TRANSNATIONAL LAWIntroduction:

While domestic law is a centralized system, international law is a decentralized system: it has no executive (although the UN Security Council may be said to have certain executive powers, and there is the UN Secretary General), no legislature (although the measures adopted by the UN General Assemble and Security Council may have certain legal value), and no judiciary (although the is the ICJ). Additionally, rules of international law operate somewhat differently than those on the domestic level.

Rules of international law are often referred to as “norms.” They are, in fact, akin to societal norms governing human behavior – the difference being, of course, that the “society” in question is the international community, and the entities governed are, largely, countries. These social customs are powerful, often more powerful than actual laws that apply to our everyday behavior.

General Definition:International Law:

-“International law” may be defined simply as the law governing the relations between nations.Restatement of international law § 101: “the rules and principles of general application dealing with their relations inter se, as well as with some of their relations with persons, whether natural or judicial.” While international law confers certain rights and responsibilities directly upon natural and legal persons, it deals with them for the most part through states, to which it is principally addressed. International law is made chiefly by states, through their practice and agreements. Thus, it may be said that IL consists primarily of customary IL and treaties. Customary IL may be compared loosely with the custom that formed the basis of the early common law. The law of treaties bears many similarities to contract law, and multilateral agreements, especially those open to all states, have many of the attributes of legislation.

Public vs. Private International Law:1. Public: The term used to refer to international law in Europe and many other countries

outside the U.S. Consists principally of rules governing the conduct of states, but also affects other actors. Is less likely to be relevant in private disputes than in controversies between states; it may, however, come into play in private civil or even criminal proceedings before domestic courts.`

2. Private: An expression used chiefly in Europe and the civil law world to refer to the field known as conflict of laws in the United States. It deals with choice of the applicable private disputes involving more than one jurisdiction and may include questions of procedure such as personal jurisdiction and the enforcement of judgments. Issues of private IL may arise in disputes between natural or legal persons, and are increasingly likely to do so as advances in transportation, communication and technology make the world ever smaller. More fundamentally, while private IL contains rules concerning the resolution of multi-jurisdictional disputes between private parties, public IL governs and to a large extent determines the conduct of states, whether or not a dispute exists. The Blurring Distinctions:

While there is a relatively clear distinction in principle between public and private IL, the line has become somewhat blurred as they increasingly penetrate each other. Issues of private international law such as service of process and taking evidence abroad, application of US regulatory law-especially antitrust and securities law-and even enforcement of judgments may have important implications in the field of public international law. On the other hand, cases involving questions of private international law can entail public international law issues such as treaty interpretation, international human rights law and the fact of foreign sovereign compulsion (i.e. where another country prohibits compliance with US discovery requests).

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Transnational Law: all law which regulates actions or events that transcend national frontiers. Included is both public and private international law, as are other rules which do not wholly fit into such standard categories. Transnational situations may involve individual's, corporations, states, organizations of states, or other groups.”

ACTORS OF INTERNATIONAL LAWSTATES:Introduction:

States remain the central actors in the field of international law; most international law is created, interpreted, complied with, or enforced by the Government of states. Though on whether a state exists, and on what entity is the government of a State, are imbued with political considerations, certain basic rules of international law have emerged as a guide. When an extraordinary political event occurs-emergence of a new state or the rise to power of a new government by other than routine processes-other states in the world community indicate their willingness to accept both the fact of change and the legal consequences arising from that fact by either explicitly or implicitly “recognizing” the new state or government.

Recognition of States:Various scenarios in which a particular entity should be recognized as a State. \An existing

state might fragment into several new states. A portion of an existing state might secede to form a new state. Two states might merge together to form a new state. Advantages in being recognized as the state. Being recognized allows the new state to consolidate sovereign control over its territory in the eyes of the world; it brings a new state into a normative system that protects it from foreign interferences and intervention. The new state can conclude with other states treaties that advance its interest, such as on trade and investment, and can directly seek foreign aid. The new state can also obtain access abroad to assets associated with its territory and can sue in international or national fora to vindicate its right. Montevideo Convention

The fundamental elements of statehood are: (1) A defined territory; (2) A permanent population; (3) An effective government; and (4) The capacity to enter into relations with other states.

-No aspect of these conditions speaks to magnitude; even a small geographic area with a small population qualifies as a state. With respect to third condition, the emphasis has been on the control that the government exercises over the relevant territory, to the exclusion of other entities. The degree of control necessary may be a function of the manner in which the government came to power. With respect to the fourth condition, it is possible for a state to assign some of its foreign relations capacity to another state (such as Liechtenstein has assigned to Switzerland) or to an international organization (such as the EU) without losing its status as a state.Only capacity is required, not actual practice.

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Is California a state in international law?No, because, while it has a defined territory, a permanent population, and an effective

government, it does not have the capacity to enter into formal relations with nations; that power is reserved to the federal government. Who gets to decide whether these conditions are met? 1. Declaratory Theory posits that an entity is ipso facto a state once these conditions are met, regardless of what other states do or say. 2 . Constitutive Theory provides that only when other states decide that such conditions have been met, and acknowledge the legal capacity of the government, is a new state actually constituted.

While the declaratory theory is probably more widely subscribed to, in reality a new entity can only achieve many of the benefits of statehood when they are recognized by other states.

Recognition of Governments:Under traditional international legal theory, the establishment of a new government through

normal, constitutional processes within a state raises no questions regarding the recognition of the government. In such situations, the new government is entitled to all the rights and obligations accorded under international law. An entity that comes to power through non-constitutional means is not automatically accorded such rights and obligations.

Its status as the government of the state may be in doubt until such time as it is widely recognized by other states. The central (and often determinative) issue for a state when deciding whether to recognize a newly formed government has been whether the new government is in “effective control” of its state (sometimes referred to as the “de facto control test”).

“Effective control” has largely been measured by the degree to which the government commands the obedience of the people within the state. The decision to recognize a new government, however, has not always been dictated simply by whether it passes the effective control test.

Factors taken into consideration: (1) Whether the new government has declared its willingness to honor international

obligations of its predecessor's, including debt obligations; (2) Whether the new government acquired authority over the territory through aggression;

and (3) The political nature of the new government, including the degree to which it is

democratic.Establishing diplomatic relations with a new government is not required as a part of the

recognition process, although they usually go hand in hand. Breaking diplomatic relations merely signifies that one state declines to deal with another's government; it does not vitiate the recognition of that government.Recognition in U.S. Practice:

The power to recognize foreign governments is inferred from the express grant to the President of the power to “receive and Ambassadors and other public ministers.”

The Supreme Court has consistently stated that whether a government should be recognized is a political question whose determination is within the exclusive prerogative of the executive branch. The rights of governments recognized by the U.S. government include the right:

(1) To bring a law suit in US court; (2) To claim sovereign immunity in U.S. courts and to receive diplomatic protection to the

same extent as other recognized governments; and (3) To have access to the bank deposits and other property of the state located in the United

States. the newly formed state “succeeds” to the rights and obligations of the prior state.

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INTERNATIONAL ORGANIZATIONS Formation:

Rather than conduct inter-state relations solely through direct contact among governments, states have also formed hundreds of international organizations (sometimes referred to as “inter-governmental organizations”) as more permanent for a for addressing various issues.

An international organization (such as the United Nations) can be very large in membership and permanent staff, and can be responsible for addressing a wide array of issues.Alternatively, an IO (such as the International Whaling Commission) can be quite small and focused on a discrete topic. Membership can be global, regional, or bilateral, and need not be based on geography.

Some IOs have only states as members, while other IOs have both states and other IOs as members. IOs are typically created by a treaty, which is often (but not necessarily) labeled a “charter” or a “constitution.” Such a treaty is governed by the law of treaties in the same way as any other treaty. At the same time, the treaty is also regarded as having a special status as the constituent instrument of an international organization.

An international organization is expected to evolve over time, and its constituents instrument is regarded as needing to evolve with it, rather than remain static. Consequently, such an instrument is often interpreted not just by focusing on the ordinary meaning of the treaty language, but also by considering the organization’s basic purpose and goals, and how these goals may be achieved in a changing world.

This purposive - or “teleological”- approach to interpretation of the constituent instrument attempts to give greater vitality to the international organization than might otherwise exist under standard treaty interpretation. Unlike regular treaties, the constituent instrument of an international organization is often interpreted in light of the practice of the organs of the organization, rather than just the practice of its member states.

Further, the organs may play role in various matters concerning the functioning of the treaty, such as the ability of a state to join the treaty, the compatibility of a state’s reservation to the treaty, or whether the treaty should be revised.

The treaty provides the basic framework for the work of the international organization:

It normally: (1) Sets forth the purposes of the organization; (2) Specifies which kinds of states may join the organization, how they can join, and – once

they join – how they participate in the work of the organization; (3) Indicates the structure of the organization, such as the creation of one or more organs

and their associated powers; (4) Creates a secretariat permanent staff of the organization and identifies where the

organization will be located; (5) Indicates how disputes concerning the treaty will be resolved; and (6) Addresses the privileges and immunities that the organization and its staff shall have.

Legal Personality:Once an international organization is created, questions may arise as to whether the

international organization has certain attributes. If not expressly provided, these attributes might be implied based on the overall purpose of the international organization. Further, some tribunals and scholars assert that certain attributes are inherent in any international organization. That is, such attributes arise as a matter of international law given the “international personality” of the international organization as an entity separate from that of its member states.

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CASE: Reparation for Injuries Suffered in the Service of the United Nations (ICJ advisory opinion) Facts : A Swedish national, Count Bernadotte, was acting as a human mediator in the Middle East in 1948. While performing his duties in Palestine, Bernadotte was assassinated, and the evidence suggested that the Israeli agents were responsible. Rule : Under traditional international law, the state of the persons nationality would bring an international claim for damages against Israel (thus, and this case, Sweden would bring the claim).

Yet, as a policy matter, the assassination was clearly an affront to the United Nations and its entire membership, not just to Sweden.

Moreover, to the extent that the human representatives of differing nationalities are often at risk in dangerous parts of the world, it would be rather inefficient to rely on individual states for pursuing such claims. Issue : Whether, as a legal matter, the UN was capable of bringing a diplomatic claim against Israel for the death of a UN representative. Holding : The court held that the United Nations could seek reparation for the personal injury of a UN agent (as opposed to the injury of the United Nations as a whole). Further, the court found that such claims could be pursued even against a State who is not itself a member of the United Nations. Reasoning : Although nothing in the UN charter expressly accorded the UN such a power, nor had any international organization previously exercised such a power, the court, nevertheless, determined that “to achieve UN ends the attribution of international personality is indispensable.” Among other things, the court noted that the UN charter defines the relationship between the United Nations and its members, requiring them to give the United Nations their assistance and to obey Security Counsel decisions. Further, the charter provides privileges and immunities to United Nations and each member state, and allows for the conclusion of agreements between the United Nations and its members. Having found the existence of an international personality, the court unanimously concluded that the power to pursue claims for direct injury to the United Nations necessarily followed. According to the court, “it is impossible to see how the United Nations can obtain reparation unless it possesses the capacity to bring an international claim. It cannot be supposed that in such an event all the members of the organization, save the defendant State, must combine to bring a claim against the defendant for the damage suffered by the organization.”

Legal Responsibility:-The creation of an international organization also raises issues as to when it is responsible

for wrongful acts. As in the case for state responsibility, it would appear that an international organization is responsible for the consequences of wrongful conduct that can be attributed to the organization.

Conduct will be attributed to IO when it is committed by one of the organization’s organs or officials, or by a person entrusted with one of the functions of the organization. Even if the origin, official, or person is acting ultra vires (outside the scope of their powers), attribution may occur if there is a close enough nexus to the official work of the organization. Because of the unique character of international organizations, a question that sometimes arises is whether the organization itself is responsible for wrongful acts or its member states either directly or on a subsidiary basis (i.e., when the international organization cannot bear the responsibility).

There is a general presumption that member states have not created an agency relationship with an international organization simply by ratifying the constituent treaty and participating in the work of the organization, and thus member states are not responsible. That presumption is even stated explicitly in the constituent instruments of some international organizations.

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The level of responsibility of the international organization itself may differ depending on whether national law or international law is being applied. Under the former, the national law may largely consist of local rules on agency, contract, and corporations. Under international law, many of the rules of state responsibility applicable to states would appear to apply.

In either event, difficult issues may arise as to whether the injury resulted from an action taken within scope of the official powers of the organization (intra vires) or from an action outside the scope of such powers (ultra vires). Further issues may arise as to whether the injury resulted from the action of an organization official who was acting outside the scope of his official duties, or from the action of a person hired temporarily by the organization (such as a chauffeur), in which case the organization may not be responsible.

