INTERNATIONAL LAWPROF. RALPH STEINHARDT

FALL 2003

INTRODUCTION TO THE TYPES AND SOURCES OF INTERNATIONAL LAW

Introduction1. U.S. is currently committed to unilateralism – “American exceptionalism”2. IL traditionally dealt w/ states; there was an absolute barrier b/w IL and domestic

lawa. IL dealt w/ rules about boundaries and the interpretation of consent (only

bound by consent)b. IL preserved more power than it constrainedc. The whole point of traditional IL was to define and protect a zone of

discretion wherein states could do what they wanted3. Today, IL has gone from being about fences to being about bridges that connect

statesa. IL is intermestic – it combines IL and domestic law into something that is

both and neitherb. IL includes and defines the rights of individuals, corporations, and NGOs

4. Two visions of ILa. Critic’s view

i. IL is utopian moralizing, elaborate rhetoric, sounds & fury signifying nothing

b. Steinhardt’s viewi. Success has a way of disappearing

ii. When IL is followed, that’s not front page news1. The violations of IL crowd out its successes

iii. IL often and silently succeedsiv. Most IL is internalized by statesv. Most states follow most of IL most of the time

Sources of International Law5. Art. 38 of ICJ Statute – The Four Sources of IL

a. (a) International Conventionsi. Treaties

ii. Focuses on the intent of the parties – ensures that consent was fully and freely expressed

iii. This is the contractarian quality of ILb. (b) Customary IL

i. Two Aspects1. General Practice of States

a. Ask, “Do states in fact do X?”b. This is objective, empirical, and historicalc. Must argue from history to establish CIL; look for a

pattern of behavior2. Opinio Juris

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a. “Accepted as law”b. OJ is the feeling/conviction on behalf of states that a

generalized legal practice is required by lawc. Look for something that shows the state is doing it b/c it

thinks it has to – state thinks it is required by law to act in a certain way

d. This is not empirical – it’s a study in mass psychologye. The question is, “Who is accepting the law?”

c. (c) General Principles of law recognized by civilized nationsi. Look to the few general principles of domestic law that recur in

various legal systemsii. When you have a GP, extrapolate from the GP to the plane of ILiii. Ex: You can’t benefit from your own wrong; can’t be a judge in your

own cased. (d) Judicial decisions & expert teachings

i. U.S. Supreme Court, U.K. House of Lords, South African Supreme Court

1. Remember: ICJ does not enjoy stare decisisii. Writings & teachings of academics

e. Things that are missing from Art. 38:i. Proliferation of IGOs

ii. Actions of NGOsiii. Actions of int’l commercial groups

Rules of Conventional International LawA. U.S. Practices and Constitutional Principles Governing Treaties

1. The Definition of “Treaty”a. IL Definition

i. VCLT Art. 2 – A treaty is an international agreementa. Between statesb. In written formc. Governed by ILd. *A “party” to a treaty is a state who has consented to be

bound by the treatyb. U.S. Definition

i. Only some int’l agreements are called treaties:ii. Any int’l agreement [1] concluded by the President [2] with

the advice & consent [approval] of 2/3 of the Senate. U.S. Const. Art. II § 2.

a. Such treaties approved by the Senate are the “law of the land” under the Supremacy Clause [Art. VI] and may be directly enforceable in the courts

b. Thus, an Art. II treaty has status as a U.S. domestic law, in addition to creating an obligation under IL

2. U.S. Treaty Practice

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a. The Case Act requires Secretary of State to transmit to Congress copy of all int’l agreementsi. Perception was that Pres could enter into agreements that could

lead to unfortunate consequences for whole nation, w/o benefit of advice or review by Senate/Congress

b. RS 301 – Comment (p 115)i. Regardless of what a treaty is called [treaty, convention,

agreement, protocol, etc], all agreements have same legal status unless otherwise indicated

ii. VCLT species that it applies only to written agreements – but under CIL, oral agreements are no less binding , though their terms not readily proven

iii. A unilateral statement is not an agreement, but may have legal consequences and may contribute to CIL

iv. An int’l agreement does not include a commercial K by a state [even w/ another state] intended to be governed by some national or other body of K law

v. An int’l agreement is one intended to be legally binding & to have legal consequences

3. Article II Treatiesa. Scope of the Treaty Power and Limitations Thereon

i. Missouri v. Holland [U.S. 1920](p 177)[Fed gov entered into treaty w/ Canada to counteract alarming decline in migratory birds; Congress imposed regulations on the hunting of migratory birds and states’ rights activists got pissed; govt defended the legislation under Art. I § 8 of the Constitution as necessary and proper to execute the laws of the U.S. – which included the treaty w/ Canada (by virtue of Supremacy Clause); Supremes rejected the states’ rights argument]

a. A Congressional treaty may override a state’s power to regulate

b. States & municipalities have little or no power when a matter becomes internationalized

c. 10th Amend. too abstract to vest any rights in states against fed power here

ii. Reid v. Covert [U.S. 1957](p 179)[Wives of soldiers stationed in UK killed husbands; were tried, convicted, and sentenced to death w/o jury by court-martial; US & UK had int’l agreement conferring exclusive crim jurisdiction on UN over such crimes by civilian dependents; Δs argued that they should be protected by Bill of Rights & Constitution, even abroad; Supremes agree]

a. There can be no unconstitutional treatiesb. Holding – citizens abroad are entitled to protections of

BoR & Const. when govt drags them into court

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i. When Govt reaches out to punish a citizen who is abroad, shield of BoR & Const. that protect life & liberty should not be stripped away just b/c Δ happens to be in another land

c. No int’l agreement can confer power on the Congress or Executive which is free from the restraints of the Constitution.

i. Congress/Exec cannot do by treaty what they cannot do by Const.

ii. It would be manifestly contrary to the Constitution to construe the Supremacy Clause as permitting the US to exercise power under an int’l agreement w/o observing constitutional prohibitions

iii. U.S. v. Verdugo-Urquidez [U.S. 1990](p 185)[4th Amend. search & seizure protections do not apply when govt acts against property owned by a nonresident alien and located abroad]

a. The restrictions of the Constitution do not follow the govt when it acts abroad against nonresident aliens

i. Aliens only receive const. protections when they have come w/in U.S. territory and have developed substantial connections w/ this country

b. 4th Amend. secures “the right of the people” to be free from unreas. S&S

c. Purpose of 4th Amend. is to protect people of the US against arbitrary action by its own govt

d. Reconciling this w/ Reid v. Covert: U.S. citizens protected by BoR & Const. even when abroad, if the U.S. govt seeks to punish them; however, U.S. govt not restricted by Const. when it acts abroad against nonresident aliens

iv. Crosby v. Nat’l Foreign Trade Council [Supp][Mass. passed law restricting trade w/ Burma; it conflicted w/ fed law delegating Pres the discretion to control economic sanctions against Burma]

a. If state law undermines the “intended purpose and natural effect” of fed law governing int’l relations, state law struck down as invalid under Supremacy Clause

b. Here, Mass law incompatible w/ fed statutory prerogatives; Supremes were concerned that state law would blunt Pres’s actions; state statute interfered w/ Pres’s ability to proceed w/ diplomatic relations; ability of the US to speak w/ one voice was compromised; the State act created multiple sources of power

v. Holocaust Insurance Case [2003][CA statute req’d any ins. co doing business in CA with any connection to Holocaust-era ins.

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policies to make those polices public; Supremes say statute invalid b/c it interfered w/ exec’s control of foreign relations]

a. Dissent [joined by Justices of the far left & far right] argued that before fed preemption kicks in, there should be a more clear statement by fed govt that the fed govt occupies the field and preempts state laws

b. Fed preemption doctrine is in a state of flux

b. The Later-in-time rulei. Conflicts b/w statutes & treaties are resolved by applying

whichever one came later in timea. Congress has the power to nullify a treat through later-in-

time rule, but has to explicitly say what it’s doingb. If statute comes first and is followed by irreconcilable treaty,

the treaty applies to the extent of the conflictc. Wild card: judicial interpretation

i. Judges will bend over backwards to make the inconsistency disappear and preserve both statute and treaty. PLO

c. The Charming Betsy Principlei. A court will not construe an act of Congress to be

inconsistent w/ IL if any other construction is possible. The Charming Betsy [U.S. 1804]

d. The Effect of Article II Treaties as Domestic Law – Self-Executing Treatiesi. RS 111. Int’l Law and Agreements as Law of the U.S.

a. (1) IL and int’l agreements of the US are the supreme law of the land

i. Cmt. d.: CIL and int’l agreements of the US other than treaties are also federal law and as such are supreme over State law

ii. Interpretations of int’l agreements by Supremes are binding on States

iii. A determination of IL by Supremes is binding on the States & state cts

b. (2) Cases arising under IL or int’l agreements are w/in jurisdiction of fed cts

c. (3) Courts in the US are bound to give effect to IL and to int’l agreements [unless they are “non-self-executing” – see below for determination]

ii. Is the treaty self-executing?a. Intent – look to the language

i. Does agreement intend to require implementing legislation before the agreement becomes effective as domestic law? RS 111(4)(a)

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ii. Did Congress in giving its approval say this treaty needs implementing legislation? RS 111(4)(b)

iii. Language of obligation, not aspiration1. Language like “use best efforts” & “shall as far as

possible” usually not SE2. Stuff like “thou shalt not” more likely to be SE –

language of present actionb. Context

i. Is implementing legislation constitutionally required? RS 111(4)(c)

ii. Does int’l agreement purport to achieve what lies w/in exclusive law-making power of Congress under the Constitution? If so, it cannot take effect as domestic law w/o implementation by Congress. Cmt. i.

1. Ex: int’l agreement providing for payment by US requires an appropriation of funds by Congress in order to effect payment

iii. If int’l agreement is silent as to its self-executing character, & intention of the US is unclear, look to what Pres says in concluding agreement or submitting it to Senate or Congress, or what Senate or Congress Says. RS 111 cmt. h.

iv. If Exec has not requested implementing legislation & Congress hasn’t enacted such legislation, presumption that treaty is Self-Exec. Reporter’s Note to 111.

c. Judicial Predispositioni. Invoking treaties in a courtroom can sometimes

provoke blank stareii. Sometimes courts say a treaty is non-SE when they

mean:1. Π is without standing

a. This treaty was never intended to cover these facts

2. Treaty does not create a private right of actiona. This treaty creates an int’l obligation, but

was not meant to be enforceable by individuals

3. Treaty raises a non-justiciable PQ

iii. Asakura v. Seattle [U.S. 1924](p 192)[City of Seattle passed an ordinance discriminatory towards Japanese; Court says FCN Treaty w/ Japan is SE; treaties are laws of the US and no state law can trump them; Seattle ordinance inconsistent w/ the treaty]

a. FCN Treaties generally assumed to be self-executing – no addt’l legislation req’d

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iv. People of Saipan v. U.S. Dept. of Interior [9th Cir. 1974](p 194)[Treaty req’d US to serve in a fiduciary role for people of Saipan; US dude in charge in Saipan entered into lease w/ Continental Airlines to construct & operate a hotel on public land on a beach in Saipan; Govt argues that the Trusteeship Agreement can only be enforced by UN SC; 9th Cir. says Trusteeship Agmnt can be a source of rights enforceable by an individual litigant in US courts]

a. Factors to consider in determining whether treaty is Self-Executing

1. Purposes of the treaty & objectives of its creators2. Existence of domestic procedures & institutions approp

for direct implementation3. Availability & feasibility of alternative enforcement

methods4. Immediate & long-range social consequences of self- or

non-self-execution

b. U.S. v. Postal [5th Cir. 1979](p 197)[Issue was whether US court could assert jurisdiction over persons arrested outside the TS of the US aboard a foreign vessel in violation of Art. 6 of the High Seas Convention; court held that such a violation does not divest court of jurisdiction]

i. The regulation of a vessel on the HS is normally the responsibility of the nation whose flag that vessel flies, and of that nation alone

ii. Court says Art. VI of the High Seas Convention is NOT Self-Exec.

1. Context shows no manifest intent to make it SEiii. Since not SE, courts still have jurisdiction

4. Executive Agreementsa. Basics

i. Pres acting alone w/o the senate has committed the US to a number of int’l agmts

a. Many are secret; many are not triviali. Agreements that ended WWII

ii. SE Asia commitments that lead to Vietnam Wariii. Exec agreements that created IMF, World Bank, WTO

ii. Interesting thing: where does the Pres get this power?a. Exec agreements don’t fit in a particular niche of the

Constitutionb. Supremes have never held an executive agreement invalid,

but have offered no clear guidance defining the pres’s powerc. Dept. of State has not helped in resolving the question

iii. If Pres wants to make an agreement that may impinge upon a text- or tradition-based Congressional power, he’ll make a congressional-executive agreement

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a. Pres seeks approval of joint resolution of Congressb. It’s a political matter that assures that Congress buys into it

b. DOS Circular 175 (p 210) – There are 3 constitutional bases for int’l agreements other than treaties:i. (1) Agreements pursuant to treatyii. (2) Agreements pursuant to legislationiii. (3) Agreements pursuant to the Constitutional Authority of the

Presidenta. Pres can conclude int’l agreement on any subject w/in his

const. authority, so long as the agreement is not inconsistent w/ constitutional legislation enacted by Congress

b. The constitutional authority for the Pres to conclude such agmts:

i. Pres’s authority to represent the nation in foreign affairs

ii. Pres authority to receive ambassadors & other public ministers

iii. Pres’s authority as Commander in Chief; ANDiv. Pres’s authority to “take care that the laws be faithfully

exectd”c. The Case Act (p 113) – Sec of State shall transmit to Congress the text

of any int’l agreement other than a treaty to which the US is a party as soon as practicable but no later than 60 days after its makingi. Supposed to reduce oral agreements to writingii. Problems:

a. Congress has been overwhelmed by sheer volume of the agreements

b. Exec branch has too much discretion in deciding what’s an int’l agmt

c. Strategic ambiguity on Congress’ part

d. U.S. v. Curtiss-Wright [U.S. 1936](p 224)i. The pres is the sole organ of U.S. foreign affairs

a. Is this true in principle?i. Courts interpret treaties, and that has implications for

foreign affairsii. Congress has power to declare war, define & punish

offenses against the law of nations, to regulate commerce w/ foreign nations – all of which have implications for foreign affairs

b. We don’t have one voice; we don’t have a kingi. But this rhetoric persists

c. What about private actors?i. Doesn’t the Boeing Corp. have a voice in foreign

affairs?ii. What about Jesse Jackson or congressional members on

trips?

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e. U.S. v. Pink [U.S. 1942](p 228)[Soviet govt nationalized certain Russian companies w/ assets in the U.S.; in U.S. court, Soviets claim that the US-based assets belong to Soviet govt; problem was that the Soviet govt was not recognized by the US, so US courts not open to them; in a deal called The Litvinov Assignment, the Soviets assigned their interests in US holdings to the US govt, and in exchange, the US recognized USSR; lower court dismissed the US action to claim the assets for the Soviets; court said it was against public policy of NY to have the US got be the bagman for the godless Commies; Supremes reverse]i. Executive agreements and treaties are equivalent for

purposes of superceding state law a la the Supremacy Clausea. Like a treaty, an exec agreement is the law of the land and

supercedes inconsistent state lawb. State must yield to an exec agreement just as it yields to a

treatyc. These are powers of foreign affairs, and states can’t interfere

w/ fed govtii. Was The Litvinov Assignment a treaty?

a. Not w/in meaning of US law, b/c it was not sent to Senate; it’s an exec agmt

b. The Assignment was effected by an exchange of diplomatic correspondence

c. It’s an int’l compact b/w 2 govtsd. So it’s not a treaty for purposes of the Treaty Power (b/c not

submitted to Senate), but it’s equivalent to treaty for purposes of the supremacy clause and thus it displaces conflicting state law

iii. Here, Pres had an explicit Const. power – to appoint & receive ambassadors – this suggests that pres has sole power to recognize foreign govts – so what Pres did here was just make an agreement w/ USSR regarding recognition

a. But what do you do when connection to Pres’s express or implied powers more attenuated? Cong-exec Agmt (see above)

f. Dames & Moore v. Regan [U.S. 1981](p 239)[By exec order pursuant to an exec agreement that was intended to end the Iranian hostage crisis, Pres. Carter nullified some liens and attachments to Iranian assets in the US; Carter set up an int’l tribunal to handle the claims, so they weren’t nullified, just transferred to diff forum; Πs argued that this was an unconstitutional taking w/o compensation; issue was whether Carter could constitutionally suspend the claims pending in US courts; Supremes said yes]i. The exec branch has broad discretion to settle int’l claims, and

Congress has historically approved

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a. “Past practice does not, by itself, create power, but long-continued practice, known to and acquiesced in by Congress, would raise a presumption that the action had been taken in pursuance of its consent.”

ii. Courts will read legislation fairly generously when dealing w/ a statute regarding executive powers, especially when we’re talking about the spirit of a statute dealing w/ Pres powers in foreign affairs

iii. Pres power at its max when he’s acting in conformity w/ powers delegated to him by Congress (Youngstown Sheet & Tube); here, Congress acquiesced in Exec’s power to settle int’l claims

iv. This was not a taking b/c it was a mere transfer of venuea. This is how you square this case w/ Reid v. Covert [no

uncons. exec agmts]b. There was no violation of Constitution b/c it didn’t extinguish

claims, so no problem w/ Reid v. Covert

5. Treaty Interpretation in U.S. Courtsa. 5 Basic Principles of Treaty Interpretation

i. (1) Determine the plain meaning of the text a. [unless this produces an absurd result OR violates the intent

of the parties]ii. (2) If plain meaning is unclear, construe the treaty consistently w/

CILiii. (3) If plain meaning is unclear, consider the practice of the parties iv. (4) The submissions of the Executive Branch are entitled to

substantial deference (but cannot be controlling)v. (5) Save the treaty

b. U.S. v. Alvarez-Machain [U.S. 1992](Supp)[US goes into Mexico and kidnaps Doc A-M; US says he kept DEA agent alive so that drug cartel guys in Mexico could torture him]i. Held: Bilateral extradition treaty b/w US & Mexico did NOT

prohibit US from kidnapping Mexican citizen in Mexico and taking him to the US to be tried for a crime that occurred in Mexico, all against the protests of the Mexican govt

ii. No self-respecting practitioner would cite this case for interpretation of treaties

a. This is an intensely result-oriented interpretation of the treaty

iii. Rehnquist analyzed the text of the bilateral extradition treaty:a. Determine the plain meaning of the text

i. Rehnquist: abductions not explicitly forbidden by the treaty’s language and so are therefore ok

1. Other treaties explicitly say, “No kidnapping allowed”

2. Steinhardt: this is like saying “If you’re the banker in Monopoly, don’t steal the cash.”

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ii. A-M: the treaty limits the obligation to extradite (e.g., no extradition for “political” or “military” offenses). This is significant b/c:

1. These provisions have no apparent meaning or force if govt could simply go around the treaty when it was sick of extradition process and kidnap whoever they wanted

iii. A-M: Art. 9 of treaty reserves to each nation the right not to extradite its own nationals as long as it prosecutes them locally

1. If abduction is lawful, it renders the text of Art. 9 superfluous

b. If plain meaning unclear, construe treaty consistently w/ CILi. Steinhardt couldn’t make a CIL argument in A-M b/c of

the procedural posture of the case – SC granted cert only on issue of whether the treaty prohibited abduction, so arguments were tightly restrained

ii. Nevertheless, Steinhardt argued that CIL should be used as an aid to interpretation

iii. In the absence of some manifestation of assent, it’s a violation of IL for one govt to exercise power in territory of another

iv. A-M: The parties didn’t prohibit state-sponsored abduction b/c they assumed that behavior was already illegal

v. Rehnquist: violations of CIL are for the exec branch to resolve

1. Steinhardt: this inconsistent w/ 200 years of SC jurisprudence

2. This abject deference to exec works to undermine treaties – no int’l treaty safe if exec can just tell the courts what they mean

c. If plain meaning is unclear, consider the practice of the parties

i. Govt: There was a history of informal renditions of prisoners b/w US & Mexico

ii. A-M: Yeah, but in those cases the govts consented – here Mexico protested

1. It doesn’t follow from the examples of mutual cooperation that unilateral self-help is ok

iv. Kerr-Frisbee Doctrine: The court won’t look at how a Δ ends up before the court

c. U.S. v. P.L.O. [S.D.N.Y. 1988][Since 1974, PLO invited to establish permanent observer status at UN HQ in NY; under the UN HQ treaty, US has obligation to allow transit, entry & access to all members & invitees of UN; Congress passed Anti-Terrorism Act saying terrorist groups are

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not allowed to have offices in the US; the whole point of the ATA was to get rid of the PLO’s UN Observer Mission, but PLO was never mentioned in the ATA] i. Held: ATA does not require closure of PLO OM to the UN; PLO is

an invitee of the UN under the HQ agreement and as such is protected; HQ agreement remains valid and is not superceded by ATA: ATA remains a valid enactment of general application

ii. Result: Clear Statement Rule:a. If Congress wants to override a treaty, it must do so w/

the clearest possible intent and say so in the body of the statute itself

b. Congress has the power to nullify a treaty through the later-in-time rule, but has to explicitly say what it’s doing

c. Otherwise, courts will bend over backwards to save the treaty

iii. This is a good example of “Save the Treaty”a. Most lawyers look to this case and see a judge who’s

determined to save the HQ Agreement treaty & avoid the later-in-time rule by concocting an implausible interpretation of the ATA

B. International Principles Governing Treaties1. VCLT Generally

a. VCLT sets forth comprehensive set of rules governing the formation, interpretation, and termination of treaties [that are concluded after its entry into force – Jan. 1980]i. It’s the treaty governing treaties

b. VCLT is largely a codification of the existing CIL on treatiesc. US signed but didn’t ratify VCLT, but recognizes it as “the authoritative

guide to current treaty law and practice”d. US RS accepts VCLT as “presumptively codifying CIL governing int’l

relations”e. Every treaty is subject to the IL of treaties, and VCLT is the catalogue of

those principles

CIL Provisions of VCLT2. Art. 26 – Paca Sunt Servanda [Honor your promises]

a. “Every treaty in force is binding upon the parties to it [K analogue] AND

b. Must be performed by them in good faith.”

