International Law - Steinhardt - Fall 2011
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Transcript of International Law - Steinhardt - Fall 2011
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Professor Steinhardt
Fall 2011
INTERNATIONAL LAW.................................................................................................. 4
Overview.................................................................................................... 4
Typesand Sourcesof InternationalLaw.........................................................7
I.Customary International Law....................................................................................................... 7
C.Customary International Law in Domestic Courts
II.General Principles of Law..........................................................................................................14
III.Rules of Conventional International Law................................................................................15
A.United States Law Governing Treaties
1.US Constitutional Principles.................................................................. 153.Self-Executing and Non-Self-Executing Treaties..................................16
4.Treaty Interpretation.............................................................................. 18
5.Treaty Termination................................................................................ 18
6.Presidential Power to Enter International Agreements......................... 19
7.Reconciling Federalism with International Legal Obligations...............20
B.International Principles Governing Treaties
1.The Formation of Treaties..................................................................... 22
2.Treaty Invalidity and Termination.......................................................... 25
3.Observance and Interpretation of Treaties............................................26
DisputeSettlementand the Enforcementof Rules in ExemplaryInternationalSettings................28
I.Alternative Dispute Resolution.................................................................................................. 28
A.The International Court of Justice............................................................................................28
B.Regional and Specialized Courts............................................................................................. 31
C.International Arbitration............................................................................................................ 34
III.Espousal..................................................................................................................................... 36
Statehood................................................................................................. 38
I.Prerequisites................................................................................................................................ 38
A.Criteria
B.Recognition of States
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C.Recognition of Governments
D.State Succession
II.Consequences of Being a State................................................................................................41
III.International Limitations on Jurisdiction................................................................................43
A.Jurisdiction to Prescribe
B.Jurisdiction to Enforce
C.Jurisdiction to Adjudicate
IV.Immunity from National Jurisdiction.......................................................................................47
A.Immunity of Foreign States
1.Absolute Immunity.................................................................................47
2.Restrictive Immunity.............................................................................. 47
3.Foreign Sovereign Immunities Act........................................................ 47
B.Immunity of Persons
1.Diplomatic and Consular Immunity....................................................... 52
2.Head-of-State Immunity........................................................................ 52
C.Act of State Doctrine
D.Comity
E.Forum Non Conveniens
F.Exhaustion of Local Remedies
Applyingthe Rules in Critical Settings.......................................................... 58
I.The International Law Governing Resort to Force...................................................................58
II.International Property Law........................................................................................................ 63
A.International Regime Governing the Seas
B.International Regime Governing Airspace and Outer Space1.Airspace.................................................................................................65
2.Outer Space.......................................................................................... 65
C.International Environmental Law
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International LawOverviewI. Sources of International Law
A. International Treaties
B. International Customary Law
1. consistent state practice
2. AND opinio juris Rest. 102
C. General Principles
D. decisions by domestic courts and scholarly work
Statute of the ICJ, art. 38
II. Trends
A. From Fences to Bridges
1. Fences
The LotusCase, PCIJ 1927
restrictions on the independence of states cannot be presumed
2. Bridges
The Texaco/LibyaArbitration (1977)
international standards govern nationalization of Libyas domestic industries
B. Enforcement of International Law
1. Compliance
The Texaco/LibyaArbitration (1977)
- Libya complies with arbitration despite refusal to participate in proceedings
concern for global perception as an international outlaw
ability to attract FDI
legitimacy of its new government Velsquez-Rodriguez v. Honduras (IACtHR 1988)
Honduras compensates s family
2. Internalization
The Paquete Habana (SCOTUS 1900)
owners of ship seized in violation of CIL must be reimbursed
Filartiga v. Pena-Irala (2d Cir. 1980)
US residents can be held liable for official torture through Alien Tort Statute
Alien Tort Statute
aliens with PJ connections to US can be held liable for official torture
The Helms-Burton Act (1996) lack of jurisdiction to prescribe internalized by US Presidents who have consistently
suspended the provision
C. Dualism
Vienna Convention, Art. 27
The Paquete Habana (SCOTUS 1900)
- Spanish civilian fishing ships captured by US forces after President declares war
CIL could have been overriden by President, but his proclamation did not mention fishing
vessels
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The Nicaragua Litigation (ICJ 1984)
- US attempts to modify its reservations to Optional Clause are an invalid termination
D. Consent
1. state not bound unless it has consented
a) persistent objectors
b) pre-VCLT reservations regime
2. state bound without specific consenta) acquiescence
b) VCLT, Art. 18 Obligation not to defeat the object and purpose of a treaty prior to its
entry into force
c) VCLT, Art. 38
treaty can bind a non-signatory through international custom
d) no treaty can override jus cogens
The Nicaragua Litigation (ICJ 1984)
US bound to ICJ jurisdiction despite lack of pure ongoing consent
E. Blurred Distinction between Public and Private International Law
1. use of public law to regulate private law
2. arbitration between states and private parties
Iran Claim Tribunal
3. UN model arbitral rules, relied almost solely by private parties for use in contracts
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Typesand Sourcesof International LawI. CUSTOMARYINTERNATIONALLAW
A. Definition
1. Consistent State Practice
general practice of states that has been consistent for a sufficient period of time
objective element
The LotusCase, PCIJ 1927
- Turkey prosecutes officer of French Lotusfor crash with Turkish Boz-Kourt no evidence of CIL prohibiting extraterritorial jurisdiction when states have exercised
such authority before without protest from other states
a) who
no distinction between legitimate and illegitimate governments
(1) states benefited by the principle
(2) states disadvantaged by the principle
b) how
(1) participating in the activity
(2) abstaining from violations of the activity
(3) acquiescing in others actions can give rise to an inference of obligation
Temple of Preah Vihear Case(ICJ 1962)
- Thailand and Cambodia claim 11th century temple
silence: Thailand loses claim because of failure to respond to diplomatic notes
and repeated requests for information about boundary dispute
acquiescence: Thailand did not object to maps and claimed to have retaken
disputed land
The Nicaragua Litigation(ICJ 1984)
- Nicaragua fails to object to publications listing it as under compulsory
jurisdiction technical fault in PCIJ ratification overridden by Nicaraguas acquiescence
2. AND opinio juris
subjective element
states follow the practice from a sense of legal obligation
The LotusCase, PCIJ 1927
no evidence of CIL based on state practice of not exercising extraterritorial jurisdiction
when such abstention was not based on a sense of legal obligation
Nuclear Weapons Advisory Opinion(ICJ 1996)
no opinio juris on states restraint on use of nuclear weapons since 1945 becausesuch practice can be explained by deterrence
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B. Emergence of Custom
1. Formation
a) no definitive moment of origination
2. Evidence
a) acts by statesin fact over time
(1) types of action
in particular, look to the actions of those states disadvantaged by the principle
(a) government practice(b) diplomatic exchanges
(c) interstate interactions
(d) defenses of non-conforming states
factual defenses support existence of CIL
i) denial that the facts occurred
ii) assertion that the conduct was unauthorized
iii) assertion that the facts do not constitute a violation of the norm
Filartigav. Pena-Irala (2d Cir. 1980)
official torture violates CIL when no state has asserted a right to torture and
allegations of torture are usually met with factual defenses
(2) nature of action
(a) claims
no norm if claims of a right are legal
(b) defenses
no norm, if defenses of a violation are legal
The Paquete Habana(SCOTUS 1900)
- Spanish civilian fishing ships captured by US forces
invalidates capture of civilian fishing vessels, citing practice of civilized nations
b) treatiesin consistentform
(1) codification of existing customary law
can be evidence of a norm despite existence of non-signatories
Nuclear Weapons Advisory Opinion (ICJ 1996)
jus in bello principles from humanitarian law treaties, as CIL, limits use of
nuclear weapons
(2) establishing new customary law
differences in treaties can exist, if core definition of the norm is consistent
throughout
Filartiga v. Pena-Irala (2d Cir. 1980)
although US is not a party, treaties show evidence that official torture violates CIL
North Sea Continental Shelf Cases (ICJ 1969) no CIL when only 39 states have ratified Geneva Convention adopting the principle
c) domesticlaw, constitutions,and high court decisions
used as evidence of a countrys understanding of customary law
Filartiga v. Pena-Irala (2d Cir. 1980)
- Paraguay Inspector General tortures and kills Filartigas son in retaliation for his
political opposition to Paraguayan President
official torture violated CIL, as evidence by its prohibition in 55 constitutions
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d) writingsby publicists
The Paquete Habana (SCOTUS 1900)
- Spanish civilian fishing ships captured by US forces
invalid capture of civilian fishing ships, citing scholarly works as evidence of CIL