Structure and Powers:An international organization normally has “organs” created pursuant by its constituent

Treaty, which also sets forth the powers of those organs. There is no single blueprint for how many organs an international organization should have, nor the size or powers of those organs. Having said that, it is common to have one plenary organ in which all member states are represented and which meet annually or biennially to provide overall guidance to the work of the organization, while a second organ-consisting of a smaller subgroup of the member states-meets more often to decide on the details for implementing that guidance.

Privileges and Immunities:It is generally thought that international organizations and their officials must have certain

privileges and immunities in order to undertake their work without interference by the states in which they are operating. Because there is no global convention on the privileges and immunities of all international organizations and their staffs, however, the law in this field is uneven.

-The United Nations serves as a useful example of the types of privileges and immunities that exist for international organizations. First, the UN charter provides that the United Nations shall enjoy in its member states “such privileges and immunities as are necessary for the fulfillment of its purposes.” It also provides that representatives of members of the United Nations (meaning persons sent to the United Nations to represent a member state) and UN officials shall similarly enjoy such privileges and immunities. Second, in 1946 the United Nations adopted a General Convention on the Privileges and Immunities of the United Nations. This convention applies to the United Nations itself, not to the specialized agencies of the United Nations. The convention provides that United Nations, its property and its assets are immune from process, that UN premises, archives and documents are inviolable, and that the United Nations is exempt from taxes and customs duties.

-With respect to representatives to United Nations from member states, the convention provides that they are immune from personal arrest, exempt from immigration restrictions, are accorded freedom of speech, and as a general matter enjoy the same privileges and immunities as diplomats. With respect to officials of the United Nations, the convention provides immunity from suits for acts performed in their official capacity, exemptions from taxes on their salaries, and other privileges and immunities. High-level UN officials (secretary-general) are accorded the same privileges and immunities accorded to diplomats.

-Third, the United Nations and United States in 1947 concluded a bilateral Headquarters. The US Diplomatic Relations Act is principally directed at the privileges and immunities of diplomats, but the language and legislative history appears broad enough to cover representatives to international organizations and, if so, accords them the privileges and immunities accorded to diplomats under the Vienna Convention on Diplomatic Relations.

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NON-GOVERNMENTAL ORGANIZATIONSNGOs are generally regarded as groups of persons or societies, voluntarily created, which act

independent of governments on a nonprofit basis. NGOs come in many different shapes and sizes. Some NGOs are principally the creature of a single national legal system, but with a transnational scope to its activities (such as the International Committee of the Red Cross, which was created under Swiss law and whose members are also its nationals). Other NGOs have a headquarters office created under a single national legal system, but are then affiliated with numerous offices worldwide that have legal status under other national legal systems.

While many NGOs firmly retain independence from states by not accepting government donations, other NGOs embrace government involvement. NGOs are creatures of national law. While there have been some effort to afford NGOs a formal status under international law, for the

NATURAL PERSONS AND GROUPS -While states are the dominant actors in field of international law, they are governed by and

covered natural and legal persons. Over time, protections for persons have grown enormously, especially with the dramatic rise of human rights in international humanitarian law in the latter half of the 20th century. Natural persons may now be criminally prosecuted for violations of international law, including before international tribunals.

-Conversely, various economic treaties, such as on trade and investment, are designed to create a right for individuals or corporations to sue states before international or national fora to vindicate rights. In limited situations, natural persons can even bring claims against their own states before international tribunals to vindicate rights, such as before the European Court of Human Rights. A person's nationality is important aspect of the rights and protections accorded the person under International law.

-Although each state has the right to determine how a person may acquire its nationality, to be entitled to recognition on the international plain, that nationality must be based on a genuine link between the state and the person or entity. As a general proposition, nationality may be acquired as the result of birth, either by being born within the state's territory (jus soli) or through the nationality of one's parents (jus sanguinis).

-Further, naturalization can occur by voluntary application and acceptance in a formal process or as a result of marriage, adoption, or the reacquisition of an original nationality by operation of law. An individual may also become a national of a state that acquires a territory on which he or she lives, although the consent of an individual is normally required before states can impose its nationality upon that person. Individuals may also have more than one nationality; that is, they may be dual nationals.

Legal Persons (Corporations):Multinational corporations: corporations with affiliated business operations in more than

one country. These corporations have become extremely important actors and the transnational arena. While a corporation is deemed to have the nationality of the state where it is incorporated, the activities of multilateral corporations can be global in scope, and provide significant benefits by creating wealth in states where they operate.

Through their investments and trades, these corporations create jobs, produce goods and services, introduce technologies, and develop markets. There are various ways that these corporations become involved in the creation of, interpretation of, and compliance with international law.

In some situations, they are directly involved in the creation of international agreements, such as the role employer representatives play in the tripartite (government/employer/labor) representation established for the International Labor Organization Assembly. In other instances,

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these corporations have developed or availed themselves of international legal norms in their relations with such states in which they do business.

Thus, MNCs have often “internationalized” their investment contracts with such states, meaning that the contract becomes governed by international law and, when disputes arise, is adjudicated by international arbitration between the investor and the state (“investor-state arbitration”), rather than the local courts of the host state. In any event, many international rules protecting foreign investors have emerged from both international agreements and arbitral decisions. MNCs have also been important players in the field of private international law as it relates to economic matters.

They have engaged extensively in the international sale of goods, the licensing of intellectual property across borders, and other forms of international business transactions. A variety of treaties and codes have developed in the field of private international law to address these transactions. Finally, MNCs are the source (and target) of efforts to develop certain forms of non-legally binding norms (referred to as “soft law,” or transnational corporate codes of conduct), which often draw on international laws relating to labor, human rights, and the environment.

INTERNATIONAL LAW CREATIONTREATIES:Introduction

In the international arena, “contracts” between two or more states are commonly referred to as “treaties” or “conventions.”Like contracts between persons, treaties can be on a wide variety of substantive issues, can be sure or lengthy, can be of limited or unlimited duration, and often contain important provisions regarding performance, dispute settlement, in suspension or termination of the Treaty. Vienna Convention on the Law of Treaties - “treaty on treaties”

A means of codifying the background rules states were following in their treaty practice. The convention directly applies to treaty relations between two VCLT parties, but only for treaties concluded after the date the VCLT entered into force for those parties. For treaties concluded prior to that date, and for treaties concluded by states that have not yet ratified the VCLT (including the US), the VCLT does not directly apply, however, many states (including the US) regard the VCLT as largely reflecting customary international law.What constitutes a treaty?

Article 2 of the VCLT defines a treaty as “an international agreement concluded between states in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation.”

Although the VCLT only speaks to written treaties concluded between states, general IL accepts that there can be binding oral treaties between states, as well as binding treaties between a state and an IO, or between two or more IOs. The VCLT’s definition recognizes that a treaty may consist of not just a single written instrument but of multiple written instruments, such as an exchange of diplomatic notes between two states.

A treaty must be governed by international law, or it will be regarded as a contract. The treaty need not expressly state that it is governed by international law; its intention to be governed can be determined from the language and context of the instrument. If two states conclude a written instrument containing language that is non-legally binding in nature, then it will not be regarded as governed by international law or national.

“should” or “will” rather than “shall”“enter into effect” rather than “enter into force”

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An instrument’s exact label is not significant; it can be called a “treaty,” “convention,” “agreement,” “charter,” or some other name. So long as the language of the treaty demonstrates an intent to create a legally-binding instrument, then it will be a treaty no matter its label.

Making Treaties:Representation:

Every state has the capacity to make treaties, as well as certain international organizations, such as European Community and United Nations.“Full Powers” - a document provided by state or international organization, authorizing a person to represent it in the negotiation or adoption of a treaty.If the treaty is being negotiated as part of a multilateral conference, the person's credentials to the conference may serve a similar function.

Negotiation:Bilateral Treaty:

The two states meet for one or more sessions to hammer out the details of the Treaty, and then normally initialed the final text once the negotiation is completed.

Multilateral:A state or IO will host negotiation sessions, which may last several years if there are

many states involved and the subject is politically or technically difficult. To indicate that multilateral negotiation have ended, states adopt the treaty, typically by consensus or at least a two-thirds majority vote. Simultaneously, the states may issue a “Final Act” providing a summary of the negotiations, such as which states attended, how often they met, and who presided over them. Adoption of a treaty does not mean that the Treaty becomes binding upon the states; it simply establishes that the negotiations are over. At the same time as (or just after) adoption, the Treaty is often authenticated, meaning that the definitive text, including all translations, is certified by such procedure as agreed upon by the states involved.

Signature:Once a treaty has been adopted, the manner in which a state consents to be bound to

it is usually indicated in the treaty itself. The Treaty might provide that a state's signature establishes the state's consent to be bound to the Treaty. If there is no indication in the Treaty that any further steps are anticipated after signature, then signature alone will be regarded as establishing a state's consent to be bound. A multilateral treaty is normally opened for signature for a discrete period of time, such as one year from the date of adoption. Once the period for signing has closed, a state may no longer sign the treaty. Most treaties allow states to accede to the treaty after the end of the signature period by filing an instrument of the accession.

Ratification:When a treaty is written so that a further step by the state is anticipated after its

signature, such as ratification, the signature alone does not establish the state's consent to be bound. The principal reason for the second step is that many states have internal constitutional requirements mandating legislative or parliamentary approval of a signed treaty before it becomes binding on the state.

For instance, in the US, the President or his representative signs the Treaty and it is then sent to the U.S. Senate for advice and consent. Only after receiving such consent, which may require the passage of implementing legislation, may the President proceed to the next step of ratifying the treaty. When this two-step process exists, a state’s signature simply reflects a commitment by the State to pursue whatever measures are necessary to ratify the treaty.

Signing does not obligate the state to ratify a treaty; if internal approval is not secured, the VCLT accepts the state’s inability to ratify. Article 18 provides that, in the period between signature and ratification, a State “is obliged to refrain from acts which would defeat the object and purpose”

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of the Treaty. A state may not undertake any act that would impede its ability to comply fully with the Treaty if the state eventually becomes party to the treaty.

If a bilateral Treaty anticipates ratification, then the instruments of ratification are simply exchanged by the two parties once both have completed their internal processes. If a multilateral treaty anticipates ratification, then the state submits its instrument of ratification to an entity designated as a depositary of the Treaty, which could be a state or an international organization. It may take many years for a State to file its instrument of ratification, acceptance, or approval. The US took 40 years to ratify the 1948 Convention Against Genocide. It is possible for a state to notify the depositary that it has no further intention of seeking ratification.

Entry Into Force:-A Treaty enters into force as agreed upon in the Treaty. Bilateral treaties normally

provide for entry into force upon or shortly after both sides consent (by signature or exchange of instruments) to be bound. Multilateral treaties normally provide for entry into force within a set period of time after a specified number of states have ratified the treaty. Only once a Treaty enters into force does it is binding on those states who have ratified it. Thus, a state can file its instrument of ratification, yet not become bound until some later point in time when a sufficient number of ratifications have been deposited.

Reservations:-Article 2(1)(d) of the VCLT defines a reservation as a unilateral statement, however

phrased or named, made by a State, when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the Treaty in their application to the State. Normally reservations are not made to bilateral treaties, since the two states can simply change the treaty in the course of the negotiations to suit their desires. Negotiation of a multilateral treaty often involves so many states that it cannot be drafted to the complete satisfaction of all.

Two possible consequences: (1) adopt a treaty that allows no reservations (and thus preserve uniformity of obligations), but that must be very superficial or that attracts very few parties; or (2) adopt a very substantive treaty that allows reservations (and thus sacrifices uniformity), thereby permitting many states to join because they can make necessary adjustments.

Article 19 of the VCLT provides that a state may file a reservation unless:The Treaty prohibits reservation; the treaty provides for only some reservations, which do

not include the reservation in question; or the reservation is incompatible with the object and purpose of the Treaty.

Determining the exact object and purpose of the convention can be difficult, especially for complex treaties, and there may well be no authoritative place to go for an interpretation of the issue. Articles 20-21 of the VCLT

If a State files a reservation to a multilateral treaty and the Treaty expressly authorizes such a reservation, then no acceptance by the other parties is necessary (unless a treaty so provides). The reserving state becomes a party to the treaty with a reservation in force. If the treaty is of a type where it appears that the rule of unanimity should apply because the consent of all parties to the entirety of the treaty is essential, then all the parties must consent to the reservation before the reserving state may become a party.

For example, where a failure of any state to abide by all the terms of the treaty would dramatically change the effectiveness of the regime. If the provisions above are not applicable, the reserving state can become a party to the multilateral treaty so long as at least one other state expressly or tactically accepts the reservation. In such an instance, the treaty enters into force as between the reserving state and the accepting state (and any others who accept the reservation), as

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modified by the reservation. The reservation does not solely benefit the reserving state; the accepting state has its rights and obligations under the treaty vis-à-vis the reserving state modified to the same extent as that of the reserving state.