3. Art. 27 – Internal Law and Observance of Treatiesa. A state can’t invoke its own domestic law as a reason for failure to

perform a treatyb. A state’s domestic law is no defense to a charge that it has breached

treaty obligation

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4. Treaty Interpretationa. Generally

i. Is the purpose of treaty interpretation to ascertain the meaning of the text or the intent of the parties? Depends on who’s doing the interpreting and what their goal is

ii. In the US, an official called on to interpret an agreement would normally look to the next, negotiating record, subsequent practice of the parties, the purpose of the agreement, and, in the case of a treaty or agreement approved by the Senate or Congress, the Exec Branch submissions and legislative record

b. Art. 31 – General Rule of Interpretationi. (1) “A treaty shall be

a. Interpreted in good faith b. In accordance w/ the ordinary meaning to be given to the

terms of the treaty i. In their context and

ii. In the light of its object and purpose.”ii. (2) The context for the purpose of the interpretation of a treaty

shall comprise, in addition to the text, including its preamble and annexes,

a. (a) any agreement relating to the treaty made b/w all parties in connection w/ the conclusion of the treaty

i. these are side agreementsb. (b) any instrument made by one or more parties in

connection w/ the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty

i. This is a broader set of docs than in (a)ii. 2 main examples

1. Relatively rare- side agreement adopted by some sub-set of parties to the treaty at large, but accepted by all parties to treaty

a. Ex: regional side agreement2. More likely – unilateral instruments

a. Unilateral declaration or statement w/ regard to the treaty when other parties either allow or accept it

iii. (3) Expands the universe of relevant materials – take these (& context) into account:

a. (a) Any subsequent agreement b/w parties regarding the interpretation of the treaty or application of its provisions

i. Specialized kind of conductb. (b) Any subsequent practice in the application of the treaty

which establishes the agreement of the parties regarding its application

i. The practice informs the text

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c. (c) Any relevant rules of IL applicable in the relations b/w the parties

i. CIL & other treaties that may shed light on how treaty in question should be interpreted

c. Art. 32 – Supplementary Means of Interpretationi. Can look at the preparatory work [travaux] of the treaty &

circumstances of its conclusion in order to:a. Confirm the meaning resulting from the application of Art.

31, ORb. To determine the meaning when the interpretation according

to Art. 31 i. (a) Leaves the meaning ambiguous or obscure; OR

ii. (b) Leads to a result which is manifestly absurd or unreasonable.

ii. This reflects reluctance to permit the use of materials constituting the development and negotiation of an agreement [travaux preparatoires] as a guide to the interpretation of an agreement

a. This is diff from US, where we look at negotiating historyb. Courts in US more willing than others to look outside the

instrument5. Invalidity of Treaties

a. Arts. 46-52 set forth exceptions to the general rule of pacta sunt servanda if fraud, corruption, or duress are involved

b. Art. 52 – Coercion of a State by the Threat or Use of Forcei. A treaty is void if its conclusion has been procured by the threat or

use of force in violation of the principles of IL embodied in the UN Charter.”

ii. Uncertainties about the scope of the rule and its temporal application

a. What is coercion or force? What about economic duress? Political duress?

b. Many treaties created by coercion are out there and survive, though

6. Termination & Suspension of Treatiesa. Art. 61 – Impossibility of Performance

i. Impossibility of performance is a basis for terminating or withdrawing from a treaty

b. Art. 62 – Fundamental Change of Circumstancesi. Rebus sic stantibus – changed circumstances

a. A treaty need not be performed when there is a fundamental change in circumstances

b. This can be used in equity or it can be a cloak for treacheryc. Debtor nations have abused rebus doctrine

ii. VLCT embodies a presumption against use of the rebus doctrine

iii. A lot has to be true if rebus doctrine will work:

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a. Change has to be fundamental – 62(1)b. Change could not have been foreseen – 62(1)c. The existence of the circumstances had to be an essential

basis of the consent of the parties to be bound by the treaties – 62(1)(a)

d. The effect of the change must radically transform the extent of the obligations still to be performed under the treaty

iv. Two times when rebus doctrine will NEVER work:a. If the treaty establishes a boundary – 62(2)(a)b. If the party invoking the rebus doctrine is doing so after

breaching this obligation or any other obligation owed to any other party to the treaty

i. International analogue to the “unclean hands” doctrine in equity.

More Controversial Articles of the VCLT7. Art 18 (obligation before entry into force), Art 38 (binding non-

signatories), and Art 53 (Jus cogens) do not square with the pure consent theory of IL

i. These provisions are controversial b/c they mark a move away from the purely consensual basis for int’l obligation

ii. Your consent is limited by jus cogensiii. Your consent doesn’t need to be perfect expressed. Art. 18iv. You can even be bound by a treaty you haven’t signed. Art. 38v. So there must be more to IL than pure consent

b. Pure consent theory of IL: a state is always in control of its int’l obligations and can change its mind utterly w/ no consequencei. Whatever its consent is at any given moment, that’s what state’s

obligations areii. If a state changes its mind, its obligations change with itiii. A state’s obligations at ay given moment are only those to which it

consents at any given momentiv. The farther you get away from pure consent theory, the more

controversial the proposition

c. Art. 18 – Obligation not to Defeat Object & Purpose of Treaty Prior to Entry into Forcei. State obliged to refrain from acts which would defeat O&P of

treaty when (a) such state has signed the treaty or (b) expressed its consent to be bound by the treaty.

ii. Suggests that there is some kind of obligation, even before ratification, and even, potentially, before treaty comes into effect internationally

a. Pacta sunt servanda isn’t in effect yet – there’s no promise yet

iii. Ex: Treaty regulating use of a river b/w two riparian states; treaty requires two states to share the water and both states sign the treaty, but ratification for the upstream party is pending; while

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ratification is pending, upstream state builds a dam that cuts downstream’s share of water by half – building the dam violated the O&P of treaty

iv. Ex: Treaty to return art & cultural artifacts taken during WWII; parties sign treaty; before ratification, items aren’t cared for and are ruined; if the damage is big, violation of O&P of treaty

v. This article pushes the envelope of treaty law in a way that most of VCLT doesn’t do

vi. Art. 18 also controversial b/c it challenges the pure consent theory of IL

d. Art. 38 – Rules in a Treaty Becoming Binding on 3rd States Through Int’l Customi. Nothing in Arts. 34-37 [dealing w/ rights of third parties under int’l

treaties] precludes a rule set forth in a treaty from becoming binding upon a third state as CIL, recognized as such

a. The North Sea Continental Shelf Cases are an example of how a treaty can come to bind even a non-signatory

b. This is suggesting that there’s more to IL than pure consent

i. You could look at CIL as an expression of consent, but it’s behavior-based and doesn’t take the form of a K the way a treaty does

8. Jus Cogens [another controversial subject]a. Generally – Certain peremptory norms.

i. JC is a norm so fundamental that no treaty can contravene ita. These are super-duper customary norms b. Has its roots in Roman K law, which said there are normative

limits as to what individuals can do w/ their admitted freedom of K – no Ks to commit crimes, sell people into slavery, etc.

ii. Natural Law theory of JCa. Moral limits are necessary and we consult natural law to

figure out what JC isb. These guys argued that the principle of JC was one common

to all legal systemsc. USSR and other socialists like JC

iii. State Practice a. States have condemned genocide b. State practice gives weight and consequence to JCc. These guys argued that concept of JC either didn’t exist or

was too vague to be given legal meaningd. Anglo lawyers least happy about JC – too abstract

iv. Idea of JC may be too powerful – it’s a club too big to swing

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v. Problems w/ JC: “The grand says who?” – who or what is the source of these super duper norms? When do they reach customary status?

vi. Ex of violations of JC: 2 states make treaty to invade another country; 2 states make a treaty to suspend pacta sunt servanda

b. Art. 53 – Treaties Conflicting w/ Jus Cogensi. A treaty is void if it conflicts w/ a preemptory norm of IL at

the time it’s made.ii. A peremptory norm of IL is:

a. A norm accepted & recognized by the int’l communityi. Who is the int’l community?

b. As a norm from which no derogation is permittedc. Which can be modified only by a subsequent norm of general

IL having the same character

c. Art. 64 – Emergence of New Jus Cogensi. If a new peremptory norm of general IL emerges, any

existing treaty which is in conflict w/ that norm becomes void and terminates.

a. No int’l court has held a treaty void as a violation of JC i. JC is a legal nuclear bomb – its potential for undoing

formal treaties is so great that int’l lawyers are nervous about its potential scope and thus afraid to use it

ii. Negotiating history of the doctrine leaves little room for confidence that a universal idea about JC will emerge

1. US recognizes it

9. Breach of a Treatya. VCLT Art. 60 – Termination or Suspension of Operation of Treaty

due to Breach [p 66]i. In the event of a material breach of a treaty, the affected

party may unilaterally terminate the treatyii. (1) A material breach of a bilateral treaty by one of the parties

entitles the other to invoke the breach as a ground for terminating the treaty or suspending its operation in whole or in part

iii. (2) A material breach of a multilateral treaty by one of the parties entitles

a. (a) the other parties to unanimously agree to suspend the operation of the treaty in whole or in part or to terminate

i. (i) between themselves and the defaulting state; ORii. (ii) as between all the parties

iv. (3) A material breach of a treaty consists of:a. (a) a repudiation of the treaty not sanctioned by the VC, ORb. (b) the violation of a provision essential to the

accomplishment of the object or purpose of the treaty

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10. Reservationsa. VCLT Art. 19 – Formulation of Reservations

i. A state may, when signing, ratifying, accepting, approving, or acceding to a treaty, formulate a reservation UNLESS:

a. (a) The reservation is prohibited by the treatyb. (b) The treaty provides that only specified reservations, not

including the one in question, may be made; orc. (c) The reservation violates O&P of treaty

ii. Notesa. This rule favors a state’s discretion in articulating whatever

reservation it thinks is appropriateb. The traditional rule required a state’s reservation to a

multilateral treaty to get unanimous consent from every party to the treaty before the reserving state could be considered a party at all

i. If everyone agreed to reservation, fine, and every other party to the treaty could take advantage of that reservation through reciprocity

b. VCLT Art. 20 – Acceptance & Objection to Reservationi. (1) A reservation that is expressly authorized by the treaty doesn’t

require subsequent acceptance by other partiesii. (2) When it appears from O&P of treaty that application of the

treaty in its entirety b/w all the parties is an essential condition of the consent of each one to be bound by the treaty, a reservation requires acceptance by all the parties

a. Echo of traditional rulec. Reservations to the Genocide Convention (Advisory Opinion) [ICJ

1951]i. Issue 1: Is a reserving state still considered a party to a treaty

if some but not all parties object to the reservation?a. YES – reserving state may still be considered a partyb. Test:

i. Does State X’s reservation violate the O&P of treaty?1. If yes, X not a party to the treaty

ii. Does State B object to the reservation?1. This is Issue 2

iii. Does State B oppose the entry into force of the treatyc. So what is the O&P of Genocide Convention?

i. To condemn & punish genocideii. Intention that the GC be definitely universal in scope –

want every nation to sign on1. If the desire is to make this as universal as

possible, the policy of reservations would be liberal in order to get more states

a. Flexibility promotes accession

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iii. Would state X’s reservation withholding consent to ICJ jurisdiction be violate O&P of treaty?

1. NO – ICJ provision is portrayed as remedial rather than substantive

ii. Issue 2: If the reserving state can still be a party, what is the effect of the reservation among the parties?

a. If state B accepts X’s reservation, there’s reciprocityb. If state B objects to X’s reservation, no treaty relations b/w

X&Biii. Dissent

a. Mere universality of membership is relatively trivial to making sure that the obligations remain pure

b. A state’s discretion to become a party should not also carry w/ it the discretion to hack away at the treaty w/ a series of reservations that gives rise to a bilateralism w/ the multilateral framework of the treaty at large

d. Hypo: X reserves; A accepts; B objects; C remains silent. Relations are as follows:i. X-A

a. Art. 21(1) – If A accepts X’s reservation, reciprocity is established b/w the two states; X & A get the benefit of the reservation as between them

ii. X-Ca. Art. 20(5) – C’s silence is held against it; C is treated like

state A, b/c a reservation is considered to have been accepted by a State if it doesn’t object w/in 12 months after notified of reservation

iii. A-B or A-C or B-Ca. Art. 21(2) – the reservation has no effect b/w these parties –

“The reservation does not modify the provisions of the treaty for the other parties to the treaty inter se.”

iv. X-Ba. Art 21(3). Ask: Does B oppose the entry into force of treaty

as b/w B & X?i. If YES, no treaty relations b/w B & X

1. X might be a party as far as everyone else is concerned, but as to B, X is not a party and there are no treaty relations b/w them

ii. If NO (B objects to reservation bud doesn’t object to the entry into force of the treaty b/w X & B):

1. The treaty is still in effect b/w the two parties, but it is suspended to the extent of the reservation [“the provisions to which the reservation relates do not apply as b/w the two states to the extent of the reservation”]

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2. So basically, B is treated the same as A & C, b/c the treaty still enters into force, except that the reservation still operates for X

3. So if B is really pissed, it has to say, this treaty doesn’t enter into force b/w X & B

e. Hypo: Nuke Test Ban Treaty agreed “to prohibit, prevent, and not carry out nuclear test explosions, or any other nuclear explosions, at any place under its jurisdiction/control”i. O&P was speediest possible end to nuclear disarmament and to

save environmentii. State X reserves saying the treaty shall not be deemed to inhibit

use of nukes in wara. This was probably ok b/c treaty not talking about weaponry

in times of war, although “any other nuke explosion” is broad language

b. Not violative of O&Pf. Human Rights Committee on the ICCPR’s Reservations Regime

[Supp 33]i. General comment 24: a reservation linked to remedy is

questionable in HR treatiesii. ¶8 – No reservations in violation of CIL [no reservations to

provisions relating to prohibitions on slavery, torture, arbitrary detention, etc]

iii. ¶¶11-12 – Reservations that purport to evade the essential monitoring function of HRCmte are incompatible w/ O&P

iv. ¶17 – Critique of the balkanization of the VCLT reservations regime – too much bilateralism in a multilateral framework

a. HRCmte itself will decide whether a reservation violates O&Pv. ¶18 – State w/ illegal reservation simply not a party at all

a. This is contrary to the ICJ Genocide caseb. Good example of how decentralized IL is

i. What should we consider authoritative? VCLT & ICJ? HRCmte? Later in time? Equal but opposite forces?

c. Blue pencil idea – HRCmte will take blue pencil to your reservations – if it’s an unacceptable reservation, the treaty will still enter force WITHOUT state’s unacceptable reservation

i. Problem – broadside to state sovereigntyg. CEDAW has become a patchwork quilt of reservations such that there’s

no single text of CEDAW – have to look at all the reservationsi. You have to make allowances for religion, but how much is too

much?h. Dissent from the VCLT Regime

i. Complaintsa. Disperses the authority to determine whether a reservation is

legal or not

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b. Treats objecting and accepting states similarly in the usual case

c. Balkanizes obligations of a multilateral treaty into web of bilateral relationsh.

ii. Dissent in Genocide Conventioniii. HRCmteiv. Finland in the CEDAW study

i. RS 313i. (1) A state may enter a reservation to a multilateral int’l agreement

UNLESSa. (a) Reservations are prohibited by the agreementb. (b) The agreement provides that only specified reservations

are allowed, and this isn’t one of themc. (c) The proposed reservation violates O&P of treaty

ii. (2) A reservation to a multilateral agreement entered in accordance w/ (1) is subject to acceptance by other contracting parties as follows:

a. (a) A reservation expressly authorized by the agreement does not require subsequent acceptance by other contracting states

b. (b) Where application of the agreement in its entirety among the parties is an essential condition to their consent, a reservation requires acceptance by all parties

c. (c) Where a reservation is neither authorized nor prohibited, expressly or by implication

i. (i) If X reserves and B accepts, they’re coolii. (ii) If X reserves and B objects, that doesn’t mean the

treaty doesn’t enter into force b/w the two states, unless B says so

iii. (3) A reservation established as in 2(c) creates reciprocity b/w those two states but does not modify the relationships b/w the other parties to the agreement inter se

Rules of Customary International Law and “General Principles”C. General Definition

1. 2 components to CIL:a. State practiceb. Opinio Juris [sense of legal obligation]

i. This is illusion preceding reality – the feeling of being legally bound creates the actual obligation

2. Sources of CILa. State practices & diplomatic exchanges

i. Public acts, measures, statements, and diplomatic exchanges . a. Become a historian.

ii. Analyze both claims and defensesa. It’s important to see what a state does and says when

accused of violating CIL – do they say, yes, we did it, it’s a

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regrettable excess and it won’t happen again, or do they say, yeah, we did it, so what?

b. Treaties in consistent formi. Ex: prohibition of torture shows up in all sorts of treaties – regional

Human Rights treaties, universal Human Rights treaties, specialized treaty on torture.

c. Practice of international organsi. Whether by conduct or declarationsii. Look at voting records, reasons behind voting records (TOPCO)iii. See infra section on effect of UN GA Resolutions

d. Decisions of int’l tribunals i. ICJ, PCIJ, ECHR – these are authoritative evidence of what CIL is

e. Resolutions and declarations in consistent form in intergovernmental organizations.

f. State laws, decisions of state courts, and state military or administrative practicesi. Ex: domestic laws and court decisions interpreting Refugee

Convention of 1951a. Laws and high court decisions will be evidence of custom,

especially if you find them in lots of different countriesg. Writings of publicists

i. Writings qualify as evidence of what the law isii. Challenge: A-M petition for cert by govt says we shouldn’t give so

much weight to academicsh. Authoritative compendia or RS of CIL

i. US courts turn to RS to give content to customii. Sometimes RS is ahead of the curve

3. Where does the obligation – opinio juris – come from concerning CIL?a. Some argue it is purely a result of a state’s opinion concerning its short

and long-term self-interest. Political Self-Interest. b. But that doesn’t explain the application in any number of micro legal

systems. c. Steinhardt Argues: It’s both. (1) Self-interest and (2) fidelity to the law is

the representation of self-interest but as something unto itself as well.4. Before becoming CIL, usage must satisfy the two tests:

a. State Practice i. Look for general recurrence or repetition of acts ii. Antiquity of the acts might also be a pertinent considerationiii. Cmt to RS 102:

a. Inaction constitutes state practice if a state acquiesces in acts of other states that affect its legal rights

b. No precise formula to indicate how widespread a practice must be, but should reflect wide acceptance among the states involved in the relevant activity

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c. A principle of CIL is not binding on a state that declares its dissent from the principle during its development

b. Opinio Juris i. Must appear that states follow the practice from a sense of legal

obligationii. If states generally follow a practice but fee legally free to

disregard it, not OJ [Cmt to RS 102]iii. OJ may be inferred from acts or omissions

D. Lotus [PCIJ 1927][French ship Lotus collided on high seas w/ Turkish vessel; French saved who they could and continued to Constantinople; Turkish requested that Demons, the captain of Lotus, come ashore; he does and was arrested and charged w/ manslaughter; sentenced to 80 days in jail and 22 pound fine by Turkish court; France takes Turkey to PCIJ] – Cite this case for extraterritorial jurisdiction1. The issue was whether or not Turkey could exercise criminal jurisdiction over

Demons2. Threshold issue: Who bears the burden of proof to establish a violation of IL?

a. Does Turkey have to show a rule of IL that allows it to exercise jurisdiction?

b. Does France have to show that Turkey violated IL?c. Court: You have to prove that there is a prohibition on the act in question

– prove somebody broke ILi. Restrictions upon the sovereignty of States cannot be

presumed – Whatever limits there are in IL, Turkey didn’t violate them here – CANNOT PRESUME THAT CIL LIMITS SOVEREIGNTY

ii. All that can be req’d of a state is that it not overstep the limits that IL places on its jurisdiction

iii. IL protects discretioniv. States have prosecuted people who commit crimes abroad the

effects of which are felt locally; if you commit a crime abroad and its effects felt in state X, X can prosecute you in state X

3. How is the maritime crash in Turkish territory?a. Legal LOS fiction – vessels on the HS are chunks of territory of the flag

state; the effects of the French collision were felt on the Turkish ship and thus in Turkish territory

4. CIL that court looks at:a. There was a mass attitude that exercising jurisdiction in Turkey’s

situation, though not common, was not illegal – failure to object by other states faces w/ other nations prosecuting on similar facts

b. No state practice whereby states universally refrained from exercising jurisdiction in such circumstances

c. No pattern of objection when jurisdiction in these cases was assertedd. Just b/c there were no prosecutions in collision cases before doesn’t

mean that states felt legally obligated to refrain from prosecuting – no OJ

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e. The threshold for proving generalized practice of a state and OJ is high

E. The Effect of UN GA Resolutions1. Many commentators have argued that resolutions adopted by the UN GA are

evidence of CILa. This has been sharply contested

2. Schachtera. Under UN Charter, GA doesn’t have legal power to make law or adopt

binding declarationsb. But when all states in the UN declare that a certain norm is legally

binding, it’s difficult to dismiss that simply b/c it comes from the GA [which has no constitutional authority to make new law]i. Do states actually mean to express the conviction they’re stating?ii. Is a naked assertion by states that a norm is legally binding good

enough, even when state practice is negligible or inconclusive?c. Regardless of whether they have independent effect, interpretations and

declarations of law by the GA are official expressions of the govts concerned and consequently are relevant and are entitled to be given weight in determination of the law

3. Reporter’s Note to RS 102a. UN GA resolutions, declarations, and other statements can contribute to

the process of making CIL, insofar as such statements are manifestations of state practice, and may be expressions of OJ

4. TOPCO Arbitration [Int’l Arbitration 1977][Libya nationalized the properties, rights & assets of Texaco; Texaco brought suit; there was a clause in the K saying that Libyan law would apply to the extent that it was in accord w/ IL, and that in the absence of such conformity, CIL could be consulted; issue was whether Libya had the right to nationalize the property – what limitations, if any, does IL place on the states to expropriate private investment?]

a. Holding: Libyan govt breached its duty under the Ks and must give Ks full effect

b. Arbitrator looks to different UN GA Resolutions as evidence of CILi. He looks at not only the number of countries who signed on to

them, but who they were and what their motivations wereii. It’s not just the quantitative vote that matters, but the

reasons behind the votea. Some states vote for resolutions b/c they’re good PR w/o

binding force of lawiii. Custom doesn’t arise out of majority votes in UN GA, but out

of universal or near-universal practiceiv. Voting records are consulted not b/c resolutions are binding law,

but b/c resolutions are evidence in trying to figure out what CIL requires

v. Resolutions are not binding, but they have a certain evidentiary value in finding out what the customary int’l norm is

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c. The range of sources decision makers typically consult in giving content to IL is large

d. Reconciling TOPCO & Lotus:i. Why not say that Libya can do what it wants b/c there are

resolutions on both sides of the issue, so let’s not constrain state sovereignty?

a. B/c Turkey’s prosecution of Demons didn’t violate est’d IL, but the nationalization of the oil fields w/o compensation did violate IL

i. Old & established body of norms – state responsibility to aliens [now probably superceded by Int’l Human Rights Law]

1. Int’l minimum standard for treatment of aliens & their property

ii. Reconcile across timea. In Lotus, the contribution of int’l bodies and IGOs to the law

were nilb. This had changed by the 1970s – there had been an

institutionalization of IL 5. How do we determine whether a resolution is reflective of CIL?

a. Does the resolution address a legal subject?i. Do states act in accordance with the resolution out of a sense of

obligation – OJ?b. Is the resolution consistent with state practice?

