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FOREIGN RELATIONS LAW

EDITORIAL ADVISORS

Vicki BeenElihu Root Professor of LawNew York University School of Law

Erwin ChemerinskyDean and Distinguished Professor of LawUniversity of California, Irvine, School of Law

Richard A. EpsteinLaurence A. Tisch Professor of LawNew York University School of LawPeter and Kirsten Bedford Senior FellowThe Hoover InstitutionSenior Lecturer in LawThe University of Chicago

Ronald J. GilsonCharles J. Meyers Professor of Law and BusinessStanford UniversityMarc and Eva Stern Professor of Law and BusinessColumbia Law School

James E. KrierEarl Warren DeLano Professor of LawThe University of Michigan Law School

Richard K. Neumann, Jr.Professor of LawHofstra University School of Law

Robert H. SitkoffJohn L. Gray Professor of LawHarvard Law School

David Alan SklanskyProfessor of LawUniversity of California at Berkeley School of Law

Kent D. SyverudDean and Ethan A. H. Shepley University ProfessorWashington University School of Law

Elizabeth WarrenLeo Gottlieb Professor of LawHarvard Law School

FOREIGN RELATIONSLAW

Fourth Edition

Curtis A. BradleyProfessor of LawDuke University School of Law

Jack L. GoldsmithProfessor of LawHarvard Law School

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To Kathy, David, and Liana

—Curtis A. Bradley

To Leslie, Jack, and Will

—Jack L. Goldsmith

Summary of Contents

Contents xiPreface xixAcknowledgements xxiEditorial Notice xxiiiOverview of International Law and Institutions xxv

Chapter 1 Introduction: Historical and Conceptual Foundations 1

Chapter 2 Courts and Foreign Relations 41

Chapter 3 Congress and the President in Foreign Relations 141

Chapter 4 War Powers 207

Chapter 5 War on Terrorism 317

Chapter 6 States and Foreign Relations 421

Chapter 7 Treaties and Other International Agreements 479

Chapter 8 Customary International Law and International Human Rights Litigation 605

Chapter 9 Extraterritoriality 713

Appendix A: Constitution of the United States 795

Appendix B: Select Jurisdictional Provisions 811

Appendix C: Foreign Sovereign Immunities Act 819

Table of Cases 831Index 841

xi

Contents

Preface xixAcknowledgements xxiEditorial Notice xxiiiOverview of International Law and Institutions xxv

Chapter 1Introduction: Historical and Conceptual Foundations 1

A. Constitutional Background 11. Declaration of Independence 22. Articles of Confederation 4

Bradford Perkins, The Creation of a Republican Empire, 1776-1865 4

Jack N. Rakove, Making Foreign Policy —The View from 1787 63. United States Constitution 7

Federalist No. 3 (Jay) 8Federalist No. 4 (Jay) 8Federalist No. 11 (Hamilton) 9Federalist No. 15 (Hamilton) 9Federalist No. 42 (Madison) 10Federalist No. 75 (Hamilton) 10Federalist No. 80 (Hamilton) 11

Notes and Questions 11

B. Neutrality Controversy of 1793 12Proclamation, April 22, 1793 13‘‘Pacifi cus’’ No. 1 14‘‘Helvidius’’ Nos. 1, 2 16Grand Jury Charge of John Jay 20Neutrality Act of 1794 21


C. Nature of U.S. Foreign Relations Authority 24Ex parte Merryman 25Chinese Exclusion Case (Chae Chan Ping v. United States) 26Carter v. Carter Coal Co. 28United States v. Curtiss-Wright Export Corp. 29

Notes and Questions 32Note on Approaches to Constitutional Interpretation 37

Chapter 2Courts and Foreign Relations 41

A. Jurisdiction over Foreign Relations Cases 41

B. Justiciability: Standing, Ripeness, Mootness 43Raines v. Byrd 43


Contentsxii

C. Political Question Doctrine 50Baker v. Carr 50Goldwater v. Carter 52


D. Foreign Sovereign Immunity 651. Background and Overview of the Foreign Sovereign Immunities Act 65

Verlinden B.V. v. Central Bank of Nigeria 65Republic of Austria v. Altmann 70

Notes and Questions 752. Exceptions to Immunity 80

Saudi Arabia v. Nelson 80Notes and Questions 88

E. Act of State Doctrine 951. The Sabbatino Decision 96

Banco Nacional de Cuba v. Sabbatino 96Notes and Questions 1042. Limitations and Exceptions 109