Tactic acceptance occurs when a party is silent for 12 months after being notified that a state has sought to join a treaty subject to a reservation. A third state might object to the reservation, but unless that State says otherwise, the treaty will enter into force as between it and the reserving state, except for the provision(s) to which the reservation relates (those provisions simply fall out of the Treaty). A fourth state may object to the reservation and assert that, as a consequence, the treaty does not enter into force as between it and the reserving state.

The consequence of these provisions can be a treaty regime where there are numerous variations in rights and obligations as between any two parties to the treaty, such that the regime looks more like a network of bilateral treaty relationships than a unified multilateral treaty. It is also common in treaty practice for a state to file an interpretive “understanding” or “declaration” that purports to clarify the meaning or scope of the treaty.

Such understandings or declarations become important when interpreting the meaning of the treaty since, if other states do not object, or offer alternative ones, the understandings or declarations might be viewed as evidence of the parties’ interpretation of the Treaty. If a state files an understanding or declaration that seeks to modify the legal effect of a provision of the treaty, other states may declare that the filing is actually a reservation and object to the submission in accordance with the procedures discussed above.

Operation of Treaties:Once a Treaty has entered into force, the principle pacta sunt servanda provides that each

party to the treaty must perform its obligations in good faith. If there is a conflict with national law, the party should seek to alter its law prior to joining the treaty. Normally, a party's obligations under a treaty are not retroactive; they are only prospective in application. When a new treaty conflicts with an earlier treaty, the new treaty will govern with respect to the relations between states who are parties to both treaties.

Article 31-32 of VCLT , which is widely used by states and international tribunals, provides: A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be

given to the terms of the treaty in their context and in the light of its object and purpose. The “context” of the terms of the treaty includes not just the entire text (including its preamble and annexes), but also any agreement relating to the treaty that was made by all the parties in connection with its conclusion (or made by one party accepted by the others).

Account should also be taken of any subsequent agreement reached by the parties regarding interpretation of the treaty, any subsequent practice of the parties regarding its interpretation, and any relevant rules of international law applicable to the relations between the parties. Once an interpretation is in reach following the above steps, it is appropriate to examine the preparatory work (or “legislative history”) of the treaty - often referred to travaux preparatoires - in order to confirm the interpretation.

Preparatory work is generally understood to include successive drafts of a treaty and other records and negotiations. Resort to preparatory work is also appropriate if the initial interpretation leaves the meaning of the relevant terms ambiguous or obscure, or leads to an absurd or unreasonable result.

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CUSTOMARY INTERNATIONAL LAWIntroduction:

Along with treaty law, customary international law (sometimes thought of as akin to common law) is one of the two principal sources of international law. Despite numerous treaties, there are many topics and many parties that are not covered by treaty law. Customary international law is important for its potential general application to states not parties to treaties, as well as its ability to supplement areas of international concern not addressed in treaties.

Two key requirements: (1) A relatively uniform and consistent state practice regarding a particular matter; and (2) A belief among states that such practice is legally compelled.

Uniform and Consistent State Practice:The first requirement of customary international law is to establish that there is a relatively

uniform and consistent state practice regarding a particular matter. Such state practice can take many forms. Acts taken by states in their diplomatic relations with one another; Acts taken internally by states through their legislatures or court; Acts taken by states before international organizations; and Even inaction by states when they are confronted with a particular matter. In any event, a practice must be relatively uniform and consistent, but it need not be perfect. Ideally, it should be evident over some extended period of time, rather than a very short period of time.

CASE: Paquete Habana: Issue : whether coastal fishing vessels of an enemy state could be seized by the United States as a prizes of war. There was no treaty on the matter that bound the United States, yet since the court regarded customary international law as part of US law, it embarked on an analysis of state practice from the 1400’s through the 1800’s. Holding : “By an ancient usage among civilized nations, beginning centuries ago, and gradually ripening into a rule of international law, coastal fishing vessels, pursuing the vocation of catching and bringing in fresh fish, have been recognized as exempt, with their cargoes and crews, from capture as prize of war.”

Consequently, the court found that the United States should not have seized the coastal fishing vessel as a prize of war.In the Anglo-Norwegian fisheries case, the ICJ stated that there must be “constant and sufficiently long practice,” but also that “too much importance need not be attached to the few uncertainties or contradictions, real or apparent” that may exist in the practice.

Similarly, in Military and Parliamentary Activities in and against Nicaragua, the court stated that “absolutely rigorous conformity with the rule is not required; rather, “instances of state conduct inconsistent with a given rule should generally be treated as breaches of that rule, not as indications of the recognition of a new rule.” In theory, the practice of all states is to be accorded equal weight, but certain topics the practice of some states might be deemed of greater relevance than the practice of others.

The practice of larger and more powerful states is often given greater weight than the practices smaller states, in part because the former are leaders of blocks of states and in part because they are better at publicizing the practice the written digests or other materials. Rules of customary international law are often global in nature, but they can also be regional. In the Asylum case, the ICJ accepted that they could exist a customary rule of international law special to the states of Latin America regarding the right of the state to issue a unilateral and definitive grant of political asylum.Opinio Juris:

The second requirement of customary international law – referred to as opinio juris sive necessitates - is to establish that states are engaging in their practice out of a belief that it is compelled or permitted by international law. The first requirement is referred to as the “objective”

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element of a customary international law, while the requirement of opinio juris is referred to as the “subjective” element.

The principal idea in the opinio juris requirement is to distinguish customary international law from everyday customs of states followed out of courtesy or habit. One difficulty in establishing opinio juris is that states often engage in a practice without publicly stating whether they believe the practice to be legally compelled.

Indeed, to the extent that the relevant practice consists of inaction, there may be no obvious opportunity to articulate such a belief. Consequently, whether opinio juris exists if often surmised from the context in which the practice took place.

Persistent Objector Rule:Even if both requirements are met so as to establish a norm of customary international law,

an individual state is not bound if the state persistently objected to the norm as it emerged. This “persistent objector” rule is a not to the centrality of state consent in international law; if a State refuses to consent to the norm of customary international law, then the state will not be bound by it.

Obviously, if there are a large number of persistent objectors, a customary international law norm cannot emerge at all, for the state practice it would not be uniform and consistent. Yet, if most states agree on the emergence of a new norm, a few “hold out” states will not prevent the norm from coming into existence, but the objector states will not he bound by the norm.

Jus Cogens:Peremptory norms, defined by Article 53 of the VCLT as “accepted and recognized by the

international community of states as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.” “Super” customary international law - law so fundamental to interrelationship of states that a state cannot, through its treaty practice or otherwise, deviate from the law.

Jus cogens appears not to arise from the normal processes of customary international law; the emphasis is less on consensual state practice and more on notions of universal morality or justice. There is often disagreement on which norms (if any) are Jus Cogens.

There are a handful of decisions by international tribunals to help clarify the matter: The ICJ has referred to the prohibition on the use of force by one state against another

as “a conspicuous example” of jus cogens. The Inter-American Court of Human Rights has advised that the prohibition against racial discrimination is jus cogens. The International Criminal Tribunal for the former Yugoslavia declared that the prohibition against state-sponsored torture has evolved into a peremptory norm or jus cogens, that is, a norm that enjoys a higher rank in the international hierarchy and treaty law and even ordinary customary rules.

It seems that prohibitions on genocide, slavery, and force disappearances might also qualify. As an abstract notion, jus cogens reflects a belief that certain important norms of international law have a superior claim to authority and therefore trump other norms. It is a concept that seeks to bind states together in a fragmented world.

Relationship of Treaties and Custom:An important dynamic within international law is the manner in which treaties shape and

develop customary international law. For example, in Military and Parliamentary Activities in and against Nicaragua, the ICJ found that customary international law on the right of a state to use force against another state exists separately from such rules as contained in the UN charter, even where those two categories of law are largely identical.

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Moreover, while the rule set forth in the UN charter may have initially converged from customary international law at the time the charter was adopted in 1945, “the charter gave expression in this field to principles already present in customary international law, and that law has in the subsequent four decades developed under the influence of the chapter, to such an extent that a number of rules contained in the charter have acquired a customary status independent of it.

In other words, new rules on the use of force established in the treaty (the UN charter) had influenced State practice and thereby passed into customary international law. The treaties that have secured low levels of ratification man may not support the existence of the customary rule. On the other hand, a treaty such as the Convention Against Genocide - to which and 136 out of 191 states are party - may well reflect customary international law, especially since Article 1 of the treaty is written not to “create” a new crime, but to “confirm” that genocide is a crime under international law.

However, the Treaty might not reflect new customary international laws since several states have declined to join (hence, there is insufficient uniformity to establish a customary rule). Even if a treaty supports the existence of new customary rule, it might be argued that states refusal to join is, in fact, a persistent objection to the application of the new norm to them. Some provisions of a treaty may be regarded as reflecting customary international law, while other provisions may not.

For example, Article 66 of the VCLT provides for settlement of disputes by the ICJ, yet only a state’s express acceptance of an international tribunal's jurisdiction (e.g., by ratifying the VCLT) would be viewed as a basis for such jurisdiction. Since there is no hierarchy between different sources of international law, in theory customary international law can involve and overtake treaty law. Moreover, if the new customary norm is jus cogens in nature, then any existing treaty which is in conflict with that norm becomes void and terminates.

Nevertheless, it is generally thought that the existence of a treaty between two states establishes a legal relationship with respect to the treaty's subject matter, with customary rules simply filling in the gaps.

Criticisms of Customary International:Scholars often observe that it is an imprecise source of international law. Unlike a treaty,

where the relevant rule is expressed in writing, a customary rule of international law is defined from the practice of states, which may vary over time. There are no clear rules on what level of consistency or uniformity must exist in the practice, on how long the practice must exist, or what types of practice count. Some critics even question whether customary international law really exerts any independent normative force. Arguably, states agree to and follow customary international law only when it is in their national self-interest. While in theory determining that a customary rule exists can be determined empirically, it is actually quite difficult to ascertain the practice of states, let alone determine whether opinio juris exists.

GENERAL PRINCIPLES OF LAWA general principle of law “recognized by civilized nations” is one so fundamental that it is a

basic tenet in virtually every major legal system. Unlike treaties or international customary laws, general principles are derived from domestic law and are not principles originating from international relations or obligations. For example, rules concerning liability for damages, unjust enrichment, right of passage over territory, the doctrine of res judicata, some basic humanitarian rights, the prohibition against being a judge in one's own cause, and application of the principles of good faith.

General principles of law are primarily applied to fill in gaps left by treaties and customary law. As international law expands to encompass new subject areas, general principles of law from domestic legal systems may be utilized until custom is established or treaties are developed. General principles are losing importance in modern international law because many of the norms

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once recognized as general principles are now incorporated in treaties or are recognized as customary international law.

The Restatement (3rd) of the Foreign Relations Law of the United States now classifies general principles as “a secondary source of international law.” Although generally decreasing in importance, general principles continue to be applied in procedural matters and problems of international judicial administration. General principles of often relied on are the doctrine of res judicata and laches, as well as the rule that judges are to act with impartiality and independence.

SUBSIDIARY SOURCES: COURTS AND SCHOLARS The ICJ Statute describes as a source of international law “judicial decisions and the

teachings of the most highly qualified publicists of the various nations, as a subsidiary means for the determination of the rules of law.” Thus, reference may be made to the decisions of courts and the writings of scholars when identifying the content of international law. These subsidiary sources are extremely important in clarifying the existence of norms, such as whether a customary rule of international law has emerged. The better reasoned the judicial decision or opinion of the scholar, and the more prestigious the court or scholar, the more persuasive it will be as a source.

With respects to the courts, the principle of stare decisis does not operate for the ICJ, or other international courts. Judicial or arbitral decisions (especially of the ICJ) serve as an extremely persuasive authority in subsequent cases. International courts are especially likely to refer and rely upon prior judicial decisions, since doing so promotes their own authority and legitimacy, and increases respect for the adherence to their decisions by states.

The decisions of national courts as to the content of international law are also often referred to and relied upon as evidence of that law.With respect to scholars, there are a variety of highly regarded treaties on international law generally and in various specialized fields. Moreover, there are groups of esteemed scholars whose work can be influential in establishing the content of international law. For example, the International Law Commission, consisting of thirty-four highly regarded individuals in the field of international law, issues reports on various topics of international law that are often relied upon by states and international courts.

INTERNATIONAL Law-makingIntroduction:

In addition to the “traditional” sources referred to in Article 38(1) of the ICJ Statute, a particularly important source of law is law created by international organizations. Law actually generated by an organ of an international organization that is regarded as binding upon the member states of that organization. States delegate authority to the IO to make law.

NON-LEGALLY BINDING NORMS:Introduction:

Non-legally binding norms or “soft law” may have important effects on the ordering of relations among international actors and, over time, on the formation of international law. Negotiation and conclusion of the norm can often occur more quickly and with less procedural or bureaucratic obstacles at both the international and national level. “Contracting costs” and “sovereignty costs” are lower, making agreement more likely.