F. General Principles of Law1. Shaw (p 169)

a. Various opinions as to what the general principles of law concept refers to:i. Some say it’s an affirmation of natural law conceptsii. Positivists argue that “general principles” is a subheading under

CIL and is incapable of adding anything new to IL unless it reflects the consent of states

iii. Most writers: general principles of law does create a separate source of law but is of fairly limited scope

b. Idea of GPL is that certain common themes run through diff systems of law

c. Most fertile fields for general principles concept has been procedure, evidence, and the machinery of the judicial processi. Corfu Channel – circumstantial evidence is okii. Administrative Tribunal Case – recognizes res judicataiii. Principle of estoppel

d. It’s the court that has the discretion to apply GP and will do so to the extent that CIL and treaty law don’t provide the req’d solution

G. State Behavior and the Emergence of Custom1. The Temple of Preah Vihear [ICJ 1962][Border dispute b/w Thailand and

Cambodia; question is whether an ancient temple is in T or C’s territory; Cambodia at this time was a newly independent state and was standing in the

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shoes of France, its colonial power; T&C entered into boundary demarcation agreement in 1907, agreeing that the watershed line would be the border b/w the two countries; a commission came up with a map that purported to show the watershed line – this map was never approved by the commission, and it was not binding when it was made; apparently the map is wrong on some of the watershed demarcations; map shows temple in C’s territory; T says we never accepted the map, temple is on our side of watershed line; ICJ says T acquiesced to the map and the map has superceded the actual agreement about the border being the watershed line

a. Holding: Temple in C; T has to pull its troops out and return anything it took from the temple

b. Reasoning:i. France set up a conciliation commission to resolve border disputes

b/w T&Ca. T never brought up the temple, even though map showed it

in C’s territoryii. France sent a bunch diplomatic notes to T regarding the temple

saying it’s C’sa. T never responded

iii. Cambodia sent notes to Ta. T never responded

iv. For 50 years, Thailand has received the benefits of the map w/o objecting

a. T’s decades of silence in face of the map rendered watershed line irrelevant

b. T’s acquiescence w/ regard to the map renders it binding

c. The map was non-binding when it was drawn, but after 50 years of reliance on it, it’s binding

d. Both parties, by their conduct, recognized the line on the map and thereby agreed to regard it as being the boundary line

e. This acceptance of the map caused the map to become an integral part of the boundary demarcation treaty – acquiescence on the map undermined the text of the treaty and overrode it

c. IL draws an inference of acceptance from a state’s silence or acquiescence – acquiescence or silence can create legal rightsi. States must make any and all objections clearii. This is why US has the Freedom of Navigation programiii. This is a rule that punishes stonewalling – you have to speak upiv. Now, states often and loudly proclaim their displeasure w/ border

disputes, so acquiescence or silence couldn’t be used against them later

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2. The Norwegian Fisheries [ICJ 1951][Norway drew straight baselines which increased its TS; Brits objected; ICJ says Norway can draw those baselines b/c they’ve opted out of customary norm]

a. A state may opt out of CIL if it is a persistent objector to the normi. Persistent objectors make their objection known as the customary

norm emergesa. Persistent objector can opt outb. Worst example of persistent objector is South Africa in

apartheidii. Subsequent objectors , on the other hand, do NOT object until after

the norm has already emergeda. Subsequent objectors do NOT get to opt out of CIL

b. Analyzing custom regarding straight baselinesi. Several states have drawn straight baselines w/o objections in

principle by other statesa. This doesn’t mean states have free reign to drawn lines

however it wantsb. The delimitation of sea areas has always been an

international undertakingi. The delimitation itself is necessarily a unilateral act by

the state, butii. The validity of the delimitation w/ regard to other

states depends on ILii. Some states say strght baselines may only be drawn across bays

and may only be 10ma. Court: this is not CIL; some states don’t follow itb. Norway has always objected to that idea anyway

iii. Basic rule regarding straight baselinesa. They have to be reasonableb. Must conform to the general direction of the coastc. The waters enclosed must be sufficiently closely linked to the

land to be subject to the regime of internal watersd. Look to economic interest peculiar to the region, the reality

& importance of which are clearly evidence by a long usageH. Applying CIL in US Courts

1. Generallya. Two questions when confronted w/ issues of CIL

i. To what evidence do courts turn to determine the content of IL?ii. By what authority do US courts consider and apply CIL?

a. CIL hasn’t gone through the finely wrought process of legislation – how can US courts apply it?

2. The Paquete Habana [U.S. 1900](p 253)[2 Cuban fishing vessels seized by US Navy as prizes of war during Spanish-American War; issue was whether there was a norm of CIL exempting fishing vessels from capture as prizes of war so long as they’re just fishing and are unarmed]

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a. Holding: It’s a rule of CIL that coastal fishing vessels have been recognize as exempt from capture as prize of wari. Ancient usage gradually ripening into rule of CILii. Est’d by general consent of civilized worldiii. Rule is founded on considerations of humanity to a poor and

industrious order of menb. International law is part of our law , and must be ascertained and

administered by the courts of the US when applicablei. US courts can turn to CIL as the rule of law

a. Reasons to use CIL:i. It’s part of our law [Paquete Habana]

ii. It’s an interpretative aid to statutes [Charming Betsy]ii. Evidence of CIL:

a. Treatiesb. Executive or Legislative actc. Judicial decisionsd. Works of jurists/commentators

i. Evidence of what the law isiii. Authority for US courts to consider & apply CIL:

a. Federal CL/incorporation: IL is part of our lawb. Paquete Habana is universally cited for the proposition

that CIL is part of our law and is incorporated into the fed CL of the US

c. If there were a controlling executive or congressional act here, it would be binding on US ctsi. Pres may displace CIL in domestic courts

a. He must do so:i. Explicitly

ii. In the exercise of his/her constitutional powerb. Courts will not presume that the Pres intended to

violate IL – must be a direct statement by Pres that “I’m violating CIL”

c. The power to violate CIL is part of the imperial presidency of the U.S.

d. Only the Pres as an individual can do this – it’s strictly a pres prerogative so long as he’s exercising his constitutional power

ii. Congress may legislate in violation of CILa. In face of conflict b/w statute and CIL, domestic courts will

follow statuteb. Charming Betsy Principle: Courts must interpret

statutes as consistent w/ CIL unless no other construction is necessary

i. If there is no clear statement that Congress is overriding CIL, then there’s an obligation to read the statute in light of what CIL requires

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ii. This is the power of interpretation: look to see if there’s anything in the int’l standard that constricts or expands the interpretation of a statute to reach an int’l issue

iii. Follow IL unless you get authoritative explicit contradictory statements to the contrary

1. Exec: I’m violating IL now2. Congress: we’re overriding CIL, domestic statute

prevailsiii. ***Even though the Pres or Congress may displace or override CIL

for purposes of domestic law, a violation on the int’l plane may still exist, and the US would have to answer on the international stage

a. This comes from VCLT Art 27–can’t use internal law to justify int’l wrong

3. Filartiga v. Pena-Irala [2d. Cir. 1980][Judge Kaufman](p 256)[Son of Πs kidnapped, tortured & killed by Pena, who was at that time an Inspector General of Police in Paraguay; no remedy in Paraguayan courts; Filartiga moved to US; Pena was in US and Filartiga found out, served him w/ summons and sued under the ATCA]

a. Jurisdiction provided by ATCA, 28 USC 1350: “The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the U.S.”i. ATCA confers jurisdiction when:

a. Alien suesb. For a tortc. Committed in violation of the law of nations [CIL]

b. Issue: does torture of one’s own citizens violate the law of nations? YES IT DOESi. The right to be free from torture is a fundamental right of all

peoplec. Court looks to Paquete Habana for the sources of CIL

i. PH shows that “courts must interpret IL not as it was in 1789, but as it has evolved and exists among the nations of the world today.”

ii. PH noted the stringent requirement that a rule command “the general assent of civilized nations” to become binding upon them all as CIL

iii. Sources of IL 2d Cir looks to:a. Int’l treaties [UN Charter, American Convention, ICCPR]b. Non-binding UN declarations [UN Declarations against

torture]c. Practice of states

i. No state claims right to torture its citizensii. Prohibition against torture is honored in the

breach1. When a state is accused of torture, it says “We’re

shocked, shocked that this is going on in our

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country and it won’t happen again.” – This reinforces opinio juris

2. If the state were to say “Yeah, we torture people, so what,” then that would challenge OJ

3. This argument nullifies “The hubris of presenthood” – the idea that since torture still happens, there’s no law

d. Writings of academicse. Submissions by exec branch

i. Persuasive, but not controllingd. Filartiga Part II : decision regarding damages

i. “For purposes of civil liability, the torturer has become – like the pirate and slave trader before him – hostis humani generic, an enemy of all mankind

ii. The interests of the global community transcend those of any one state here

iii. If a state makes pronouncements regarding consensus establishing CIL, the state cannot, “though it professes one thing and does another, claim that his country did not mean what it said”

iv. Punitive damages are essential and proper in order to show how serious we are about outlawing torture.

e. Torture Victim Protection Acti. Assures that US citizens, not just aliens, can sue under ATCAii. This is an endorsement of Filartigaiii. Limitations

a. 10-year SOLb. Obligation to exhaust local/foreign remedies before coming

to US courtiv. The spirit of Filartiga is nationwide – 9/11 families are suing

organizations that allegedly helped the terrorists

4. Kadic v. Karadzic [2d Cir. 1995][Newman, C.J.][Πs are Muslim & Croat citizens of Bosnia and are victims & reps of victims of rape, forced prostitution, forced impregnation, torture, summary execution carried out by Bosnian-Serb military as part of genocidal campaign conducted in course of the Bosnian civil war; Δ is the pres of three-man presidency of self-proclaimed Bosnian-Serb republic w/in Bosnia, called “Srpska”; Δ possesses ultimate command authority over Bosnian-Serb military; Πs are suing under ATCA; issue is whether an individual can be tried for violations of IL]

a. Jurisdiction available under ATCAi. Aliens suingii. For tortsiii. Only question: does the complaint adequately plead a violation of

the law of nations?b. Issue: can Δ be found liable for genocide, war crimes, & crimes against

humanity in his private capacity AND for other violations in his capacity as a state actor? YES

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c. Certain forms of conduct violate the law of nations whether undertaken by those acting under the auspices of a state or only as private individualsi. Δ’s argument: Πs haven’t alleged violation of IL b/c such norms

only bind states and state actors, but not private individuals – court rejects this argument

d. Sources of IL court looks to:i. Treaties [Genocide Conventions, esp. Common Article 3]ii. Submission of exec branchiii. RS of US Foreign Relations Law iv. Cite this case as another example of the sheer variety of

sources courts use to give content to CILe. Specific application to the charges here:

i. Genocidea. 1946 UN GA resolution saying individuals liable for genocideb. Genocide Convention to the same effect

ii. War Crimesa. Common Article 3 of the 4 Geneva Conventions

i. Sets out war crimesii. Applies even to internal strife – armed conflicts not of

int’l characteriii. Individual liability has been recognized since WWI and

then confirmed at Nuremburgiii. Torture & Summary Execution

a. Is proscribed only when committed by state officials or under color of law

b. They can still go after Δ to the extent they can prove he’s a state actor

i. Does Srpska count as a state?1. Defined territory2. Permanent population3. Under control of its own govt4. Engages in, or has the capacity to engage in,

formal relations w/ other statesii. CIL of HR, such as the proscription of official torture,

applies to states w/o distinction b/w recognized and unrecognized states

iii. This is a non-justiciable PQ5. Doe v. UNOCAL [C.D. Cal 1997][Joint venture involving UNOCAL & SLORC to

build pipeline in Burma; Burmese security forces are doing some terrible things to farmers and others in the way of the pipeline; Πs suing UNOCAL for their involvement; dist. ct. held that there are general questions of material fact that exist w/ respect to whether HR violations occurred during the pipeline project, and with respect to the nature of UNOCAL’s involvement in such violations]

a. How to determine corporate responsibility? The standard is emerging

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i. Knowledge (facts & law) + benefit + cooperation (“control”; purposeful availment)

b. Dist Ct identified two circumstances where a corporation could be liable in principle:i. When corp. commits a serious int’l wrong that doesn’t require state

action (genocide, slavery, piracy)ii. When offensive conduct is sufficiently related to state action to

engage int’l standardsc. Concept of civil liability will force corps to seek HR advice & avoid

litigation and bad PRi. Is this good for HR? Are we commercializing HR?ii. As soon as Shell says it embraces UDHR, HR lawyers suing it for

non-complianceiii. Corporate counsel ignores HR issues at his or her periliv. HR advocates need to learn more about trade law, social &

economic rightsv. Both corporate & HR counsel need to expand their notion of what

law is relevant hered. Diff levels of sanctions require diff levels of liability

i. Knowledge – in a market regime, where consumers vote with their money, there may be market sanctions, but not legal liability

e. Cases like UNOCAL, Filartiga, and Karadzic blur the distinction b/w public and private ILi.

I. Relationship Between Customary Law and Treaties1. Black-letter principles

a. In some circumstances, treaties can be viewed as expressions of CILb. In some circumstances, the treaty is not merely an expression of or

declaratory of CIL; it is the treaty norm that crystallizes into custom – the treaty is the cause of the custom – general process for this laid out in North Sea Cont’l Shelf:i. Treat provision must be fundamentally norm creatingii. Must be widespread participation, especially by specially-affected

statesiii. Passage of time

c. When arguing for a particular interpretation of a domestic statute, 2-step argument:i. Domestic statutes must be read in light of CIL (Charming Betsy)

a. Unless controlling exec or congressional act (Paquete Habana)

ii. Treaties can give rise to custom, so long as criteria in NSCS Case are satisfied

a. Looking at normal sources of CIL, here’s a treaty w/ widespread part. .. . . .

2. North Sea Continental Shelf Cases [ICJ 1969][Dutch & Danes trying to argue that the equidistance principle for determining continental shelf

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delimitations embodied in § 6 of Geneva Convention on Continental Shelf has become CIL and thus Germany, who is a non-party to that treaty, should be bound; Germany wins here, but court indicates that treaties may come to bind non-signatories]a. When can a treaty work free of its treaty moorings and become

CIL that binds non-signatories? i. (1) Treaty provision must be “fundamentally norm-creating”

a. Here, the provision in question required delimitation by agreement before applying the equidistance principle;

b. Here, provision also allowed reservationsc. So it’s not a fundamentally norm-creating provision

ii. (2) Must be widespread and representative participation in the convention [especially from the “specially affected states”]

a. Here, insufficient participation by states to say the provision is CIL

b. 2 ways to look at “specially affected states”i. Real politique – wealth, military power, political

influence1. If the most powerful countries sign on, better

candidate for CIL ii. Who is most disadvantaged by the treaty?

1. If the most disadvantaged states sign on, that’s good evidence for CIL

2. Here, Germany was specially affected – it was disadvantaged – and didn’t sign on

iii. (3) Passage of timea. Unclear how much time has to passb. This is a qualitative rather than quantitative measurementc. Short time is ok if there’s widespread practice

b. A treaty-based norm may come to bind non-signatories , even if this one didn’t qualify

3. Nuclear Weapons Case (Advisory Opinion) [ICJ 1996][UN asked ICJ for advisory opinion on whether threat or use of nukes is legal under IL] a. Court holds that certain principles of CIL have emerged from the

body of treaty law that would constrain use of nukesi. Belligerent’s right to conduct hostilities not unlimitedii. States can’t use weapons incapable of distinguishing b/w civilian

and military targetsiii. Treaty on land minesiv. Treaty banning certain bio & chem. Weaponsv. Certain fundamental norms of humanitarian law are

applicable in times of armed conflict and these rules must be observed by states whether they signed the underlying treaties or not

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a. The treaty norm has worked free of the treaty and has come to bind even non-signatories

b. No opinio juris on the matteri. Some states argue that non-use of nukes since 1945 constitutes an

expression of OJ by those who possess such weapons not to use them

ii. Other states say this is not OJiii. ICJ: b/c int’l community is profoundly divided on the issue, no OJ

c. Holdingsi. Neither CIL nor treaty law authorizing the use of nukes

[unanimous]ii. Neither CIL nor treaty law contain any comprehensive universal

prohibition of the threat or use of nukes [11-3]iii. Threat or use of force of nukes contrary to Art 2(4) of UN Charter

and that fails to meet requirements of Art. 51 is unlawful [unanimous]

iv. Threat or use of nukes should be compatible w/ requirements of IL applicable in armed conflict, including int’l humanitarian law as well as specific obligations under treaties expressly dealing w/ nukes [unanimous]

v. Threat or use of nukes would generally contrary to IL applicable in armed conflict, and in particular the principles & rules of humanitarian law [7-7, pres is tie-breaker]

a. BUT: S-D where the very survival of the state is at stake is an exception

i. IL not a suicide pact; states have to defend themselvesvi. There exists an obligation to pursue in good faith nuclear

disarmament [Unanimous]

International Organizations as “Creators” of LawJ. International Organizations

1. Examplesa. Failure – effort by int’l community by UN & others to create law

restricting use of forceb. Success – laws of war (individual criminal responsibility through indiv.

criminal tribunal)2. Distinguish b/w IGOs [WTO, WHO] on the one hand and NGOs and MNCs on

the other 3. NGOs have a lot to do w/ developing standards (Amnesty’s work on Convention

Against Torture)K. International & Regional Entities

1. Don’t glorify UN as an int’l legislature – it’s nota. It does provide a forum for the progressive development of int’l

standardsb. Its agencies are important for drafting treaties and creating standards

2. Regional bodies contribute to creation of ILa. Usually not in the form of treaties

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b. Usually declarations, model principlesc. Doesn’t come out as CIL – emerges from a bureaucracy

3. Lex ferenda – emerging lawa. This is extremely significantb. It has to be meaningful to think of emerging lawc. This is the notion that norms are emergingd. Lex ferenda is distinct from Lex lata [established law; general practice

accepted as law]e. The work of IGOs & NGOs often all into category of lex ferenda

i. It’s the law as it leans; a sign of things to comeii. Not binding, but not for that reason irrelevant

f. A good int’l lawyer ignores lex ferenda at her perilg. Soft law – the difference b/w hard law & aspiration

i. Not binding but it’s not irrelevantii. Ex: UN Committee on the Peaceful Uses of Outer Space

a. Has developed principles regarding remote sensing, direct broadcasting, use of weather satellites

b. These principles aren’t taking treaty form, and they aren’t customary, but that doesn’t make them irrelevant – they’re emerging and evolving

L. The UN and the Law of Force1. Generally2. Art. 2 – UN Charter

a. ¶3 – All Members shall settle their int’l disputes by peaceful means in such a manner that int’l peace & security, and justice, are not endangeredi. This is the cornerstone of the UN’s mission

b. ¶4 – All members shall refrain in their int’l relations from the threat or use of force against territorial integrity or political independence of nay state, or in any other manner inconsistent w/ purposes of UN.i. The use of force is presumptively illegitimateii. Only certain types of force are legit under UN Charter – this is

channeling violencec. ¶7 – Nothing in the UN Charter authorizes the UN to intervene in

domestic matters; this principle doesn’t prejudice the application of enforcement measures under Chapter VIIi. Preserves a certain zone of discretion for some statesii. Problem – matters once thought to be w/in state’s exclusive

jurisdiction don’t always remain there – the zone of discretion has been whittled away – see Filartiga

3. Lawful Resort to Force – Kosovo examplea. The 4 boxes of authority for lawful resort to force:b. 1) Self Defense

i. IL is not a suicide pact; IL doesn’t require a state to stand by while destroyed from within or without

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ii. Art 51 – UN Charter (p 13 of Doc Supp)a. Nothing in the UN Charter shall impair the inherent right of

individual or collective S-D if an armed attack occursb. Kosovo doesn’t fit here

i. Kosovo not a member of the UNii. No attacks on UN member statesiii. Art. 51 doesn’t talk about pre-emptive S-D

1. Most arguments for preemptive/anticipatory S-D have been rejected

c. 2) Humanitarian Interventioni. Considerably more controversial than S-Dii. Argument that it’s ok for states to intervene in another state to

protect civilians, prevent genocide or other mass violations of HRs, or to protect ethnic/national minorities from repression

a. Sounds good but has legal problemsi. UN Charter neither mentions nor authorizes

humanitarian interventionii. No HR treaty, either implicitly or explicitly, allows

intervention to protect rightsiii. Art 2(7) [UN can’t meddle w/ internal affairs] is a tough

argument to overcome toob. Have to construct an argument from CIL and hope it survives

Art. 2(4)i. This would be a tough argument

c. Reason humanitarian intervention isn’t in the charter – it’s always been used as a pretext for impure motives – always about power, money, oil, land, etc

iii. Best argument FOR HI:a. States are only sovereign if they are a legitimate sovereign;

when a state violates HRs, the state gives up its sovereigntyb. This argument says that HI ought to be ok in extreme

circumstancesiv. Maybe Kosovo and Iraq mark a new era of HI – but they come w/

all the legal probs that come w/ legal innovationd. 3) Enforcement measures under Chapter VII of UN Charter

i. Art. 39 – Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance w/ Arts. 41 & 42, to maintain or restore int’l peace and security.

a. Ex: SC resolutions that led up to 1st Gulf War – SC very careful to invoke Art. 39 in effort to fit its actions into legal framework

ii. Art. 41 – SC can use non-force measures (economic sanctions, severance of diplomatic relations, etc) to give effect to its decisions

a. Does this include creation of a court?iii. Art. 42 – Use of force

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a. If measures in Art. 41 would be inadequate OR have proved inadequate, SC may take such action by air, sea, or land forces as may be necessaryto maintain OR restore int’l peace & security.

i. Such actions include demonstrations, blockade, and other military operations by members of UN

iv. Does Kosovo fit in Chapter VII?a. SC determines whether there’s a threat to the peace under

Art. 39b. What was happening in FRY was a regional concernc. Assuming there was a threat to the peace

i. Did SC authorize NATO bombing? NO1. NATO circumvented SC b/c it knew Russians &

Chinese would use their vetoe. 4) Chapter VIII – Regional Arrangements

i. Art. 52(1) – UN Charter doesn’t preclude existence of regional arrangements or agencies for dealing w/ matters relating to maintenance of int’l peace & security

a. This is the hart of Chapter VIIIii. Art. 53(1) – UN shall use such regional arrangements for

enforcement purposes where appropriate – no enforcement w/o authorization of SC

iii. Why Kosovo doesn’t fit here:a. 53(1) – No regional enforcement action w/o SC authorization

