Table of Contents

I) Introduction

A) Definition and Sources of Int’l Law

1) Traditional Definition (Brierly): the body of rules and principles of action which are binding upon civilized states in their relations with one another (1963)

(a) No longer valid – focus is on States, all else would have fallen under municipal law or the domestic law of that State

(1) Individuals are derivative, no room for non-state entities

(b) Question the wording:

(1) Binding? – is it voluntarily binding, consequence for not following

(2) Civilized? – because it accepts certain rules as binding?

© Strong moral component to the definition 2) Restatement Definition §101: consists of rules and principles of general application dealing with the conduct of states and of international organizations and with their relations inter se, as well as with some of their relations with persons, whether natural or juridical

(a) Doesn’t seem to contemplate independent actors? Not sure – says int’l orgs.

(1) In class, I think prof said that it does deal with individuals, corporations and other entities

(b) A rather broad definition, can include just about anything

© Binding language has disappeared, as well as “civilized”

(d) Discusses conduct 3) What is it?

(a) Embodied in custom and in treaties

(b) Premised on reciprocity and international law

(1) UN – nearly every nation is a party to this treaty and is therefore bound 4) Sources per the Restatement §102:

(a) Customary law

(1) Defined as resulting from a general and consistent practice of states followed by them from a sense of legal obligation (opinio juris)

(b) International Agreement

(1) Creates law for the states parties thereto and may lead to the creation of customary int’l law when such agreements are intended for adherence by states generally and are in fact widely accepted I Ex: of customary law developed from a treaty – prohibition against torture, widely ratified convention, became CIL

© Derivation from general principles common to legal systems of the world

(1) Invoked as supplementary where appropriate – even if not reflected in CIL 5) Sources per ICJ (Article 38): (note the order is different than R)

(a) International conventions, whether general or particular, establishing rules expressly recognized by the contesting states

(1) Treaties can become CIL

(b) International custom – evidence of a general practice accepted as law

(1) Enforced as domestic law in states, believe the custom to be law I Sources can be – official statements, formal instructions, court decisions, legislation

(2) Key here is “accepted as law”

(3) So long as this is not a jus cogen – these will be enforced above a treaty.

© General principles of law recognized by civilized nations

(1) Ex: no retroactive law making

(2) No substantive provisions – simply background assumptions that virtually all accept

(d) Judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law

B) Historic Development

1) Elaborate agreements were common – conduct of war, inviolability of heralds and ambassadors.

(a) Reciprocity: part of the incentive for creating these rules

(b) Also – a convenience to have rules

© Draw on natural law traditions – messenger in the herald was sacred 2) Grotius was the first to publish (1625) – and included “law of nature”.

(a) Apart from customs and treaties – found primarily on the dictates of reason and on the rational nature of men as social human beings 3) Symbolic starting point: End of the 30-years War and the Treaty of Westphalia (1648)

(a) Europe shifts from a religious futile era to a system recognized in more of territorial way with the treaty taking certain territories out of the grip of the Holy Roman Emp.

(b) The Holocaust changes this “territorial” view – untenable – total territorial sovereignty is not so great, we can’t ignore other states.

(1) Germany defended its right to engage in war as a fundamental right 4) The UN Charter – directly results from WWII

(a) Outlaws the use of aggressive force except in self-defense

(1) First you must use collective mechanisms

(2) Loophole of self-defense. How imminent must the threat be?

(3) Human rights law comes from the UN Charter – meaning you now have states agreeing to limitations on the ways they may treat their own citizens in their own borders 5) Public and Private Law

(a) The distinction between state actions, such as war and human rights, and private int’l agreements entered into corporations and banks.

(b) Prof. thinks the distinction is eroded

C) Is Int’l Law Really Law?

1) Regardless of the views; it is a form v. function argument:

(a) We shouldn’t ask how it works, but rather DOES IT WORK.

(b) For the most part – it works. It is relevant. 2) 5 Factors in establishing law:

(a) The role of institutions:

(1) Lacking executive branch and legislature I Most would assume that without a US-type govt, you can’t really have enforcement

(2) What institutions are in place? I UN A Security Council – permanent members and rotating members which can order states to do things, authorize peacekeeping forces, authorizes force (under Chapter 7) so long as no veto. B General Assembly – representatives of every nation, quasi-legislative functions C ICJ D ICC at the Hague 1. Created by treaty in 1998 2. Jx over parties to the treaty and citizens of member countries – the US is not a member (Bush “unsigned” and was never ratified by Senate) a. Note: the US has acquiesced in some cases to the jx – Darfur. E Ad Hoc Criminal Tribunals (created by the UN Security Council) 1. Rwanda, Kosovo 2. Lack much but have managed to convict some heads of state and sent them to prison II WTO III NATO (North American Treaty Organization) A Meets regularly, makes decisions regarding joint military action (Kosovo) IV EU V G8 – eco and trade policy VI UN High Commissioner for Refugees A Must be externally displaced people in order for commissioner to get involved.

(3) We should question why these institutions are important – if we didn’t have them would it matter?

(b) Enforcement

(1) What are the options for enforcement? Remember – nations only pay attention when it is in their best interest to do so. I When we see compliance – is it voluntary? Or, because of enforcement? II Compliance doesn’t make something LAW.