Despite being non-legally binding, such norms are taken seriously by state and non-state actors (they are usually regarded as at least “politically-binding”), and once agreed upon may have the effect of narrowing the options that would otherwise be legally-available. These norms may also begin a process of delegitimizing an existing rule of international law and may even serve as a basis for invoking a rule of international law, such as the principles of good faith or estoppel.

Non-legally binding norms may be found in various places, including: Treaty provisions that call only for general cooperation among states or that bind states only to reach agreement on a

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matter in the future; Non-treaty declarations or political pacts issued by states that set forth certain aspirations; Resolutions of IO that are recommendatory in nature; and UN Generally Assembly Declaration Codes of behavior that states or non-state actors operating transnationally are invited to adopt.

Vague or General Treaty Provisions:One form of “soft law” may be found in treaty provisions that are too abstract to be

implemented automatically, that call only for general cooperation among states, or that bind states only to reach agreement on certain matters sometime in the future. These norms of various degrees of cogency, persuasiveness, and consensus which are incorporated in agreements between states but do not create enforceable rights and duties. Provisions which are so vague with respect to the norm being expressed that it requires further elaboration before it can have a serious legal effect.

Some treaty provisions simply call for generalized cooperation among states when possible and appropriate. Language of this nature is so vague and susceptible to myriad interpretation that it provides little if any normative guidance. Part of the importance of such “soft” derives from the fact that it can lead to “hard” law over time. Committee reports and comments can serve as a basis as a basis for encouraging states to enter into subsequent more detailed treaties.

May also serve as a basis for promoting more detailed cooperation among states through global and regional agreements and through the adoption of national legislation.Declarations or Political Pacts by States. A second form of “soft law” may be found in non-treaty declarations or political pacts issued by states that set forth certain aspirations. For example, in the field of international environmental law, there are numerous non-binding declaratory instruments or action programs made by states for the purpose of promoting environmentally sound management of resources.

None of these instruments are viewed by the states that agreed to them as legally binding, and unlike treaties, none are subject to a process of ratification. Such non-legally binding statements are an important means by which the international community pursues a consensus on normative values, but they are not regarded as themselves altering existing international or national law. While not itself legally binding, these declaration can make reference to numerous legal principles, thereby making it difficult for states to claim that right (i.e., human rights) are matters of their national jurisdiction.

Recommendatory Resolutions of International Organizations:A third form of “soft law” may be found in widely-accepted resolutions of IOs, even though

those resolutions are not legally binding. If the IO has expertise or recognized competence with respect to a particular matter, if there is a near-universal participation of states in the work of the organization, if a resolution is adopted in a manner that speaks to the existence of an international legal norm, then such resolution (even if not technically binding) can have a very powerful influence on the development of international law.

Most of the UN General Assembly resolution (except those relating to the budget of the UN) may only be recommendations (UN Charter Articles 13-14) and therefore (unlike the Security Council’s resolutions when acting under Chapter VII) are non-legally binding. Nevertheless, on several occasions the GA has adopted resolutions that speak to the legal norms and that have strongly influenced the practice of states and decisions of international and national tribunals.

For instance, the style of the language in the 1946 UN GA resolution affirming genocide as a crime was important, in that the states of the world did not purport to create a new crime under international law but, rather, to recognize an existing crime. As such, it may regarded as reflecting the opinio juris of the global community, which is important when considering the status of customary international law. Such a resolution may also serve to legitimize conduct occurring elsewhere.

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Finally, the resolution may accelerate the conclusion of a legally-binding treaty that contains the norm. Giving GA resolutions such weight is more controversial when the resolution is not adopted by a large majority representing the various groups of states worldwide, and even more so when it purports to progressively develop (as opposed to simply codify) international law.

INTERNATIONAL LAW INTERPRETATION AND DISPUTE RESOLUTION

Introduction: Just as there is no global legislature to create international law, there is no global court with

all embracing jurisdiction to interpret vague or ambiguous rules of international law, or to resolve disputes among international actors. Interpretation of international law and international dispute resolution occur all the time, in various ways and before various fora. Though these processes are not centralized, they are fairly robust and often effective.

International law seeks to channel friction between states and mechanisms for pacific resolution as a means of avoiding armed conflict. Chapter VI (Article 33) of the UN charter provides: The parties to any dispute, the continuance of which is likely to endanger the maintenance of international peace and security, shall, first of all, seek a solution by negotiation, inquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other default and of their choice.

In the first instance, states (and non-state actors) seek to resolve ambiguities in the law or avoid disputes through direct discussion, which may take the form of negotiation (where two or more states engage in dialogue) or of consultation (where a state intends to pursue a course of action and so notifies others). If disagreement remains after those measure, states may agree to bring in a third party to assist through mediation or conciliation. If a more formal method of resolving the matter is required, resort may be made to arbitration or judicial settlement.

ARBITRATIONIntroduction:

Arbitration results in legally binding settlements. The settlement is reached on the basis of law by a group of judges appointed by the parties. Arbitral panels may be used to settle not only disputes between states, but are widely used to settle commercial disputes between a state and a private party or between private parties. Many states have passed domestic legislation to facilitate arbitration and have ratified bilateral treaties and conventions utilizing arbitration as a means of settling disputes. Advantages of Arbitration:

-It is more conclusive than the other forms of non-judicial dispute settlement because the decisions of the arbitral panels are binding upon the parties. The disputing parties retain greater control in the arbitration process than they retain in the judicial process because they appoint the arbitrators. In making such appointments, the parties may select people with specialized knowledge of the matters at issue.

-Parties may designate the procedures and the laws to be applied. The selected procedures are usually less cumbersome than those applied in the courtroom and the arbitration process can therefore be less time-consuming. Arbitration is less formal and less contentious than adjudication. This is especially important for maintaining commercial relationships. Both the arbitration proceedings and decisions can be kept confidential, a great advantage in disputes regarding sensitive matters. Disadvantages of Arbitration:

If the parties do not specify procedures, arbitration may be a very cumbersome and time-consuming process. Arbitration panels do not have the authority of courts to conduct discovery or subpoena witnesses. The parties themselves pay for the entire cost of the arbitration, which

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includes compensation for the arbitrators as well as administrative costs. However, if the arbitration is conducted efficiently these costs are often less than the costs of litigation.

Types of Arbitral Clauses :Clause inserted in treaty: An arbitration clause (“compromissory clause”) may be inserted in

a treaty dealing with one or more substantive issues to provide a method of settling disputes arising from the treaty. Such arbitration clauses are common in commercial treaties and in international civil aviation agreements.

Treaty itself establishes settlement method: The treaty itself may exist solely to establish a method of resolving either certain categories of disputes or all disputes that may arise between the parties.

Ad Hoc arbitral agreements: Arbitral agreements may be concluded after the dispute has arisen. Such “after-the-fact” arbitral agreement is often concluded when the parties have been unsuccessful with the other methods of dispute settlement.An example is the Iran-U.S. Claims Tribunal.

The New York Convention provides the following defenses to enforcement of the arbitral award:

The parties to the agreement were under some incapacity. The agreement is invalid under the applicable law of the arbitration or under the law of the country where the award is to be made. The defendant was not given proper notice or was otherwise unable to present its case. The award exceeds the powers of the tribunal.

The composition of the arbitral tribunal was not in accordance with agreement of the parties or of the law in the country in which the arbitration took place. The award is not binding because it has been set aside or suspended by a competent authority in the country in which the award was to be made. The subject of the arbitration is not capable of settlement by arbitration according to the laws of the country where the award is to be recognized and enforced.

The award deals with a difference not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration.This provision basically allow a party to attack an award predicated upon arbitration of a subject matter not within the agreement to submit to arbitration.

The party defending against enforcement must overcome a powerful presumption that the arbitral body acted within its power. Recognition and enforcement of the award are contrary to the public policy of that country.“ Enforcement of foreign arbitral awards may be denied on this basis only where enforcement would violate the forum state’s most basic notions of morality and justice.” Overseas v. Rakta

The defense should be limited to awards contrary to “principles of law” and awards of violative of “fundamental principles of law.” The award is in “manifest disregard” of the law. The Federal Arbitration Act has been specifically read to include an implied defense to enforcement where the award is in manifest disregard of the law. The burden of proof is on the party defending against enforcement.

The Role of the ICJ : Article 36 of the Statute of the ICJ sets forth the ICI’s role as a public international arbiter, stating that the court has jurisdiction in “all cases, which the parties refer to it.” A compromise may confer jurisdiction of particular legal questions on the ICJ and indicate the

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rules of law to be applied by the court. The ICJ, however, differs from other arbitration tribunals in that its membership is pre-established.

RULES OF STATE RESPONSIBILITYINTRODUCTION:

Although states have been the most prominent actors in international relations, the precise content of their rights and obligations continues to be surprisingly ill-defined and uncertain. At its heart, the field of state responsibility is concerned with rudimentary rules about when a state is responsible for a breach of international law and the consequences that flow from such a breach.

For example, the rules establish: (l) When particular conduct may be attributed to a state; (2) When a state's wrongful conduct might be excused, such as in a situation of distress; (3) What kinds of remedies are available to a state that has been wronged, such as

restitution or compensation; and (4) When a wronged state may respond through the use of countermeasures. The rules on

state responsibility are background or default rules; two or more states may always choose to craft alternative rules as among themselves.

Rules on state responsibility are more general in application ("secondary" rules), drawn from the practice of states, the decisions of courts and tribunals, and the writings of scholars in a wide range of areas. Having said that, historically many studies of the rules on state responsibility focused on the treatment of aliens in the territory of a state and much of the law in this area has arisen in that context.

In August 2001, the ILC finally adopted the Draft Articles on Responsibility of States for Internationally Wrongful Acts, a series of fifty-nine articles that purport to codify and progressively develop the rules in this area. Thereafter, the U.N. General Assembly commended the articles to the attention of governments. To date, these articles have not been transformed into a treaty; thus, they were not drafted by, let alone adopted and ratified by, states. The ILC articles and their associated commentary are an important reference point for the law in this area.

THE RIGHTS OF STATESThere is much controversy regarding the basic rights of states, and as yet there exists no

finalized written statement of the rights and duties of states. The U.N. Charter as a whole does impose obligations on its members to respect certain rights of states. Rights and obligations are binding on the international community as a whole only if accepted as customary law with universal application. The rights generally protected by the U.N. Charter and other U.N. resolutions are as follows:

Right of Sovereignty: Article 2(1) of the UN Charter provides that “The Organization is based on the principle of the sovereign equality of all its Members.” UN General Assembly Declaration 2625 provides that all States enjoy sovereign equality. They have equal rights and duties and are equal members of the international community, not withstanding differences of an economic, social, political, or other nature.

-In particular, sovereign equality includes the following elements: -States are juridically equal; -Each State enjoys the rights inherent in full sovereignty; -Each State has the duty to respect the personality of other States; -The territorial integrity and political independence of the State are inviolable;

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-Each State has the right freely to choose and develop its political, social, economic, and cultural systems;

- Each State has the duty to comply fully and in good faith with its international obligations and to live in peace with other states. Sovereignty in the relation between States signifies independence. Independence in regard to a portion of the globe is the right to exercise therein, to the exclusion of any other State, the functions of a State, Territorial sovereignty involves the exclusive right to display the activities of a state.

In the absence of treaty provisions to the contrary, a state is not allowed to intervene in the management of the internal or international affairs of other states, or to prevent them from doing or to compel them to do certain acts in their domestic relations or international intercourse. The notion of exclusive, domestic jurisdiction is subject to much controversy, particularly with respect to matters affecting individual rights.

In the Lotus case the PCIJ stated that “the first and foremost restriction imposed by international law upon a State is that, failing the existence of a permissive rule to the contrary, it may not exercise its power in any form in the territory of another State'; and in the Corfu Channel case the ICJ observed that “between independent States, respect for territorial sovereignty is an essential foundations of international relations.”

The right of sovereignty is fundamental because it prohibits foreign intervention in internal affairs. The state is the supreme authority within its national territory. It is said to have territorial sovereignty or territorial jurisdiction. Customary international law also recognizes immunity for warships and limited immunity for merchant ships.

Under a number of U.N. resolutions, including the Charter of Economic Rights and Duties of States and the Stockholm Declaration on the Human Environment, states are declared to have absolute sovereignty over use of natural resources within their territories. This right has been qualified in recent years by growing recognition that a state has an obligation to ensure activities occurring within-its jurisdiction or control do not cause harm in areas beyond its territory, and the International Law Commission has been studying articles of state responsibility to extend state liability to injuries caused by acts lawful per se.

Equality of States:Under international law theory, all independent states are equal.