– has to be green lightb. There was no SC such authorization herec. ADDITIONALLY: NATO has never considered itself to be a

regional agency under Chapter VIIIi. If you want to find out what a regional agency is, ask

the agencyii. NATO has never considered itself subordinate to or

part of UN Chartr.iii. It’s not even obvious that the Kosovo intervention was

consistent w/ NATO’s charter1. NATO Art. 5 – No member of NATO was attacked

f. CONCLUSION about Kosovo: it was unlawfuli. Alternative ways to look at it

a. The law evolves – maybe these 4 boxes of authority are on their way out

i. A la Lotus, states can do whatever is not prohibitedb. Milosovic makes a lousy posterboy for sovereigntyc. Acquiescence argument –

i. 19 NATO member countries decided that Kosovo intervention was justified; many non-NATO states supported the campaign

ii. When a resolution condemning the bombing campaign came to SC, it failed 12-3

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iii. GA of UN did not condemn the interventioniv. UN did not adopt a resolution calling for w/drawal of

forcesii. What is the norm after Kosovo?

a. Broadest interpretation: Kosovo stands for legal rule that a coalition of states can intervene militarily in a state when there is a systematic deprivation of HR

i. Kosovo might suggest you can go in ahead of time (citing failure in Rwanda)

b. Narrow: An intervention may proceed w/o prior approval of SC when:

i. (a) SC finds a threat to the peaceii. (b) Target govt refuses to abide by the demands of SC

iii. (c) Some collective IGO intervenes to prevent an impending humanitarian catastrophe

iv. (d) Those states use force that is necessary & proportionate

v. (e) SC does not pass a resolution condemning the intervention (acquiescence)

iii. Steinhardt: there may be no law here –prospects for law go down as stakes go up

4. Legality of the War in Iraqa. The U.S. Argumentb. Self-Defense (Art. 51 – UN Charter)

i. (1) “Self-defense” of Kuwait – material breach of cease-fire resolutions

a. US must maintain capacity to respond to mat. breach of cease-fire resolutions

b. Legal counterpoint: SC occupies the fieldi. Art 51 is not some free-range license to call something

SD and go ii. W/ respect to Kuwait and Art. 51 generally, SC

restrains actionsii. (2) Self-defense of U.S.

a. Standard def. of S-D: Must show that threat is “instant, overwhelming, leaving no choice of means, and no moment for deliberation.” Caroline Incident, 1842 [Daniel Webster of U.S.]

b. Anticipatory S-D: although you haven’t yet been attacked, you’re exercising right to S-D

c. Preemptive S-D – The Bush Doctrinei. This is unknown at IL

ii. Have to keep in mind, though, that IL changesiii. If states don’t object, theory may emerge and along w/

it new normiv. But pretty much every state has objected to it

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v. US might not care that it’s violating IL here – if IL obliges US to sit by and be attacked again, to hell w/ IL

vi. Nevertheless, the consequences of unilateralism may not be in the long-term self-interest of the US

c. Regime Change / Humanitarian Interventioni. The legality of HI is controversial. A fortiori [it must be even more

true] that the legitimacy of intervening for the purpose of changing govts is doubtful

ii. HI is generally limited to protecting the intervening state’s nationals

iii. Problemsa. Slippery slope argument – why not have regime change

wherever HR violatedi. [Steinhardt: slip slope argts are crap b/c amount to

reason not to do something b/c you don’t trust yourself down line to make right choice]

b. This is a more virulent form of HI – not going in to protect US citizens, as other HI arguably have been in the past

i. Have the means outstripped the ends in Iraq as far as HI goes?

d. UN Resolutions: The Loaded Gun Theoryi. UN Res. 678 (1990) authorized member states to use “all

necessary means” to restore peace and security after Iraq invaded Kuwait [this is the loaded gun]

ii. UN Res. 687 (1991) adopted after Iraq was expelled from Kuwait, imposed cease-fire obligations on Iraq, including obligation to disarm

a. 687 suspended, but did not terminate, the right to use forceiii. SC repeatedly declared Iraq in material breach (e.g. SC Res. 1441

– Nov 2002)iv. The continuing material breach of the conditions laid down in the

resolutions authorized use of 678, the loaded gunv. Responses to the loaded gun theory

a. Res. 678 turned on Iraqi non-compliance w/ resolutions existing as of that date

b. Res. 687 (cease-fire) created a permanent cease-fire that terminated Res. 678 and imposed alternative remedy for the enforcement of weapons inspections

c. Even if a material breach of Res. 687 could resurrect the authorization to use force, it is (1) for the UN to determine that the breach warrants the use of force and (2) limited to enforcement of Res. 687, not “regime change”

d. Steinhardt very skeptical about existence of law governing resort to force

i. It’s overly-simplistic to think that law has a chance to emerge in this atmosphere

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5. Nuremburg [Int’l Military Tribunal 1946](p 1245)a. Ex post facto – Δs argued that a fundamental principle of both int’l and

domestic legal systems was that ex post facto punishment is abhorrent; Δ argued that it was not a crime to wage or plan an aggressive war while Δs carried out those activitiesi. Response: To say that it is unjust to punish those who in defiance

of treaties and assurances have attacked neighboring states w/o warning is obviously untrue

a. The attacker must have known he was doing wrongb. It would be unjust to allow him to go unpunished

b. Individual responsibilityi. Δs argued that IL is concerned w/ actions of sovereign States, and

not individuals; that those who carry out acts of state are not personally responsible but are protected by the doctrine of sovereignty of the State

ii. Court: IL imposes duties and liabilities upon individuals as well as States

a. Crimes against IL are committed by men, not by abstract entities

i. Only by punishing individuals who commit such crimes can the provisions of IL be enforced

b. The principle of IL, which under certain circumstances protects the representatives of a state, cannot be applied to acts which are condemned as criminal by IL

c. Individuals have int’l duties that transcend the national obligations of obedience imposed by the individual state

d. He who violates the laws of war cannot obtain immunity while acting in pursuance of the authority of the state if the state in authorizing action moves outside its competence under IL

e. FOLLOWING ORDERS : Art. 8 – The fact that a Δ acted pursuant to order of his Govt or of a superior shall not free him from responsibility, but may be considered in mitigation of punishment

i. The true test is not the existence of the order, but whether moral choice was in fact possible.

6. The Yugoslavian and Rwandan War Crimes Tribunals as Chapter VII Measures

a. Individual Responsibility – Command Responsibilityi. Connections b/w Nuremburg & ICTY & Rwanda Tribunals:ii. New tribunal statutes replicate the London Charter, which

established Nuremburgiii. Nuremburg went after three types of crimes:

a. Crimes against peace (used more against Japanese than Germans)

b. War crimesc. Crimes against humanity

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iv. ICTY & ICTR build on thata. Genocideb. Crimes against humanityc. Violations of war & customs of ward. Grave Breaches of Geneva Conventions of 1949 [Codified

after Nuremburg]v. Art. 7 of London Charter – Command Responsibility

a. Superior officer is responsible for an act committed by a subordinate IF:

i. He knew or had reason to know [emerging standard] that the subordinate was about to commit such acts or had done so, AND

ii. He failed to take the necessary & reasonable measures to prevent such acts or to punish those who committed them

iii. The above is from the ICTY Statuteb. KNOWLEDGE + POWER = RESPONSIBILITY

i. Marcos was hit on this (Philippines)ii. Argentinian general who knew his soldiers were

disappearing the children of a dissidentc. Only a CO can create an environment of impunity, and

they’re now going to be held responsible for itd. This is not strict or vicarious liability – this is DIRECT

LIABILITY for wrongful acts other than committing the act itself; it’s a commander being held responsible for creating an environment of impunity

vi. “Following orders” defense was also rejected by Nuremburg [London Chrt. Art. 8]

a. [p 1249] – The fact that Δ acted pursuant to order of his govt or of a superior shall not free him from responsibility, but may be considered in mitigation of punishment.

i. The true test is not the existence of the order, but whether moral choice was in fact possible

ii. It’s no defense to say you were following orders, BUT mitigation ok

iii. This is an effort to reconcile the principle that certain acts are criminal w/ humane acknowledgment that people were shot on the spot for disobeying orders

vii. These two principles under Arts. 7 & 8 were articulated at Nuremburg, followed by later tribunals, adopted by domestic courts who prosecute war criminals, and so are now part of IL

viii.ix. Tadic [ICTFY1995] [Tadic challenged whether the SC had the

constitutional power to establish an international court capable of trying individuals – ICTFY says yes]

a. Δ’s argument:

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i. Establishment of such a tribunal never contemplated by the Framers

ii. SC is constitutionally incapable of creating a judicial organ

iii. Establishment of the int’l tribunal has neither promoted nor was capable of promoting int’l peace & security

b. Court: i. SC enjoys wide margin of discretion in choosing course

of action 1. Can continue to act via recommendations

(Chapter VI – pacific settlement of disputes) OR2. Can exercise its powers under Chapter VII

a. Art 39 – SC can decide what measures to take in accordance w/ arts. 41 & 42 to maintain or restore int’l peace & security

ii. The question is whether SC is limited to the measures in Art. 41 & 42, or if it has even larger discretion in the form of general powers to maintain & restore int’l peace & security under Chapter VII

iii. ¶35 – The measures set out in Art 41 (measures not involving force) are merely illustrative and “obviously” do not exclude other measures

1. The only thing that Art. 41 requires is that the measure not involve the use of force

2. This is a negative definition3. THUS, SC has the power to establish judicial

bodyc. CONCLUSION

i. Tadic reinforces and elaborates norms of individual criminal responsibility, and develops int’l constitutional law

DISPUTE SETTLEMENT AND THE APLICATION OF RULES IN EXEMPLARY INT’L SETTINGS

1. Negotiation, Mediation, and Conciliationa. Generally

i. There is a lawmaking tradition at the int’l plane that is driven by diplomatic discussions

ii. These institutions, while informal, resolve disputes & contribute to emergence of new norms

iii. It’s naïve to think that the law is only meaningful if enforced by the court – law can be meaningful even before a court has said so

iv. The least-appreciated way that IL is enforced is through the internalization of states

1. States understand that it’s in their own long-term sophisticated self-interest to abide by IL most of the time

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v. The resolution of disputes through diplomatic channels is good evidence of what states consider the law to be – what they consider the law to require

vi. When negotiations don’t work, states resort to mediation or conciliation1. These dealings are framed by some law and are collected in digests

of state practice, which show how the disputes have been resolved and the legal principles that helped

b. Negotiationi. Employed more frequently than all other methods put together

ii. Consultation – When govt anticipates that a decision or proposed action may harm another state, discussions w/ the affected party may head off a dispute by creating opportunity for adjustment & accommodation

1. Supplies info at best time – before anything has been done2. Parties; differing conceptions of what consultation was intended to

achieve has limited its effectiveness in practiceiii. Can allow the foreign state or interested parties an opportunity to

participate in the domestic legislative processiv. Forms of negotiation

1. Recurrent problems or situations requiring continuous supervision may be handled by a mixed or joint commission – boundary delimitations are a biggie here

2. Canadian-US Int’l Joint Comm’n has dealt w/ issues ranging from industrial development to air pollution to boundary waters

2. The International Court of Justicea. Generally

i. ICJ has jurisdiction over contentious cases and advisory opinionsii. Centrality & impact of the ICJ can be overstated

1. ICJ invented the same year as Spamiii. ICJ is authoritative and important, but on the other hand, one of the

systematic reactions of states sued in the ICJ is walking out (US in Nicaragua, France in Nuclear Test Ban Treaty, Iran in The Hostage Case)

iv. No stare decisisb. Jurisdiction

i. Only states may be parties before the court. Art. 34(1)ii. The Court is open to all the states who are parties to the ICJ

statute. Art. 35(1)1. All members of the UN are parties to the ICJ statute; all have

access to the court2. If state is not a UN member, can still be a party to the ICJ statute3. Can’t be sued in ICJ just b/c you’re party to the statute; further

expression of consent requirediii. 4 sources of jurisdiction:

1. Compromis. Art. 36(1)a. Agreement b/w states to submit a particular existing dispute

to ICJ

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i. Ex: 2 states, both parties to statute, have a legal dispute – they can agree to submit that to the ICJ – states have maximum control over the litigation – they can tell the court what facts to consider; might say, only apply IL; might say, don’t decide the case, just tell us what the controlling law is

2. Compromissory Clause. Art. 36(1)a. Provision in a treaty requiring submission of future disputes

arising under the treaty to the ICJb. Grant jurisdiction to ICJ in advance over the classes of

disputes arising under the treaty3. Optional Clause. Art. 36(2)

a. States MAY recognize compulsory ICJ jurisdiction in all legal disputes concerning:

i. (a) interpretation of a treatyii. (b) any question of ILiii. (c) existence of a fact which, if established, would

constitute a breach of an int’l obligationiv. (d) nature or extent of reparation for breach of int’l

obligationb. The clause is optional; the jurisdiction is compulsoryc. Vulnerability for states here is high – when states sign the

optional clause, they subject it to many reservations and limitations

4. Transferred Jurisdiction. Art. 36(5)a. If states accepted compulsory jurisdiction of PCIJ’s optional

clause under the League of Nations, that acceptance is transferred to ICJ under UN

iv. U.S. & The Optional Clause – Round 1 [1946] (p 311)1. U.S. accepted OC in relation to any other state who accepted the

same obligation, so long as the case didn’t involvea. (a) Disputes the parties have already delegated by agreement

to other tribunalsb. (b) Disputes w/ regard to matters the US determines are

essentially w/in domestic jurisdiction of U.S. [the self-judging reservation; Connally Amend.]

c. (c) Disputes arising under a multilateral treaty, unless i. (1) All parties to the treaty affected by the decision are

also before the Court, and ii. (2) The US specially agrees to jurisdictioniii. [this is the Vandenberg Amendment]

c. Norwegian Loans [ICJ 1957](p 312)[France sued Norway on behalf of French citizens who owned bonds issued by Norway. Norway had originally promised to repay the bonds in gold, but later passed legislation stating that the bonds would be repaid in notes of the Bank of Norway. The French wanted gold, not notes, and so France espoused the claim. Norway argued that the repayment terms of the bonds was a matter of domestic jurisdiction; because France had

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subjected its acceptance of ICJ compulsory jurisdiction to a self-judging reservation, Norway got the benefit of that reservation through reciprocity; ICJ kicked the case out of court]

i. When two states have unilaterally accepted ICJ jurisdiction, jurisdiction will be conferred on the court only the extent to which the Declarations coincide in conferring it.

1. In dispute b/w States A & B, A cannot be subject to any more jurisdiction than B

2. Because France had the narrower acceptance of ICJ jurisdiction – it used a self-judging declaration [whatever we say is w/in French domestic jurisdiction is not w/in ICJ jurisdiction], jurisdiction only exists b/w France & Norway w/in the narrower limits of France’s acceptance

ii. What one state uses as a shield may be used as a sword by any other state in a bilateral dispute

d. Nicaragua v. U.S. [ICJ 1984](p 316)[Nicaragua suing US, claiming US violated CIL and conventional IL by engaging and supporting insurgent military and paramilitary activities against the govt of Nicaragua; these were most sweeping allegations of violations of IL by one state against another; when US heard the suit would be filed, it wrote a letter (The April 6 letter) notifying the UN that the 1946 U.S. Declaration accepting the compulsory jurisdiction of the ICJ (see above) did not apply to disputes w/ any Central American State, or arising out of related to events in Central America; US argued that this letter effectively withdrew the dispute from the court’s jurisdiction; US also argued that Nicaragua had not accepted the compulsory jurisdiction of the court, and that, based on Norwegian Loans, US wasn’t subject to compulsory jurisdiction either]

i. Holding 1: Nicaragua did in fact accept the compulsory jurisdiction of the ICJ

1. Nicaragua’s letter accepting compulsory jurisdiction of the PCIJ never made it to League of Nations

a. US argued that this absence of formality rendered jurisdiction void

b. Court: absence of formality doesn’t exclude the operation of 36(5) – transfer jurisdiction

2. Court: the “constant acquiescence of Nicaragua of its position as bound by the optional clause” is good enough

a. Acquiescence gives rise to legal obligations, although usually acquiescence works to disfavor of the acquiescer – but here, the US was hurt

i. Nicaragua will get it when they’re sued themselves, though

b. Steinhardt: but their acquiescence can’t mean anything, b/c they never had a reason to object to jurisdiction – there must be a reason to object before acquiescence means anything

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3. This may simply be construed as the court resolving ambiguity in favor of its own jurisdiction

ii. Holding 2: US letter modifying ICJ compulsory jurisdiction to exclude disputes involving Central America was ineffective

1. States are free to accept the compulsory jurisdiction of the ICJ and to qualify that acceptance with conditions and reservations

2. A state is not free to amend the scope and contents of its acceptance of ICJ jurisdiction as it pleases.

3. US said any change to its acceptance of jurisdiction would take effect only after six months had elapsed since time of notice – here, there were only 3 days

4. US argues that since Nicaragua’s declaration of acceptance of ICJ jurisdiction is of undefined duration and thus subject to immediate revocation; under Norwegian Loans, US should get the benefit of the option of immediate revocation

a. Court: notion of reciprocity IS concerned w/ the scope and substance of the commitments entered into, including reservations, but NOT w/ the formal conditions of their creation, duration, or extinction.

b. The relevancy of reciprocity varies w/ the type of reservation involved

i. Ex: State A has accepted compulsory juris. for 5 years, state B for 2. This qualifies as a formal condition (has to do w/ duration), and so this would not be subject tot reciprocity under Nicaragua v. U.S.

ii. Ex: State A attaches reservation removing from compuls. Juris. any claim arising out of a multilateral treaty unless all parties to the treaty were also before court. This IS subject to reciprocity, b/c it goes to the scope & substance of the reservation

c. Court: reciprocity cannot be invoked in order to excuse departure from the terms of a state’s own declaration, whatever its scope, limitations, or conditions

d. Court: there is a reasonableness standard in terminating treaties or acceptance of jurisdiction – whatever a reasonable time is, 3 days is NOT reasonable

iii. Holding 3: The compromissory clause in the FCN b/w the US & Nicaragua required submission to the court’s jurisdiction

1. US argues that the FCN is a commercial treaty and this is a distinctly non-commercial dispute

2. US also argued that N failed to invoke the FCN treaty in its initial complaint, and should therefore be barred from asserting jurisdiction under it

a. Court rejects this argument; US had actual notice3. Court’s approach suggests that the court has jurisdiction over a

dispute that might fall in the literal terms of the treaty w/o falling w/in the object & purpose of the treaty

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4. US also argued that FCN treaty also required diplomacy firsta. Court: IL does not require futile acts; diplomacy is a non-

starter in this situation, so the law doesn’t require itiv. Admissibility

1. Should there be an int’l equivalent to the US political question doctrine?

a. US argued that there were prudential reasons not to hear the case during a shooting war

b. Are there some issues so intensely political (like the use of force here) that they’re not appropriate for judicial resolution?

i. Rule of thumb – don’t issue judgments you can’t enforce; don’t adopt a rule you can’t enforce

2. By walking away, US devalued the reliability/assumption that those who lose will nonetheless comply w/ ICJ

a. SC has the power under Art. 94 of UN Charter to enforce ICJ decision, but it never has

b. Does the ICJ’s inability to enforce its judgments render the court a joke?

3. Have we come to point in IL where we can say that an int’l court is at least one of the authoritative forums for resolving legal disputes and determining the content of IL?

a. ICJ is clearly limitedb. SC has never enforced a decisionc. But the US is an outlier in that it walked away – ICJ can and

has handled legal issues in a shooting ward. Take seriously the partial evidence that states themselves

take the court seriously as a way to resolve disputese. There’s a sense of civic faith

e. Yugoslavia v. U.S. [ICJ 1999][Yugoslavia suing US for violating various IL obligations, including obligations banning use of force against another state, not to intervene in internal affairs, to protect civilian population, protect environment, protect fundamental HRs, respect norm against genocide; Y asked for provisional measures [preliminary injunction] and compensation; court held no jurisdiction]

i. No jurisdiction b/c U.S. made reservation to the compromissory clause in Art. IX of the Genocide Convention

1. Specific consent of US is required for each case brought against it2. The reservation did NOT violate O&P of treaty, b/c it went to

remedial measuresa. Reservations that go to remedy do not go to the substance of

the treaty and therefore this particular reservation is lawful3. Effect of this reservation: if US ever wanted to bring a Genocide

claim in ICJ, its case might get kicked out on Norwegian Loans reciprocity theory

4. Other NATO states w/o such a reservation are still in court

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ii. On genocide count, no evidence of specific intent to destroy ethnic group in whole or in part

iii. This case reigns in Nicaragua – ICJ will not always resolve its jurisdiction in favor of its own jurisdiction and against the U.S.