W.S. Kirkpatrick & Co. v. Environmental Tectonics Corp. 109Notes and Questions 113

F. Judicial Deference to the Executive Branch 116Mingtai Fire & Marine Ins. Co. v. United Parcel Service 116Gonzalez v. Reno 119De Los Santos Mora v. New York 122


G. International Comity 129Ungaro-Benages v. Dresdner Bank AG 129


Chapter 3 Congress and the President in Foreign Relations 141

A. Sources of Congressional Power 142Buttfi eld v. Stranahan 142United States v. Arjona 143Fong Yue Ting v. United States 145


B. Sources of Executive Power 160President Monroe’s Annual Message to Congress,

December 2, 1823 160Theodore Roosevelt, An Autobiography 161William Howard Taft, Our Chief Magistrate and His Powers 161Robert Kagan, A Twilight Struggle: American

Power and Nicaragua, 1977-1990 162George W. Bush, The National Security Strategy of the

United States of America (Sept. 2002) 163Remarks by President Obama in Address to the Nation on Libya 164Youngstown Sheet & Tube Co. v. Sawyer 165


Contents xiii

C. Relationship Between Congress and the President 181Dames & Moore v. Regan 181Loving v. United States 186Memorandum from Walter Dellinger, Assistant Attorney General,

Offi ce of Legal Counsel, to Abner J. Mikva, Counsel to the President, ‘‘Presidential Authority to Decline to Execute Unconstitutional Statutes’’ 191


Chapter 4War Powers 207

A. Congress’s Role in Authorizing War 2071. Historical Background 207

Federalist No. 24 (Hamilton) 209Federalist No. 25 (Hamilton) 210Federalist No. 69 (Hamilton) 210

2. The Undeclared War with France 211Bas v. Tingy 212

3. The War of 1812 214Brown v. United States 215

4. The Vietnam War 218Orlando v. Laird 219


B. The President’s Independent Military Powers 2301. The Mexican-American War 2302. The Bombardment of Greytown 232

Durand v. Hollins 2323. The Civil War 233

The Prize Cases 2334. The Korean War 2355. The Libya Intervention of 2011 238

Memorandum Opinion from Caroline D. Krass, Principal Deputy Assistant Attorney General, Offi ce of Legal Counsel, to the Attorney General, “Authority to Use Military Force in Libya” 239


C. Congress’s Ability to Regulate the President’s Use of Force 252Little v. Barreme 252War Powers Resolution 254War Crimes Act of 1996 (as amended) 256Memorandum from Walter Dellinger, Assistant Attorney General,

Offi ce of Legal Counsel, to Alan J. Kreczko, Special Assistant to the President and Legal Adviser to the National Security Council, ‘‘Placing of United States Armed Forces Under United Nations Operational or Tactical Control’’ 257

Memorandum from Randolph D. Moss, Assistant Attorney General, to the Attorney General, ‘‘Authorization for Continuing Hostilities in Kosovo’’ 259

Contentsxiv

Testimony by Legal Adviser Harold Hongju Koh, U.S. Department of State,on Libya and War Powers, Before Senate Foreign Relations Committee 262


D. Covert Action 2741. Historical Background 2742. Statutory and Regulatory Framework 277

50 U.S.C. §413b. Presidential Approval and Reporting of Covert Actions 278Executive Order 12,333: United States Intelligence Activities 280

3. The 1998 Covert Action Against Osama Bin Laden 281Final Report of the National Commission on Terrorist Attacks

Upon the United States 281Notes and Questions 284

E. War and Individual Liberties 2911. The Civil War 291

Ex parte Milligan 2922. World War II 296

Korematsu v. United States 296Ex parte Endo 302

3. Vietnam War 305New York Times Co. v. United States 305


Chapter 5War on Terrorism 317

A. World War II Precedents 317Ex parte Quirin 317Johnson v. Eisentrager 321


B. Military Detention of Alleged Terrorists 328Authorization for Use of Military Force 328Hamdi v. Rumsfeld 329


C. Military Commission Trials 349Hamdan v. Rumsfeld 349


D. Territorial Scope of Habeas Jurisdiction 364Boumediene v. Bush 365


E. Interrogation, Surveillance, and Targeted Killing 3841. Coercive Interrogation 384

Third Geneva Convention Relative to the Treatment of Prisoners of War 384Convention Against Torture and Other Cruel, Inhuman or