e) UN General AssemblyResolutionsand Declarations
not legal binding themselves, but can reflect CIL
The Texaco/LibyaArbitration (1977)- Gaddafi nationalizes oil industry, taking control of TOPCo assets
Libya must compensate TOPCO according to international standards because UN
Resolution 1803 reflects CIL
(1) strong evidence of CIL
(a) addresses a legal subject
(b) is consistent with state practice
(c) adopted by consensus
unanimous or near unanimous approval
without objection by major actors
The Texaco/LibyaArbitration (1977) older UN Resolution is given more weight than more recent resolution
#1803 approved by non-homogenous body comprised of members of the
North and South
passage of #1803 depended on issue at stake here (nationalization
governed by international law as well as domestic law)
(2) weak evidence of CIL
The Texaco/LibyaArbitration (1977)
little weight given to Resolution 3281 when opposed by all industrialized
economies
Nuclear Weapons Advisory Opinion (ICJ 1996)
- GA declares use of nuclear weapons would violate UN Charter
no outright prohibition on use of nuclear weapons because GA Resolutions
were adopted with objections and not reflective of state practice
f) decisionsby internationaltribunals
g) authoritativecompendiaand restatementsof customarylaw
Restatement of Foreign Relations Law
International Law Association
Rest. 102
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3. Opting Out of CIL
a) factors
(1) timing
(a) Persistent Objector
makes objection clear as the norm is emerging
(b) Subsequent Objector
makes objection clear after the norm emerges
Temple of Preah Vihear Case(ICJ 1962) Thailand not a persistent objector when earlier it had acquiesced to Cambodian
control
Norwegian Fisheries Case(ICJ 1951)
- Norway defines coastline differently than method defined by UK and all other
states
Norway is persistent objector because it had always defined coastline
differently from other states
(2) reaction of other states
(a) opposition
subsequent objector is less valid
(b) acquiescence
subsequent objection is valid
Norwegian Fisheries Case(ICJ 1951)
Noways delimitation valid because UK remained silent on issue despite
maritime presence in the region while France accepted Norways
delimitation
(c) acceptance and adherence
could create a new norm
b) limitations
objectors interpretation must be reasonable
Norwegian Fisheries Case(ICJ 1951)
Norways method of defining coastline must be sufficiently linked to land domain
and supported by historical economic interests peculiar to the region
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4. The Relation Between Customary Law and Treaties
no hierarch between custom and treaties
a) CIL can be codified by a treaty
b) treaty norm can become CIL
(1) treaty provision is fundamentally norm creating
(a) strong influence since its ratification
(b) not subject to reservations
(2) wide-spread and representative participation in the treaty(a) ratified by specially-affected states
(b) ratified by those adversely affected by the provision
(3) passage of time
c) treaties as primary source of international law
d) treaties as development of customary international law
(1) creating norms of CIL
(2) speeding up process of CIL creation
(3) forming evidence of CIL
only if non-parties conform
Rest. 102
North Sea Continental Shelf Cases(ICJ 1969)
- 1958 Geneva Convention, which adopts principle of equidistance to deliminate
territorial waters, is ratified by 39 states but not Germany
no CIL has emerged requiring treaty principal in the few years since ratification
Nuclear Weapons Advisory Opinion(ICJ 1996)
no red light: no outright prohibition on use of nuclear weapons because CIL has not
yet formed
no green light: any use of nuclear weapons must adhere to international humanitarian
law because those principles have become CIL binding on all states
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C. CustomaryInternationalLaw in DomesticCourts
1. Part of Our Law
a) legitimacy of CIL as US domestic law
The Paquete Habana(SCOTUS 1900)
CIL is federal common law that must be ascertained and administered by judges
b) limitations
(1) Constitution
CIL cannot justify prohibition of critical speech surrounding embassy(2) controlling executive act
a conscious, explicit override of CIL by the President
The Paquete Habana(SCOTUS 1900)
- US declares war against Spain, and President institutes blockade of Cuba
ships capture is invalid because US Admiral is not highly ranked executive
official and because Presidents proclomations did not mention fishing vessels
(3) controlling legislative act
a statute intentionally and explicitly overrides CIL
possible exception: CIL develops after statutes enactment
The Paquete Habana (SCOTUS 1900)
- Spanish civilian fishing ships unaware of US embargo of Cuba are captured by US
forces
capture was violation of international customary law, and thus a violation of US law
2. Interpretation of CIL
a) high evidentiary standard (see above for details)
general state practice + opinio juris
The Paquete Habana (SCOTUS 1900)
5 centuries of empirical evidence show capture of peaceful vessels is illegal
b) The Charming BetsyCanon
domestic statues should be interpreted in light of international law
(1) exceptions
(a) controlling executive or legislative act
(b) later-in-time rule: CIL emerges after statutes enactment
(c) international law violates Constitution
Letelier v. Chile (DDC 1980)
- former ambassador from Chile is killed by car bomb in DC and sues under FSIA
no FSIA immunity when assassination is clearly contrary to precepts of humanity
3. Torture Victim Protection Act
a) holds individuals civilly liable for damages to torture victims
b) limitations(1) is US citizen
(2) commits torture under auspices of a foreign government
(3) must exhaust remedies in location giving rise to claim
(4) 10 year statute of limitations
Torture Victim Protection Act
4. Alien Tort Statute
grants district courts original jurisdiction, but does not provide a cause of action
a) jurisdictional requirements
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(1) plaintiffs are aliens
(2) defendants actions are a tort
(3) tort is a violation of CIL
b) cause of action
(1) universal
of an international character, accepted by the civilized world
comparable to 18th century paradigms (piracy, neutrality, protection of
ambassadors)(2) defined with specificity
(3) obligatory
Filartiga v. Pena-Irala (2d Cir. 1980)
- Paraguay Inspector General tortures and kills Filartigas son in retaliation for his
political opposition to Paraguayan President
official torture violated CIL and is actionable in US courts
Sosa v. Alvarez-Machain (SCOTUS 2004)
- Sosa abducts Alvarez in Mexico, holds him overnight, and flies him to US for arrest
no liability because short, arbitrary detention does not meet ATS standards
Abdullahi v. Pfizer (2d Cir. 2009)
- Pfizer performs unconsensual drug test on Nigerian children with government
involvement in all stages
CIL prohibition on nonconsensual medical experimentation meets Sosastandards
private company liable because it acted in concert with the state
c) scope of liability
generally has been limited to persons acting in a governmental capacity because most
violations of international law can be committed only by states
(1) direct liabilityof non-governmental persons
the person who committed the offense is held liable
(a) per se wrong
international law hold both private and public actors liable
i) slavery
ii) genocide
iii) OR certain war crimes
Kadic v. Karadzic (2d cir. 1995)
- Bosnian Croats sue Bsonia President for genocide, war crimes, torture
private individual liable for genocide but not torture and murder
(b) contextual wrong
private actor can be held liable if it works with state in a violation of CIL
i) private party doing a public functionii) private party acting because of state compulsion
iii) private party acting jointly with the state
Abdullahi v. Pfizer (2d Cir. 2009)
private company liable because it acted in concert with the state
Kadic v. Karadzic (2d Cir. 1995)
- Bosnian Croats sue non-state actor for genocide, war crimes, torture
private individual liable for acting in concert with state in torture and murder
(2) secondaryliability
private actor can be held liable for aiding and abetting a state in a violation of CIL
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(a) presence of private party where the violation occurred
(b) private party has knowledge of the violation
(c) private actor benefits from the violation
(d) private actor participates in the violation
(e) private actor is in control of the violation
Kiobel v. Royal DutchShell (2d Cir. 2010)
- Shell enlists aid of Nigerian government to suppress local resistance to oil
exploration CIL does not extend scope of liability to corporations when no corporation has
ever been held liable under CIL of human rights
II. GENERALPRINCIPLESOFLAW
the legal rules borrowed from domestic law as the gap-filler of international law
constitutes a separate source of law with fairly limited scope
ICJ Statute, Art. 38
A. reparations
B. circumstantial evidence
C. res judicata
D. estoppel
E. concept of the limited liability company
F. unjust enrichment
G. force majeure
H. duress
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III. RULESOFCONVENTIONALINTERNATIONALLAW
A. UnitedStatesLaw GoverningTreaties
1. US ConstitutionalPrinciples
a) constitutional authority
(1) Treaty Power
(a) made by president
(b) with advice and consent of Senate(c) AND two-thirds approval of Senate
Const., Art. II
(2) legitimacy of treaty law as US domestic law
treaties are supreme law of the land
Const. Art. VI
b) Scope of Treaty Power
(1) allows government to do what would otherwise be unconstitutional
(2) treaty = any international agreement approved by two-thirds vote of the Senate
(3) extends to all proper subjects of negotiation between US and foreign governments
Missouri v. Holland (SCOTUS 1920)
- federal bird protection law struck down for violating 10th amendment
- Congress re-enacts bird protection law after ratifying Migratory Bird Treaty
valid congressional power because treaties are supreme law of the land
c) Limitations on Treaty Power
(1) a treaty cannot violate express provisions in the Constitution
Reid v. Covert (SCOTUS 1957)
- US-UK treaty makes civilian dependents of soldiers subject to court martial for
crimes committed on overseas military bases
treaty invalid because of s 6th Amendment rights to confront wit nesses
(2) federalism
see below
2. RUDs
unilateral statements about a treaty
can be attached by President or Senate
a) Reservations
changes legal obligations under the treaty
b) Understandings
an interpretive statement that elaborates on a treaty obligation
c) Declarations
a statement of policy relating to the treaty
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3. Self-Executingand Non-Self-ExecutingTreaties
a treaty cannot be enforced until it has been executed
a) Self-Executing Treaties
treaty becomes US law once it enters into force internationally
no implementation by Congress required
Asakurav. City of Seattle (SCOTUS 1924)
- city ordinance prohibits foreigners from running pawnbroker business
US-Japan Treaty of FCN trumps city ordinance without the aid of any legislationb) Non-Self-Executing Treaties
treaty provisions require implementing legislation by Congress
North Pacific Fur Seals Convention
- each party agrees to enact and enforce such legislation as may be necessary
1951 Refugee Convention
- States shall as far as possible facilitate the [treaty goals].