3. Regional and Specialized Courtsa. Regional Courts in general

i. Benefit from the civic faith that makes judicial review work – they have a better rep in their region than the ICJ does in the world community

ii. Judgments of regional courts generally followediii. EU

1. Planners of EU pointed to US as a perfect illustration of what economic integration could do for Europe

2. Prime motivator for creation of EU was economic recovery & competition w/ world

3. There’s a democratic deficit in the EU, though – too much power in unelected central institutions

4. EU may be unified in economic policy, but not in military & diplomatic policy

5. General principles of law and customary law are unwritten sources of EU law

a. ECJ must ensure that both written and unwritten EU law observed

6. General rules of IL are only a supplementary source of EU law

b. Van Gend en Loos [ECJ 1963](p 353)[Challenge to Dutch customs agency’s imposition of allegedly higher tariff on a chemical; issue was whether nationals of Member States to the EC can lay claim to individual rights which the courts must protect; and if so, was the Dutch tariff an unlawful increase?]

i. The Community constitutes a new legal order of IL for the benefit of which states have limited their sovereign rights, and the subjects of which comprise not only Member States but also their nationals.

ii. EU law imposes obligations and confers rights upon individuals enforceable in court

iii. Court decided that it was the Dutch Tariff Court that got to decide the merits

1. ECJ shows measure of deference to member states of EU

c. Simmenthal [ECJ 1978](p 356)[S imported beef from France to Italy; Italians charged inspection fee that violated EU [then EC] law; S sued Italy; Italian ct referred the case to the ECJ, which ruled that the restrictions were indeed against EU law and remanded to Italian ct; Italian ct ordered that Italian govt pay S; Italian govt appealed, saying Italian ct has to apply Italian law; ECJ held that EU law is supreme]

i. EU law takes precedence over conflicting national law

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ii. Every national court must apply EU law in its entirety and protect rights conferred on individuals – national courts must do this even if it displaces domestic law

1. There is NO later-in-time rule – EU law always takes precedence, regardless of when national legislation passed

iii. National courts have a duty to give full effect to EU lawiv. Reasoning: any result that would allow domestic law to prevail would

imperil the very foundations of the EUv. This decision is a basic pillar of ECJ jurisprudence

d. Velasquez-Rodriguez v. Honduras [IACHR] [VR arrested w/o warrant, beaten, and disappeared; witnesses in the case were murdered or disappeared; court brought in IACHR; disappearances became widespread after most HR treaties were written; Honduras violated the American Convention by designing and implementing a deliberate plan of forced disappearances; Honduras paid compensation]

i. ¶174 – “The state has a legal duty to 1. take reasonable steps to prevent HR violations and 2. to use the means at its disposal to

a. carry out a serious investigation, b. to identify those responsible, c. to impose the appropriate punishment and d. to ensure the victim adequate compensation.”

ii. How VR allowed to prove the disappearance:1. ¶124 – “When the existence of a policy or practice [of the govt

supporting or tolerating a policy of disappearances] has been shown, the disappearance of a particular individual may be proved through circumstantial or indirect evidence or by logical inference.”

a. The burden of proof was shifted to the govt to disprove the disappearance

b. This is an endorsement of pattern and practice liabilityiii. Due diligence – An illegal act which violates HRs

1. and which is initially not directly imputable to a State a. (for example, b/c it is the act of a private person or b/c

the actor hasn’t been identified) 2. can lead to int’l responsibility of the State

a. not b/c of the act itself, but b. b/c of the lack of due diligence to prevent the violation

or to respond to it c. as required by the Convention

iv. Int’l protection of HRs should not be confused w/ criminal justice1. States do not appear before the Court as Δs in a criminal action2. he objection of IHRL is not to punish those individuals who are

guilty of violations, but rather to protect the victims and to provide for the reparation of damages

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3. The state cannot rely on a defense that the complainant has failed to present evidence when it cannot be obtained w/o State’s cooperation

4. Silence or ambiguity on behalf of the State will be interpreted by the Court as an acknowledgement of the truth of the allegations

v. Importance of VR1. Example of lex ferenda evolving to lex lata – disappearances not a

violation of the American Convention, but court interpreted it as such

2. Pattern & practice liabilitya. Trying to give states notice of what is expected – see ¶174

3. Shifting the burden of proof4. Due diligence standard – state can be held indirectly liable even for

the actions of private individuals who violate HRs, if the state has failed to adopt policies that protect HRs and punish violators

4. International Arbitration a. Diplomatic protection – the power of the state to espouse the claim of its

own national injured by the action of another statei. Power to elevate a dispute to the level of state-to-state negotiations on

behalf of an individualb. 3 defenses against diplomatic protection: failure to exhaust local

remedies, waiver, and espousalc. (1) Failure to Exhaust Local Remedies

i. The interested party must exhaust all local legal remedies before diplomatic intervention is appropriate

1. Idea is to give the respondent state the chance to do the right thing under IL

ii. Strong form of the defense: Ambatielos [If claimant does not present its best case using all procedural advantages at the local level, but proceeds to judgment and loses, it is barred from making a claim at int’l level]

1. The Ambatielos Claim [Comm’n of Arbitration 1956][K in 1919 b/w Greek national Ambatielos and the UK for the purchase by UK of ships being built for the UK in Hong Kong; Greece espoused A’s claim internationally; UK argued that A hadn’t exhausted local remedies; Greece said they were ineffective]

a. Δ state must prove the existence in its internal system of laws of remedies which have not been used

b. Obviously ineffective remedies don’t countc. The exhaustion of local remedies requires the use of

procedural means which are essential to redress the situationd. Here, A failed to call witnesses who were essential to his

casei. B/c he failed to call the witness, he hasn’t exhausted

local remediesii. Can’t go back to UK courts, b/c barred by res judicata

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iii. Claimant is out altogether and for all time b/c he failed to present his best case at the local level, and is now forever foreclosed at int’l level

1. Greece is out as well – no int’l claimiii. Weak form of the defense: Interhandeliv. Interhandel (Switzerland v. U.S.)[ICJ][Switzerland could not sue the US

in the ICJ for a claimed illicit taking of property of alleged Swiss nationals until it exhausted its remedies in U.S. courts; Supremes had granted cert of the court of appeals affirmance of dist ct’s dismissal of the claim, so the remedies hadn’t been exhausted.]

1. Claimant/claimant state gets relegated back to whatever domestic remedies remain open

2. The int’l avenue is not closed off forever, but only temporarily while claimant goes back to domestic system and tries to advance their claim

3. The rule requiring the exhaustion of local remedies before resort to int’l proceedings is “a well-established rule of CIL that clearly must be observed when domestic proceedings are pending that are designed to obtain the same result.”

d. (2) Waiver by Private Partyi. Tattler [Arbitral Tribunal 1920][Canadians arrested & detained a US

fishing vessel on charges of violating a fishing treaty b/w US and UK which became internal law in Canada; in consideration for the release of the boat, captain paid $500 and waived any right or claim before any court]

1. When the individual claimant waives the right to pursue any claim, his state is also foreclosed from espousing the claim

2. When an injured alien waives his/her right of diplomatic protection, state is unable to advance the claim on individual’s behalf.

ii. Waivers generally1. US has rejected the idea that either anticipatory waivers (Calvo

clauses) or retroactive waivers (Tattler) bind the U.S.2. The effectiveness of the waiver goes down the farther it is towards

this end**3. Injury/transaction less effective

espousal of claim by U.S. 4. most effective waiver (least chance of espousal) least effective waiver

(espousal likely despite waiver)a. As the waiver comes later and later, as you get towards the

vesting of diplomatic interests, the effectiveness of the waiver goes down

b. U.S. will protest Calvo clauses in principle, but will be more willing to compromise the claim if the waiver happens before the injury

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c. However, if the injury happens farther down the timeline, especially after espousal by the U.S., the waiver will almost certainly be ineffective

i. Ex of waiver occurring after espousal: airline crash cases

iii. Calvo clauses1. Anticipatory waivers of diplomatic protection2. May appear in constitutions, statutes, or Ks (b/w state & private

actor)a. If you do something, waive right of diplomatic protectionb. You’re treated as if you’re a citizen of this state, so can’t

invoke diplomatic protection of your home state3. Calvo doctrine asserts the power of states to seize aliens’ property

under a regime of local law only [TOPCO Arbitration]a. Aliens treated like citizens and so property might be seized

or nationalized or expropriated and you’ll have no right of int’l protection

b. No standards governing compensation4. Particular states assert this doctrine, and not always successfully

a. US objects to Calvo clausesb. This is not a doctrine of ILc. Calvo clauses are not attractive to int’l business & not as

popular as once were

e. (3) Insufficient Nationalityi. State can’t exercise diplomatic protection for those who aren’t citizens.

See Nottebohm –individsii. Barcelona Traction: Belgium v. Spain [ICJ 1970](Supp 165)[Belgium

suing on behalf of Belgian shareholders in a Canadian-incorporated company; Belgium claiming that Spain had reduced the value of the corporation and had placed it in bankruptcy and seized its assets; issue was one of standing; Spain argued that Belgium has no standing to protect its shareholders when the corporation is incorporated in a different country; Spain win]

1. There must be a real and effective link b/w the corporation and the State before a State may extend diplomatic protection to a corporation

a. Two tests: Nationality; Controli. Either one alone may be sufficient or insufficient,

depending on circumstancesb. Nationality

i. Where is the corporation incorporated?c. Control

i. Where are the shareholders? Managers? Directors?ii. Appropriate for determining standing in wartime

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1. Security of state requires broadest possible net – so err on sweeping corporate assets into the state’s control

d. Nationality PLUS Controli. Sensitive diplomatic relations in peacetime require

more sophisticated and tightly-tailored testii. State may only have standing if it has nationality

plus control iii. Nationality of shareholders alone is insufficient to

trigger dip protectioniv. State whose nationals are shareholders in an

injured corporation does not have standing to sue on their behalf.

5. Trail Smelter (U.S. v. Canada) [Arbitral Tribunal 1941][Washington State claimed that it was being harmed by emissions from lead smelter in BC; US espoused the claim against Canada; Arbitral Tribunal applied US law and found for US; est’d that domestic court decisions can be guideposts for IL; reaffirmed sic utere principle in IL]

a. A state owes at all times a duty to protect other States against injurious acts by individuals from w/in its jurisdiction.

i. Sic utere principle1. This fundamental principle has great relevance not only in

pollution field, but other legal nuisances as well – damming projects, spillover broadcasting

2. It’s a “polluter pays” principle3. What about terrorism? – hasn’t been used for this purpose yet but

it’s a fair questionii. Canada had a duty to protect WA from the Smelter’s emissions – it’s the

duty of the Canadian govt to see that the Smelter’s conduct conforms w/ IL

iii. Canada paidb. The treatment by the US SC of the rights of different states vis-à-vis

one another is analogous to dealing w/ controversies b/w US and Canada

i. Court looks to wholly domestic precedent & the writings of academics to make the decision here

6. Rainbow Warrior (New Zealand v. France) [F-NZ Arb. Tribunal 1990][French secret service agents mined and sank a Greenpeace ship in a NZ harbor; the ship had planned to sail into France’s nuclear testing grounds in the South Pacific; the 2 pled guilty and were sentenced to 10 years in NZ jail; France threatened to disrupt NZ’s trade w/ Europe; F and NZ made deal that they could stay under French control on a little French military base in South Pacific, but that the agents were prohibited from leaving the island for any reason, except w/ mutual consent of the 2 govts; France unilaterally evacuated both of the agents; NZ protested, seeing this all as an affront to its dignity; France paid $7m to NZ, $2m to a friendship fund, $8m to Greenpeace, and $600,000 to the victim’s family]

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a. Court enforces pacta sunt servanda – honor your promisesb. France’s defenses

i. Force majeure – it was impossible to perform 1. AT rejects this argument – FM irrelevant – it requires absolute &

material impossibilityii. Distress – ok, but question is whether the circumstances of distress

relieve F of liability?1. Were there very exceptional circumstances of extreme urgency?

a. Did French get recognition of that emergency from NZ?2. Once the emergency passed, did France send SS agents back to

the island?3. Did France try in good faith to obtain NZ’s consent in the

evacuations?c. Mafart – French told NZ he was sick, NZ sent a doc to confirm, F evac’d Mafart

before NZ got therei. AT: F did NOT breach its obligation by removing Mafart b/c he was too

sick; however, F continues to breach its obligation by not bringing Mafart back to the island

d. Prieur – F told NZ she was pregnant; F & NZ agreed she’d be seen by a doc; F sent her home before NZ doc saw her; F told NZ she went to be w/ her dad, who was dying

i. AT: F couldn’t just make the decision, send the woman away, and then tell NZ about it

1. F committed material breach and continues to breache. Remedies

i. If no material damage for the breach, then an apology by the breaching state may be adequate compensation [“satisfaction”]

ii. “Satisfaction” can take a range of forms: regrets, punishment of responsible individuals, safeguards against repetition, payment of symbolic or nominal damages or of compensation on a broader basis, decision of int’l tribunal declaring unlawfulness of state’s conduct

iii. Here, satisfaction took form of AT & France condemning the breach

THE CONCEPT, CONSEQUENCES, AND LIMITATIONS OF STATEHOOD1. Statehood’s Prerequisites (and How They Morph)

a. Introductioni. Political truism: the idea of the nation-state as a fulcrum of int’l order is

under sustained attack from two opposite directions:1. Regional integration

a. The rise of int’l institutions has whittled down the zone of exclusive domestic jurisdiction

2. Separatist movementsa. Political & ethnic groups

3. Other attacksa. IL can be enforced in domestic courts. Karadzic

ii. The question: when does a thing become a State1. First question: does the entity want to be a state?

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a. EU would not be a state, even if it meets the criteria, if it doesn’t want to be

b. Traditional standards for statehood:i. RS § 201 [from the Montevideo Convention of 1933] (p 462) A “state as

a person should possess the following qualifications”:1. (1) Defined territory2. (2) Permanent Population3. (3) Effective Govt4. (4) Capacity to enter into relations w/ other states [ability to meet

obligations under IL]ii. (1) Defined Territory

1. Does NOT mean that every border has to be well-established2. If border disputes could nullify statehood, there would be no states

iii. (2) Population1. No numerical minimum2. Must be a stable community – this is a political notion tied to a

defined territorya. Qualitative, not quantitative, measureb. Has to be a stable community that defines itself as a stable

communityiv. (3) Effective Govt

1. Is there a ruling body capable of maintaining effective control over its territory & population?

a. It’s a functional/pragmatic standardb. Is the govt in de facto control of the territory and in

possession of the machinery of the state?c. A centralized administration is good evidenced. Even if there’s some breakdown in order –control is not

absolute – that’s ok2. The form of govt doesn’t matter – IL is not normative

a. SC resolution during First Gulf War referred to “legit govt of Kuwait” – for the first time used the word legit to find out whether a govt would be recognized

3. How much ineffectiveness in a govt will be tolerated in emergence of a state?

a. Question for political scientists, not lawyersb. Once a state has been established, it’s extremely hard to

undoi. The break down of order would have to be astonishing

ii. Civil strife does not undo personality4. Who makes the call?

a. No central decision-maker that says, this govt is effective enough to be a state

v. (4) Capacity to Conduct International Relations1. Is govt able to conduct int’l relations with other states and abide by

IL?a. Matter of capacity, not attitude

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b. The govt must be capable of representing itself internationally – so long as its capable of doing that, its attitude doesn’t matter

2. Evidence of int’l capacity: independencea. Can any other state control the decision-making of the govt

in question?i. Entities that flunk the independence test:

1. Colonies2. Protectorates3. Trust territories

c. Two Major Approaches to Recognitioni. Traditional

1. (1) Is the govt in de facto control of the territory and in possession of the machinery of the state?

2. (2) Does the govt have consent of the people?a. Acquiescence to new govtb. In many coup d’etat the concept of actual consent is

meaningless3. (3) Has new govt indicated willingness to comply w/ its obligations

under treaties & IL?ii. Estrada Doctrine

1. Question of whether or not to grant recognition of govts that come to power through extra-constitutional means is eliminated

2. Only new states are recognized3. When a new govt comes to power either through constitutional

means or otherwise, its relations w/ outside states remains unchanged

4. This doctrine rejects interference w/ the domestic affairs of one state by another through the granting or withholding of recognition

d. Statehood Criteria that are more disputedi. Constitutive Theory of Recognition – An entity is not a state in IL

unless it is generally recognized as such by other statesii. Declaratory Theory of Recognition – Recognition confirms that an

entity satisfies the statehood criteria and that the recognizing state intends to treat the entity as a state

1. Recognition is purely an acknowledgment of the fact – it’s a formality and a confirmation that the recognizing state will acknowledge the right of the state to exist and function as a state

iii. The distinction b/w these two theories is old and an incredible over-simplification of the world

1. States themselves, especially the US, avoid the rhetoric of recognition altogether

a. US DOS: uses rhetoric of “maintaining diplomatic relations”e. The Effect of Being a State

i. RS §206. Capacities, Rights, and Duties of States1. Under IL, a state has:

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a. (a) Sovereignty over its territory and general authority over its nationals;

b. (b) Status as a legal person, with capacity to own, acquire, and transfer property, to make Ks and enter into int’l agreements, to become a member of int’l organizations, and to pursue, and be subject to, legal remedies

c. (c) Capacity to join w/ other states to make IL, as customary law or int’l agmt

f. The Significance of Recognitioni. RS § 205. Under the laws of the U.S.,

1. (1) An entity not recognized as a state, or a regime not recognized as the govt of a state, is ordinarily denied access to courts in the U.S.

2. (2) A regime not recognized as the govt of a state is not entitled to property belonging to that state located in the U.S.

a. So U.S.-based assets of a non-recognized regime could be seized and there’s little the regime could do in a U.S. court to get it back

b. (1) & (2) work together to give a lot of power to the exec branch

3. (3) Courts in the U.S. ordinarily give effect to acts of a regime representing an entity not recognized as a state, or of a regime not recognized as the govt of a state, if those acts apply to territory under the control of that regime and relate to domestic matters only

a. This seems to cut back the other wayb. There is a lot of power in this idea (fully realized w/

discussion of AOSD)c. Gives some measure of respect to unrecognized entities in a

section that is generally hostile to themg. State Succession

i. State succession = one state replacing another state w/ respect to the territory, capacities, rights, and duties of the predecessor state

ii. Examples1. Easy case: new govt comes to power peacefully (U.S. electing new

Pres)a. Mere change in govt does not terminate int’l

obligations or alter int’l rghts2. Difficult cases:

a. Decolonialization/emergence from dependency (Namibia)i. Does new state inherit all int’l obligations previously

undertaken by colonial power on its behalf or not?b. Fracturing (Yugoslavia)c. Revolution (Russia, 1917)

i. No new state, just new govt – Does revolutionary govt continue w/ int’l treaties and obligations?

iii. Treaties governing Succession

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1. Vienna Convention on the Succession of States in Respect of Treaties

a. Now in force w/ 15 states partiesb. Not a good argument that it’s declarative of IL

2. Treaty route on giving answers to the hard cases is unclear3. Must look to custom and state practice to use as guideposts

iv. Competing theories in Custom & Practice:1. Universal Succession

a. New state “steps into the shoes” of the old stateb. Continuity – all the int’l obligations of a colonial power

automatically become binding on the colonial state once it becomes independent

c. This rule has faded away w/ the rise of less-developed countries to power

2. Clean Slate [Nyerere Doctrine]a. Newly independent states may decide for themselves what

their treaty obligations are – there is no automatic succession to treaties

i. New states, however they come into existence (emerging from colonies or whatever) have declared their legal right to reconsider prior treaty obligations

ii. The legal position: we have the right to reconsider these obligations

iii. Their diplomatic position: we continue in these obligations

1. While newly-independent states have asserted the right to reconsider prior obligations, they have overwhelmingly chosen to honor those obligations

iv. Contemporary practice of states: Clean slate as a legal matter, continuity as a practice/diplomatic matter

b. This is the emerging, prevailing approachi. Art. 16 of VCSSRT endorses clean slate, but only for

newly indep. statesii. State practice is ahead of the treaties – practice is

closer to Nyerere Doctrine than continuityc. GIANT EXCEPTION: BOUNDARIES

i. New state still has its old boundaries – those aren’t negotiable

v. Tinoco Claims Arbitration [William H. Taft, Sole Arbitrator, 1923][Tinoco was the Secretary of War of Costa Rica and used military force to seize the govt; he held an election and won a landslide victory; ruled peacefully w/ his legislature for 2 years; US, UK, France didn’t recognize Tinoco’s govt, but many other countries did; during his reign, Tinoco issued currency and an oil concession to some Brits; when new CR got took over from Tinoco, they claimed they didn’t have to honor those

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obligations, b/c UK hadn’t recognized Tinoco’s govt and b/c Tinoco had seized power extra-constitutionally; Taft says nope, you have to pay]

1. CR: Since there was no recognition by UK of old govt, new govt shouldn’t have to pay

a. Taft: Non-recognition is usually appropriate evidence that a govt claiming to be a national personality is not such a govt

i. HOWEVER: if the non-recognition hinges on ideological differences, it is not dispositive in IL

ii. The question is: is there a govt? 1. If there was a govt and certain countries didn’t

recognize it because of ideological disapproval, the fact of non-recognition is not dispositive

2. If the reason for non-recognition was b/c the govt didn’t have control, that’s more important for purposes of IL

2. CR: Tinoco govt wasn’t a de facto govt b/c wasn’t est’d in accord w/ CR’s Constitution

a. Taft: Such an argument disallows revolutioni. The questions are:

ii. Has the govt est’d itself in such a way that it controls the country?

iii. Is it recognized by the people?iv. Does it discharge the normal functions of a govt?

3. Though the govt changes, the nation remains, w/ rights and obligations unimpaired

4. The state persists through domestic changes, and the state is bound by engagements entered into by govts that have ceased to exist.

vi. Autocephalous [7th Cir. 1990][Muslims and Christians fighting in Cyprus; Turkey invades Northern Cyprus and establishes a series of “govts” in the north – the only country that recognized those govts was Turkey; Turkish “govts” made decrees that everything in the north that was abandoned by the fleeing Greeks now belonged to the Turks, including holy relics; churches were looted, a Byzantine mosaic was stolen, and Δ here bought it in an European airport with cash; court says she has to give it back]

1. Δ art dealer’s argument: The decrees of the Turkish govts divested Church of title

a. Even though those govts have not been recognized by the U.S., they are de facto govts, and US courts can give effect to the acts of non-recognized but de facto regimes if the acts relate to purely local matters. RS § 205(3)

2. Court’s response:a. Courts can’t pass on the validity of govts – that’s the exec’s

job

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b. By invoking the decrees, Δ can only establish that the Church’s claim to title is defective, not that hers is good

c. This was not a de facto govti. Political branches of US govt hadn’t recognized

these govts1. Failure of US govt to recognize the Turkish entity

on Cyprus gave US court reason to ignore the decrees of that govt on Cyprus

ii. There are two kinds of de facto govts; the Turkish govt is neither one

1. Those that overthrow the old govt and take its place successfully

2. When some of the people separate themselves from the parent state and establish an independent govt

a. The only way these kind will be recognized is if they’re successful in seceding

b. US Confederacy was a failed #2vii. Distinguishing/reconciling Tinoco & Autocephalous

1. Evidential value of recognitiona. In Tinoco, the failure to recognize was due to ideological

disapprovalb. In Autocephalous, Turkish “govt” failed 4-part test for

statehoodc. The non-recognition of the Turkish govt DID have evidential

value – it meant something to the US court that the US hadn’t recognized this govt – while in Tinoco, the non-recognition by the US and UK did NOT have evidentiary value, because it was motivated by ideology, not the facts on the ground

2. Institutional settinga. Tinoco was an int’l arbitration; Autocephalous was in US

courtb. More likely that US court will pay more attention to exec’s

recog/non-recog3. Are the victims innocent bystanders?

a. In Tinoco, these were innocent creditorsb. In Autocephalous, the loser was a dirty art dealer w/ $100

bills in the Geneva airportc. The public acts of a recognized govt – like prematurely

declaring private property to be abandoned – are much less likely to be given effect especially when there’s a notion of bad faith

2. Perks of being a state (and how they morph)a. The right to be left alone

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i. IL polices the barrier b/w states, and the barrier b/w int’l community and the state

ii. Exclusive domestic jurisdiction – the prerogative of a state to decide things on its own

iii. This line is becoming more blurred; states move it all the timeiv. Nationality issues have traditionally been w/in exclusive domestic

jurisdictionb. The right to grant and withhold nationalityc. Nottebohm – illustration of taking things out of exclusive domestic jurisdiction

and making them a matter of int’l concern (conferral of nationality)d. Nottebohm (Lichtenstein v. Guatemala ) [ICJ 1955][Nottebohm a German

national who didn’t want to be treated like an enemy national during WWII; he lived in Guatemala and had been there for a very long time; he essentially bought citizenship in Lichtenstein; L then brought suit in ICJ against Guatemala for treating Nottebohm like an enemy national; ICJ says L does NOT have standing to press a claim on behalf of an asserted national against a state that has stronger ties to the individual]

i. Test of nationality for an Individual:1. Real and effective links b/w individual and state?:

a. Factual ties b/w person and the stateb. Habitual residence of the individualc. The center of his/her interestsd. Family tiese. Participation in public lifef. Attachment shown by him/her for a given country and

inculcated in his childrenii. Holding: L is w/o standing through the real and effective link test to

exercise diplomatic protection on behalf of Nottebohm as against Guatemala

iii. ICJ: in MOST settings, it’s ok for states to give nationality to whomever it wants