Article 2 of the Montevideo Convention provides that “the federal state shall constitute a sole person in the eyes of international law.” Article 4 of the Montevideo Convention provides that “States are juridicially equal, enjoy the same rights, and have equal capacity in their exercise. The rights of each one do not depend upon the power which it possesses to assure its exercise, but upon the simple fact of its existence as a person under international law.”

Neither the size of territories or populations nor the level of development has any bearing on states. The concept of legal equality is set forth in the Statute to the ICJ. "No circumstances may place parties to a dispute in an unequal position before the court." Likewise, states receive equal treatment when disputes arise in international organizations. The concept of sovereignty and equality are closely joined. All states are to enjoy equal treatment. Thus, no state is permitted to intervene in the affairs of another state.

The U.N. Declaration on Principles of International Law Concerning Friendly Relations and Cooperation Among States provides that "armed intervention, and all other forms of interference or attempted threats against the personality of the State or against its political, economic and cultural elements are in violation of international law."

The Right to Defense:A state has the right to take steps necessary to protect its own security. Before the U.N.

Charter was adopted, the right to defense included the right to initiate hostilities in anticipation of

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an attack. A state may no longer engage in anticipatory self-defense without running the risk of being held responsible for an act of aggression in violation of international law.

The Right of International Intercourse:States are free to establish and regulate their own international relations, as long as they do

not violate the accepted rules and principles of international law. The U.N. Declaration on Principles of International Law Concerning Friendly Relations and Cooperation Among States in fact imposes a duty on states to cooperate with one another in maintaining international peace and stability and promoting the general welfare of nations. The Restatement (Third) § 206 incorporates some of these rights in US law, including:

-Sovereignty over its territory and general authority over its nationals; - Status as a legal person, with capacity to own, acquire and transfer property, to

make contracts and enter international agreements, to become a member of international organizations, and to pursue and be subject to legal remedies;

-Capacity to join with other states to make international law, as customary law or by international agreement.

INTERNATIONAL LAW AND MUNICIPAL LAW DUALISM AND MONISMDualism:

Under the dualist theory, international law and municipal law are entirely separate legal systems. Dualism assumes that international and domestic law are separate matters and must, by and large, be kept apart. International law regulates the relationships among sovereign nation states (and, today, a variety of other inherently international issues) while domestic law addresses the relationship between the state and its citizens as well as among these citizens themselves. Domestic courts do not apply international law itself but rather the domestic rules that "incorporate" it.

-Incorporation of international law in the domestic legal order: -A state's constitution and domestic legal doctrines determine the effect of international

laws within the domestic legal order. -The constitution also imposes on international laws the same limitations imposed on

municipal laws. Incorporation of municipal law in the international legal order: -Incorporation of municipal law in international legal order:-Ordinarily, a state may not impose its municipal laws on the international legal system. -Conflict with a municipal law does not excuse a state from its international legal obligations.

NOTE: Thus, a state may be legally bound to an obligation under international law that would have no legal force under its own domestic legal system. Although municipal law cannot generally impose itself on the international legal order, there are instances when an international tribunal encounters and must interpret a municipal law at issue between disputing states. In such cases, the international tribunal attempts to interpret the municipal law in conformity with the interpretations of the municipal courts.

Monism:The monist theory holds that municipal and international law belong to a single "universal

legal order." Since there is no dividing line between them, international law is automatically effective within the domestic legal order. The most important practical consequence is that international law can be invoked before, and directly applied by, domestic Courts without any

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further ado. The diminished role of the state as a legal personality results in a dominant role for international law over municipal law.

TREATIES IN MUNICIPAL LAWTreaties in US Law

Article II treaties: The President of the United States has the authority to make treaties with the "Advice and

Consent of the Senate." Two-thirds of the senators present must concur. U.S. CONST. art. II, § 2. The judicial power of the United States extends to cases arising · under treaties. U.S. CONST. art. III, § 2. Treaties, along with the Constitution and federal laws, are "the supreme Law of the Land" and prevail over conflicting state laws. U.S. CONST. art. VI, § 2. The individual states of the United States may not enter into treaties, alliances, or confederations with foreign nations. U.S. CONST. art. I, § 10.Self-Executing Treaties:

The doctrine of self-executing treaties is not explicit in the U.S. Constitution; it is a judge-made doctrine. The doctrine makes a distinction between treaties directly applicable by the courts as U.S. law (i.e., self-executing) and treaties aimed at the legislature and requiring implementation before taking effect under the municipal legal order. Self-executing treaties may be applied directly in U.S. courts without the need for implementing legislation by Congress. Whether or not a treaty is self-executing depends on the intent of the government and is an issue for the courts to decide when the treaty is invoked as law. Where there is no express statement by the executive or congressional branches, some courts focus on whether the language of the treaty is susceptible to enforcement. Thus, a treaty containing hortatory or indeterminate language may be non-self-executing. A treaty cannot be self-executing if the subject matter is one that lies within the exclusive law-making power of Congress.

Self executing treaty – becomes law upon ratification4 part test to determine:

1. Purpose of the treaty and objectives of its creators2. Existence of domestic procedures and institutions appropriate for direct

implementation 3. Availability and feasibility of alternative methods of enforcement4. Immediate and long range social consequences of self or non-self execution

With the first factor being critical.

FOR EXAMPLE: treaties pertaining to international crimes (e.g., genocide, hijacking) or the raising of revenue require Congressional action before taking effect as domestic law.

A Treaty that purports to create a private right of action is likely self-executing.Non-Self-Executing:

A treaty is non-self-executing if it instructs the legislature to implement enacting legislation. Strictly speaking, it is then the implementing legislation that is given effect as U.S. law, not the treaty itself.

In Hamden v. Rumsfeld, that court held that Geneva Convention norms dictate the executive's ability to create military commissions because Congress had previously passed legislation that called for application of the Geneva Convention norms. Difficulties arise if a treaty does not clearly mandate enactment through implementing legislation and the government takes no actions to implement the treaty. The question then becomes whether the treaty is self-executing and enforceable in domestic courts or non-self-executing and unenforceable without congressional implementation.Medellin v. Texas

The only modern guidance on distinguishing between self-executing and non-self-executing treaties. Neither the IC] Statute, the U.N. Charter, the Optional Protocol to the Vienna Convention on

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Consular Relations, nor the ICJ decision in Avena were directly enforceable as federal law in state courts.

In so concluding, these Justices, according to dissent, incorrectly applied a presumption against self-execution. The dissent pointed out that since Foster the Court had frequently held or assumed that particular treaty provisions were self-executing, automatically binding the State, absent any indication to the contrary. The dissent further argued that the phrase "undertakes to comply" in article 94(1) of the U.N. Charter was the equivalent of “shall comply” or “must comply, and thus made the obligation self-executing.

The majority held that “where a treaty does not provide a particular remedy, either expressly or implicitly, it is not for the federal courts to impose one on the State through lawmaking of their own.”

Test for Non self-executing treaty – requires Congress to pass additional legislationFactors determining:

-Intent of drafting parties-Explicit language in treaty (whether it can be enforced based on that alone)-Comments made during treaty making process-Look at how broad the language is (if very broad probably non self-executing)

-Does it create a private right of action (if it does then it is self-executing)

Treaties and Conflicting State Law-Effect of the Supremacy Clause:Self-executing treaties and legislatively implemented treaties have the status of enforceable

federal law and benefit accordingly from the Supremacy Clause. Thus, such treaty provisions prevail over conflicting state law. "Treaties" benefiting from the Supremacy Clause include "congressional/executive" agreements and "sole-executive" agreements. A treaty lacking required legislative implementation does not prevail over conflicting state laws.

For example, a California state law barring certain aliens from owning land was upheld against conflicting provisions of the U.N. Charter. The court held that the cited provisions of the U.N. Charter were not "intended to become rules of law for the courts of this country upon ratification of the charter. Treaties and Conflicting Federal Statutes:

Self-executing and legislatively executed treaties prevail over state law but do not necessarily prevail over federal statutory law. Treaty law and federal statutory law are virtually equivalent in status. When both address the same issue, courts attempt to interpret the terms of each in such a manner as to avoid outright conflicts. When reconciliation is not possible, the general rule is that the last in time prevails. A later treaty may supersede an earlier federal law. Likewise, legislative action may supersede an earlier treaty. The "last-in-time" rule applies only to article II treaties, that is, those made with the advice and consent of the Senate.

Whether executive agreements, like treaties, supersede existing federal statutes is doubtful but unsettled. The "last-in-time" rule applies only under U.S. law. Under international law, a conflict between treaty obligations and domestic law does not excuse the United Slates from its international legal obligations.

Scope of the Treaty Power:The authority of the United States to enter into international agreements is coextensive with

the foreign affairs interests of the United States. Indeed, there is support for the proposition that the federal government may do by treaty what it cannot do by statute.

In Missouri v. Holland, the Supreme Court the state of Missouri asserted that the regulation of birds was a matter "reserved" to the states under the Tenth Amendment of the U.S. Constitution.

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In upholding the treaty, Justice Holmes found that the federal government could regulate migratory birds pursuant to a treaty, even though a similar federal statute had been struck down previously by lower courts as unconstitutional. The court stated: “It is obvious that there may be matters of the sharpest exigency for the national well being that an act of Congress could not deal with but that a treaty followed by such an act could, and it is not lightly to be assumed that, in matters requiring national action, “a power which must belong to and somewhere reside in every civilized government” is not found. Justice Holmes also found that the scope of the treaty legislative powers granted to Congress did not govern the scope of the treaty power.

In Reid v. Covert, the defendants were civilian dependents of armed servicemen posted in the United Kingdom, and had murdered their husbands. Facts : An international agreement between the United States and the United Kingdom provided the United States with exclusive criminal jurisdiction over the crimes. Yet, there existed no federal or state statute in the United States granting jurisdiction to a regular court over murder committed abroad. The only recourse was to try the civilian dependents before a court-martial under the Uniform Code of Military Justice (UCMJ), a military system of justice that (at the time) provided no grand jury, no jury trial, and lacked certain other constitutional rights normally accorded civilians. After being convicted and sentenced to death, the defendants appealed to the U.S. Supreme Court. Issue : Whether the U.S.-U.K. agreement was within the power of the federal government and whether the UCMJ constituted legislation necessary and proper to fulfill that international agreement. Analysis : The Supreme Court noted that Article VI of the Constitution made treaties part of the Supreme law of the land. However the Court stated: It would be manifestly contrary to the objectives of those who created the Constitution, as well as those who were responsible for the Bill of Rights-let alone alien to our entire constitutional history and tradition-to construe Article VI as permitting the United States to exercise power under an international agreement without observing constitutional prohibitions. In effect, such construction would permit amendment of that document in a manner not sanctioned by Article V. Holding : All agreements are subordinate to the Constitution and the Bill of Rights.

CUSTOMARY LAW IN MUNICIPAL LAWCommon Law countries:

International Law as Common LawInternational law derived from sources other than treaties is considered by common law

countries to be a special type of common law. As early as 1784 (Respublica v. De Longchamps), the law of nations was considered to be part of the law of the United Slates.

This principle was stated in The Paquete Habana: "International law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction, as often as questions of right depending upon it are duly presented for determination. For this purpose, where there is no treaty, and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations.

Incorporation of Customary Law into Domestic Law: -The United States joins other common law jurisdictions in considering customary

rules to be automatically incorporated into the domestic legal order and thus directly applicable in domestic courts.

The United States, England, Canada, and India all treat customary rules of international law as part of domestic law.

Supremacy Clause and Customary International Law:Customary law, like treaty law, is considered federal law and receives the benefits of the

Supremacy Clause. Whether customary international law supersedes a pre-existing treaty or a pre-existing statute under U.S. law is unclear.Note again, however, that U.S. courts will attempt to

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interpret a federal law to avoid conflict with international law, whether the international law is in the form of a treaty or custom.

US Treatment of Customary international law:US courts group customary law together with other non-treaty sources of international law

to form what is called international common law. Custom, general principles, scholarly works, and judicial opinions are all consulted in order to establish a rule of international law. This practice contrasts with that of international tribunals, which consider each a discrete source of law.

FOREIGN RELATIONS LAW OF THE UNITED STATESCongressional Power:

Under the U.S. Constitution, Congress has several powers touching upon foreign affairs, such as the powers to lay and collect duties, provide for the common defense, regulate commerce with foreign nations, regulate naturalization, make rules regarding the law of prize, define and punish piracies and felonies committed on the high seas (as well as offenses against the law of nations), create and regulate an army and a navy, and declare war. Moreover, two-thirds of the U.S. Senate must provide advice and consent before the president may ratify a treaty.

Congress also, of course, has the power to appropriate funds for the U.S. government and enact all laws "necessary and proper" to execute any federal powers. As in other areas of law, U.S. courts have interpreted these Congressional powers broadly in the field of foreign affairs when Congress chooses to act, unless there is a specific constitutional limitation on governmental power, such as in the Bill of Rights.

