising from an expropriation of the private property of a foreign investor or from some other breach of international law may be 'espoused' by the investor's own state and pursued on a state-to-state basis.  The United States has negotiated a large number of claims settlement agreements on this basis and has authorized the United States Foreign Claims Settlement Commission to disburse to US claimants settlement funds or, in some cases, assets of the foreign government seized prior to settlement.  Steptoe has also been at the forefront of this area of law.  Steptoe has:

  • Worked with the US Department of State to formulate the procedures of the United Nations Compensation Commission (UNCC) for the resolution of claims arising from the First Gulf War
  • Prepared and filed claims against the Government of Iraq before the UNCC
  • Developed and advocated international claims for wrongful death arising out of terrorist attacks
  • Lobbied to protect the interests of clients in claims settlement negotiations with foreign governments, such as negotiations with the Government of Vietnam in 1992 that resulted in Steptoe's clients receiving full compensation
  • Represented clients before the US Foreign Claims Settlement Commission to recover assets of the Governments of Cuba and Vietnam seized by the United States Government to satisfy claims of US nationals
  • Represented a CIS country in connection with drafting and negotiating an espousal treaty with another state settling all legal issues arising from the accidental shooting down of a Russian jetliner
  • Represented the United States in presenting claims to the former Soviet Union based on the shooting down of KAL007

Immunity of States, Officials and IGOs

Under customary international law, the governments of foreign states and their instrumentalities are, with specified exceptions, immune from the jurisdiction of the national courts of other states.  In the United States these rules of sovereign immunity and the related exceptions are set out in the Foreign Sovereign Immunities Act (FSIA) of 1977.  Monroe Leigh, a Steptoe partner then serving as State Department Legal Adviser to US Secretary of State Henry Kissinger, played a leading role in the drafting and enactment of that statute.  Since the FSIA's enactment, Steptoe has worked both on behalf of and against foreign sovereigns, their agents, and their instrumentalities in litigation and in the enforcement of judgments and arbitral awards.  The firm has also advised clients on proposed legislative amendments to the FSIA. Steptoe has:  

  • Succeeded in attaching and releasing to Steptoe’s client ExxonMobil $305 million in assets of the Republic of Venezuela and Venezuela’s national oil company PDVSA to satisfy arbitration awards.  Steptoe's successes are the subject of a chapter in the book, Private Empire: ExxonMobil and American Power, by Steve Coll, and an article in the Business Insider
  • In Acree v. Republic Of Iraq, No. 04-820 (S. Ct. 2005), we petitioned the US Supreme Court for certiorari on behalf of 1991 Gulf War POWs in connection with a $1 billion judgment against Saddam Hussein and the Republic of Iraq.  The immunity of the Iraqi assets to enforcement was the central point in dispute
  • Represented the Republic of Kazakhstan in a contract dispute brought by a United States-based entity that involved sovereign immunity issues under the FSIA
  • Represented a consortium of multinational oil companies in connection with claims against the Government of Yemen.  A central issue in the case was the ability to enforce an arbitral award against assets of the Yemeni government, thus implicating the FSIA
  • Advised a European national railroad company with respect to proposed amendments to the FSIA pending before Congress
  • Represented the capital city of a European state and its museum in US federal litigation under the FSIA arising from disputed title to art works
  • Represented Ukraine in US federal litigation under the FSIA arising from asset recovery work and before the courts of various European countries in connection with immunity questions arising from multiple proceedings resulting from an arbitral award issued against the State Property Fund of Ukraine and State of Ukraine
  • Advised a former United Nations High Commissioner for Refugees regarding immunity issues arising from US federal litigation brought against him, a former UN Secretary-General, and the United Nations

Extraterritorial Jurisdiction

The United States has vigorously asserted the extraterritorial reach of its export control laws (including anti-boycott legislation), its trade embargo laws, its antitrust laws, and its labor laws. As a result, US and non-US companies often find themselves the subject of conflicting directives by a territorial sovereign and the US government. These conflicting jurisdictional claims are governed by public international law.  Steptoe has:

  • Advised a broad range of US and foreign companies on compliance with these often conflicting demands
  • Filed an amicus brief before the US Supreme Court addressing the international law limitations on extraterritorial assertions of US employment laws
  • Developed exculpatory defenses for alleged violations of US economic embargo based on internationally recognized principles of duress and foreign sovereign compulsion
  • Prepared and presented detailed advocacy papers to US government departments and agencies explaining the international law constraints on US regulatory control and enforcement jurisdiction over foreign subsidiaries of US companies
  • Advised Microsoft concerning questions of extraterritoriality arising from fines imposed by the European Commission

Law of the Sea

The 1982 United Nations Convention of the Law of the Sea (UNCLOS) governs sovereign rights in the various maritime zones and the seabed, including:

  • Fishing rights
  •  Mineral rights
  •  Navigation rights
  • Jurisdiction over ship wrecks and historic artifacts on the seabed
  • Limits of maritime jurisdiction

Customary international law also applies to many of these issues, particularly when the interests of the United States and other countries that have not ratified UNCLOS are involved.  Steptoe has:

  • Represented a client in longstanding claims against the government of Australia in a dispute over the limits of Australia’s sovereignty under UNCLOS
  • Counseled clients in connection with a half dozen ICJ cases featuring law of the sea issues
  • Advised the ministry of petroleum and mineral resources of a Middle Eastern country and its national oil company in connection with various matters pertaining to the law of the sea and maritime boundaries

Energy and Natural Resources

Public international law governs sovereign ownership and regulation of transboundary natural resources, both onshore and offshore.  In addition to the Law of the Sea issues discussed above, international boundary issues include questions of transboundary damage caused by activity in the energy industry, rights related to cross-boundary pipelines, and rights in transboundary mining or oil concessions.

Steptoe has one of the leading practices on domestic and cross-border pipelines, and we regularly advise leading energy companies and mining companies in connection with their rights and interests under international law.  Steptoe lawyers have published on a wide array of energy topics, including pipelines and international nuclear energy law.  One member of Steptoe’s public international law team holds the Chair in International Law at the Centre for Energy, Petroleum and Mineral Law and Policy (CEPMLP) within the University of Dundee (UK).  Steptoe has:

  • Advised leading oil and gas companies in connection with UN, EU, and US economic sanctions, contract negotiations with state-owned oil companies, and the legal regime pertaining to domestic and cross-border pipelines
  • Advised clients regarding the substantive and procedural guarantees provided by the Energy Charter Treaty, including the expropriation of concessions and energy transit rights
  • Represented the Saudi Arabian Oil Company against the Republic of Iraq before the United Nations Compensation Commission in connection with claims arising from the First Gulf War
  • Trained officials of Iraq’s Oil Ministry, including its Legal Director, on negotiating and implementing contracts with international oil companies
  • Conducted workshops for oil industry executives concerning the public international law pertaining to pipelines, the law of the sea, and compliance issues

Human Rights

Steptoe advises a broad range of multinational corporations with respect to increasing expectations that their treatment of workers, third parties, and other stakeholders in their foreign investments will comply with various human rights and other international standards.  Steptoe’s human rights practice is described in more detail in our Business and Human Rights practice description.

Steptoe also advises corporate clients charged with tort claims based on the US Alien Tort Statute (ATS) and Steptoe lawyers have been involved in litigating several of the leading ATS cases.  Human rights are also an important facet of Steptoe's pro bono practice.  We have:

  • Actively participated in the work of the Washington-based International Human Rights Law Group
  • Analyzed due process and international law issues for a UN War Crimes Tribunal in connection with the right of an accused to cross-examine and confront witnesses
  • Prepared detailed analyses of Uganda’s rights to prosecute alleged human rights violators and the consistency of Uganda’s International Criminal Court Act with the Rome Statute establishing the International Criminal Court
  • Represented a broad range of individuals on asylum and refugee matters. Many of these cases involve novel issues of fact and law. Steptoe was, for example, one of the first firms to persuade the US Immigration and Naturalization Service that persecution based on sexual orientation falls within the scope of human rights protection
  • Prepared an analysis of a draft Constitution for the State of Nepal analysing its provisions pertaining to international law

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