c) Interpretive Principles
(1) intent of the parties to the agreement
treaty intends to have immediate legislative effect without implementation
Rest. 111(4)
(a) language
i) treaty text requires present action, not future action
ii) treaty text is obligatory, rather than aspirational
Medellin v. Texas (SCOTUS 2008)
- Medellin (Mexican citizen) arrested without being informed of VCCR rights
of consular notification
- ICJ court demands Medellins case be reconsidered, and President agrees
- TX state court upholds conviction based on state procedural default rules
VCCR Optional Clause not self-executing because compulsory jurisdiction
compulsory compliance
UN Charter not self-executing because undertakes to comply is merely acommitment to take future action and not a directive to states
US v. Postal(5th Cir. 1979)
- Convention on High Seas says Ships shall sail under the flag of one State
not-self-executing because treaty text less important when many treaty
parties do not recognize treaties as self-executing
(b) context
i) constitutional considerations
the more a treaty entrenches on enumerated congressional powers, the
more likely it is non-self-executing
Rest. 111(4)(c)ii) purposes of the treaty
iii) domestic procedures and institutions appropriate for implementation
iv) alternative means of enforcement
v) consequences of holding the treaty self-executing or not
US v. Postal(5th Cir. 1979)
not-self-executing when treaty is inconsonant with US historical policy and
US did not clearly manifest intent for treaty to be self-executing
(2) wildcards
(a) plaintiff lacks standing
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plaintiff is not in the class intended to be protected by the treaty
(b) treaty does not create private right of action in US courts
(c) issues involves a political question
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4. Treaty Interpretation
a) plain meaning of the text
USv. Alvarez-Machain I (SCOTUS 1992)
- abducted from Mexico to stand trial in US without following Extradition Treaty
no treaty violation when treaty contains no explicit prohibition on kidnappings
b) principles of CIL, especially in areas where treaty is silent
c) practice of the parties
(1) before ratification (travaux preparatoires)(2) after ratification, especially if practice is mutual
US v. Palestine Liberation Organization (SDNY 1988)
PLOs UN office is valid because of 40+ years of US acquiescence with Treaty
d) executive submissions
not dispositive, but given substantial deference
US v. Palestine Liberation Organization (SDNY 1988)
PLOs UN office is valid because State Department opposes enforcing the Act
e) Charming BetsyPrinciple
reconcile treaties and statutes whenever possible
US v. Palestine Liberation Organization (SDNY 1988)- Anti-Terrorism Act forbid PLO from maintaining offices in the US
PLOs UN office is valid because lack of clear legislative intent to violate UN
Headquarters Agreement Treaty
5. Treaty Termination
a) Later-in-TimeRule
conflict between statutes and treaties are resolved by looking to the most recent
document
(1) conflict between a statute and a self-executing treaty
(2) AND conflict is unavoidably inconsistent
later-in-time rule will not be applied unless Congressional intent to override that
obligation is clear and manifest
Charming BetsyPrinciple
US v. Palestine Liberation Organization (SDNY 1988)
no conflict between statute and treaty
Breard v. Greene(SCOTUS 1998)
- Breard arrested without consular notification, in violation of 1969 treaty
- Breard sentenced to death in state court and then challenges arrest in federal
court
no violation of treaty because 1996 law mandates defense be raised in state court
b) Unilateral Termination by the President- President Carter withdraws mutual defense treaty with Taiwan
- Bush 43 terminates Anti-Ballistic Missile Treaty
c) Reinterpretation by a subsequent President
President reinterprets treaty different from meaning given by ratifying President and
Senate
- Reagan initially interprets ABM Treaty to permit development of weapons previously
not in existence at time of ratification
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6. Presidential Powerto Enter InternationalAgreements
an alternative to Treaty Power
a) sources of authority to conclude international agreements
(1) authority from prior Article II treaty
(2) independent presidential authority
Const., Art. II
(a) express constitutional authority
example: commander-in-chief-power(b) implied constitutional authority
example: conducting foreign relations
USv. Pink (SCOTUS 1942)
- USSR nationalizes bank but is barred from taking NY branch because govt is
not recognized by US
- pursuant to executive agreement, USSR assigns President its claim in
exchange for recognition
US has valid claim for NY branch because executive agreement supersedes
NY law
(3) authority from Congress
Const., Art. I
Dames & Moore v. Regan (SCOTUS 1981)
- Carter signs Algiers Accords as executive agreement, negotiating hostage
release and establishing Iran Claims Tribunal
- Reagan implements Algiers Accords by suspending s claim against Iran
valid agreement because congressional approval implied from its acquiescence
Medellin v. Texas (SCOTUS 2008)
- (Mexican citizen) arrested without being informed of VCCR rights of consular
notification
- President issues Memorandum requiring TX reconsider in light of ICJjudgment
- TX state court upholds conviction based on state procedural default rules
invalid presidential action because treaty is non-self-executing (no authority from
Congress) and no President has tried to transform ICJ judgment into domestic law
(no congressional acquiescence)
b) Types of Executive Agreements
international agreements, other than Article II treaties, concluded by the United States
(1) Agreement pursuant to a prior Article II treaty
prior Treaty authorizes President to enter into subsequent agreements
(2) Congressional-Executive Agreements
an executive agreement based on congressionally delegated or statutory authority
can be approved either ex ante or ex post(a) explicit congressional authorization
specific authorization by statute or joint resolution
joint resolution authorizing US participation in IMF and World Bank
(b) implicit congressional approval
inferred from statutory provisions that merely refer to such agreements
(3) Presidential Executive Agreements
an executive agreement based on independent presidential constitutional authority
(a) independent presidential powers
i) represent the nation in foreign affairs
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Dames & Moore v. Regan (SCOTUS 1981)
- through executive agreement, President suspends s claim against Iran
valid agreement because it related to foreign affairs and has
congressional approval
ii) receive ambassadors
USv. Pink (SCOTUS 1942)
President has power to negotiate agreement in exchange for receiving
Russian ambassadorsiii) Commander-in-Chief
iv) Take Care Clause
(b) limitations
i) cannot violate the Constitution
ii) cannot be inconsistent with constitutional legislation
Department of State Circular 175
c) Choice of Procedure
(1) discretion to the President
President has discretion to determine which type of agreement to use
Department of State Circular 175
for a list of factors, see p. 202
(2) report to Congress
all international agreements must be transmitted to Congress, but definition of
term is left to the discretion of the President
Case Act
7. ReconcilingFederalismwith InternationalLegal Obligations
a) Statutory Preemption
Congress can override state law and prevent states from regulating
Crosby v. National Foreign Trade Council (SCOTUS 2000)
- Congress imposes sanctions on Burma after MA legislature does somethingsimilar
despite identical purpose, MA law is invalid because its conflicting remedies pose
an obstacle to congressional objectives under the federal law
Congress need not expressly state its intent to preempt state law
b) Foreign Affairs Preemption
states are preempted from regulating issues relating to foreign affairs
Zschernigv. Miller (SCOTUS 1968)
- OR law prohibits inheritance by residents of communist countries
state law invalid because it intrudes into foreign affairs field
American Insurance v. Garamendi (SCOTUS 2003)- CA law requires insurance companies to disclose information about policies sold in
Nazi Europe
- executive agreement establishes fund to compensate Nazi insurance co. victims
CA law invalid because its strict requirements stand in the way of Presidents
chosen policy
c) Limitations on the Federal Government
the more explicit the constitutional delegation to the states, the less likely that the
federal power will trump the state power
Medellin v. Texas (SCOTUS 2008)
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- (Mexican citizen) arrested without being informed of VCCR rights of consular
notification
- ICJ court demands Medellins case be reconsidered, and President agrees
- TX state court upholds conviction based on state procedural default rules
President cannot require state courts to comply with ICJ judgments through
executive agreement
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B. InternationalPrinciplesGoverningTreaties
1. The Formationof Treaties
a) Definition
an international agreement between states intended to be legally binding
Rest. 301
(1) VCLT scope
(a) concluded between States
(b) in written form(c) governed by international law
Vienna Convention on the Law of Treaties (VCLT), Art. 2
VCLT, Art. 11
consent may be expressed by signature, ratification, acceptance, approval, etc.