1. Nationality is controlled by domestic law2. But when the issue is admissibility in an int’l case before the

ICJ, IL determines whether a state is entitled to exercise protection and to seize the court

3. N is not deprived of L nationality for all purposes, just for the purposes of ICJ jurisdiction as against Guatemala

iv. Reactions to the case:1. Some have argued that ICJ gave too little weight to Nottebohm’s

connections to L and the humane reasons he didn’t want to be a German anymore

a. Too much emphasis on nationality and not enough on HRs2. Narrow interpretation: Lich’s non-standing against Guatemala

says nothing about L’s standing as against other countriesa. Nottebohm hasn’t been limited to this interpretation

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3. Broad interpretation: Nottebohm is routinely cited for the proposition that a state can’t confer its nationality on an individual in absence of real and effective links

a. This is an over-interpretation, but it’s out there3. Allocation of Authority Among States

a. Jurisdiction to Prescribe i. Generally

1. Jurisdiction to prescribe/legislate is the authority of a state to make its laws applicable to particular persons or property or events

a. Spain applying its criminal law in the Pinochet case; Belgium in the Congo case

b. Spain: we have a sufficient nexus through the nationality of the victims to legitimate the exercise of Spanish law

c. Belgium: there is enough of a nexus to prescribe our crim law to this Δ [Congo’s acting Minister of Foreign Affairs, accused of violating HRs] because a handful of crimes are so heinous and threatening to the world that all countries can prosecute them; as an agent of int’l order, we can apply our crim law to crimes that happened in Congo, even though there is no connections w/ Belgium

2. There are legit grounds in IL for choosing to apply a state’s law to a transnational prob.

ii. Internationally recognized Grounds of Jurisdiction to Prescribe1. RS § 402. Bases of Jurisdiction to Prescribe

a. Subject to §403 [reasonableness], a state has juris to prescribe w/ respect to:

i. (1)(a) Conduct that, wholly or in substantial part, takes place w/in its territory [subjective territoriality]

ii. (1)(b) The status of persons, or interests in things, present w/in its territory [territoriality]

iii. (1)(c) Conduct outside its territory that has or is intended to have substantial effect w/in its territory [objective territoriality]

iv. (2) The activities, interests, status, or relations of its nationals outside as well as w/in its territory [nationality of actor]; and

v. (3) Certain conduct outside its territory by persons not its nationals that is directed against the security of the state or against a limited class of other state interests [protective principle]

2. (1) Territorialitya. A state has jurisdiction to prescribe as to conduct that

occurs (even partly) w/in its territory. RS 402(1)(a)i. Make this universal: no state has the authority to have

its law apply to conduct outside its own territory

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b. All legislation is prima facie territorial . American Banana [U.S. 1909][Π seeks to sue under U.S. antitrust law, claiming the U.S. has enough of a nexus b/c actors are Americans; Supremes say no]

i. The character of an act as lawful or unlawful must be determined wholly by the law of the country where the act is done.

ii. Here, the act was not a tort by the law of the place where it occurred and therefore not a tort at all

c. Subjective territoriality [conduct] RS 402(1)(a)i. Jurisdiction to prescribe as to conduct w/in a state’s

territoryd. Objective territoriality [effects] RS 402(1)(c)

i. Jurisdiction to prescribe as to effects w/in a state’s territory

1. Lotus – Effects of French maritime negligence felt in Turkish territory (on Turkish flag-ship)

ii. Effects-based jurisdiction more controversial than subjective territoriality, but it’s worked in 1000s of cases

iii. Test: Are the effects sufficient to jusify the application of U.S. law?

1. Did the actor intend his or her conduct to have effect in U.S.?

a. Intent may be measured by the subst. effect2. Were there actual and substantial effects in

the U.S.?iv. When intent + effects are proved, then the U.S.

has a sufficient regulatory interest to justify the application of its own law

3. (2) Nationality of the Actora. A state may generally apply (but not necessarily enforce) its

laws to its own nationals, wherever in the world they go. RS 402(2)

i. Ex: U.S. citizens subject to U.S. summonses and subpoenas, tax laws, selective service laws

1. Each is an example of U.S. applying its own law to its own nationals wherever in the world they go

2. Whether U.S. can actually serve a subpoena in a foreign land is a different question (b/c that’s jurisdiction to enforce)

3. Just b/c U.S. has a right to apply its own law doesn’t mean it has a right to enforce it

b. Two states might have a legit claim to apply their law to particular person

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i. Territorial state and individual’s state of nationality

4. (3) Protective Principlea. “IL recognizes that each state may exercise jurisdiction over

crimes against its security and integrity or its vital economic interests.”

i. Can everything be shoehorned into security, integrity, & econ interest?

ii. No – practice suggests some core crimes are w/in state’s protective jurisdiction: counterfeiting, passport fraud, attacks on diplomats, espionage, etc

1. Commonality: each of these crimes target some essential govt function.

a. Does the crime target some essential govt function?

2. The farther away you get from these crimes, the harder it is to exercise protective jurisdiction

b. RS § 402(3) – state has juris to prescribe w/ respect to (3) certain conduct outside its territory by persons not its nationals that is directed against the security of the state or against a limited class of other state interests

c. Ex: U.S. charged Argentine kid who hacked into Pentagon computer; kid was in Buenos Aires and couldn’t be extradited, but U.S. charged him anyway

i. Diff b/w juris to prescribe & enforce: U.S. could make its laws applicable, but it distinctly didn’t have juris to enforce

d. PROBLEM: How to handle the whack paranoid state who finds in every place some threat to its security interests?

i. Ex: Most of the close cases in the U.S. right now are drug cases

1. Congress has passed statutes authorizing the prosecution of smugglers hovering outside the U.S. on the high seas

a. Courts say this is w/in U.S. protective jurisdiction – that drug smuggling is on par w/ national security

b. This is controversial

5. Nationality of the Victim (Passive Personality) a. Attempt to legislate protections, and not just obligations, for

citizens wherever in the world they goi. Many countries have done this, but historically not the

U.S.1. U.S. – there’s a problem of notice w/ this

principle

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2. U.S. has recently moderated its opposition to passive personality

a. Ex: Where terrorists attack Americans abroad b/c they’re Americans, the U.S. gets involved

6. Universality a. Every state has the right to extend its jurisdiction to certain

types of offenses, even without a territorial or citizenship connection to the crime, actor, or victim

b. Ex: piracy, slave trade, war crimes, genocide, hijacking plane, certain terrorist acts

c. How to add crimes to UJ?i. Is universality void for vagueness? That argument

hasn’t workedii. Will universality work for drug offenses and narco-

terrorism?d. RS § 404. Universal Jurisdiction to Define and Punish

Certain Offensesi. A state has jurisdiction to define and prescribe

punishment for certain offenses recognized by the community of nations as of universal concern, such as piracy, slave trade, attacks on or hijacking of aircraft, genocide, war crimes, and perhaps certain acts of terrorism, even where non of the bases of jurisdiction indicated in §402 is present

ii. **note that universality is not subject to 403 [reasonableness]

iii. Limits on Jurisdiction to Prescribe - RS § 4031. (1) An exercise of jurisdiction may not be unreasonable, even

when one of the bases for jurisdiction under §402 is present2. (2) Whether exercise of jurisdiction over a person or activity

is unreasonable is determined by evaluating all relevant factors, including, where appropriate:

a. (a) Link of the activity to the regulating state i. Does the activity take place w/in the territory?

ii. Does the activity have substantial, direct, and foreseeable effect upon or in the territory?

b. (b) Connections [nationality, residence, economic activity] b/w the regulating state and the person principally responsible for the activity to be regulated, or b/w that state and those whom the regulation is designed to protect

c. (c) Character of the activity to be regulatedi. Importance of regulation to the regulating state

ii. Extent to which other states regulate such activities

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iii. Degree to which the desirability of such regulation is generally accepted

d. (d) Existence of justified expectations that might be protected or hurt by the reg

e. (e) Importance of the reg to the int’l political, legal, or economic system

f. (f) Extent to which the reg is consistent w/ the traditions of the int’l system

g. (g) Extent to which another sate may have an interest in regulating the activity

h. (h) Likelihood of conflict w/ regulation by another stateiv. The Helms-Burton Act

1. The act creates rights of U.S. citizens whose property was unlawfully taken by Cuba; COA is not against Cuba, but against those who “traffick” in the property

a. Trafficking includes selling, transferring, buying, leasing the property, as well as engaging in a commercial activity using or otherwise benefiting from confiscated property

b. HBA penalizes third parties for trafficking seized US property in Cuba

c. The idea is that HBA will chill foreign investment in Cuban economy, hastening Castro’s demise

2. HBA explicitly rejects the AOSD and empowers US courts to adjudicate claims arising from expropriations carried out in Cuba over 30 years ago

3. POTUS has continually exercised his ability to suspend application of HBA

4. Supporters of HBAa. All HBA does is punish those who receive and traffick in

seized propertyb. W/in US jurisdiction to prescribe b/c Cuba is perceived as

nat’l security threat5. Critics of HBA

a. HBA is a virtual clinic in int’l illegality of extraterritorial application of US law

b. Cuba is not the target; 3rd parties trafficking the property arec. US has traditionally opposed such passive personality

jurisdiction [except when US nationals targeted by terrorists b/c US citizens]

d. This is a violation of Nottebohm – People deemed to be US citizens for purposes of HBA even if they don’t pass real and effective link test

e. Effects jurisdiction [objective territoriality] doesn’t work b/c it’s 4 decades from the conduct to the effect

f. Probably doesn’t pass 403’s reasonableness testg. MAIN PROBLEM: reciprocity/comity

i. What would US do if tables were turned?

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6. Conclusiona. This legislation is more political shadow-play than lawb. It’s possible that WTO or NAFTA will make it worthwhile for

US to back away form these trade restrictionsc. POTUS’s willingness to suspend Title III and Congress’s

acquiescence to that may show that we’ve internalized int’l standards

v. U.S. v. Yunis [D.C. Cir. 1968](p 767)[Jordanian plane hijacked by Yunis; hostage situation; only nexus to the U.S. was the presence of several American nationals on board the flight; U.S. caught Yunis on the high seas and prosecuted him in the U.S.]

1. Yunis argues against U.S. jurisdictiona. Territoriality doesn’t workb. Nationality of the actor doesn’t workc. Nationality of the victim [passive personality] doesn’t work

i. Δ argues that this theory of jurisdiction is neither recognized by the int’l community nor by the U.S. and is insufficient basis of jurisdiction

ii. Court: legal scholars agree that the int’l community recognizes the legitimacy of passive personality, even if it is controversial

1. Passive personality definitely applies to hostage taking

2. But here, hijackers never made demands upon US govt; didn’t directly threaten its security; didn’t single out Americans onboard

3. Court punts on passive personality – Universal and Passive Personality together provide ample grounds for jurisdiction

d. Universality – Δ argues that aircraft piracy and hostage taking not in this category

2. Universal Jurisdiction – are aircraft piracy and hostage taking in this category?

a. A majority of states, including Lebanon, have signed three treaties condemning aircraft piracy

b. Int’l community has shown strong commitment to punishing aircraft hijackers regardless of where the hijacking occurred

c. Global legal scholars unanimously agree that aircraft hijacking fits in this category

d. There is clear authority to assert jurisdiction over Yunis for the offenses of aircraft piracy and hostage taking

3. This is a good example of universality working in a criminal case

a. Filartiga is ex. of universality working in civil case [torturer enemy of all mankind]

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b. Jurisdiction to Enforce i. The authority of a state to induce or compel compliance w/ the law

ii. To have jurisdiction to enforce, you must also have jurisdiction to prescribe

iii. Ex: UK in Pinochet –arrest and extradite Pinochet –are exercises of jurisdiction to enforce

iv. A state may have jurisdiction to prescribe w/o having jurisdiction to enforce

1. Ex: An individual may be under U.S. jurisdiction to prescribe but that does NOT mean that the U.S. has authority to enter a foreign country and arrest him (which would be an exercise of jurisdiction to enforce); the arrest would have to satisfy certain criteria

2. Ex: Alvarez-Machain [US has juris to prescribe, but no enforcement jurs in Mexico]

3. Ex: The service of court documents abroad is exercise of juris to enforce

v. RS 431. Jurisdiction to Enforce (p 778)1. (1) A state may employ judicial or non-judicial measures to induce

or compel compliance or punish noncompliance w/it slaws or regulations, provided it has jurisdiction to prescribe under §§402 & 403

2. (2) Enforcement measures must be reasonably related to the laws or regulations to which they are directed; punishment for noncompliance must be preceded by an appropriate determination of violation and must be proportional to the gravity of the violation

3. (3) A state may employ enforcement measures against a person located outside its territory

a. (a) If the person is given reasonable notice of the claims or charges against him (b) If the person is given an opportunity to be heard, ordinarily in advance of enforcement, whether in person or by counsel or other representative; and

b. (c) When enforcement is through the courts, if the state has juris to adjudicate

vi. Examples of jurisdiction to enforce: court process, summons, sanctions, police activity, arrests, administrative sanctions [denial of entry/exit of persons/goods; freezing of assets]

vii. A state’s power to enforce its law w/in its own territory is plenary and exclusive

1. But that does not extend outside its territory2. Jurisdiction to enforce characterized by intense territoriality

viii. RS 432. Measures in Aid of Enforcement of Criminal Law (p 780)1. (2) A state’s law enforcement officers may exercise their functions

in the territory of another state only w/ the consent of the other state, given by duly authorized officials of that state

a. Prohibitory rule – no state can exercise its enforcement powers in another state’s territory w/o consent

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ix. RS 433. External Measures in Aid of Enforcement of Criminal Law: Law of the U.S.

1. (1) Law enforcement officers of the U.S may exercise their functions in the territory of another state only

a. (a) w/ the consent of the other state and if duly authorized by the U.S.; AND

b. (b) in compliance w/ the laws both of the U.S. and the other state

2. Steinhardt: this is a powerful tilt against US enforcement powers abroad

x. Extradition1. Extradition is the more common alternative to direct law

enforcement abroad2. Only treaties create an obligation to extradite under IL3. Extradition treaties typically establish a legally binding obligation

to extradite fugitives, define the crimes covered by the extradition obligation, specify exceptions, and set forth the procedures and requisite evidence to activate the extradition obligation

4. In the U.S., no extradition if there’s no treaty5. In extradition hearing, US magistrate must determine that:

a. The fugitive sought is the person detainedb. A valid extradition treaty exists b/w the US and the

requesting statec. The treaty allows extraditiond. The standard of proof of criminality established by the treaty

is met6. Sec of State makes final determination on extradition7. Common exceptions to extradition treaties:

a. Political offense doctrine (below)b. Time-barred – if prosecution of the offense charged is time-

barred in the requesting state, no extraditionc. Dual criminality – the offense charged must be a crime both

in the requesting and requested state8. Political Offense Doctrine : A state is not obligated to

extradite persons if the alleged crime is political in naturea. Ex: sedition, treasonb. A murder in the course of a political uprising has repeatedly

been held to be a non-extraditable political offensei. TEST: Attacks on civilians are intrinsically non-

political; attacks on military targets are politicalii. There is something ironic about protecting the most

inhumane acts for humanitarian reasons (humanitarian concerns for political offenses)

iii. War criminals should not get the benefit of the political offense doctrine

xi. Summary – Black Letter Principles

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1. (1) States cannot take enforcement measures in the territory of another state w/o consent

a. But what about Alvarez-Machain?i. Maybe the Supremes just got it wrong

ii. Steinhardt: first sniff of chaos of moving out of territorial world

2. (2) Male Captus rule – the illegality of a suspect’s seizure will not preclude trial and punishment unless the affected state protests

a. IL, male captus (“bad capture”)s; U.S.: Kerr-Frisbie doctrinei. The court’s power to bring a Δ to trial on criminal

charges is not impaired by his forcible abduction into the jurisdiction

1. Subject to a shock-the-conscience test, courts won’t ask how Δ was brought before the court

c. Jurisdiction to Adjudicatei. This is the int’l analogue to personal jurisdiction, like in International

Shoeii. RS 421 (p 798)

1. So long as the exercise of jurisdiction is reasonable, State may exercise jurisdiction through its courts to adjudicate

2. Person/entity must have minimum contacts before PJ/jurisdiction to adjudicate

d. General Jurisdictional Principlesi. A state may have jurisdiction to prescribe (ability to apply its law) w/o

having the jurisdiction to enforce that lawii. Ex: Sheinbein [Jewish kid runs to Israel after killing in MD]

1. Juris to prescribe OK: US murder laws apply to Sheinbein2. Juris to enforce NOT OK: US can’t enforce the law by arresting,

trying, and sentencing Sheinbein, b/c he’s physically in Israel

e. Choice of Lawi. Generally

1. Looking for the rule of decision when more than one jurisdiction is involved and the applicable laws conflict

ii. Approaches1. 1st RS of Conflicts (territoriality – lex loci)

a. Torts – where did the injury occur? K – where was K made?b. Apply the law of the place where the injury occurred

2. 2nd RS of Conflicts (Most Significant Relationship (MSR ) to the issue)

a. What state has the MSR to the case?b. Presumption of lex loci that may be overcome

3. Interest Analysis a. Do the policies behind the rules conflict?b. It’s better to do justice

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c. This approach empowers advocates to be creative4. Reasonableness – 3rd RS of US Foreign Relations Law § 4035. Comity – Hartford Insurance6. Non-judicial Approaches (diplomatic resolutions, treaties)

iii. Pancotto v. Mozambique Safrique [2nd RS approach][N.D. Ill. 1976](p 804)[Π injured by ee of Δ while on safari in Mozambique; issue: whether M or Illinois law should apply to issues of liability and damages]

1. Fed ct applies choice of law rules of the state in which it sits (Erie) – IL uses 2nd RS

2. M law applies to liability – a. M: place of injury, conduct which caused injuryb. Domicile/PPB of parties – split

i. IL is interested in compensating victim; ii. Mozambique is concerned that Δ’s conduct conforms to

its standard, and may also have an interest insulating a domiciliary from liability

c. Center of relationship – spliti. Δ came to IL to meet w/ Πs; Πs went to M

3. IL law applies to damagesa. IL courts wouldn’t enforce M limitation on damages b/c it’s

unreasonable and contrary to IL public policyb. Is it massively unfair to subject Δ to IL’s unlimited damages

regime?i. No – They solicit business outside Mozambique – if you

come in and derive a benefit from advertising to IL residents, you subject to IL law; Δ has not claimed to rely on M’s damages limitation in its failure to buy insurance

iv. Reasonableness - RSUSFR § 4031. (1) An exercise of jurisdiction may not be unreasonable, even

when one of the bases for jurisdiction under §402 is presenta. This is an unbounded idea of reasonablenessb. Judges can do justice b/c so much wiggle room, but other

judges find it unmanageablec. Sometimes courts will run a 403 analysis on top of its

analysis under the applicable state approach (1st or 2nd RS of Conflcits)

2. (2) Whether exercise of jurisdiction over a person or activity is unreasonable is determined by evaluating all relevant factors, including, where appropriate:

a. (a) *Link of the activity to the regulating state i. Does the activity take place w/in the territory?

ii. Does the activity have substantial, direct, and foreseeable effect upon or in the territory?

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b. (b) *Connections [nationality, residence, economic activity] b/w the regulating state and the person principally responsible for the activity to be regulated, or b/w that state and those whom the regulation is designed to protect

c. (c) *Character of the activity to be regulatedi. Importance of regulation to the regulating state

ii. Extent to which other states regulate such activitiesiii. Degree to which the desirability of such regulation is

generally acceptedd. (d) *Existence of justified expectations that might be

protected or hurt by the rege. (e) Importance of the reg to the int’l political, legal, or

economic systemf. (f) Extent to which the reg is consistent w/ the traditions of

the int’l systemg. (g) Extent to which another sate may have an interest in

regulating the activityh. (h) Likelihood of conflict w/ regulation by another state

v. Comity – Hartford Insurance [U.S. 1993](p 725)[US law (Sherman Act) prohibits this conduct, UK law allows (but does not require). Issue is which law to apply? SC holds that comity does not preclude jurisdiction over the foreign conduct alleged.]

1. With respect to foreign Δs, int’l comity doesn’t preclude US antitrust laws from applying – courts are not obliged to defer to the regulatory interests of the UK in the name of comity

2. Comity: more than courtesy but less than obligationa. Comity is “neither a matter of absolute obligation, on the one

hand, nor of mere courtesty and good will, upon the other. Hilton v. Guyot [U.S.]

b. It’s a principle of accommodation that US courts use to decide whether US or foreign law should apply in a case

c. A mere difference in the law does not trigger comity (whereby court would dismiss the case)

i. There must be a true conflict – the laws must be opposite

d. It’s one standard reason often give for accommodating the interests and laws of foreign countries

e. Here, court says comity doesn’t apply and doesn’t preclude US from having juris.

3. Souter (majority) says the question is whether there is in fact a true conflict b/w domestic and foreign law

a. Souter says that there is no conflict here, b/c UK law does not require what is prohibited by the US, & compliance w/ both laws not impossible

SOUTER’S NOTION OF TRUE CONFLICT:U.S. U.K. “Conflict” in Does comity apply?

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Law Law Souter’s senseProhibits

Allows No No

Prohibits

Requires Yes Maybe – can’t say w/ certainty b/c comity not obligatory

4. Scalia’s dissenta. There are two questions here: whether dist ct had

jurisdiction, and whether Sherman Antitrust Act reaches the extraterritorial conduct alleged here

i. Dist ct had SMJ due to 1331 “arising under” jurisdiction

ii. The extraterritorial reach of the Sherman Act has nothing to do w/ jurisdiction, and is a question of substantive law on whether Congress asserted regulatory power over the challenged conduct

1. If Π fails to prevail on this issue, the court does not dismiss the claim for want of SMJ – want of power to adjudicate – rather, it decides the claim, ruling on the merits that Π has failed to state a COA under the relevant statute

b. It’s a long-standing principle of US law that unless Congress specifically says so, US law is only meant to apply in the territory of the U.S.

i. It’s now well-est’d that Sherman law applies outside U.S.

c. If the presumption against extraterritoriality is overcome, you have to construe U.S. law consistently w/ IL. Charming Betsy

i. IL includes limitations on a nation’s exercise of its juris to prescribe

d. The practice of using IL to limit the extraterritorial reach of statutes is firmly est’d in U.S. SC jurisprudence

e. Under 403, it is unreasonable to apply US law here f. Comity should have a much broader play than the majority

thinks – it should apply when foreign sensitivities are important or there are inconsistencies in the law, not just in the relatively rare case when the laws are opposite (as Souter suggests)

i. Shouldn’t we, in the name of comity, accommodate those laws that most approximate our own, and ignore those that are totally opposite ours?

ii. There should be less deference to laws that are most opposite ours

Limitations on the Exercise of Jurisdiction4. Foreign Sovereign Immunity

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a. FSIA in a Nutshelli. Until 1952, foreign states and their agencies and instrumentalities

enjoyed virtually absolute immunity from suit in the courts of the U.S.1. See The Schooner Exchange [U.S. 1812; Marshall, CJ]

ii. From the time of The Schooner Exhange until the Tate Letter in 1952, absolute immunity was the norm in the U.S.