Degrading Treatment or Punishment 385U.S. Reservations, Declarations, and Understandings, Convention

Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Cong. Rec. S17486-01 386

18 U.S.C. §2340 387

Contents xv

18 U.S.C. §2340A 387Memorandum from Jay S. Bybee, Assistant Attorney General, Offi ce of Legal

Counsel, to Alberto R. Gonzales, Counsel to the President, ‘‘Standards of Conduct for Interrogation Under 18 U.S.C. §§2340-2340A’’ 388

Memorandum from Daniel Levin, Acting Assistant Attorney General, Offi ce of Legal Counsel, to James B. Comey, Deputy Attorney General, ‘‘Legal Standards Applicable Under 18 U.S.C. §§2340-2340A’’ 391

Notes and Questions 3922. Electronic Surveillance 397

Foreign Intelligence Surveillance Act (prior to amendments in July 2008) 397Letter from William E. Moschella, Assistant Attorney General, to Members

of Congress 398Letter from Scholars of Constitutional Law and Former Government

Lawyers to Members of Congress 401Notes and Questions 4033. Targeted Killing 407

Al-Aulaqi v. Obama 407Speech by Harold Hongju Koh, State Department Legal Adviser,

at the Annual Meeting of the American Society of International Law 411Notes and Questions 412

Chapter 6States and Foreign Relations 421

A. Statutory Preemption 422Hines v. Davidowitz 422De Canas v. Bica 426Crosby v. National Foreign Trade Council 428


B. Treaty Preemption 437Clark v. Allen 438In re World War II Era Japanese Forced Labor Litigation 440


C. Dormant and Executive Branch Preemption 446Zschernig v. Miller 446American Insurance Association v. Garamendi 449


D. Federal Common Law of Foreign Relations 465Republic of the Philippines v. Marcos 465Torres v. Southern Peru Copper 467Pacheco de Perez v. AT&T Co. 468Patrickson v. Dole Food Co. 470


Chapter 7Treaties and Other International Agreements 479

David P. Currie, The Constitution in Congress: The Federalist Period, 1789-1801 479

Contentsxvi

A. Self-Execution 481Foster v. Neilson 481Asakura v. City of Seattle 482Medellin v. Texas 483


B. Last-in-time Rule 498Whitney v. Robertson 498Cook v. United States 499The Fund for Animals, Inc. v. Kempthorne 500


C. Delegation of Authority to International Institutions 504Sanchez-Llamas v. Oregon 504Medellin v. Texas 508Natural Resources Defense Council v. EPA 514


D. Relationship between the Treaty Power and American Federalism 524Missouri v. Holland 525United States v. Lue 527


E. Conditional Consent 539Power Authority of New York v. Federal Power Commission 540International Covenant on Civil and Political Rights 544U.S. Reservations, Declarations, and Understandings, International

Covenant on Civil and Political Rights 546Louis Henkin, U.S. Ratifi cation of Human Rights Conventions:

The Ghost of Senator Bricker 547Notes and Questions 551

F. Interpretation, Termination, and ‘‘Unsigning’’ of Treaties 5581. Treaty Interpretation by U.S. Courts 558

El Al Israel Airlines v. Tseng 5582. The Role of the President and Senate in Treaty Interpretation 561

Memorandum from Charles J. Cooper, Assistant Attorney General, Offi ce of Legal Counsel, to Abraham D. Sofaer, Legal Adviser, Department of State, ‘‘Relevance of Senate Ratifi cation History to Treaty Interpretation’’ 562

3. The President’s Authority to Terminate Treaties 567Goldwater v. Carter 567

4. Presidential ‘‘Unsigning’’ of Treaties 573Notes and Questions 575

G. Executive Agreements 5831. Congressional-Executive Agreements 584

Made in the USA Foundation v. United States 584Memorandum from Walter Dellinger, Assistant Attorney General,

to Michael Kantor, U.S. Trade Representative 588Letter from Senators Biden and Helms to Secretary of State