US-Japan FCN Treaty
(2) Political Commitments
a nonbinding agreement
can be used to avoid domestic constitutional requirements of treaties
(a) Legal Effect
may still cary force when expectations of compliance develop
Joint Statement of the Six-Party Talks
2008 G8 Plan of Action
b) Creating a Legal Obligation
(1) Obligation on Treaty Parties
valid upon ratification = state makes clear its intent to be legally bound
(a) states cannot invoke domestic law as justification for failure to preform
VCLT, Art. 27
(2) Obligation on Signatories
an interim legal obligation on signatory that has not yet fully ratified the treaty
(a) Obligation Not to Defeat the Object and Purpose
requires states, at a minimum, do not act in a way to defeat treatys object
i) less than good faith performance
ii) cannot violate the treatys spirit
iii) can be a duty not explicitly contained in the treaty
VCLT, Art. 18
(b) exception: unsigning
(3) Obligation of Third Parties
non-signatories can become bound by treaty norm that develops into CIL
VCLT, Art. 38
North Sea Continental Shelf Cases(ICJ 1969)- 1958 Geneva Convention, which adopts principle of equidistance to deliminate
territorial waters, is ratified by 39 states but not Germany
Germany not bound because treaty principle had not yet become CIL
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c) Reservations
(1) Pre-VCLT Reservations
(a) reservations must receive affirmative unanimous consent of other parties
(2) VCLT Reservation Regime
effect of a reservation depends on whether it is compatible with the treatys object
and purpose
(a) Formulation of Reservations
i) reservations allowedii) exceptions
(1) reservation prohibited by the treaty
(2) reservation inconsistent with treatys object and purpose
unanimous consent of other parties required
VCLT, Art. 19
(b) Legal Effects of Acceptance or Objection
- State X makes reservation
i) State A accepts reservation
both X and A get the benefit of the reservation
VCLT, Art. 21(1)
ii) State B objects to reservation
(1) State B objects to entry into force of the treaty
no treaty relations between X and B
Declaration of the Netherlands
(2) State B does not object to treatys entry into force
that provision of the treaty applies to neither X nor B
Declaration of the United Kingdom
VCLT, Art. 21(3)
iii) State C is silent
both X and C get the benefit of the reservation
VCLT, Art. 20(5)(c) Criticisms
i) objecting states must object to the entry into force or else it effectively
accepts reservation
ii) reserving states obligations under the treaty are different depending on the
reaction of each other party
iii) treatys integrity sacrificed in order to obtain more signatures
The Reservations Case(ICJ 1951)
- UN GA questions legal effect of reservations to Genocide Convention
reservation valid unless contrary to object and purpose of the treaty
Convention on the Elimination of All Forms of Discrimination Against Women Convention on the Prevention and Punishment of the Crime of Genocide
(3) Human Rights Commission
less lenient of reservations than under VCLT
(a) reservations allowed unless:
i) conflicts with customary law
ii) conflicts with jus cogens
iii) outside scope of 11-12
(b) effect of an invalid reservation
i) reservation is not valid
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invalidity determined by Human Rights Commission
ii) reserving party is still a party to the treaty
UN Human Rights Committee comment on ICCPR
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2. Treaty Invalidity and Termination
a) Invalidity of Treaties
(1) consent procured through threat or use of force
might not extend to economic threats or pressures
VCLT, Art. 52
(2) conflict with jus cogens
jus cogens = preemptory norm of general international law to which no derogation
is permitted VCLT, Draft Art. 50
b) Termination and Suspension of the Operations of Treaties
(1) material breach
(a) definition
i) a repudiation of treaty not sanctioned by VCLT
ii) OR a violation that is essential to treatys object and purpose
(b) purpose
preserves maximum scope of action to non-breaching parties
the affected parties can respond unilaterally
(c) effect
i) in bilateral treaty
non-breaching party may terminate or suspend treaty in whole or in part
ii) in multilateral treaty
(1) by unanimous agreement of non-breaching parties
may suspend treaty in whole or in part, or may terminate treaty for all
parties or just for the breaching party
(2) by specially affected party
may terminate or suspend in whole or in part, in relation with breaching
party
iii) exception
reprisals are allowed for a material breach of humanitarian law treaty VCLT, Art. 60
(2) impossibility of performance
VCLT, Art. 61
Gabcikovo-Nagymaros Project (ICJ 1997)
no impossibility defense because an economic joint venture consistent with
environmental protection was not the essential object of the Treaty
no impossibility when economic unfeasibility is due to delay by Hungary
(3) rebussic stantibus
when conditions which led to conclusion of the treaty change fundamentally
(a) application rebuttable presumption against invocation, except in narrow circumstances
i) the change constitutes an essential basis to which consent was obtained
ii) AND extent of change completely prevents obligations from being completed
Gabcikovo-Nagymaros Project (ICJ 1997)
- communist leaders in Hungary and Slovakia sign treaty providing for joint
lock operation on Danube River
- after fall of the Iron Curtain, Hungary suspends and then abandons project
invalid defense when communist political and economic systems were not
an essential basis for the countries consent
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(b) exceptions -- termination prohibited
i) treaties establishing boundaries
ii) unclean hands doctrine
invocation prohibited by the state that caused the fundamental change
(c) problems
i) could undermine all treaties
VCLT, Art. 62
(4) emergence of a conflicting jus cogensnorm VCLT, Draft Art. 64
c) Withdrawal from or Denunciation of a Treaty
(1) withdrawal pursuant to terms of the treaty
VCLT, Art. 54
Gabcikovo-Nagymaros Project (ICJ 1997)
invalid withdrawal when Treaty does not mention termination
(2) termination by consent of all parties
VCLT, Art. 54
Gabcikovo-Nagymaros Project (ICJ 1997)
invalid withdrawal when Slovakia objected to Hungarys withdrawal
(3) possibility of unilateral withdrawal intended by treaty drafters
VCLT, Art. 56
Gabcikovo-Nagymaros Project (ICJ 1997)
- Hungary announces termination will take effect within 6 days
invalid withdrawal when Treaty did not envision such short notice of termination
(4) possibility of unilateral withdrawal implied by nature of treaty
VCLT, Art. 56
Gabcikovo-Nagymaros Project (ICJ 1997)
invalid withdrawal when Treaty provided for long-term joint operation\
The Nicaragua Litigation (ICJ 1984)
- US reserves right to modify its acceptance of ICJ Optional Clause modification invalid because good faith requires reasonable time for
withdrawal
3. Observanceand Interpretationof Treaties
a) treaties must be performed in good faith
VCLT, Art. 26
b) General Rule of Interpretation
(1) good faith interpretation
(2) in accordance with the ordinary meaning of the text
(3) in context(a) treaty text
(b) side agreements made at the time of negotiation
(c) unilateral statements accepted by the other parties
(d) subsequent agreements
(e) subsequent practice
(4) in light of the treatys object and purpose
VCLT, Art. 31
(5) travaux preparatoires
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as a supplementary means of interpretation when meaning is ambiguous, obscure,
or leads to absurd result
VCLT, Art. 32
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DisputeSettlementand the Enforcementof Rules in ExemplaryInternational Settings
I. ALTERNATIVEDISPUTERESOLUTION
A. Negotiation
dialogue between the parties intended to resolve a dispute
B. Mediation
third-party assists the parties to negotiate a settlement