1. Courts consistently deferred to the Exec Branch, which ordinarily requested immunity in all actions against friendly foreign sovereigns

iii. In 1952, State Dept sent the Tate Letter to DOJ, announcing that DOS was adopting the restrictive theory of foreign sovereign immunity

1. Immunity of sovereign is recognized w/ regard to sovereign or public acts (jure imperii) of a state, but not w/ respect to private acts (jure gestionis)

2. The private acts of a sovereign – commercial activities being the primary example – were not entitled to immunity

3. Courts continued to defer to the Exec Branchiv. FSIA (enacted in 1976) replaced the practice of deference to the Exec w/

a comprehensive legislative framework governing claims of immunity in every civil action against a foreign state or its political subdivisions, agencies, or instrumentalities

1. A principle purpose of FSIA was to transfer the determination of sovereign immunity from the executive branch to the judicial branch

2. FSIA codified the restrictive theory of sovereign immunity3. FSIA sets forth the general rule that foreign states are immune

from the jurisdiction of both federal and state courts in the U.S., subject to certain exceptions. 28 USC 1604

4. FSIA is the sole basis for obtaining jurisdiction over a foreign state in fed court. Hess

5. There is a lot of room for interpretation in the FSIA, because it contains irreconcilable ideals:

a. Assuring Π a day in court – making sure states don’t act as private actors and then hide behind sovereign immunity; and

b. Respect for sovereigns (trying to get reciprocity for US when tables are turned)

v. As a threshold matter, a court adjudicating a claim against a foreign state must determine whether the FSIA provides SMJ over the claim. Siderman

1. DOES THE ACTIVITY IN QUESTION FALL W/IN ONE OF THE EXCEPTIONS IN FSIA?

a. Once Π offers evidence that a FSIA exception applies, the burden shifts to the state to prove by a preponderance that the relevant exceptions do not apply. Siderman.

b. Historyi. Until 1952, U.S. followed rule of absolute immunity:

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1. A sovereign cannot, w/o its consent, be made a respondent in the courts of another sovereign

2. The Schooner Exchange [U.S. 1812][Supremes upheld a French plea of immunity against an American citizen’s assertion of title to an armed national vessel of France that had entered the territorial waters of the U.S.]

a. A public armed ship in the service of a friendly foreign country having entered an American port open for her reception is exempt from U.S. jurisdiction

b. Rationale: foreign govts should be absolutely immune from the jurisdiction/judicial process of another nation’s courts

i. A govt is intrinsically different from an individual3. The Pesaro [U.S. 1920s][Extends principles of immunity

enunciated in The Schooner Exchange to all ships held and used by a govt for a public purpose – including commercial ships operated by a govt for purpose of advancing the trade of its people or providing revenue for its treasury]

4. Views of the State Dept in favor of immunity became conclusivea. If State Dept recommended that the foreign state be

granted immunity, judge dismissed caseii. Tate Letter from DOS to DOJ in 1952 (p 601) adopted restrictive

theory of immunity1. Announced that U.S. would no longer follow absolute theory of

immunity2. Immunity of a sovereign recognized w/ regard to sovereign

or public acts [jure imperii] but now w/ respect to private [commercial] acts (jure gestionis)

c. FSIA Generallyi. FSIA is the exclusive way to sue foreign states in U.S. Courts. Amerada

Hessii. FSIA provides a rebuttable presumption of immunity for a state. 28 USC

§1604iii. Each exception offers ample ground for interpretation. See exceptions in

1605iv. FSIA lays out a manner of serving foreign states. § 1608

1. States are w/in PJ as long as SMJ is proper and service is propera. SMJ + service = PJ

v. There is jurisdiction immunity & enforcement immunityvi. Two competing interests in FSIA:

1. Give Πs their day in courta. Make sure states don’t act as private actors and then hide

behind cloak of sovereign immunity2. Respect for foreign sovereigns (trying to get reciprocity for US

when tables are turned)d. 5 basic characteristics of the FSIA

i. (1) FSIA creates a branch of SMJ for U.S. Courts.

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1. Found in same part of US Code that deals w/ diversity & fed question jurisdiction

2. 28 USC §1330(a). (p 618)a. Fed dist cts have SMJ over all civil actions against foreign

states, so long as those states are not entitled to immunity by statute [§§1605-1607] or treaty

b. No amount in controversy requirementc. No jury

ii. (2) FSIA adopts a rebuttable presumption of immunity1. Tilted in favor of immunity for foreign govts, their agencies &

instrumentalities2. 28 USC §1604 (p 619)

a. Subject to existing int’l agreements to which the U.S. is a party at the time of enactment of the FSIA, a foreign state shall be immune from the jurisdiction of U.S. Courts except as provided in 28 USC §§1605-1607.

3. This presumption in favor of immunity can be overcome if one of the various exceptions applies:

a. Partial list: §1605(a)(1)-(7) [A foreign state is not immune from jurisdiction from the courts of the U.S. when]:

i. (a)(1) Foreign state has waived its immunity (explicitly or implicitly)

1. Int’l financial & trade transactions often involve negotiations over whether foreign state will waive its immunity to suit in US

2. Often waiver is part of broad provision specifying not only that there is a waiver under FSIA, but that also designates choice of law and forum (ex – NY)

ii. (a)(2) Commercial activity w/ U.S. nexus1. Carried on in the U.S. by a foreign state?2. Act performed in the U.S. in connection w/ a

commercial activity of the foreign state elsewhere?

3. Act outside the U.S. that causes a direct effect in the U.S.

iii. (a)(3) Takings of property in violation of IL1. Includes nationalization or expropriation of

property w/o payment of prompt, adequate & effective compensation

2. Also include arbitrary & discriminatory takings3. Does not affect the extent to which AOSD applies4. This section has not often been applied

iv. (a)(4) Rights in certain U.S. propertyv. (a)(5) Noncommercial torts in the U.S.

1. Directed primarily at traffic accidentsvi. (a)(6) Arbitration

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1. Can force arbitration if state has agreed to resolve disputes through arbitration

2. Can enforce arbitration awardsvii. (a)(7) Terrorism

1. Torture, extrajudicial killings aircraft sabotage, hostage taking, or the provision of material support or resources for such an act

iii. (3) FSIA Adopts the Restrictive Theory of Immunity1. Tate letter of 1952 (see above)2. A state’s commercial acts do NOT get immunity, but its

governmental acts do3. The Commercial Activity Exception. §1605(a)(2) (p 620)

a. Commercial activity w/ U.S. nexusi. Carried on in the U.S. by a foreign state?

ii. Act performed in the U.S. in connection w/ a commercial activity of the foreign state elsewhere?

iii. Act outside the U.S. that causes a direct effect in the U.S.

iv. (4) Definition of “commercial activity”: nature, not purpose. 1. 28 USC §1603(d)

a. CA means either a regular course of commercial conduct or a particular commercial transaction or act

b. Commercial character of an activity shall be determined by reference to the nature of the course of conduct or particular transaction or act, rather than by reference to its purpose.

2. Can this act be carried out by a private party? a. Yes? Activity most likely commercial and NOT entitled to

immunity.b. No? Only can be carried out by govt (arrests, going to war,

inflating currency, etc)? Entitled to immunity.c. Unclear? Look to the nature of the activity, not its

purposei. Ex: Buying boots for the army

1. Purpose of the activity: to equip an army – that seems governmental

2. Nature: it’s a K for the sale of goods, no immunityii. This test tilts the field in favor of finding

something to be commercial, and thus not entitled to immunity

1. When Δ counsel starts talking about purpose, you know you’ve got them

v. (5) Courts, not the Executive Branch, determine immunity1. 28 USC § 1602

a. Courts of the US will decide claims of sovereign immunity2. State Dept. used to determine immunity – it used to be a political

question

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e. Argentina v. Amerada Hess [U.S. 1989](p 614)[Liberian flagship Hercules, engaged in U.S. oil trade, bombed by Argentina during the Falklands War; Hess exhausted ineffective local remedies and sued in the U.S. under the Filartiga statute, the ATCA; Dist ct ruled that FSIA barred suit against Argentina – none of the exceptions applied; 2d Cir rev’d, inferring an exception in FSIA for generally violations of IL; Supremes rev’d – ATCA not a way to get around the FSIA; FSIA only way to get state in US courts]

i. ATCA is not an alternative way to drag a state into U.S. courtsii. FSIA provides the sole basis for obtaining jurisdiction over a

foreign state in fed court1. FSIA must be applied by the dist cts in every action against a

foreign sovereign, since SMJ in any such action depends on the existence of one of the specified exceptions to foreign sovereign immunity. Verlinden [U.S. 1983]

iii. If there’s no exception in the FSIA, then the state HAS immunity1. “[I]mmunity is granted in those cases involving alleged violations

of IL that do not come w/in one of the FSIA’s exceptions.”iv. 2d Cir’s reasoning:

1. It’s no expression of a state’s sovereignty to violate an int’l standard

2. Transgressions shouldn’t qualify for the kinds of respect and comity that are behind the sovereign immunity doctrine

3. FSIA should be interpreted in light of int’l standards [Charming Betsy]

v. Another concern here – comity & reciprocity1. US doesn’t want to get hauled into court by other states for the

shit it does2. This case demonstrates the 2 irreconcilable motivations behind

FSIA:a. Giving Πs their day in courtb. Comity – Protecting the dignity and prerogatives of foreign

sovereigns (which ensures reciprocal treatment for US when tables are turned)

vi. IL may well tolerate an unredressed wrong if the alternative is subjecting one sovereign state to the compulsory process and jurisdiction of another

vii. Does Hess undermine Filartiga’s approach under ATCA?1. No, b/c in Filartiga, Π sued the individual, not the state2. So you could go get the pilot here who bombed the Hercules3. WHAT MATTERS: How does the state respond – does it put its arm

around the actor?a. In Filartiga, the state did NOT put its arm around the

torturerb. In Hess, Argentina said “the pilot’s our boy” c. Pilot in Hess was acting w/in scope of his authority, while

Pena-Arrala in Filartiga was not

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d. The scope of authority and the willingness of a state to embrace its actors determines how this stuff comes out under the FSIA

f. Public Vs. Commercial Actsi. Saudi Arabia v. Nelson [U.S. 1993](p 626)[Nelson recruited by Saudi

Arabia to work in a hospital in SA; an agent of SA recruited Nelson in the U.S.; SA placed ads in trade periodicals in the U.S.; K was signed in the U.S.; orientation sessions happened in U.S.; Nelson went to SA, was arrested and tortured by SA; Nelson sued SA based on the theory that SA didn’t have sovereign immunity b/c it was a commercial act – hiring & signing K; SC rejects that argument and Nelson loses – SA immune from suit on these facts]

1. The activities that led to the suit [torture and abuse of police power] were not commercial acts

2. All of the activities SA performed in the U.S. were commercial in nature, but they don’t form the basis of the suit – this is an intentional torts case, not breach of K

a. The Saudi Police were the ones who committed the wrong here

b. Nelson argues a Palsgraf but-for test: but-for the recruitment and K in the U.S., I never would’ve gone to SA and I never would’ve been tortured

i. SC rejects this test b/c it excludes nothing & violates notions of comity

3. So long as the police powers are deployed, it’s juri imperii [public act] entitled to immunity

a. Even if it was pattern & practice of private SA companies to call Saudi police on whistleblowers, the result would be the same

4. Look to the specific actions underlying the claima. Here, the acts were performed by SA police; didn’t involve

commercial activity, so FSIA commercial activity exception doesn’t apply

5. Test for distinguishing b/w public & commercial act:a. Are the specific acts in question able to be performed

by a pvt individual?i. It’s the nature test – see above

ii. The mere fact that private persons can engage in the activity doesn’t necessarily produce automatic results

1. Ex: Mexico drilling oil in Gulf of Mexico held NOT to be commercial act, and thus it was held to be entitled to immunity

b. Jure gestionis – commercial acts that private individuals can and do engage in

c. Jure imperii – public acts by a state

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g. The Terrorist Exceptioni. 2-step process to determine jurisdiction under 28 USC § 1605(a)

(7):1. (1) Screening cases in [answer to each must be yes]:

a. (1) Are money damages sought against a foreign state for personal injury or death caused by a qualifying act?

i. Torture, extrajudicial killing, aircraft sabotage, hostage taking, OR

ii. the provision of material support or resources for such an act

b. (2) If so, is that act [or the provision of resources] engaged in by an official acting w/in the scope of his office?

c. (3) If so, has the foreign state been designated as a state sponsor of terrorism?

i. Cuba, Iran, Iraq, Libya, North Korea, Sudan, & Syria, 2. (2) Jurisdiction is proper unless the answer to either of the

following is “no”:a. (1) If the act occurred in the foreign state against which the

claim has been brought, did the claimant afford the foreign state “a reasonable opportunity to arbitrate the claim”?

b. (2) Was either the claimant or the victim a national of the U.S. when the act upon which the claim is based occurred?

ii. Alejandre v. Cuba [Brothers to the Rescue] [S.D. Fla. 1997](p 638)[“Brothers to the Rescue” is a Miami-based humanitarian organization that flies over the Florida Straits looking for Cuban refugees to report to the U.S. Coast Guard to be saved; Cuban AF shot down one of the BTR planes over int’l waters w/o provocation; court finds Cuba NOT to be immune due to the terrorist exception of 1605(a)(7), and so the suit proceeds]

1. This was an extrajudicial killing – a deliberated killing not authorized by a previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples

2. Cuban AF was acting as an agent of Cuba 3. Cuba is designated as a state sponsor of terrorism 4. The act occurred outside Cuban territory 5. The Flatlow Amendment – creates a COA against agents of a

foreign state that act under the conditions specified in FSIA 1605(a)(7)

a. It’s an enforcement provision for acts committed under the terrorist exception

b. If Π proves an agent’s liability under Flatlow Amend., foreign state employing the agent would also incur liability under the theory of respondeat superior

c. Provides that punitive damages are available under terrorist exception

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d. Purpose is to increase the measure of damages available under terrorist exception

iii. Siderman v. Argentina [9th Cir. 1992][Argentine family & daughter who was American citizen brought action against Argentina based on torture and expropriation of their hotel property by military officials; dist ct dismissed based on FSIA; 9th Cir. held that (1) expropriation claims were w/in the commercial activity exception of FSIA; (2) expropriation claims of US citizen Π (the daughter), but not the Argentine citizen Πs, also fell w/in int’l takings exception; (3) prohibition against official torture has attained the status of jus cogens; (4) that fact that there has been a violation of jus cogens does not confer jurisdiction under the FSIA; (5) existing treaty exception did not apply w/ respect to torture claims; but (6) implied waiver exception was applicable based on allegations that Argentina availed itself of US courts in its pursuit of Π]

1. Expropriation Claims: Sidermans have sustained their initial burden of alleging applicable exceptions to FSIA – comm. activity & int’l takings –on remand, Argentina bears burden of proving by a preponderance that none of the exceptions apply

2. Does the court have SMJ under FSIA? Are any exceptions to FSIA satisfied?

3. Commercial Activity Exception. 28 USC 1605(a)(2) A foreign state is not immune from jurisdiction where the action is based

a. [1] upon a commercial activity carried on in the US by the foreign state; or

i. Is it a commercial activity?1. “Either a regular course of commercial conduct

or a particular commercial transaction or act.” 1603(d).

2. Look to the nature, not purpose, of the act.3. Is the activity of a kind in which a pvt party may

engage?a. Sidermans’ claims are based on comm.

activity by Arg.i. –Management of the hotel & receipt

of profitsii. Is it conducted in the U.S.?

1. Comm. activity carried on by foreign state and having substantial contact w/ the U.S. 1603(e).

2. Need not be on a regular basis.3. Is there a nexus b/w the Δ’s commercial activity

in the US and Π’s grievance?a. Argentina advertises the hotel in the U.S.b. Americans have stayed at the hotel, which

accepts US credit cardsc. Enough here to say that conduct has subst.

contact w/ US

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d. Arg’s continuing receipt of the profits and benefits that rightfully belong to the Sidermans – including those derived from US sources – are some of the specific acts that form the basis of this suit

b. [2] upon an act performed in the US in connection w/ a commercial activity of the foreign state elsewhere; or

i. Requires a material connection b/w the Π’s COA and the act performed in the U.S.

ii. Is there a causal connection b/w a sovereign’s actions in the U.S. and those abroad that gives rise to Π’s claims? OR

iii. Do the sovereign’s acts in the U.S. themselves represent an element in Π’s COA?

iv. Here, the fact that Argentina solicits guests for the hotel in the U.S. and presumably accepts payments for those reservations in this country suffices to meet the test

c. [3] upon an act outside the territory of the US in connection w/ a commercial activity of the foreign state elsewhere and that act causes a direct effect in the US

i. Do the acts have a substantial and foreseeable direct effect in the U.S.?

1. Cannot be merely fortuitous2. Mere financial loss by a person [or corporation]

in the US is not in itself sufficient to constitute a “direct effect”

a. However, if Π’s claim is for breach of a K providing that payment or performance must be made in the US, direct effect requirement is satisfied

b. If the bylaws of the Sidermans’ corporation require that dividends be paid at the shareholder’s place of residence, direct effect test satisfied

4. International Takings Exception. 1605(a)(3)a. A foreign state is not immune in an action in which rights in

property taken in violation of IL are in issue andi. [1] that property or any property exchanged for such

property is present in the US in connection w/ a commercial activity carried on in the US by the foreign state; OR

ii. [2] that property or any property exchanged for such property is owned or operated by an agency or instrumentality of the foreign state and that agency or instrumentality is engaged in a commercial activity in the US

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b. HEREi. Most of the Sidermans can’t assert a claim w/in this

exception1. The international takings exception DOES

NOT APPLY where the Π is a citizen of the Δ country AT THE TIME OF EXPROPRIATION

a. Expropriation by a state of the property of its own nationals does not implicate settled principles of IL

ii. The daughter was a citizen of US at the time, though, so she counts

c. Was the taking in violation of IL?i. At the jurisdictional stage, all that’s required is a non-

frivolous and substantial claim. So this is OKii. 3 requisites under IL for valid taking:

1. Taking serve a public purpose?2. Aliens discriminated against or singled out?3. Payment of just compensation?

d. Is the expropriated property, or property exchanged for it, owned or operated by an agency or instrumentality of the foreign state?

e. Is that agency or instrumentality engaged in commercial activity in the US?

i. 1603(b): Agent or instrumentality: any entity 1. (1) which is a separate legal person, corporate or

otherwise, and2. (2) which is an organ of a foreign state or

political subdivision thereof, and3. (3) which is neither a citizen of a State of the US

nor created under the laws of any third country.5. TORTURE CLAIMS

a. If Sidermans argued that 1605(a)(5) –noncommercial torts exception – provided jurisdiction, they’d be barred by Amerada Hess – but they don’t argue that

b. Sidermans’ argument: Argentina is precluded from asserting defense of SI by:

i. (1) Jus Cogens 1. Π: when a foreign state’s act violates JC, the state

is not entitled to sovereign immunity w/ respect to that act

a. B/c sovereign immunity derives from IL, JC supercedes it

2. 9th Cir: Barred by Amerada Hessa. Must interpret FSIA through prism of

Amerada Hess

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b. Nothing in text or legislative history of FSIA explicitly addresses the effect of violations of JC on immunity

c. The fact that there has been a violation of JC does not confer jurisdiction under FSIA

3. Prohibition on torture has attained status of jus cogens norm

a. Under IL, any state that engages in official torture violates jus cogens

ii. (2) FSIA’s existing treaty exception. §16041. This exception applies when int’l agmts expressly

conflict w/ the immunity provisions of FSIA. Amerada Hess

2. Sidermans:a. UDHR – but not an int’l agmtb. Non-binding resolutions of UN GA don’t

work3. Nothing works here for Sidermans

iii. (3) Implied waiver exception. 1605(a)(1)1. Π: Argentina availed itself of US courts by

coming after Jose Siderman, and in doing so implicitly waived its right of immunity defense w/ respect to the torture and persecution claims

a. This is good enough2. The waiver exception is narrowly construed3. House report gives 3 examples of implied

waivers:a. Has foreign state agreed to arbitration in

another country?b. Has foreign state agreed that the law of a

particular country should govern a K?c. Has a foreign state filed a responsive

pleading in an action w/o raising the defense of sovereign immunity?

d. 9th Cir addition: Has foreign state entered into a written agmt that contemplates adjudication of dispute by US cts?

e. Has the foreign sovereign contemplated the involvement of US courts in the affair at issue?

i. Here, Argentina deliberately implicated US courts by seeking out Siderman

ii. If A has engaged US courts in the ery course of activity for which the

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Sidermans seek redress, it has waived its immunity as to that redress

iii. Must be a direct connection b/w the sovereigns’ activities in our courts and Π’s claim for relief

4. Because Argentina pursued Siderman by using US courts, it has waived immunity w/ respect to the claims it brought in US court

h. Counterclaimsi. National City Bank of New York v. China [U.S. 1955][

1. If a foreign sovereign brings suit in US court by its own choice, it is liable to a counterclaim based on the subject matter of the suit]

5. Diplomatic, Consular, and Head-of-State Immunitya. Dip properties inviolable – exempt from receiving state’s enforcement juris, but

w/in juris to prescribeb. Receiving/host state must protect premises from both official and private

interferencei. Protestors must be kept 500ft away

ii. But cops can’t make protestors take down signs – that would violate 1st Amend, and no treaty cn be made to override constitutional rights

c. Personal immunity for diplomatsi. Only covers those who have been accredited as diplomats by receiving

stateii. Home state can waive diplomatic immunity

1. Ex: Georgian diplomat drunk driving in DC and killed a womana. Georgia waived criminal immunity, dip tried and convictedb. Declared persona non grata – not welcome in US and has to

go homec. The waiver of immunity didn’t cover civil suit – jut waived

criminal immunityiii. Vienna Convention on Diplomatic Relations

1. Art. 2 – establishment of dip relations b/w states takes place by mutual consent

2. Art. 4 – sending state must make sure that receiving sate has agreed to receive the diplomat; receiving state not obliged to give reasons for refusing diplomats

3. Art. 5 – sending state may assign diplomat to more than one state4. Art. 23 – sending state and the head of the mission shall be exempt

from taxes5. Art. 26 – receiving state shall ensure freedom of movement &

travel to diplomats6. Art. 27 – receiving state shall permit and protect free

communication on part of mission for all purposes; official correspondence is inviolable; diplomatic mailbag shall not be opened or detained

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7. Art. 31 – Dip agent shall enjoy immunity from the crim juris of the receiving state. He also gets civil and administrative immunity, except in the case of:

a. (a) action involving real property situated in receiving state [unless he holds that property on behalf of the sending state for the purpose of the mission]

b. (b) wills and estatesc. (c) an action relating to any professional or commercial

activity exercised outside diplomat’s official functionsi. easy case: dip agent runs a restaurant on the side,

customer gets food poisoning – no immunityii. hard case: dip agent hires housekeeper and abuses

him/her in the home; courts have held this not to fall w/in the commercial exception

8. Art. 35 – receiving state shall exempt dips from all personal services, public service, and military obligations

9. Art. 41 – It is duty of diplomats to respect laws and regs of receiving state and not interfere w/ the internal affairs of receiving state

10. Art. 45 – If dip relations broken off b/w two states, of if mission is permanently or temporarily recalled, receiving state must always respect & protect the premises of the mission; sending state may entrust custody of premises of mission to 3rd state acceptable to receiving state; sending state may entrust its interests to 3rd state acceptable to receiving state

d. Head of State Immunityi. Sitting HOS can’t be sued for anything in the courts of another state – no

exceptions (except waiver, which is unheard of)ii. As close to absolute immunity as anything in modern lawiii. Courts will still defer to exec branch when it comes to determining ho

the head of state isiv. Why Noriega didn’t get HOS immunity: US never recognized him as

leader of Panama; Panama never put its arm around Noriegav. Former heads of state get less protection (Pinochet, Marcos)

6. The Act of State Doctrinea. Generally

i. Courts of the US will generally refrain from judging the validity of a foreign govt’s official acts w/in its own territory

1. It’s a judicial doctrine – the courts rule themselves out of bounds2. When AOSD applies, courts will presume the validity of a foreign

govt’s official acts3. Reasoning: don’t want to offend diplomatic relations, which are the

province of execii. The major underpinning of the AOSD is the policy of foreclosing the

court adjudications involving the legality of acts of foreign states on their

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own soil that might embarrass the Exec Branch of our Govt in the conduct of foreign relations. Dunhill

iii. It is not required that the foreign govt be a party to the case for AOSD to apply – could be two purely private parties, but AOSD will still apply if one of the parties claiming something based on foreign govt’s act. See Sabbatino.

iv. AOSD can take a whole variety of forms – not limited to only expropriation cases

b. Classic Foundationsi. Underhill v. Hernandez [U.S. 1897][Underhill involved certain actions

by military commanders in a revolution; govt put its arm around Hernandez; court invoked AOSD and abstained from judging the validity of the acts]

1. “Every sovereign state is bound to respect the independence of every other sovereign state, and the courts of one country will not sit in judgment on the acts of the govt of another done w/in its own territory.”