Powell 589Notes and Questions 590

Contents xvii

2. Sole Executive Agreements 596United States v. Belmont 596U.S. State Department, Foreign Affairs Manual 598Case-Zablocki Act 599


Chapter 8Customary International Law and International Human Rights Litigation 605

A. ‘‘Part of Our Law’’ 606The Paquete Habana 606Filartiga v. Pena-Irala 608


B. The Alien Tort Statute and Torture Victim Protection Act 622Torture Victim Protection Act 623Sosa v. Alvarez-Machain 624


C. Sovereign Immunity Defenses 644Samantar v. Yousuf 644Ye v. Zemin 650


D. Human Rights Litigation Against Corporations 659Kiobel v. Royal Dutch Petroleum Co. 660Doe v. Exxon Mobil Corp. 666


E. The Charming Betsy Canon 685United States v. Palestine Liberation Organization 685Ma v. Reno 690


F. Reliance on Foreign and International Materials in Constitutional Interpretation 699

Roper v. Simmons 699Notes and Questions 704

Chapter 9Extraterritoriality 713

A. The Constitution Abroad 713Reid v. Covert 713United States v. Verdugo-Urquidez 717


B. Federal Statutes Abroad 7241. Presumption Against Extraterritoriality 724

Equal Employment Opportunity Commission v. Arabian American Oil Co. 724

Morrison v. National Australia Bank Ltd. 729Notes and Questions 739

Contentsxviii

2. International Law of Prescriptive Jurisdiction 747United States v. Noriega 747United States v. Yunis 750


C. Extradition 758Treaty on Extradition Between the United States of America and

Canada, 27 U.S.T. 983 759Lo Duca v. United States 765Ntakirutimana v. Reno 770


D. Extraterritorial Abduction 780United States v. Alvarez-Machain 780


Appendix A: Constitution of the United States 795

Appendix B: Select Jurisdictional Provisions 811

Appendix C: Foreign Sovereign Immunities Act 819

Table of Cases 831Index 841

xix

Preface

This casebook examines the constitutional and statutory law that regulates the conduct of U.S. foreign relations. The topics covered include the distribution of foreign relations authority between the three federal branches, the relationship between the federal government and the states in regulating foreign relations, and the status of international law in U.S. courts. In addition to including excerpts of the major Supreme Court decisions in this area (and some lower court decisions that we thought would be helpful for teaching purposes), we have included a variety of non-case materials, including historical documents; excerpts of statutes, treaties, and Executive Branch pronouncements and memoranda; and detailed Notes and Questions.

One of our goals in the book is to give students a sense of the rich history associated with foreign relations law. History is especially important in this fi eld because much of the content of U.S. foreign relations law has developed in response to, and thus can best be understood in light of, discrete historical events. Historical research also has played a signifi cant role in foreign relations scholarship. As a result, much of the fi rst chapter is devoted to history, and we sketch the historical origins of all of the major foreign relations doctrines as they are presented.

Despite these historical materials, the focus of the book is on contemporary controversies, such as debates over the validity of executive agreements, the nature and limits on the war power, the scope of the treaty power, the legitimacy of international human rights litigation, and the propriety of judicial deference to the Executive Branch. In addition to describing the positions taken on these issues by institutional actors, we have attempted to give students some exposure to the extensive academic debates on these topics. We have avoided, however, including long excerpts of law review articles, which, in our experience, are not the best vehicle for teaching. Instead, we have attempted to weave the relevant academic arguments into the Notes and Questions that follow each set of cases and materials.

Without advocating any particular approach to constitutional interpretation, we also attempt to get students to focus closely on the text of the Constitution, a practice that we believe will be useful to them as lawyers. In addition, we emphasize issues of constitutional structure, especially federalism and separation of powers. Regardless of one’s views about the legal relevance of these structural principles to foreign relations (a matter of some debate), we believe it is important to understand these principles at least for their political signifi cance. A related theme of the book concerns ‘‘legal process’’ questions about the relative competence of various institutional actors to conduct U.S. foreign relations, questions that overlap with work that has been done in the political science area.