Executive Power:General Executive Power:

In contrast to Congress, the president is expressly allocated few foreign affairs powers by the Constitution. Article II of the U.S. Constitution expressly grants the President authority:

-To be Commander in Chief of the Army and Navy; -To make treaties; -To appoint ambassadors, public ministers and consuls; and -To receive ambassadors and public ministers.Any other presidential authority in international affairs must be premised on the inherent

authority generally conferred by Article II. As a practical matter, an extraordinary amount of U.S. government authority in the field of foreign affairs is exercised by the executive branch, which alone represents the United States in diplomatic relations and before U.S., foreign, and international courts.

Such power not only is derived from the few express powers noted above, but also from vesting of the "executive power" in the president, and from the president's duty to take care that U.S. laws (including treaties and customary international law) are faithfully executed. As a single voice the president is in a much better position to articulate a single U.S. foreign policy and make credible commitments to foreign governments. Much of this general executive power is also derived from customary practice, often as the result of struggles between the executive and legislative branches for the right to exercise a given element of foreign affairs authority.

Executive Agreements:IntroductionAn executive agreement is a binding international agreement, concluded by the president,

without the advice and consent of the Senate. Although it may seem startling that U.S. practice in concluding international agreements deviates so starkly from the means contemplated in Article II for the making of treaties, there is an indirect recognition in the Constitution of types of international agreements other than treaties, such as agreements by "alliance," "confederation," and "compact.” Further, this U.S. practice is long-standing and reflects a practical accommodation of the

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president's need to conclude numerous agreements, many of marginal significance, without adhering to the formal treaty process. Indeed, the vast majority of international agreements entered into by the United States are never submitted to the Senate for advice and consent.

Executive agreements are based on one of two other forms of legal authority:1. Treaty-Based Executive Agreement: If there exists a prior treaty that contemplates explicitly or implicitly subsequent

international agreements, the president may conclude those agreements without obtaining further Senate approval. For instance, while the Senate provided advice and consent to the NATO Status of Forces Agreement, the president thereafter concluded, without further congressional approval, a series of bilateral agreements with individual states in order to implement the treaty.

2. Sole-Executive Agreement:The president may conclude an executive agreement when it is based on one of his

constitutional powers.In United States v. Curtiss-Wright, the Supreme Court took a very broad view of the inherent

powers of the President to enter into international agreements. Thus, relying solely on his constitutional power to appoint and receive ambassadors, the president might conclude an executive agreement with another state to establish diplomatic relations; that agreement might even involve the settlement of outstanding claims between the two nations.

In Dames & Moore v. Regan, the Court upheld executive orders to effectuate the settlement agreement between the United States and Iran concerning the U.S. hostages seized from the American Embassy in Tehran in 1979. In upholding the President's authority, the Court emphasized that Congress had acquiesced in the President's action and that there had been a long-standing practice of settling claims of U.S. nationals against foreign countries by executive agreement without the advice and consent of the Senate.

Recognition of Governments:Implicit in the express constitutional authorization to receive ambassadors is the president’s

exclusive power to recognize foreign governments. The executive branch has used recognition of governments as a political tool, but the current practice is to recognize any government in “effective control” of a state.

JUDICIAL POWERArticle III of the U.S. Constitution provides that the federal judicial power extends to all cases

concerning treaties, ambassadors, and admiralty and maritime jurisdiction, and cases between a state (or its nationals) and foreign states (or their nationals). Since federal courts are vested with jurisdiction over matters arising under federal law, disputes concerning the interpretation of constitutional provisions and statutes relating to foreign affairs are also within the scope of the judicial power. FEDERAL-STATE RELATIONSReasons for Federal Dominance

First, there is some authority for the proposition that the foreign affairs power is a necessary attribute of sovereignty itself and therefore is inescapably embedded in the national government.

Second, U.S. constitutional history makes clear that matters touching upon foreign affairs were intended to be dealt with under federal law. Third, all the important foreign affairs powers are explicitly denied to the states by the U.S. Constitution. Moreover, the Constitution's Supremacy Clause expressly makes federal legislation passed pursuant to these federal constitutional powers (as well as all treaties) binding upon the several states as "the supreme Law of the Land."

Bases for Striking Down State Laws:

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If the federal government has issued a foreign relations law that directly conflicts with a state law or policy, then-under the Supremacy Clause-the state law or policy will be struck down because it has been preempted by federal law. Even if there is no direct conflict with a federal law, a state law may be struck down as contrary to the "foreign commerce" power reserved to Congress if the law facially discriminates against foreign commerce without a legitimate local justification and attempts to regulate conduct beyond the state's borders.

Further, a state law may be struck down if it infringes on the general foreign affairs power of the federal government, and has more than an incidental or indirect effect on US foreign policy.

In the Garamendi case, which concerned the California Holocaust Victim Insurance Relief Act (HVIRA), the court affirmed the long-standing premise that "at some point an exercise of state power that touches on foreign relations must yield to the National Government's policy" so as to maintain uniformity in U.S. dealings with other nations.

HVIRA mandated broad disclosure of information by insurance companies doing business in California regarding all policies issued in Europe between 1920 and 1945, including the names of policyholders and beneficiaries, as well as a certification as to whether and how policy proceeds had been paid. When suit was brought by insurance companies for injunctive relief, the Supreme Court struck down the statute,

The court held that in this instance, the executive branch had embarked on various executive agreements designed to resolve holocaust-era claims and, while those agreements did not directly preempt HIVRA, “[v]indicating victims injured by acts and omissions of enemy corporations in wartime is . . . within the traditional subject matter of foreign policy in which national, not state, interests are overriding, and which the National Government has addressed.

Thus, state interference with federal Policies may be prohibited even when those policies are not reduced to legislation.

States may not act to exacerbate relations with foreign nations, nor may they contravene policies advanced in a US international agreement even if no direct conflict with the agreement exists.Sanchez-Llamas v. Oregon Facts and State Court Proceedings

Denial of Defendant Mexican National’s Motion to Suppress after Article 36 ViolationWhen defendant Mexican national was arrested after an exchange of gunfire with police, the

officers did not inform him that he could ask to have the Mexican Consulate notified of his detention pursuant to Article VCCR. The state trial court denied a motion to suppress incriminating statements that defendant had made during interrogation. After defendant was convicted of attempted aggravated murder, attempted murder, and other offenses and sentenced to prison, a state appellate court and the state supreme court affirmed his conviction.

Dismissal of Petitioner Honduran National’s Article 36 Claim in State Habeas Corpus CasePetitioner Honduran national was arrested and charged with murder, but the police never

informed him that he could request that the Honduran Consulate be notified of his detention. A jury convicted petitioner of first-degree murder, and the conviction and prison sentence were affirmed on appeal. Petitioner subsequently filed a petition for a writ of habeas corpus in which he argued for the first time that authorities had violated his right to consular notification under Article 36. The state habeas court dismissed the Article 36 claim as procedurally barred, and the state supreme court found no reversible error in the dismissal. The Consolidated Cases on Certiorari

Judgments AffirmedThe Supreme Court of the United States affirmed the judgments of the state supreme courts

in both cases because, even if Article 36 did grant individually enforceable rights, neither defendant nor petitioner was entitled to relief. Suppression was not an appropriate remedy for a violation of

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Article 36, and a state could apply its regular rules of procedural default to Article 36 claims.Neither Vienna Convention nor Exclusionary Rule Precedents Supported Suppression

The Vienna Convention prescribed no specific remedies for violations of Article 36 but instead expressly left the implementation of the provision up to domestic law. Because the Vienna Convention did not provide for a particular judicial remedy, the federal courts could not impose one on the states. The Court had primarily applied the exclusionary rule to deter constitutional violations, moreover, and the reasons for suppression in cases of Fourth and Fifth Amendment violations were entirely absent from the consular notification context.

Article 36 Claims Could Be Subjected to Procedural Default Rules:The Court concluded that intervening cases in which the International Court of Justice (ICJ)

had interpreted Article 36 did not compel reconsideration of the procedural default holding in Breard v. Greene, because, although the ICJ's interpretation deserved "respectful consideration, “it was not conclusive on the courts of the United States, incapable of overcoming the plain import of Article 36, and inconsistent with the basic framework of an adversary system. Rights under Article 36 were more comparable to Miranda rights, to which procedural default rules applied, than to a Brady claim, which often could be asserted for the first time in a postconviction proceeding.Medellin v. Texas Factual and Procedural Background

Petitioner prisoner, a Mexican national, was convicted of capital murder and sentenced to death in a state court of respondent Texas. In addition to an unsuccessful appeal of the judgment of conviction, the prisoner filed applications in state court and in a federal court of amicus curiae United States seeking writs of habeas corpus, which were denied. The prisoner was one of 51 Mexican nationals on whose behalf the government of Mexico brought an action against the United States in the ICJ pursuant to U. N. Charter Art. 94(1), the Vienna Convention on Consular Relations (Vienna Convention), and the Optional Protocol Concerning the Compulsory Settlement of Disputes to the Vienna Convention, alleging that the United States had improperly failed to advise the Mexican nationals of their right to consular assistance in defending themselves against criminal charges in the United States. After the ICJ entered its Avena judgment in favor of Mexico and the Mexican nationals, the prisoner filed a second state court application for a writ of habeas corpus. The Supreme Court of the United States subsequently dismissed as improvidently granted, pending state court action on the prisoner's latest habeas corpus application, a writ of certiorari it had granted the prisoner to review the trial court and court of appeals decisions in his prior federal habeas corpus proceeding. Court of Criminal Appeals of Texas Dismisses Prisoner's Application for Writ of Habeas Corpus

The Court of Criminal Appeals of Texas dismissed the prisoner's application for a writ of habeas corpus. The court of criminal appeals held that the prisoner's application constituted an abuse of the writ because he had failed to timely raise his arguments under the Vienna Convention, with the result that his application was precluded by the state law rule against the filing of successive habeas corpus petitions. The Supreme Court of the United States granted the prisoner a writ of certiorari to review the decision of the court of criminal appeals. Supreme Court of the United States Affirms Dismissal of Prisoner's Application for Writ of Habeas Corpus

The Supreme Court of the United States, in an opinion by Chief Justice Roberts, affirmed the judgment of the Court of Criminal Appeals of Texas dismissing the prisoner's application for a writ of habeas corpus. The Court determined that in the absence of implementing legislation, the ICJ's Avena decision had not created automatically binding domestic law made applicable to state courts by the Supremacy Clause, U.S. Const. art. VI, cl. 2. The Court stated that the President's Memorandum to the Attorney General (Feb. 28, 2005) (President's Memorandum), directing state courts to implement the Avena decision, did not make the ICJ's decision binding domestic law

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because the President could not rely upon a non-self-executing treaty to establish binding rules of decision that preempted state law and the President's Memorandum was not a valid exercise of his foreign affairs authority in the area of settlement of claims by foreign nationals. The Court rejected the prisoner's argument that the President's Memorandum was a valid exercise of the President's power under U.S. Const. art. II, § 3 to take care that the laws be faithfully executed because that power extended only to the carrying out of the laws, not to making them, and the Avena judgment did not constitute domestic law.JURISDICTIONINTRODUCTION

Jurisdiction can be defined as the authority to affect legal interests. More specifically under international law, jurisdiction is understood to be the allocation of power and authority among the states.

Civil and criminal jurisdiction: International law in this context is most important for the restrictions it imposes on state

jurisdiction over criminal matters. International law appears to impose few, if any, restraints on a state's exercise of civil jurisdiction other than sovereign and diplomatic immunity.

As stated by the PCIJ in the Lotus case: “Far from laying down a general prohibition to the effect that States may not extend the application of their laws and the jurisdiction of their courts to persons, property and acts outside their territory, it leaves them in this respect a wide measure of discretion which is only limited in certain cases by prohibitive rules; as regards other cases, every State remains free to adopt the principles which it regards as best and most suitable.”

The comments to the Restatement (Third) of the Foreign Relations Law of the United States, however, say that its limitations on jurisdiction apply to civil as well as criminal jurisdiction.TYPES OF JURISDICTION Jurisdiction to Prescribe: Section 401(a) of the Restatement (Third) asserts that, under international law, a state is subject to limitations on its "jurisdiction to prescribe, i.e., to make its law applicable to the activities, relations, or status of persons, or the interests of persons in things, whether by legislation, by executive act or order, by administrative rule or regulation, or by determination of a court."

As the Restatement (Third) notes, a state might seek to regulate conduct extraterritorially through enactment of a statute, rule, or regulation, or even extension of the law through judicial decision. Regardless of the form, the exercise of jurisdiction must fit within one of the five "principles" permissible bases of jurisdiction.