2. “The acts complained of were the acts of a military commander representing the authority of the revolutionary party as a govt, which afterwards succeeded and was recognized by the U.S.”

a. If the revolution had not succeeded, AOSD wouldn’t apply – there would be no offending of diplomatic relations

b. Where a civil war prevails, foreign nations generally don’t assume to judge the merits of the quarrel

c. AOSD doesn’t apply to unrecognized govt

c. Considerations in Applying AOSD: i. (1) Territoriality [Sabbatino]

1. Was the government acting w/in its own territory?a. If so, US courts will presume the actions of the state to be

legitb. Ex: If Iran expropriated property both in Iran and in the U.S.,

U.S. courts would have jurisdiction over the property in the U.S. b/c AOSD wouldn’t apply to that, but not as to the property expropriated in Iran

2. Where is a trademark? Debt? Copyright? Reputation? Obligations under a life insurance policy? Certificates of deposit?

a. The location of an asset is litigated even w/in the fairly well-settled territorial limitation of the AOSD.

ii. (2) Diplomacy [Sabbatino]1. Is the govt in question extant and recognized by the U.S. at

the time of the suit?a. If not, then the dominant rationale for the AOSD – avoiding

embarrassment to the Exec Branch in the conduct of foreign relations – doesn’t apply

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b. If there are no foreign relations w/ govts that aren’t recognized, AOSD abstention becomes less compelling

c. Takings by Nazis not protected in US courts now, b/c Nazi govt no longer exists

i. AOSD doesn’t require respect for a non-existing govt?iii. (3) Unclear Law [Sabbatino]

1. Is there some confusion about the underlying legal principles governing the case?

a. If yes, more likely that AOSD will apply – court will defer to the state

b. Absence of judicially manageable standards leans towards application of AOSD

i. Courts don’t really want to be on the cutting edge ahead of the curve

c. If no clear law applies, it’s more likely that the AOSD will apply

d. AOSD applies “in the absence of a treaty or other unambiguous agreement regarding controlling legal principles”

i. If there is a treaty that applies clear law, courts will apply the treaty

2. In Sabbatino, int’l community sharply divided over issue of expropriations

a. HR, for example, more clear than expropriation3. Lower courts have said: If there is clear and unambiguous CIL,

CIL will be applieda. If the CIL is lex lata, courts will apply the law and NOT

invoke AOSDb. If the custom is only lex ferenda, courts will invoke AOSD and

abstainc. Lower cts tend to equate treaties & CIL for purpose of the

clear law distinctioniv. (4) Congressional Override [Ex – 2nd Hickenlooper Amend.]

1. AOSD is a creature of common law; legislature can override it if they want

2. Has Congress in any way directed US courts to ignore or apply AOSD in this circumstance?

v. (5) Executive Suggestion [Bernstein Letters]1. Has Exec Branch filed a letter with the court suggesting that

the court should apply the AOSD, or conversely, that the court should adjudicate the dispute?

2. Courts unsure as to how much weight to give to exec branch submissions on AOSD

a. Sabbatino court declined to rule on thatb. Are the letters determinative? Persuasive? Just one piece of

evidence?c. Separation of powers concern here

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vi. (6) Public Act [Dunhill]1. (A) Ratification/Official Act

a. Is there a statute, decree, order, or resolution of the govt regarding act?

i. If no, then there’s no AOS, and AOSD does not applyb. Thus, if there is no statute, decree, order, or resolution of the

govt, no AOS, no AOSD, no deference required, and court will adjudicate the dispute

c. The court is very formalistic about determining what is a public act

2. (B) Commercial Activity Exception - ? [Dunhill plurality]a. Is the act in question purely commercial in character?

i. Look at commercial activity exception in FSIA for guidance

ii. If yes, courts may not invoke AOSD and will thus hear the case

iii. This is a majority rule in the circuits, but the Supremes only had a plurality in Dunhill

d. Sabbatino [U.S. 1964](p 665)[Cuba expropriated a sugar estate in Cuba which was owned by U.S. citizens on the day a certain shipment was made; National Bank of Cuba , which had been assigned the rights to payment, wants the money; Sabbatino was appointed receiver for the original owners; Cuban Bank wants the money; US brokers say we’re not paying you, we’re paying the real owners; Cuban Bank brought this suit in US court; Supremes reverse SJ for Americans b/c of AOSD]

i. Sets up the analysis for applying AOSD: The Judicial Branch will not examine the validity of a taking of property w/in its own territory by a foreign sovereign govt, extant and recognized by the US at the time of the suit, in the absence of a treaty or other unambiguous agreement regarding controlling legal principles, even if the complaint alleges that the taking violates IL.

1. Territoriality2. Diplomacy (Extant and recognized)3. Unclear Law

ii. How to square this w/ Paquete Habana’s notion that IL is part of our law and we’ll apply it?

1. AOSD is an exception to PH’s declaration to apply ILiii. Foundations of AOSD

1. IL does not require application of the AOSD a. B/c AOSD not compelled by IL, IL allows AOSD to be invoked

even when there is a violation of IL2. AOSD not compelled by the US Constitution3. AOSD has constitutional underpinnings

a. AOSD arises from concerns about separation of powersb. Judicial branch says we don’t want to meddle w/ foreign

affairs – exec’s job

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c. When there’s the prospect of embarrassing the political branches in foreign affairs, courts will abstain

d. AOSD, while it has const. underpinnings, CAN be overridden by Congress

i. If Congress doesn’t like what the courts have done in deferring to a foreign act, Congress can override AOSD directly

ii. B/c AOSD is a creation of fed CL, Congress can override it if it wants

1. That’s what the 2nd Hickenlooper Amend. does2. When a Π is faced w/ AOSD defense, you have to

look and see if Congress has in any sense directed US courts to ignore or apply AOSD in that circumstance

e. Hickenlooper Amendments (p 677)i. Right after Sabbatino, 2nd Hickenlooper Amend. was passed

ii. 1st Hickenlooper Amend. defines a foreign state’s obligations when there’s a taking:

1. 22 USC § 2370(e)(1): speedy compensation equivalent to full value of prop. Taken

iii. 2nd Hickenlooper Amend [22 USC 2370(e)(2)] directs courts NOT to apply AOSD in certain circumstances:

1. “[N]o court in the US shall decline on the ground of the federal AOSD to make a determination on the merits giving effect to the principles of IL in a case in which

a. A claim of title or other right to property is asserted by any party . . .

b. based upon (or traced through) a confiscation or other taking c. after January 1, 1959, d. by an act of that state in violation of IL,

i. including the principles of compensation in (e)(1).”2. 2nd Hickenlooper Amend. doesn’t apply if the act is not contrary to

IL or the Pres determines that AOSD is required to be applied

f. Dunhill v. Cuba [U.S. 1976][Dunhill was a US cigar importer; Cigars shipped, nationalization occurred; Dunhill mistakenly paid Cuba for the shipment that was made by the private owner before nationalization; Dunhill wants to use those mistakenly paid funds to offset what it owes to Cuba for later shipments; Cuba defends on grounds that AOSD precludes court from adjudicating the legality of the refusal to pay back those mistakenly paid funds – Cuba says that repudiation of the debt was AOS]

i. Public Act Required1. No statute, decree, order, or resolution of the Cuban Govt itself

was offered in evidence to show that the repudiation of the debt was an AOS

a. The only evidence of an AOS was a statement by counsel in court that the Cuban Govt denied liability and refused to

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make payments, but “The statement of a lawyer is not proof of anything.”

b. Repudiation by counsel at trial is not enough2. If there is no public act, then there’s no AOS, and there is no

application of AOSDa. Thus, if there is no statute, decree, order, or resolution of the

govt, no AOS, no AOSD, no deference required, and court will adjudicate the dispute

ii. Commercial Exception? Plurality only1. AOSD does not extend to include repudiation of a purely

commercial obligation owed by a foreign sovereign or by one of its commercial instrumentalities

2. Repudiations by a sovereign of its commercial debts should not be considered AOS

3. Courts aren’t compelled to recognize as an AOS the purely commercial conduct of foreign govts in order to avoid embarrassing conflicts w/ the Exec Branch

4. A commercial exception to AOSD is consistent w/ restrictive view of FSI

5. Just like for FSI, AOSD should not counsel deference when the purely commercial act of a foreign sovereign is in question

g. Kirkpatrick [U.S. 1990](p 700)[Kirkpatrick entered into K w/ Nigeria; Kirkpatrick’s CEO offered bribes to govt officials to get the K; CEO & Kirk pled guilty to RICO violations; competitor sued under RICO for civil remedies; Kirk pled AOSD, arguing that the court would have to determine whether Nigerian officials accepted bribes; Supremes in unanimous decision say AOSD does NOT apply]

i. AOSD doesn’t apply – Nothing in the present suit requires the court to declare invalid the official act of a foreign sovereign

1. AOSD issues only come up when a court must decide – that is, when the outcome of the case turns upon – the effect of official action by a foreign sovereign.

2. AOSD does NOT establish an exception for cases and controversies that may embarrass foreign govts -

a. AOSD merely requires that the acts of foreign sovereigns taken w/in their own jurisdictions shall be deemed valid

i. This doctrine has no application to the present case b/c the validity of no foreign sovereign act is at issue

ii. Argument that Kirkpatrick was not as easy as Scalia made it out to be1. It takes a high degree of formalism to say the legality of Nigerian

govt’s act is not at issuea. In the real world, in determining the legality of Kirk’s K is

determining the legality of Nigerian govt’s act.iii. Kirkpatrick shows the extent to which courts will bend over backwards

not to apply AOSD

7. Comparing the AOSD and FSIA

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a. Similaritiesi. Both are doctrines of domestic law that work in the courts of the U.S.

ii. Both serve int’l comityiii. Both ensure a measure of reciprocal treatment for the U.S. in foreign

courtsiv. Both serve constitutional values – separation of powers (esp. in foreign

relations)b. Differences

i. Who may invoke them1. ONLY foreign sovereigns, their agencies and instrumentalities may

invoke the FSIA2. Private party may invoke AOSD if the validity of some official

foreign act is at issue ii. Effect of the Doctrines

1. Effect of applying FSIA is to deny jurisdiction over a party or casea. Certain parties – foreign sovereigns – not w/in jurisdiction of

US courts2. Effect of applying AOSD is to resolve an issue in the case in favor

of the foreign govta. AOSD simply kicks out an issue, not a partyb. When it applies, it means the courts will not resolve the

legality of the state act c. If AOSD applies, there may be nothing left of the case – but

sometimes the AOS is only one of the issuesiii. Source of the Two Doctrines

1. FSIA – 1976 Statute2. AOSD – Common law3. Importance of the difference:

a. Much more freedom for courts in determining AOS issuesb. Courts are restrained by the text of FSIA – they have to apply

the law as writtenc. It’s more mechanical to apply FSIA – Amerada Hessd. Court has flexibility in applying the 6 AOS considerations and

constitutional underpinningsiv. Exceptions and Limitations

1. Commercial exceptiona. FSIA – definitely exists. Nelson, Sidermanb. AOSD – unclear; only a plurality in Dunhillc. So it may be a commercial act for purposes of FSIA, but still

an AOS for purposes of AOSD2. Waiver

a. States can waive FSIb. Not clear that AOSD could be waived by the foreign state

i. If the doctrine is supposed to serve the constitutional separation of powers, then no waiver by a foreign state could ever be relevant

3. Clear IL will override AOSD

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a. There is no IL exception to FSIA. Amerada Hess, Sidermani. Only the explicit exceptions in the statute are

applicableii. Foreign state can’t be sued for a violation of IL; must

be an exception under FSIA4. Role of the Executive

a. FSIA passed in part to transfer power from exec to courts to determine FSI

b. But in AOSD, exec does have a role to play – Bernstein letters8. Suing Ferdinand Marcos

a. Philippines v. Marcos [9th Cir. 1988]i. The classification of AOS is not a promise to the rule of any

foreign country that his conduct, if challenged by his own country after his fall, may not become the subject of scrutiny in our courts

ii. No estoppel exists insulating a deposed dictator from accountingiii. No guarantee has been granted that immunity may be acquired by an ex-

chief magistrate invoking the magic words “act of state” to cover his or her past performance

iv. When a ruler’s former domain has turned against him and seeks recover of what it claims he has stolen, the classification has little or no applicability

v. The AOSD is supple, flexible, ad hoc. vi. The AOSD is meant to facilitate the foreign relations of the US,

not to furnish the equivalent of sovereign immunity to a deposed leader

b. Sison v. Marcos [9th Cir. 1989 (unpublished)]i. District Court

1. Dismissed on grounds of AOSD – said “it is beyond the capacity or function of the fed courts to subject the official acts or policies of the head of a foreign state to traditional standards of judicial review.” –See Steinhardt’s notes below

ii. 9th Cir.1. rev’d 2. AOSD is the foreign relations equivalent of the PQ doctrine3. AOSD has little or no applicability to the situation of a deposed rule

from whom his former domain seeks an accounting4. “Once deposed, [a] dictator will find it difficult to deploy the AOSD

successfully.”5. Marcos is a private citizen residing in the US6. Neither the US nor the Philippines objects to judicial resolution

hereiii. STEINHARDT: AOSD doesn’t apply b/c several of the 6 AOSD

factors cut against application of the doctrine1. Diplomatic consideration

a. Marcos no longer part of Philippine govtb. US recognized new Ph. Leader

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c. Maybe more embarrassing not to adjudicate this than it would to kick it out

d. PROBLEM: embracing an interpretation of AOSD that allows the activities of former heads of state to be adjudicated in US courts might be a problem if someone tried to apply it to Blair, Sharon, or Putin

i. What about reciprocity? Clinton gonna be sued while vacationing in France?

e. The diplomatic consideration may not cut cleanly in only one direction

2. Executive suggestiona. At Dist. Ct. level, Exec had not spoken on the issueb. How to interpret silence?

i. 5th Amend: draw no inferences from silenceii. statutory interpretation: Congress’ silence – draw no

inferencesiii. silence is something the law deems insolubly

ambiguousiv. since Exec hasn’t spoken, judge should decide

3. Clear lawa. HR norms (unlike the int’l law governing expropriation in

Sabbatino) are unambiguousb. If there’s clear law, as there is here, don’t apply AOSDc. But what about the head of state part?

i. Look to chain of command principles set out in Nuremburg, Yugoslavian and Rwandan war crimes tribunals

4. Public act/ratificationa. Philippines did not embrace Marcos’ acts here

INTERNATIONAL PROPERTY LAW & THE TRANSITION FROM RULES OF ABSTENTION TO RULES OF COOPERATION

1. The Law of the Seaa. LOS good microcosm of IL development

i. CIL going back centuriesii. Attempts at codification through treatiesiii. One huge treaty – 1982 LOSCiv. Proliferation of new sources of law

b. Truman Proclamation as an example of how one state makes a unilateral claim and everything depends on how other states react

i. Temple of Preah Vihear – Cambodia responded negativelyii. Filartiga – If Paraguay had had the political capital to say it’s not right

for HR abuses in our state to be tried elsewhere, maybe ATCA wouldn’t be the same thing it is today – Filartiga has entered a pantheon of IL – states can adjudicate HR violations from other countries

c. High Seas

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i. HS reserved for peaceful usesii. Must exercise freedom of HS w/ due regard for interests of other statesiii. No sovereignty on HSiv. Is U.S. interdiction program of Haitians on the HS in violation of freedom

of navigation?1. Argument that it is

a. Ships on HS have right of freedom of navigationi. LOSC; CIL; 1958 Conventions

b. States must refrain from any action that interferes w/ free navigation on HS

2. Argument that it’s nota. Simple exercise of enforcing immigration laws

i. Counterargument – juris doesn’t extend to HSb. Special ad hoc agreement b/w Haiti & US – Haiti has

authorized US to board and inspect Haitian-flagged vessels on HS to determine status of folks on board

i. If US finds violation of US or Haitian law, vessel & passengers returned to Haiti

ii. Similar agmnts for fishing and drug law treatiesv. HS freedoms lousy candidate for jus cogens b/c states can get around it

by special agmt2. Airspace

a. IL has created a presumption that a state’s sovereignty extends through its airspace over land, IWs & TS

i. Chicago Convention – recognized “complete & exclusive” sovereignty of a state in the airspace above its territory

b. KAL 007 [USSR shot down civilian airliner that flew over sensitive military installations; what to do?]

i. State practice: acknowledge the wrong and compensate the victimsii. What USSR did: shot down a bunch more airliners and said “we reserve

the right to shoot down any plane that comes into our territory that doesn’t land when we tell it to”

1. USSR claimed to opt out of the CIL saying no shooting civilian airliners and CIL saying you have to use proportionate force to deal w/ situations

a. Proportionality is a good candidate for JC status – couldn’t opt out of it if you wanted to

2. USSR’s problemsa. Not a persistent objector – didn’t object till after Chicago

Conventionb. ***USSR’s defense when it shoots down airliners is always

grounded in fact, not law – we warned them, they didn’t land, we shot them

c. USSR never claimed the legal right to shoot down civilian airliners – defense always based on fact

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i. This is like states accused of torture – USSR reinforces the norm by saying “we were justified here b/c” – they’re not challenging the law

ii. Opting out of a customary norm has a legal dimension – must object to the law as the law, not on the facts

3. Outer Spacea. Presumption of sovereignty in OS is reverse of regular airspace

i. In OS: states prohibited from exercising sovereigntyii. In airspace above territory – states have full sovereignty

b. Legal character of OSi. Res communis – common property; universal domain to which everyone

should have accessc. Where does OS begin

i. Left intentionally ambiguous by OST drafters ii. Customary def? – Satellites orbit in OS

1. Only protest to this idea is the Bogota Declarationd. Bogota Declaration (1976)

i. Equatorial states said the geosynchronous orbit is a natural resource over which they have sovereignty

ii. BD states said that since there’s no clear definition of where OS begins, it’s ok for us to claim sovereignty over our superajacent airspace

iii. BD doesn’t square w/ OST, which says no sovereignty in OS – can’t appropriate OS

1. BD amounts to a claim of jurisdiction that is not respected by other states

iv. The applicability of the OST depends on where space begins, and that’s ambiguous

v. Are the BD declarants persistent or subsequent objectors?1. Subsequent – they objected after the norm developed

vi. There’s no evidence that the space powers have given any weight to BDvii. BD is a political, not a legal document

1. It may be legally inconsequential, but its undeniable that the policies behind it – making the benefits of space accessible to everyone, not just space powers – have affected the policies of major int’l organizations (like the Int’l Telecom Cmte)

e. Common Heritage Principlei. The idea that OS is the “common heritage of all mankind” or the

“province of mankind”ii. Stands for a number of principles

1. Resources w/in OS should be used exclusively for peaceful purposes

2. Resources w/in OS should be shared3. This is like the Area and LOSC

iii. US was originally for the CHP

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1. Originally, CHP was an extension of the non-appropriation regime – no one had sovereignty over the resources in space, so the first one to exploit them got to keep them

2. US wanted to ensure equality of access, not result – first state there gets the goodies

iv. Now, US against the CHP1. Smacks of commie principles2. Is US subsequent or persistent objector

a. US persistent objector, b/c as the idea of CHP changed, US made its position known

b. US’s initial support of the CHP won’t be held against it given US’s subsequent repeated objection to the new idea of CHP

v. Compare US and CHP w/ USSR & shooting civilian airliners, Norwegian Fisheries

1. US objection to CHP always based on law – we reject this principle of law

a. US persistent objector b/c made its position known as soon as idea of CHP began to change

2. USSR arguments always based on facts rather than lawa. USSR can’t gain persistent objector status b/c the objection

not grounded in law3. Norwegian Fisheries – Norway said, since the norm began to

emerge, we are exempt from this law, we opt out of this legal principle

a. Norway was persistent objector4. The Transition Exemplified: International Environmental Law

a. There is no general treaty dealing comprehensively w/ int’l envi issuesb. IL has traditionally been about keeping states apart; IEL is no longer about

jurisdictional line drawing – it builds on Trail Smelte and the idea of sic utere – you have to use your territory so as not to injure others

c. There’s a network of cooperation to try and preserve the environmenti. Doesn’t always work, but IL tends to work over the long term

d. IEL proves the inadequacy of distinction b/w binding law and irrelevant aspiration

i. Either/or distinction won’t work here ii. IEL is powerful lex ferenda – this is the cutting edge of IL

THINK GLOBALLY

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