The casebook also emphasizes continuities and discontinuities between foreign relations law and ‘‘mainstream’’ constitutional law, statutory law, and federal jurisdiction issues. Indeed, we believe that many important constitutional law and federal courts doctrines—such as the political question doctrine, federal common law, and dormant preemption—have some of their most interesting applications in the foreign relations context. As a result, it is our hope that the book will appeal not only to students interested in international studies, but also to students interested in domestic constitutional and jurisdictional issues. We also hope that domestic law scholars will be tempted by this book to teach a course in foreign relations law.

xx Preface

Foreign relations law is a fast-changing fi eld, and this fourth edition contains a signifi cant amount of new material. Among other things, we have included excerpts and descriptions of recent Supreme Court decisions relating to foreign relations law such as Samantar v. Yousuf (concerning the immunity of foreign offi cials for human rights violations), and Morrison v. Australia National Bank (concerning the extraterritorial application of the securities fraud statute). In the war powers materials in Chapter 4, we have added substantial new material relating to the 2011 U.S. military operations in Libya. We have also added a new section in that chapter on the topic of covert actions. In the “war on terrorism” materials in Chapter 5, we have made signifi cant revisions to take account of various lower court decisions and the positions taken by the Obama Administration. We have also added materials in that chapter on targeted killings. In the human rights litigation materials in Chapter 8, we have substantially revised the materials on corporate human rights liability to take account of several important lower court decisions on that topic. Finally, we have updated the Notes and Questions throughout the book to take account of recent developments and scholarship.

Although (and indeed because) we have participated as scholars in many of the debates implicated by the cases and materials in this book, we have tried hard to present the issues and questions in a balanced manner. We welcome feedback on this and any other aspect of the casebook.

Since the last edition of the casebook, Professor Louis Henkin, a major fi gure in the fi eld of foreign relations law, passed away. As the countless cites to his work in these pages indicate, we have benefi ted tremendously from his half-century of penetrating analysis.

Curtis A. BradleyJack L. Goldsmith

October 2011

xxi

Acknowledgments

Many people and institutions have helped us in creating this casebook. In preparing this fourth edition, we benefi ted greatly from the assistance of the law librarians at Duke and Harvard Law Schools. In addition, Gabby Blum, Bobby Chesney, Monica Hakimi, and Marty Lederman provided us with helpful comments and suggestions, and Matthew Bobby provided very helpful research assistance. In preparing all four editions of this casebook, we benefi ted enormously from interactions with our students.

As we mentioned in the second edition, we have both worked in the Executive Branch. Professor Goldsmith served as Special Counsel to the General Counsel at the Department of Defense (2002-2003) and as Assistant Attorney General in the Justice Department’s Offi ce of Legal Counsel (2003-2004), and Professor Bradley served as Counselor on International Law in the State Department (2004). We both benefi ted greatly from these experiences and, to the extent that the information is not confi dential, we have attempted to incorporate what we have learned into this casebook.

Finally, we thank the copyright holders who kindly granted us permission to reprint excerpts from the following materials:

Roger P. Alford, Misusing International Sources to Interpret the Constitution, 98 Am. J. Int’l L. 57 (2004). Copyright © 2004 by the American Society of International Law. Reprinted with permission of the American Society of International Law.

David P. Currie, The Constitution in Congress: The Federalist Period, 1789-1801 (1997). Copyright © 1997 by The University of Chicago. Reprinted with permission of The University of Chicago Press.

Louis Henkin, U.S. Ratifi cation of Human Rights Conventions: The Ghost of Senator Bricker, 89 Am. J. Int’l L. 341 (1995). Copyright © 1995 by the American Society of International Law. Reprinted with permission of the American Society of International Law.

Robert Kagan, A Twilight Struggle: American Power and Nicaragua, 1977-1990 (1996). Copyright © 1996 by Robert Kagan. Reprinted with permission of Robert Kagan.

Gerald L. Neuman, The Uses of International Law in Constitutional Interpretation, 98 Am. J. Int’l L. 82 (2004). Copyright © 2004 by the American Society of International Law. Reprinted with permission of the American Society of International law.