Jurisdiction to Adjudicate:Section 401(b) of the Restatement (Third) asserts that, under international law, a state is

subject to limitations on its "jurisdiction to adjudicate, i.e., to subject persons or things to the process of its court or administrative tribunals, whether in civil or in criminal proceedings, whether or not the state is a party to the proceedings." International law requires that a state exercise jurisdiction to adjudicate only in situations where it is reasonable to do so.

The standard of reasonableness is not the same as the standard applied for jurisdiction to prescribe. It is entirely possible that international law would regard as reasonable the exercise by a state of subject matter jurisdiction over a person; yet not regard as reasonable the exercise of personal jurisdiction over that person (and vice versa).

For this type of jurisdiction, international law examines whether there is a particular link between the state and the person or thing when jurisdiction is asserted.

Relevant links include: (l) Whether the person or thing is present in the territory of the state; (2) Whether the person is a national of, or domiciled or resident in, the state; and

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(3) Whether the person, natural or juridical, has consented to the exercise of jurisdiction or has regularly carried on business in the state.

Typically, U.S. courts will: (1) Consider whether the plaintiffs claim arises out of or is related to the defendant's

conduct within the forum state; (2) Assess the defendant's contacts with the forum state to determine whether they

constitute purposeful activity, such that being haled into court would be foreseeable; and (3) Look at the "forum state's interest in adjudicating the dispute; the plaintiffs

interest in obtaining convenient and effective relief, at least when that interest is not adequately protected by the plaintiff's power to choose the forum; the interstate judicial system's interest in obtaining the most efficient resolution of controversies; and the shared interest of the several States in furthering fundamental substantive social policies. Jurisdiction to Enforce: Section 401(c) of the Restatement (Third) asserts that, under international law, a state is subject to limitations on its “jurisdiction to enforce, i.e., to induce or compel compliance or to punish noncompliance with its laws or regulations, whether through courts or by use of executive, administrative, police or other non-judicial action." Enforcement measures include ordering the production of documents, criminal sanctions (fines or imprisonment), or sanctions for the failure to comply with a judicial or administrative order. Limitations set by international law generally provide that a state must first have jurisdiction to prescribe before the state seeks to enforce its law, whether done through its courts or otherwise (e.g., through administrative or police action).

Further, international law requires that a state only exercise jurisdiction to enforce in situations where it is reasonable to do so, measured in proportion to the violation.

Finally, a state may only employ enforcement measures against a person located outside its territory if the person is given:

(1) Reasonable notice of the claims or charges against him, (2) The person is given an opportunity to be heard, and (3) Enforcement is through a state's courts that have jurisdiction to adjudicate.

A state's law enforcement officers may only exercise their functions in the territory of another state with that state's consent. When the United States seeks custody of an individual located abroad, normally it pursues the matter through bilateral channels with the foreign government in whose territory the individual is located.

At present, the United States has a network of bilateral extradition treaties with foreign states which obligate those states to extradite individuals to the United States under certain circumstances (and vice versa). On rare occasions, however, the United States has unilaterally seized a foreign national abroad and brought him to the United States. Generally, U.S. courts have not allowed a unilateral abduction to stand in the way of an otherwise lawful exercise of U.S. jurisdiction over the defendant, absent some express treaty prohibition to the contrary.

PERMISSIBLE BASES OF JURISDICTION The case of S.S. “Lotus”(“THE LOTUS PRESUMPTION”) Facts :

France objected to Turkey's attempt to try a French naval lieutenant for criminal negligence stemming from a collision between his ship and a Turkish vessel on the high seas which killed several Turkish nationals. Turkey's law allowed for such prosecution, even though the act and injury occurred outside its territory. Rule :

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A state is free to exercise its jurisdiction whenever it is not prohibited from doing so by a positive rule of international law. Whatever is not expressly prohibited is allowed on the theory that restrictions on the sovereign independence of states may not be presumed. “The first and foremost restriction imposed by international law upon a state is that failing the existence of a permissive rule to the contrary- it may not exercise its power in any form in the territory of another state.” Holding :

The Court concluded, "all that can be required of a State is that it should not overstep the limits which international law places upon its jurisdiction; within these limits, its title to exercise jurisdiction rests in its sovereignty.”1. Territoriality Principle:

The territorial principle is a fundamental and universally accepted basis for jurisdiction, the principle being that an essential attribute of a state's sovereignty is to have jurisdiction over all persons and objects within its territory. General Rule :

The character of an act as lawful or unlawful must be determined wholly by the law of the country where the act is done. " Pure" territoriality :

The pure territoriality principle is applied when acts or offenses are commenced within the state's territory, regardless of whether or not they were also concluded or consummated there. This principle of jurisdiction is particularly applicable to conspiracies to commit crimes in foreign states. Objective territoriality :

The objective territoriality principle is applied to offenses or acts commenced outside the state's territory, but completed within the state's territory or causing serious and harmful consequences to the social and economic order within the state's territory.2. Effects Doctrine:

American federal courts and the Restatement (Third) have adopted a broad interpretation of the objective territoriality principle based upon effects within a state's territory. In general, the doctrine requires the offender to have the requisite intent, as well some actual effect upon the state.

In United States v. Aluminum Co. of America, the court concluded that after intent was proved, the burden shifts to the defendant to prove that it did not produce some effect. Jurisdiction is sometimes exercised on the basis of reprehensible effects or consequences alone, no matter how minimal or attenuated. Such broad claims to jurisdiction have been criticized by many states and may be contrary to international law in allowing a state's territorial jurisdiction to be virtually limitless. The effects test has been applied in antitrust, securities trading, export controls, and environmental protection, with U.S. courts finding that conduct between foreign companies on foreign soil could nevertheless subject them to U.S. jurisdiction if there are effects in the United States, and perhaps even if only an intent to affect U.S. trade is shown. United States v. Aluminum Co. of America.

3. Nationality Principle: General rule :

The state of a person against whom proceedings are taking place may exercise jurisdiction based on the nationality of the defendant.

A. Nationality of individuals:The right of states to regulate the conduct of their nationals everywhere and thus assert

nationality as a basis for jurisdiction is widely accepted. International law requires that a state must have a genuine link with the person to assert jurisdiction based on nationality. B. Nationality of Corporations:

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Jurisdiction based on the nationality of corporations is controversial because the "nationality" of a corporation is also determined in different ways by different states. Nationality may be determined by state of incorporation, by the location of the principal place of business, or by the nationality of those owning or controlling the corporation. C. Nationality of Vessels :

The nationality of a vessel is determined by the flag it flies, but international law requires a "genuine link" between the vessel and the state. D. Nationality of Aircraft and Spacecraft:

The nationality of an aircraft is determined by its place of registration under the 1944 Chicago Convention on International Civil Aviation. The state of registration may be changed, but registration may not exist in more than one state at a time.4. Protective Principle:

A state may exercise jurisdiction over crimes that threaten its security and integrity or its vital economic interests. The protective principle provides jurisdiction over acts committed outside of a State’s territory that are directed at interfering with the State’s “governmental functions” provided that the act is contrary to the laws of the host State, if such State has a reasonably developed legal system. The reasoning behind the protective principle is that an offense may have extremely grave consequences in one state, but may otherwise go unpunished if the state where the offense was actually committed does not itself consider the conduct to be unlawful. The objection to this basis for jurisdiction is that it is subject to abuse, with each state free to determine what crimes threaten its security. The Restatement (Third) limits protective jurisdiction to conduct generally recognized as criminal by states in the international community. Crimes generally recognized as being detrimental to a state's interests and within protective jurisdiction include espionage, counterfeiting a state seal or currency, and violations of immigration or customs laws.

5. Universality principle:The international community considers some offenses to be so serious that they are subject

to the jurisdiction of all states. Crimes clearly subject to universal jurisdiction are piracy on the high seas, slave trading, and war crimes. U.S. law and multilateral conventions also treat torture, genocide, aircraft piracy, some criminal acts against diplomats, and other crimes as subject to universal jurisdiction. It is unclear, however, whether customary international law recognizes these and other crimes as universal crimes

6. Passive personality principle: An injured person's state may assert the victim's nationality as a basis for exercising

jurisdiction. This principle is not widely accepted for ordinary crimes, so that the principle often overlaps with jurisdiction predicated on universal crimes. In US v. Yunis, the court state that qualified application of the doctrine to serious and universally condemned crimes will not raise the specter of unlimited and unexpected criminal liability.

EXCERCISING JURISDICTIONDiscretion to Exercise Permissible Jurisdiction:

Even if international law permits the exercise of jurisdiction, it is wholly within the discretion of the state whether to do so. For instance, international law permits a state to enact legislation prohibiting its nationals from committing crimes abroad (based on the nationality principle), and many states have enacted such laws.

However, U.S. criminal law is principally regulated by the laws of the several states (not federal law), which in most instances are not interpreted by state courts as applying outside the territory of the state, let alone outside the United States. Consequently, when a US national commits a serious crime abroad, such as murder, normally there are no means for prosecuting that person in the United States, even though international law permits the United States to do so.

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In short, do not confuse the existence of the five principles as in fact establishing jurisdiction by a particular state over particular persons or conduct abroad; national laws determine whether the state has actually exercised the discretion permitted to it under international law. Reasonableness of Exercising Jurisdiction:

Even if a state has enacted a statute exercising jurisdiction under one of the principles discussed above, the exercise of jurisdiction is still unlawful under international law if it is unreasonable.

In determining whether jurisdiction should be exercised, the Restatement (Third) lists as factors to be balanced: the vital national interests of each state Nationality of the persons subject to concurrent jurisdiction; ability to enforce the judgment; the extent to which the required conduct is to take place in another state; hardship to the parties from possibly conflicting national decisions; the existence of justified expectations; and consistency with international traditions.

The Restatement (Third) also concludes that customary international1aw requires jurisdiction be exercised only in a reasonable manner with deference to another state if its interests are clearly greater, although it has been widely questioned whether customary international law does impose such a limitation.Concurrent Jurisdiction:

International law recognizes that more than one state may have jurisdiction over a particular person or event. Concurrent jurisdiction may exist where multiple states have legitimate interests in regulating the same events or persons. Most U.S. courts resort to comity in determining how to balance the exercise of concurrent authority in such circumstances.

Comity:DefinedThe concept of reasonableness is closely allied to the notion of comity among states. Comity

is "the recognition which one nation allows within its territory to the legislative, executive or judicial acts of another nation, having due regard both to international duty and convenience, and to the rights of its own citizens or of other persons who are under the protection of its laws.”

Comity is most accurately characterized as a golden rule (as opposed to a hard-and-fast rule of law) among nations-each state should respect the laws, policies, and interests of others, as it would have others respect their own in similar circumstances. In the United States, courts have resorted to the comity principle as a rationale for refusing to apply U.S. law to foreign persons or events in situations where concurrent jurisdiction exists and for refusing to give effect to a foreign state's law, if that state breached its duty of comity to the United States.

In addition, the United States should not interfere with the laws of another sovereign regarding conduct occurring within its territory. For purposes of comity, however, no conflict exists where a person subject to regulation by both the United States and a foreign state can comply with the rules of both.

Forum on conveniens:The doctrine of forum non conveniens, an exercise of comity, is an often-utilized method for

settling problems of concurrent jurisdiction. Under the Restatement (Second) of Conflict of Laws § 84: "A state will not exercise jurisdiction if it is a seriously inconvenient forum for the trial of the action provided that a more appropriate forum is available to the plaintiff." The Supreme Court has stated that forum non conveniens determinations should be at "the sound discretion of the trial court," balancing "all relevant public and private interest factors."

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Reciprocity Distinguished:U.S. courts have refused to enforce proper foreign judgments on the grounds that the foreign

states have failed to give effect to U.S. judgments. This reciprocity requirement for enforcement of a foreign judgment, generally disfavored today, is more a political tool than a legal principle.EXTRADITION

Extradition is the process by which a person accused of a serious crime in one state (the requisitioning state) and found in a second state (the asylum state) is returned to the requisitioning state for trial or punishment. In the absence of a treaty there is no obligation to extradite. Extraditable offenses : Treaties employ one of two methods for specifying the grounds for extradition:

1. A requirement of double criminality (when the conduct is an offense in both states and punishable by a specified minimum term of imprisonment), or

2. It may list the indictable offenses for which extradition is available. Nationals of the asylum state : State treaties sometimes provide that a state may not or cannot extradite its own nationals. Some treaties with such an exception obligate the asylum state to prosecute its own nationals for the crime if it refuses to extradite.

IMMUNITIES FROM JURISDICTION SOVEREIGN IMMUNITYGeneral Rule

States are generally not subject to the jurisdiction of other states.Absolute Theory:

Absolute immunity is based on the notion that all sovereign states are equal and are not subject to each other's authority. Even absolute immunity did not extend to litigation involving a state's interest in property or other immovables abroad, or its interests in the administration of an estate ill a foreign state's territory.Restrictive Theory:

The modem view holds that a state may be subject to a foreign jurisdiction when it engages in commercial activity. A distinction is made between "commercial" activity or property (acta gestionis) and "public" activity or property (acta imperii). The United States first adopted the restrictive theory in 1952 in the so-called Tate letter from the State Department , to the Justice Department.