C. Conciliation impartial third-party examines dispute and explores potential solutions
II. INTERNATIONALCOURTS
A. THEINTERNATIONALCOURTOFJUSTICE
1. Structure and Organization
principal judicial organ of the United Nations
a) Procedure
(1) application = complaint(2) memorial = opening brief
(3) Provisional Measures
grants interim relief to an injured party in a pending dispute
ICJ Statute, Art. 41
b) Availability
(1) limited to states
ICJ Statute, Art. 34(1)
(2) open to all UN members
ICJ Statute, Art. 35(1)
2. Jurisdictionin Contentious Cases disputes over jurisdiction are to be resolved by the ICJ
ICJ Statute, Art. 36(6)
a) Compromis
an agreement to submit a particular existing dispute to the ICJ for resolution
parties have maximum control over litigation
(a) parties can stipulate facts
(b) parties can stipulate principals of law
(c) parties can dictate particular issues to be resolved
ICJ Statute, Art. 36(1)
b) A CompromissoryClause
a treaty provision requiring submission of future disputes under that treaty to the ICJ
jurisdiction proper when sufficient connection exists between alleged facts and the
treaty
ICJ Statute, Art. 36(1)
Genocide Convention, Art. 9
- provides for ICJ jurisdiction over all genocide disputes
- US reservation requires its specific consent prior to adjudication
Art. 9 is remedial (not substantive) and reservation does not conflict with treatys
object and purpose
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US-Iran Treaty of Amity, Economic Relations, and Consular Rights
- provides for ICJ resolution of disputes as to interpretation or application of treaty
Oil Platforms Case(ICJ 1996)
- US destroys Iranian oil platforms during 1988 Iran-Iraq War
ICJ has jurisdiction over dispute about military force because freedom of
commerce as used in Treaty encompasses ancillary activities related to the sale
and purchase of goods
The Nicaragua Litigation(ICJ 1984)- 1956 Treaty of FCN provides for ICJ jurisdiction if diplomacy is unsuccessful
- without trying diplomacy, Nicaragua files application without mentioning Treaty
proper jurisdiction because diplomacy would have been futile and because
Nicaragua cited Treaty in its opening brief
Yugoslavia v. USA (ICJ 1999)
- Yugoslavia requests provisional measure to stop NATO bombing campaign
- USs reservation to Genocide Convention requires specific consent to go to ICJ
no provisional measures can be indicated without specific consent of the party
c) The Optional Cause
signatories agree in advance to submit to compulsory jurisdiction over any claim
against another signatory
(1) claim must concern an international legal dispute
(a) treaty interpretation
(b) questions of international law
(c) factual issues which, if true, would be a violation of international law
(d) OR nature or extent of a reparation for a violation of international law
(2) reciprocity
applies only in relation to another signatory
(a) a signatory can bring a claim against other signatories
(b) any reservation by one signatory can be invoked by another signatory Certain Norwegian Loans Case(ICJ 1957)
- France accepts Optional Clause with self-judging reservation over issues
of national concern
- Norway issues gold bonds to French nationals, but later pays with cash
no jurisdiction because Norway is subject to same exceptions as France
The Nicaragua Litigation(ICJ 1984)
- US accepts Optional Clause subject to certain reservations
- parties agree to settle in another tribunal
- Connally Reservation: self-judging reservation on domestic issues
- Vandenberg Reservation: on issue arising out of a treaty, all treaty parties mustappear before ICJ
- US may terminate 6 months after notification
invalid invocation of Vandenberg Reservation because claim is based in CIL, which
had merely been codified into treaties
d) TransferredJurisdiction
cases previously under the jurisdiction of PCIJ
ICJ Statute, Art. 36(5)
The Nicaragua Litigation(ICJ 1984)
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- Nicaragua accepts compulsory jurisdiction under PCIJ, but fails to submit
instrument of ratification
proper jurisdiction because Nicaraguas acceptance became valid upon joining UN
technical fault overridden by Nicaraguas acquiescence (failure to object to
publications listing Nicaragua as under compulsory jurisdiction)
e) ForumProrogatum
one state submits an application to ICJ pending consent from its adversary
Certain Criminal Proceedings in France (Congo v. France, 2003)
3. Enforcementof ICJ Judgments
a) compliance required by all UN Members
b) noncompliance referred to UN Security Council
moves enforcement into the political realm
UN Charter, Art. 94
The Nicaragua Litigation(ICJ 1984)
- US withdraws from case and refuses to comply with ICJs holding
political consequences for US: lost influence abroad and difficulty in mission in Central
America
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B. REGIONALANDSPECIALIZEDCOURTS
1. InternationalTribunalfor the Law of the Sea
resolves disputes arising under the Law of the Sea Convention
2. InternationalCriminal Court
tries suspected war criminals and perpetrators of genocide or crimes against humanity
3. The Court of Justiceof the EuropeanCommunities
a) Functions
(1) ensure EC law is enforced
(2) act as referee between Member States, EC, and EC institutions
(3) ensure uniform interpretation and application of EC law
b) Sources of European Community Law
(1) primary legislation
law created directly by Member States
(2) secondary legislation law created by the EC institutions
(3) international agreements
agreements concluded by EC as an entity with an international legal personality
(4) unwritten sources
(a) general principles of law
rules reflecting the elementary concepts of law and justice common to the
Member States
(b) legal custom
practices which have been followed, accepted, and become legally established
c) Creation of Black Letter Doctrine
ECJ has created new legal principles, moving regional integration forward
(1) Direct Applicability
EC Law creates direct rights and obligations for citizens of Member States
citizens responsible for enforcing their rights by suing their government
similar to US self-enforcing doctrine: EC Law does not need implementation
Van Gend en Loos Case(ECJ 1963)
- Benelux increases tariff on unreaformaldehyde sold by Dutch company
private company has a valid claim for violation of the EEC Treaty because
the Treaty is national law and creates enforceable rights on individuals
Simmenthal Case(ECJ 1978)- Italy imposes fee on French beef import pursuant to its domestic health law
national courts have a duty to protect rights conferred on individuals under EU
(2) deference to interpretations by national courts
Van Gend en Loos Case(ECJ 1963)
case remanded to Dutch court for decision on the merits
(3) Principle of Precedence
upon entry into force, EC Law automatically renders conflicting national law
inapplicable
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similar to US supremacy clause, but opposite of later-in-time rule
Simmenthal Case(ECJ 1978)
national courts are required to strike down domestic law conflicting with EC Law
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4. Inter-AmericanCourt of HumanRights
a) Advisory Opinions
non-binding
b) Contentious Jurisdiction
binding on the parties before the court
c) Creation of Black Letter Doctrine
(1) Disappearances are a violation of IAHR Convention although not expressly prohibited by Convention, the constituent acts of
disappearances are prohibited
Velsquez-Rodriguezv. Honduras (IACtHR 1988)
has a cause of action under IAHRC, Arts. 7, 5, 4
(2) Pattern-and-Practice Liability
states liability inferred from a pattern and practice of disappearances
(a) forcible abduction
(b) of individuals deemed dangerous by the state
(c) using weapons restricted to government use
(d) recurring modes of operation (blindfolds, safe houses, etc.)
