International Law - Steinhardt - Fall 2011

7/30/2019 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


- 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


- 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


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


- 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


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


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


- 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


- 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


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


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


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


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


- 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


- 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


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


- 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


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


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


- (Mexican citizen) arrested without being informed of VCCR rights of consular

notification

- President issues Memorandum requiring TX reconsider in light of ICJjudgment


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


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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


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


- 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


invalid withdrawal when Treaty does not mention termination

(2) termination by consent of all parties

VCLT, Art. 54


invalid withdrawal when Slovakia objected to Hungarys withdrawal

(3) possibility of unilateral withdrawal intended by treaty drafters

VCLT, Art. 56


- 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


invalid withdrawal when Treaty provided for long-term joint operation\


- 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


2. Jurisdictionin Contentious Cases disputes over jurisdiction are to be resolved by the ICJ


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


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


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


- 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



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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


- 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


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


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


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


- 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


- 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)


- 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


- 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)


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


asserted jurisdiction unreasonable because US would not accept reciprocal

secondary boycott against it


- 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)


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



- 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


- 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


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


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


- 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


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)


- 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



sufficient nexus because s former business is agency

FSIA 16