Some states employ the nature vs. purpose test to determine whether a state’s activity is a commercial activity Under the "nature" test a state-owned bank extending credits to encourage investment in its country is engaged in a commercial activity. Under the "purpose" test, however, the activity may be regarded as governmental because the bank's activities are serving a public policy interest.

Foreign Sovereign Immunities Act (FSIA) The Foreign Sovereign Immunities Act of 1976 essentially codified the restrictive theory of

immunity. Exceptions to Immunity

A state is presumptively immune unless an exception applies.Immunity does not apply under the following statutory exceptions: (1) Waivers of immunity, commercial activities,(2) Expropriation claims, property claims, ((3) Non-commercial torts,(4) Maritime liens, (5) Counterclaims, and (6) International agreements.

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The party claiming immunity bears the burden of demonstrating that no exception applies.

IMMUNITY OF STATE REPRESENTATIVES Head of state

The immunity of heads of state relies on both sovereign immunity and diplomatic immunity. A suit against the head of state is often treated like a suit against the state itself for purposes of immunity. Heads of state traveling abroad also enjoy the privileges and immunities accorded to diplomats. This immunity applies to heads of state so long as the U.S. government recognizes a person as the head of state.

Not as well developed are issues pertaining to former heads of state and other government officials, particularly with respect to prosecution for human rights violations.

HUMAN RIGHTSINTRODUCTION

Although it is common to note that traditional international law was concerned only with relations among states, in fact it has always been concerned with protecting persons. From its earliest origins, an important component of international law has been the protection of diplomats and envoys sent from one state to another, and the protection of combatants and non-combatants from the excesses of warfare. Further, international law has always addressed the treatment by one state of another's nationals, an area known as "state responsibility for injury to aliens."

These protect state of the foreigner's nationality, not obligations owed directly to the foreigner. Hence, the person had no standing to complain of wrongful conduct under international law. Traditional international law also spoke to the protection of persons against the acts of their own governments. Thus, the idea of a state intervening to protect the other state's nationals (a doctrine now referred to as "humanitarian intervention") was advanced by early scholars of international law.

From Nuremberg to the present, human rights law has evolved in both its substance and process. Whereas the prior focus had been on granting protections for persons from wrongful treatment by foreign governments, the focus is now on protecting persons from any governmental action, including that of their own government. Whereas before the emphasis had been on recognizing the rights of governments to protect their nationals against other governments, the emphasis has switched to recognizing the rights held by persons themselves. Whereas before Nuremberg culpable behavior by leaders of a state might presage a claim against the state, such behavior now serves as the basis of criminal liability of the leader himself.

STATE RESPONSIBILITY FOR INJURY TO ALIENSBefore the emergence of modern human rights law, international law had established rules

on the responsibility of a state to protect aliens within its jurisdiction. While a state was not obligated to allow an alien to enter its territory, once it did, the state was obligated to treat the alien in accordance with a reasonable standard of decency.

At the same time, the alien was required to accept the substantive and procedural law of the state to whom the alien had voluntarily traveled (which need not accord aliens all the rights held by the local population, such as the right to vote); so long as the alien was treated decently, the alien could not complain that the local law was less desirable than that of his home state. Hence, the law in this area sought to balance the right of the host state to maintain its substantive and procedural law with its obligation to treat the alien decently.

States and international tribunals have struggled with what is meant by treating an alien "decently" or "reasonably." Some states have taken the position that so long as the same protection is accorded to aliens as is accorded to local nationals, then there is no violation of international law.

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In other words, so long as an alien receives "national treatment" in the protection of his or her person and property, the state has no further obligation to the alien.

Yet the position that an alien is never entitled to treatment more favorable than that accorded to local nationals is not accepted by international law and practice. Rather, there has emerged a standard referred to as the "minimum standard of treatment" which sets a threshold below which treatment of an alien may not fall regardless of how local nationals are treated.

Under the minimum standard of treatment, a host state is expected to provide a minimum level of police protection for aliens and their property within its territory, and to accord them at least minimal substantive and procedural rights. Modern tribunals continue to express the minimum standard of protection in terms of outrageous behavior by the host government.

In the recent Waste Management, Inc. v. Mexico case, an arbitral panel convened under the North American Free Trade Agreement (NAFTA) stated: the minimum standard of treatment of fair and equitable treatment is infringed by conduct attributable to the State and harmful to the claimant if the conduct is arbitrary, grossly unfair, unjust or idiosyncratic, is discriminatory and exposes the claimant to sectional or racial prejudice, or involves a lack of due process leading to an outcome which offends judicial propriety-as might be the case with a manifest failure of natural justice in judicial proceedings or a complete lack of transparency and candor in an administrative process.

As indicated by the panel, the "minimum standard of protection" includes the idea that an alien should not be denied the benefits of due process of law before a state's courts or administrative tribunals. Such treatment is regarded as a "denial of justice." A denial of justice might arise from an unwarranted delay or obstruction in an alien's access to local courts, a gross deficiency in the administration of the judicial process with respect to an alien's claim, or a manifestly unjust judgment by a local court regarding an alien's claim.

When evaluating whether a state has met its obligation to provide an adequate system of justice, international law takes into account that system's ability to correct its errors through appellate mechanisms made available in the state's system.

In the ELSI case, a Chamber of the ICJ described as arbitrary conduct that which displays "a wilful disregard of due process of law, which shocks, or at least surprises, a sense of judicial propriety.

The Chamber concluded that in the end the question is whether, at an international level and having regard to generally accepted standards of the administration of justice, a tribunal can conclude in light of all the available facts that the impugned decision was clearly improper and discreditable, with the result that the investment has been subjected to unfair and inequitable treatment.

Traditionally, only the state of the person's nationality was entitled to bring a claim against the offending state. As the Permanent Court of International Justice explained: "In taking up the case of one of its nationals, by resorting to diplomatic action or international judicial proceedings on his behalf, a State is in reality asserting its own right, the right to ensure in the person of its nationals respect for the rules of international law." Thus, a state would "espouse" the claim of its national and then proceed diplomatically to resolve the claim, either by a settlement agreement or arbitration.

In modern situations, however, persons may be empowered to bring claims directly against foreign governments, such as by investors against host states under the NAFTA. When modern human rights law first developed, the area of state responsibility for injury to aliens provided a useful starting point. Increasingly, norms associated with modern human rights law are being read back into the law on state responsibility for injury to aliens, to clarify concepts such as "minimum standard of protection" and "denial of justice." Indeed, it is now commonly accepted that states may invoke human rights standards on behalf of their nationals with respect to conduct by other states.

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GLOBAL HUMAN RIGHTS INSTRUMENTSUN Charter:

The principal focus of the Charter was on the creation of an organization that could maintain international peace and security, not the promotion and protection of human rights.Rather strikingly, the preamble to the U.N. Charter begins with "We the Peoples of the United Nations" rather than "We states" or "We governments," a clear recognition that the new organization was the product of the will of persons, not just governments.

Further, the preamble states that, among other things, the "Peoples" are determined "to reaffirm faith in fundamental human rights.” Article 1 then states that one of the purposes of the United Nations is to "develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace," while another is to "achieve international co-operation in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion."

The two main provisions of the U.N. Charter concerning human rights are articles 55 and 56. These articles are the foundation of modem human rights law.

Article 55 states that "the United Nations shall promote universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language or religion." Article 56 states that "all members pledge themselves to take joint and separate action in cooperation with the Organization for the achievement of the purposes set forth in article 55."

The Commission on Human Rights (UCHR) was established in 1946 to draft treaties implementing articles 55 and 56, and these two articles have been the main source of subsequent human rights treaties. The language of article 56 may suggest that the member states are obliged to a progressive rather than present fulfillment of the goals set forth in article 55. The imprecision of articles 55 and 56, however, has led U.S. courts to find that they are not self-executing and do not confer any rights on individuals. Convention Against Torture

In December 1984, the U.N. General Assembly adopted the CAT which entered into force in 1987. Article 1 defines torture in part as any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed, or intimidating or coercing him or a third person, when such pain or suffering is inflicted by or at the instigation of a public official. Article 2 requires all parties to prevent acts of torture in territory under its jurisdiction,

Furthermore, Article 2 provides that no exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture. Article 3 (non-refoulement) obligates the parties not to "expel, return ('refouler') or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture." The US implements this obligation the Immigration and Naturalization Services (INS) and Department of State regulations. Article 4 requires states to take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction and to ensure that all acts of torture are offences under its criminal law. Article 16 requires all parties to undertake to prevent all other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in Article 1, when such acts are committed by or at the instigation of or with the consent or acquiescence of a public

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official or other person acting in an official capacity.On November 20, 1994, the US became a party to the CAT subject to various RUDs including:

That the United States considers itself bound by the obligation under article 16 to prevent "cruel, inhuman or degrading treatment or punishment," only insofar as the term "cruel, inhuman or degrading treatment or punishment" means the cruel, unusual and inhumane treatment or punishment prohibited by the Fifth, Eighth, and/or Fourteenth Amendments to the Constitution of the United States.

That with reference to Article 1, the United States understands that, in order to constitute torture, an act must be specifically intended to inflict severe physical or mental pain or suffering and that mental pain or suffering refers to prolonged mental harm caused by or resulting from

(1) The intentional infliction or threatened infliction of severe physical pain or suffering; (2) The administration or application, or threatened administration or application, of mind

altering substances or other procedures calculated to disrupt profoundly the senses or the personality;

(3) The threat of imminent death; or (4) The threat that another person will imminently be subjected to death, severe physical

pain or suffering, or the administration or application of mind altering substances or other procedures calculated to disrupt profoundly the senses or personality.

That with reference to article 1 of the Convention, the United States understands that "sanctions" includes judicially-imposed sanctions and other enforcement actions authorized by United States law or by judicial interpretation of such law. Nonetheless, the United States understands that a State Party could not through its domestic sanctions defeat the object and purpose of the Convention to prohibit torture.

That with reference to article 1 of the Convention, the United States understands that the term "acquiescence" requires that the public official, prior to the activity constituting torture, have awareness of such activity and thereafter breach his legal responsibility to intervene to prevent such activity.

That the United States understands the phrase, "where there are substantial grounds for believing that he would be in danger of being subjected to torture," as used in article 3 of the Convention, to mean "if it is more likely than not that he would be tortured."

That the United States declares that the provisions of articles 1 through 16 of the Convention are not self-executing.

The US has enacted 18 USC §§ 2340, 2340A which authorizes federal criminal prosecution of US nationals who commit torture abroad, as well as any perpetrator (regardless of nationality) present in the US.

Customary international law in domestic US courtsAlien Tort Claims Act (ATCA)

-Requires P be aliens-Claim damages in tort only-And prove a violation of customary international law or treaties

-Flores v. SPCC-Claim that Peru pollution violated customary int’l law-Held no self-executing treaty applies-And also that customary international law was not proved-P provided evidence in form of treaties, multinational

declarations, general assembly agreements, and scholarly articles-Did not proved violation of customary int’l law

**FSIA does apply to this claim

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Governmental interests comes down to balancing of factors:-Where incident occurred-Who is involved-What laws are involved-What forum it is-Citizenship of parties-Policy of forum-Policy of other place

Governmental Interest Entails 3 steps:1. First look to see if foreign rule differs from forum rule2. Then look to see if a true conflict exists

a. if only one jurisdiction has legitimate interest then its law controls3. Then look to comparative impairment – using the factors (supra)

a. if both have an interest look to see which jurisdiction would be harmed more if its law was not applied

Proving Foreign Law FRCP 44:

-Interpreting foreign law is always a question of law-Allows appellate court chance at de novo review-No deference to trial court-Ruled on by judge since it would be too hard for a jury to understand

-Court can consider any relevant material or source, including testimony-Whether or not submitted by a or admissible under the rules of evidence -Makes it easier for court to do its own investigation-Parties might not submit sufficient proof or sufficiently understand

foreign law-Evidence does not need to be admissible since a foreign country

might have different rules-Also whoever intends to raise the issue must give notice in pleadings or in some other

writing

3 options for court to determine what the foreign law is:1. They can appoint a special master to apply foreign laws

-Henry v. Bahama Cruise (special master to calculate wages)-Special master calculated wages wrongly

2. They can rely on expert witnesses provided by litigating parties-US v. Schultz (experts on Egyptian law)

3. They can interpret foreign law based solely on legal sources they have Themselves gathered and analyzed

-Curley v. AMR-Any relevant material or source-Court does not need to rely on submission

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