(e) denial of any information by the state
(f) systemic lack of adequate judicial protection
Velsquez-Rodriguezv. Honduras (IACtHR 1988)
Honduras liable for s disappearance based on general cir cumstantial proof
(3) Burden of Proof
(a) initial BoP on the
must establish prima facie case with specific facts of Pattern-and-Practice
(b) BoP switches to the state
state must prove its innocence because of the state monopoly on the evidence
Velsquez-Rodriguezv. Honduras (IACtHR 1988)
Honduras failed to satisfy BoP when it was allusive and ambiguous
(4) Due Diligence Standard
the state can be held liable for human rights violations by private parties
(a) duty to take reasonable measures to prevent violations
(b) AND duty to offer an effective remedy for violations within its territory
Velsquez-Rodriguezv. Honduras (IACtHR 1988)
Honduras liable for failing to take preventative and investigative measures
(5) Civic Faith
violations may still occur in the future, but compensation is legitimate, required and
expected
Velsquez-Rodriguezv. Honduras (IACtHR 1988) Honduras complies with courts decision and compensates s family
Velsquez-Rodriguezv. Honduras (IACtHR 1988)
- kidnapped by armed men in civilian clothes and tortured to death in clandestine jail
- over 100 similar clandestine kidnappings occurred in Honduras in span of 3 years
- few successful prosecutions because police ignore judges, lawyers and judges are
jailed, and hostile witnesses are killed
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C. INTERNATIONALARBITRATION
1. Fundamentals
a) important considerations
(1) location of arbitration (to facilitate enforcement)
(2) mode of arbitration
(3) choice of law
b) types
(1) internal arbitration parties agree in advance where to settle disputes arising out of a contract
ICSID
(2) external arbitration
states agree ad hoc to resolve a dispute through arbitration
2. Remedies
a) restitution
b) satisfaction
(1) punishment of the responsible individuals
(2) safeguards against repetition
(3) nominal monetary damages
(4) declaration of unlawfulness
TheRainbow Warrior Case (1990)
France removes agent without making efforts to obtain New Zealands consent
tribunal declares Frances actions a material breach and recommends establishing
a fund to promote bilateral relations
3. Creation of Black Letter Doctrine
a) distress
(1) extreme urgency
(2) reestablishment of the original situation after emergency has disappeared
(3) AND good faith effort to obtain consent of the other party
The Rainbow Warrior Case(1990)- French secret service sinks Green Peace ship in New Zealand
- UN mediates agreement, providing for transfer of French agents to French military
base island for at least 3 years, but French agents return home early
valid distress justification because of agents life threatening injury
invalid distress justification because of agents pregnancy without prior consent
b) sic utere principle
(1) no state can use its territory to injure another state
(2) limitations
(a) injury must be of serious consequence
(b) AND injury must be proven by clear and convincing evidence(3) potentially vast and broad application
(a) damming a river
(b) spillover broadcasting
(c) causing mass refugees
(d) harboring terrorists
Trail Smelter Case(1941)
- fumes from Canadian smelter cause injury in Washington
Canada liable for transnational pollution of a private actor
TOPCO Arbitration
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TheAmbatielos Claim Arbitration (1956)
Tinoco ClaimsArbitration
Tattler Arbitration (1920)
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III. ESPOUSAL
A. Definition
means for a State to take diplomatic and other action against another State on behalf of its
national whose rights and interests have been injured by the other State
B. Exceptions to Espousal
1. Exhaustionof Local Remedies
the first attempt to resolve a dispute should be through recourse to domestic judiciarya) Exceptions
(1) redress through domestic remedies is not reasonably available or possible
(2) undue delay in remedial process, which is attributable to state
(3) is manifestly precluded from pursuing any domestic remedies
(4) nation has waived the requirement
(5) no relevant connection between injured person and state
TheAmbatielos Claim Arbitration (1956)
- UK breaches contract for sale of ships from Ambatielos (Greek national)
local remedies not exhausted when Greek national did not call a helpful witness in
domestic UK judicial proceedings
Interhandel Case(ICJ)
- Swiss sues US for expropriation claim
local remedies not exhausted because case still pending in US appellate process
2. Waiver
the earlier a waiver occurs, the more effect the waiver has
a) anticipatory waiver (Calvo Clause)
an individual waives the right of espousal before the dispute arises
(1) CalvoDoctrine
only local law is relevant to a foreign private partys disputes with the government
can be found in a states constitution, statutes, or contracts
(2) limits
(a) waiver covers only the economic and technical aspects of the contract
(b) no waiver of international legal remedies for host states outrageous conduct
(c) no waiver of espousing states rights under international law when it is not a party
b) waiver immediately before espousal
an individuals waiver of his claim bars espousal of that claim
Tattler Arbitration (1920)
- US ship arrested by UK in Nova Scotia and later released
no espousal when ship owners signed waiver in exchange for release of ship
c) waiver after espousal individual cannot waive claim, preventing his state from espousing that claim
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3. InsufficientNationality
a) individuals
real and effective links test
limited to the issue of standing in ICJ cases, relative to the opposing party
Nottebohm Case(ICJ 1955)
- Nottebohm purchases Liechtenstein citizenship but conducts business in
Guatemala
insufficient nationality for Liechtenstein to espouse claim against Guatemalab) corporations
(1) location of the companys incorporation
Barcelona Traction Case(ICJ 1970)
- Belgium brings claim on behalf of Belgian stockholders of company
incorporated in Canada
Belgium lacks sufficient interest to invoke the right of diplomatic protection
(2) OR location of the companys control
can include directors or shareholders
used when defining property in time of war, err on the side of inclusion
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StatehoodI. PREREQUISITES
A. Criteria
1. permanentpopulation
must be significant and stable
no numerical minimum
2. definedterritory
borders must be sufficiently consistent absolutely settled borders not required
3. government
some authority exercising governmental functions and able to represent the entity in
international relations
a) effective control required
b) OR legitimate
- Palestine not a state because Hamas is terrorist organization
4. capacityto enter into internationalrelationsand abide by international law
a matter of competence, not ideology
a) ability to send, receive, and protect diplomatsb) ability to sign treaties
c) AND ability to meet international obligations
Montevideo Convention
Rest. 201
Vatican City is a state with the Holy See as its government
B. Recognitionof States
who decides what is a state
4. declaratory theory
the new state decides for itselfa) other state have a duty to treat as a state any entity that meets the criteria
b) recognition has no legal effects
5. constitutive theory
recognition is an additional criterion for statehood
a) an entity is not a state until generally recognized as such by other states
b) recognition has legal effects
6. mixed approach
other states decide for themselves
Rest. 201
a) recognition of its government important, but not the only factor
b) admission to United Nations
c) input from ICJ
Kosovo Advisory Opinion(ICJ 2010)
Kosovo declaration of independence is in accordance with general international
law and not inconsistent with SC practice and SC Resolutions
The Tinoco Claims Arbitration(1923)
- Tinoco comes to power in Costa Rica via coup and grants concessions to UK
- Tinoco is later deposed, and new government abrogates the former concessions
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de facto governments contracts valid because UKs failure to recognize Tinocos
government for political (rather than legal) reasons is not evidence that Costa Rica
was not a state
Greek-Orthodox Church Case(7th Cir. 1990)
- conflict between church and foreign art dealer over mosaics, after invasion
- de facto govs decrees on local artifacts not effective because not recognized by any
other state except Turkey
C. Recognitionof Governments
a formal acknowledgment that a particular regime is the effective government of a state
4. peaceful change
relations with other states are unaffected
Rest. 208
5. new government arises through violation of domestic law
a) Traditional Approach
recognition of the new government based on the following factors:
(1) effectiveness of control
(2) stability and permanence
(3) popular support
the ability to have habitual, if not willing, obedience
(4) ability and willingness to fulfill obligations
b) Estrada Doctrine
states should not judge, through recognition or refusal of recognition, the new
government of a foreign state
a states choices are limited to maintenance or non-maintenance of diplomatic
relations with the foreign state
refusal to recognize a government constitutes an unlawful intervention in that states
domestic affairsc) Tobar Doctrine
no recognition of a new government that arises through revolution or coup detat
1907 Treaty among five Central American states
6. Recognition in US Practice
a) President has exclusive authority to recognize a foreign state
(1) express recognition
(2) implied recognition