Bradford Perkins, The Cambridge History of American Foreign Relations, Volume 1: The Creation of a Republic Empire, 1776-1865 (1993). Copyright © 1993 by Cambridge University Press. Reprinted with permission of Cambridge University Press.

Jack N. Rakove, Making Foreign Policy—The View from 1787, in Foreign Policy and the Constitution (Robert A. Goldwin & Robert A. Licht eds., 1990). Copyright © 1990 by the American Enterprise Institute for Public Policy Research, Washington, D.C. Reprinted with permission of the American Enterprise Institute.

Edward T. Swaine, The Constitutionality of International Delegations, 104 Colum. L. Rev. 1492 (2004).

Ernest A. Young, Stalking the Yeti: Protective Jurisdiction, Foreign Affairs Removal, and Complete Preemption, 95 Cal. L. Rev. 1775 (2007).

xxiii

Editorial Notice

In editing the cases and other materials in this book, we have used ellipses to indicate deletions and brackets to indicate additions. We have not generally signifi ed the deletion of citations or footnotes, and we have not used ellipses at the end of the excerpted material. We have retained citations within the excerpted material only when we thought the citations served a pedagogical purpose or when the citations were needed to identify the source of a quotation.

xxv

Overview of International Law and Institutions

Because U.S. foreign relations law often intersects with international law, students may fi nd it useful to acquaint themselves at the outset of this course with the basic sources of international law and some of the most important international institutions. The following is a brief overview.*

1. Sources of International Law

International law can be divided into two categories: public international law and private international law. Traditionally, public international law regulated the interactions between nations, such as the laws of war and the treatment of diplomats. Since the mid-twentieth century, it also has regulated to some extent the way nations treat their own citizens. Private international law, by contrast, encompasses issues relating to transactions and disputes between private parties, such as international commercial standards, international choice of law rules, and the standards for enforcing foreign judgments. References in this course to international law are primarily references to public international law.

There are two principal sources of public international law: treaties and customary international law. Treaties are, quite simply, binding agreements among nations. All such agreements are referred to as ‘‘treaties’’ under international law, regardless of what they are called under each nation’s domestic law. By contrast, under U.S. domestic law, ‘‘treaties’’ refers only to the international agreements concluded by the President with the advice and consent of two-thirds of the Senate and does not include ‘‘executive agreements’’ made by the President alone or with a majority approval of Congress.

There are both ‘‘bilateral’’ treaties (between two nations) and ‘‘multilateral’’ treaties (among multiple nations). Typical bilateral treaties include extradition agreements, Friendship, Commerce, and Navigation treaties, and Bilateral Investment Treaties. Multilateral treaties—some of which resemble international legislation in their scope and detail—cover a wide range of subjects, including international trade, the environment, and human rights.

Customary international law results from the general practices and beliefs of nations. By most accounts, customary international law forms only after nations have consistently followed a particular practice out of a sense of legal obligation. It is also commonly accepted that nations that persistently object to an emerging customary international law rule are not bound by it, as long as they do so before the rule becomes settled. Nations that remain silent, however, may become bound by the rule, even if they did not expressly support it. Silence, in other words, is considered a form of implicit acceptance.

Treaties and customary international law have essentially equal weight under international law. As a result, if there is a confl ict between these two sources of

*For more extensive discussions, see, for example, Restatement (Third) of the Foreign Relations Law of the United States §§101-103 (1987); David J. Bederman, International Law Frameworks (2001); Mark W. Janis, International Law (5th ed. 2008); and Sean D. Murphy, Principles of International Law (2006).

xxvi Overview of International Law and Institutions

international law, the later of the two will be controlling. International and domestic adjudicators will likely attempt to reconcile these two sources, however, if that is reasonably possible. Although it is not uncommon for treaties to supersede customary international law, there are relatively few examples in which customary international law has superseded a treaty.

Before the twentieth century, customary international law was the principal source of international law. Subjects regulated by customary international law included maritime law, the privileges and immunities of diplomats, and the standards for neutrality during wartime. Although customary international law continues to play an important role today, its importance has been eclipsed to some extent by the rise of multilateral treaties, which now regulate many areas previously regulated by customary international law.