b) Domestic Consequences of non-recognition
(1) no access to US courts
unrecognized governments cannot sue as a unrecognized governments cannot assert FSIA defense
(2) no access to property located in the US
that states property can be seized without recourse
(3) domestic matters of the state are still given legal effect
marriages and incorporations of businesses are still recognized
Rest. 205
Taiwan
Taiwan Relations Act
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D. State Succession
4. Types of Succession
one state replaces another state with respect to the territory, capacities, rights, and duties
of the predecessor state
a) new state totally absorbs the first
can occur through revolution, conquest, annexation, or merger
b) new state becomes independent and takes only party of the territory of the first
example: Namibiac) first state dissolves into two or more states
example: former Soviet Union
5. Sources of Law
a) Treaty
have few parties and less evidentiary effect of CIL
Vienna Convention on Succession to Treaties
Vienna Convention on Succession to Public Debts
b) State Practice
(1) universal succession -- continuity
new state succeeds to all of the preceding states rights and responsibilities
traditional customary rule
usually followed by new states as a practical matter
The Tinoco Claims Arbitration(1923)
Costa Rica liable for contracts made by deposed dictator
(2) Nyerere Doctrine -- clean slate
new state determines which of the preceding states rights and responsibilities
continue
exception: boundaries established by treaty (uti possidetis)
usually endorsed by new states as a legal matter, but not followed as a practical
matter
Vienna Convention on State Succession, Art. 16
6. Legal Obligations of the New Government
a) State Property and Contracts
(1) title to property
(2) public debt of the predecessor
Rest. 209
b) International Agreements
Rest. 210
c) Seat in the UN
(1) acquiescence of other member states
(2) acquiescence/consent of other successor states(3) successor constitutes a dominant part of predecessors size and/or population
7. changes in government or ideology do not change the state or affect its international right
and obligations
Rest. 208
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II. CONSEQUENCESOFBEINGASTATE
prerogatives of states can change over time as international law develops
A. sovereignty over its territory
4. absolute and exclusive domestic jurisdiction
B. authority over its nationals
4. right to grand nationality
5. right to withhold nationality
C. capacity to participate in and make international law4. capacity to enter into treaties
5. capacity to form CIL
6. capacity to become full member of international organizations
Rest 206
D. Ratchet Effect
once statehood is granted, it is hard to undue
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III. INTERNATIONALLIMITATIONSONJURISDICTION
A. Jurisdictionto Prescribe
the authority of a state to make its laws substantively applicable to particular persons or
property or events
Rest. 402
The Helms-Burton Act (1996)
- creates cause of action in US courts against those who traffic in property confiscated by
Cuba from a US actor- authorizes President to suspend the provision, which every President has done
1. Territorial Jurisdiction
a) subjective territorial principle
authority over conduct that occurs, at least partly, in the states territory
American Banana v. United Fruit
US antitrust law does not regulate conduct in Central America
Rest. 403(1)(a)
b) objective territorial principle
authority over conduct whose effects are felt in the states territory
(1) intent to have an effect within the state
(2) AND actual and substantial effects occur
Rest. 403(1)(b)
Lotus Case
Cecil McBee v. Delica
court applies US trademark law against Japanese magazine
The Helms-Burton Act (1996)
- creates cause of action when effects of expropriation were felt in the US
effects were not substantial
conduct occurred several decades ago
asserts jurisdiction over individuals, but effects were caused by Cuban government
2. Nationalityof the Actor
authority over the conduct of its nationals wherever they go
a) controversial applications when national is a corporation
(1) authority over foreign operations of foreign-incorporated subsidiaries of US parent
corporations
(2) authority over foreign operations of independent foreign corporations with only
tenuous connections to the US
Rest. 403(2)
3. ProtectivePrinciple
authority to protect the states security, integrity of governmental functions, and vital
economic interests
examples: currency counterfeiting, passport fraud, attacks on diplomats, espionage
Rest. 402(3)
The Helms-Burton Act (1996)
- creates cause of action because Cuba is a threat to national security
asserts jurisdiction over private individuals, who are not the cause of the threat
US v. Usama Bin Laden (SDNY 2000)
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- bin Laden and Odeh bomb US embassies in Kenya and Tanzania
US has proper jurisdiction to proscribe extraterritorial attacks on its embassies
4. Nationalityof the Victim-- Passive Personality
authority to protect the states national wherever they go
more accepted for criminal law, but not ordinary torts
Pinochet
- Spain prosecutes Pinochet for crimes against Spanish citizens in Chilea) United States stance
(1) problem: lack of notice
actors are unlikely to inquire into nationality of victim
(2) more recent exception - passive personality jurisdiction accepted
victim targeted because of his/her nationality
The Helms-Burton Act (1996)
- creates cause of action because US nationals are victims
victims nexus to US is insufficient for nationality
5. UniversalJurisdiction
authority over egregious offenses contrary to the interests of the international community
includes piracy, slave trade, attacks on or hijacking of aircraft, genocide, war crimes, and
terrorism
Rest. 404
DRC v. Belgium(ICJ 2002)
- Belgium issues arrest warrant for against DRC President for war crimes
warrant invalid because current President immune
USv. Usama Bin Laden (SDNY 2000)
- bin Laden and Odeh bomb US embassies in Kenya and Tanzania
extraterritorial application of US law supported by universal principle over terrorism
6. Limitationson Jurisdiction to Prescribe
a) Reasonableness Requirement
assertions of jurisdiction must be reasonable
(1) link of the activity to the states territory
(2) connections of nationality, residence, economic activity
(3) character of the activity
(4) justified expectations
(5) laws importance to the international political, legal, or economic system
(6) consistency with international traditions
(7) interests of other states(8) conflict with the law of other states
Rest. 403
The Helms-Burton Act (1996)
asserted jurisdiction unreasonable because US would not accept reciprocal
secondary boycott against it
USv. Usama Bin Laden (SDNY 2000)
- Jordanian Odeh bombs US embassies in Kenya and Tanzania
nexus between and US sufficient to satisfy Due Process based on international
law principles
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b) Presumption Against Extraterritorial Application
(1) courts presume that US law does not apply outside US territory
prescriptive jurisdiction is determined by Congress not by courts
US v. Usama Bin Laden (SDNY 2000)
- bin Laden and Odeh bomb US embassies in Kenya and Tanzania
no liability on 2 charges because Congress limited its reach to within US
(2) exception: clear manifestation requirement
(a) explicit provision for extraterritorial application(b) implicit provision for extraterritorial application
can include text, structure, legislative history, and nature of the offense
US v. Bowman(SCOTUS 1922)
valid extraterritorial application when such a limitation would greatly curtail
scope and usefulness of statute
USv. Usama Bin Laden (SDNY 2000)
- bin Laden and Odeh bomb US embassies in Kenya and Tanzania
- US charges with violations of US criminal law
clear manifestation satisfied when application of statute solely to US
nationals would make little sense
c) reactions by other states to extraterritorial jurisdiction of Helms-Burton Act
(1) blocking or antidote legislation
prohibits cooperation with implementation of Helms-Burton Act
(2) claw back provisions
creates cause of action against the US national who won a Helms-Burton Act
judgment in a US court
B. Jurisdictionto Enforce
the authority of a state to induce or compel compliance with its law
1. Territory
a state has exclusive and plenary authority to enforce within its territory
2. extraterritorial enforcement by US officials
a) with consent of the foreign state
b) with due authorization by the US
c) AND in compliance with laws of US and of the foreign state
Rest. 433
Rest. 432
USv. Alvarez-Machain I (SCOTUS 1992)
- US abducts Alvarez-Machain from Mexico
foreign abduction by US agents does not bar trial when Mexico never protested
3. Treaties Consenting to Extraterritorial Enforcement Hague Convention on Service of Documents
Hague Evidence Convention
extradition treaties
ad-hoc arrangements
4. Types of Enforcement Measures
a) Judicial Enforcement Measures
includes criminal sanctions, orders by civilian courts, and executive measures
approved by the judiciary (arrests pursuant to warrant)
b) Nonjudicial Enforcement Measures
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can include suspension of permits, ineligibility of bidding for government contracts
Pinochet
- UK arrests Pinochet when he is in UK seeking medical help
Rest. 431
C. Jurisdictionto Adjudicate
satisfied if personal jurisdiction requirements are satisfied
Rest. 421
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IV. IMMUNITYFROMNATIONALJURISDICTION
A. Immunityof ForeignStates
a court cannot hear a claim against a foreign state where it is immune
1. AbsoluteImmunity
a sovereign state cannot be made a respondent in the courts of another sovereign
followed by most states up to 20th century
The Schooner Exchange v. MFaddon (SCOTUS 1812)- private US ship captured by France in US waters and converted into French warship
France not liable because foreign governments cannot be called into court the same
way citizens can
2. RestrictiveImmunity
immunity of a sovereign is recognized for public acts but not for private acts
became increasingly followed beginning in 1900
a) Public Acts -- jure imperil
sovereign is entitled to immunity
includes going to war, inflating currency
b) Private Acts -- jure gestionis sovereign is held liable like other private actors
includes leasing property and contracts to buy supplies for the army
Tate Doctrine (1952)
adopts restrictive theory, with deference to the State Departments recommendation
on immunity for each particular case
3. ForeignSovereignImmunitiesAct
a) Entities Covered
foreign sovereign entity bears the burden of proof
(1) foreign states(2) political subdivisions of foreign states
core functions test: functions of entity are noncommercial
(3) agencies and instrumentalities of foreign states
core functions test: functions of entity are predominantly commercial
(a) an organ of a foreign state
(b) OR majority of shares owned by a foreign state
FSIA 1603
Samantar v. Yousuf (SCOTUS 2010)
- Yousuf sues former Somali VP and Prime Minister for torture and murder
FSIA does not grant immunity to individuals
b) Grants Original SMJ and PJ to Federal Courts
(1) limits relief to monetary compensation, rather than equity
(2) prevents claims in state courts against foreign sovereigns
FSIA 1330(a)
Argentina v. Amerada Hess (SCOTUS 1989)
- Liberian oil tanker attacked by off the coast of Fa lklands
- district court finds no FSIA exception but finds jurisdiction under ATS
no jurisdiction becauseFSIA provides the exclusive means for suing a foreign
state in US courts
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Siderman v. Argentina (9th Cir. 1991)
- Argentine military kidnaps and tortures Jewish s
no jurisdiction over torture claims because no FSIA exceptions for jus cogens
c) Rebuttable Presumption of Immunity
(1) designation of immunity determined by courts, not by the State Department
FSIA 1602
(2) can only be overcome by exceptions enumerated in 1605-07 FSIA 1604
d) Exceptions -- no immunity
plaintiff bears the burden of prof
(1) CommercialActivity
reflects restrictive approach to foreign sovereign immunity
FSIA 1605(a)(2)
(a) commercial activity
i) s claim is basedupon that activity
the elements of s claim are sufficiently connected to commercial activity
Saudi Arabiav. Nelson (SCOTUS 1993)- Nelson sues for his detention and torture while an employee
insufficient connection when states commercial conduct merely led to
s injuries
ii) AND natureof act is commercial
purpose of act is irrelevant
potentially limits immunity to acts of raging war and of inflating currency
FSIA 1603(d)
Argentina v. Weltover(SCOTUS 1992)
- Argentina raises money by issuing bonds to foreign creditors
issuance of bonds is commercial activity because Argentina acted as
private player rather than regulator
Saudi Arabiav. Nelson (SCOTUS 1993)
- Nelson sues for his detention and torture while an employee
not commercial when nature of states actions (abuse of police powers)
are usually performed by public parties
Sidermanv. Argentina (9th Cir. 1991)
- Argentine military kidnaps and tortures Jewish s and seizes their business
commercial activity because s continuing operation of s business is of a
kind in which a private party might engage
(b) nexus to US
i) commercial activity carried on in the US by the foreign state
Sidermanv. Argentina (9th Cir. 1991)
- Argentina military seizes and continues to manage s hotel business
sufficient nexus because of advertisements in US and accepts American
credit cards from American guests at their hotel
ii) an act performed in the US in connection with a foreign commercial activity by
the foreign state
Sidermanv. Argentina (9th Cir. 1991)
sufficient nexus because solicits and accepts reservations in the US
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iii) OR direct effect in the US of a foreign act connected to a foreign commercial
activity
Siderman v. Argentina (9th Cir. 1991)
insufficient nexus because mere financial loss is insufficient without
evidence that payment was to be made in the US
Argentina v. Weltover(SCOTUS 1992)
- Argentina reschedules payments on bonds held by Weltover
direct effect = Argentinas failure to submit payments to NY bankaccount
Saudi Arabiav. Nelson (SCOTUS 1993)
- Saudi Arabia hires Nelson (US citizen) to work as engineer at state hospital
- Nelson reports safety defects at hospital and is arrested and tortured
(2) Waiver
foreign state has waived its immunity
(a) explicit waiver
waiver can be found in treaty or contract provisions
(b) implicit waiver
generally construed narrowly, requiring indication of willingness to be sued in
US courts
i) the state files responsive pleading without asserting immunity
ii) the state agrees to arbitration in another country (i.e., US)
iii) the state agrees that foreign (i.e., US) law should govern a contract
Sidermanv. Argentina (9th Cir. 1991)
- Argentine military kidnaps, tortures, and criminally prosecutes Jewish s
valid implicit waiver because requested assistance from CA courts to
obtain personal jurisdiction over
FSIA 1605(a)(1)
(3) Counterclaim
foreign state brings a lawsuit in a US court
(b) no immunity for claims arising out of the same transaction or occurrence
(c) no immunity for claims up to the amount of the states claim
FSIA 1607
(4) NoncommercialTorts
no immunity from damages for personal injury caused by torts of a foreign state
(b) requirements
i) noncommercial tort
includes assault, battery, false imprisonment
excludes tortious interference with contractsii) committed by a foreign state
includes agency/instrumentality
iii) causes personal injury, death, damage to or loss of property
iv) AND injury occurs in the US
Siderman v. Argentina (9th Cir. 1991)
no immunity exception because act of torture occurred in Argentina
(c) exceptions -- immunity retained
i) tort based on a discretionary function
(1) act involves an element of judgment or choice
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(2) choice is based on social, political, or economic policy
Letelierv. Chile (DDC 1980)
- former ambassador from Chile is killed by car bomb in DC
not discretionary function because assassination is clearly contrary to
precepts of humanity
Risk v. Halvorsen (Norway) (9th Cir. 1991)
- Norway helps divorced mother escape to Norway with his children
discretionary function because nature of act (advising citizens andissuing passports) is based on social policy
ii) OR malicious prosecution, abuse of process, libel, slander,
misrepresentation, deceit, interference with contract rights
FSIA 1605(a)(5)
(5) Terrorist Acts
no immunity from engaging in or providing material support for terrorist activities
(b) requirements -- no immunity
i) money damages sought for specified violations
(1) an act of torture, extrajudicial killing, aircraft sabotage, hostage taking
(2) OR the provision of material support/resources for such an act
ii) conduct engaged in by an official under color of office
iii) AND foreign state has been designated as a state sponsor of terrorism
(c) exceptions -- immunity retained
i) act occurred in the foreign state, but claimant did not give that state a
reasonable opportunity to arbitrate the claim
ii) OR neither claimant nor victim were a US national when the violation
occurred
(d) cause of action
FSIA serves as an enforcement provision for acts meeting terrorism exception
FSIA 1605(a)(7)
Alejandrev. Cuba (SD Flor. 1997)- s, searching for Cuban refugees off Florida coast, are shot by Cuban Air
Force
terrorism exception met:
unprovoked rocket firing is extrajudicial killing
Cuban Air Force is agent of Cuba
Cuba is designated as state sponsor of terrorism
act occurred outside of Cuban territory
(e) 2008 Amendments
i) gives courts discretion to hear cases even when all requirements are not met
ii) expands class of potential plaintiffs claims allowed by armed service members, US government employee or
contractor, and US nationals
iii) provides an explicit private right of action against states that meet the
1605A conditions
iv) defines and expands recoverable damages
v) defines standard of liability
FSIA 1605A
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(6) Expropriation
no immunity in cases involving an issue of property taken in violation of
international law
(b) property taken in violation of international law
the state takes property owned by a foreigner AND
i) not for a public purpose
ii) discriminatory
iii) OR no just compensation Siderman v. Argentina(9th Cir. 1991)
- Argentine military kidnaps and tortures Jewish s and seizes their business
- s flee Argentina to live with daughter (US citizen)
no immunity exception for Argentine s because expropriation of s own
citizens property does not implicate settled principles of international law
valid exception for daughter because property was taken for personal
profit based on s ethnicity without compensation
(c) AND nexus to US
i) the property is present in the US and connected to commercial activity in the
US by the foreign state
ii) OR agency/instrumentality owns the property and engages in commercial
activity in the US
property need not be present in the US
Sidermanv. Argentina (9th Cir. 1991)
- Argentine military kidnaps and tortures Jewish s and seizes their business
sufficient nexus because s former business is agency
FSIA 16