Some customary international law rules are said to constitute ‘‘jus cogens’’ or ‘‘peremptory’’ norms. A jus cogens norm is, according to one widely accepted defi nition, ‘‘a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modifi ed only by a subsequent norm of general international law having the same character.’’* These norms transcend requirements of national consent, such that nations are not allowed to opt out of them, even by treaty. Norms frequently described as jus cogens norms are the prohibitions (now contained in treaties) on genocide, slavery, and torture.

2. International Institutions

The United Nations was established at the end of World War II, pursuant to the United Nations Charter, a multilateral treaty. Today, 192 nations—essentially all the nations in the world—are parties to the Charter and thus members of the United Nations. The purposes of the United Nations, according to the Charter, are to maintain international peace and security; develop friendly relations among nations; achieve international cooperation in solving economic, social, cultural, and humanitarian problems, and in promoting respect for human rights and fundamental freedoms; and to be a center for harmonizing the actions of nations in attaining these ends.

The central deliberative organ of the United Nations is the General Assembly, which is made up of representatives of all the member nations. The General Assembly is an important forum for discussion and negotiation, but it does not have the power to make binding international law. Instead, it conducts studies and issues non-binding resolutions and recommendations refl ecting the views of its members.

The principal enforcement arm of the United Nations is the Security Council. The Council is made up of representatives from fi fteen nations. Five nations (China, France, Russia, the United Kingdom, and the United States) have permanent seats on the Council, as well as a veto power over the Council’s decisions. The other ten seats on the Council are fi lled by representatives of other nations elected by the General Assembly. Under the United Nations Charter, the Council is given ‘‘primary responsibility for the maintenance of international peace and security.’’ To address any threat to the peace, breach of the peace, or act of aggression, ‘‘the Council may call upon the members of the United Nations to apply’’ measures not involving the use of armed force, such as economic sanctions. If the Council determines that

*Vienna Convention on the Law of Treaties, art. 53, May 23, 1969, 1155 U.N.T.S. 331.

xxviiOverview of International Law and Institutions

such non-military measures are inadequate, it may authorize ‘‘such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security.’’ The Charter obligates each member to ‘‘accept and carry out the decisions of the Security Council.’’

Another component of the United Nations system is the International Court of Justice (also sometimes referred to as the ‘‘World Court’’), which is based in The Hague, in the Netherlands. There are fi fteen judges on the Court and they are elected to staggered nine-year terms. The Court has jurisdiction over two types of cases: contentious cases and cases seeking an advisory opinion. In contentious cases, only nations may appear as parties. In cases seeking advisory opinions, certain international organizations may also be parties. To be a party to a contentious case before the International Court of Justice, a nation must ordinarily be a party to the Statute of the International Court of Justice (a multilateral treaty) and have consented to the Court’s jurisdiction. Consent to jurisdiction can be given in several ways: a special agreement between the parties to submit their dispute to the Court; a jurisdictional clause in a treaty to which both nations are parties; or a general declaration accepting the compulsory jurisdiction of the Court.

In addition to the United Nations system, there are a variety of international institutions established to administer particular treaty regimes. A prominent example is the World Trade Organization (WTO), which was established in 1995 to administer the General Agreement on Tariffs and Trade and related agreements. The WTO has its own dispute settlement body, which adjudicates trade disputes between member nations. To enforce its decisions, the dispute settlement body can authorize the prevailing party to impose trade sanctions on the losing party. Another example is the International Criminal Court, based in The Hague, which has jurisdiction to try and punish certain international offenses, such as genocide.

Finally, there are regional international institutions, the most prominent of which is the European Union (EU). The EU currently is made up of 27 member countries. The EU has a number of constitutive organs, including a European Parliament, which is elected by individuals in the member countries; a Council of the European Union, which has representatives from the member governments; and a European Commission (an executive body). It also has a European Court of Justice, based in Luxembourg, which interprets and applies the treaty commitments of the Union. Although not part of the EU system, there is also a European Court of Human Rights, based in Strasbourg, France, which interprets and applies the European Convention for the Protection of Human Rights and Fundamental Freedoms (which has been ratifi ed by over 40 countries). The decisions of both the Court of Justice and the Court of Human Rights are binding on the member countries.

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