(2) There are certainly violations and there are substantial costs that result ⇒ BUT it doesn’t mean that the State wouldn’t prefer to incur the costs.

© Violations

(1) Nations do violate int’l law in certain areas more regularly than others – but is it really accurate to say they ONLY comply voluntarily? I The costs are higher for smaller countries, no doubt. II Even the large, however, realize there are costs – doesn’t mean that it isn’t LAW. III IRAQ – no question it wasn’t “legal” – but, the invasion went ahead. Either, int’l law didn’t matter – or the costs that we suffer are a direct result of int’l law, i.e., it does matter.

(2) There is less non-compliance than one would think because although there is not a unitary system of discipline, there are sanctions, formal and informal (can’t use the airports to freeze assets to military force).

(3) Constraining capability – I May not prevent some things, but may constrain options or choices II Even the US had to couch the invasion in “your legal interpretation is wrong”

(4) Compliance pull – I Maybe we shouldn’t be so concerned with actual compliance II Most people do comply because they believe it is legitimate A Smaller countries in particular find it much more compelling III Law is unquestionably not equally applied – only 5 members have veto power A Doesn’t mean it isn’t LAW

(5) Most important aspect of this debate – is not whether or not it is law; but what the law does and doesn’t do and how to change it to make it better

(6) New Orleans I Because there was a breakdown and lawlessness ruled for a time – never implied that law no longer existed

(d) Source of Law

(1) Can be mechanisms that cause states to behave in certain ways – even against their self-interest

(2) No “world legislature” I There is a democratic deficit – these people are not elected II The form of it may appear legislative i.e., they vote in the General Assembly and there are other ad hoc bodies. A But who picks these people? What about the countries that aren’t democratic? III The average American has no ability, really, to affect the terms of a treaty.

(e) Perceptions

(1) Int’l norms – what states think of the norms makes a tremendous difference in whether they will comply I Where we feel legitimate, we are more likely to comply II The more involvement in the formation – the more likely to comply

(2) Nobody asserts that int’l law is irrelevant I Just like Con Law – its affect on the people is that we frame our arguments and debate them in certain ways, and there are certain positions we simply can’t take II Int’l law is the same – it frames the argument and debate that goes on A Are the powerful nations together? Split? B Doesn’t dictate answers – only the argument and debate

(3) Int’l law is more, relates to the mundane everyday transactions despite the perception. People think of int’l law as two things: I Human Rights II Laws of War (use of force) 3) Laws of War

(a) JAG – rules of engagement determined in coordination with legal personnel

(b) Most of the laws of war are not controversial – only the fringe wars that get much attention

© Uniform Code of Military Justice – corresponds to Geneva Convention

(1) People are investigated and disciplined according to these laws

(2) Domestic law that derives from int’l law

(d) What if there is a violation of these laws?

(1) Taliban – can’t sanction them any more than they already were

(e) What if you capture them?

(1) Military tribunals for opposing forces – possibly punishment by death

(2) Ad Hoc tribunals – get Security Council Authority I Not ICJ – Taliban is a non-State actor and cannot be brought before the court

(f) ICC – you can bring individuals before this court, but the US is not a party and Afghanistan hadn’t ratified when the atrocities occurred

(g) Domestic Courts?

(1) Alien Torts Claims Act – used extensively and huge judgments (by default usually) I Implicates many foreign affairs II Enables private actors and judges to freeze assets and issue judgments against foreign govts and their actors III Almost no other country has an analogous remedy

(h) Universal Jx

(1) Complicated b/c is this natural law? What about political motivations? What about a country w/ unfair legal practices?

(2) You can love it – puts violators on notice; no safe haven; limits movement and support

(3) You can hate it – so ad-hoc that it is open to abuses; if you really want to do this correctly there must be an int’l ct. 4) Natural Law v. Positivism

(a) Natural Law – every state is endowed with certain fundamental, or inherent, natural rights.

(1) Self-preservation

(2) Independence

(3) Equality

(4) Respect

(5) Intercourse

(6) United States v. La Jeune Eugenie - Justice Story – slaves should be returned; violates the laws of nature, God, morality I Laws of nations cannot violate the law of nature II These rules bind nations regardless of whether they have consented to the rules

(7) Problems? Who decides what this law is? A sort of cultural relativism. Moralistic view.

(b) Positivism – int’l law is the sum of the rules by which states have consented to be bound, and that nothing can be law to which they have not consented

(1) A sovereign state is not subject to law, so that if int’l law is binding on a sovereign state it must be because the sovereign has consented to be bound by int’l law

(2) Given expressly (treaty) or implied by a state acquiescing to a customary rule

(3) The Antelope - Justice Marshall – law is just what states say it is, and whatever they want it to be I Orders slaves returned (despite abhorrence) II Look around and determine what the law is – slavery at that time did not violate under this view of int’l law

(4) Benefits? Has clarity – treaties and customary evidence, there is a place to go

(5) Problems? Identical to natural law – no int’l law prohibited death camps in Nazi Germany. Who determines what the law is? I This doctrine does not explain why consent is binding or why it cannot be revoked

© Challenge? Assumes State – whether it be the based on the consent of States or on the fundamental natural rights of a state. What about the rise of non-state actors.

(d) Human Rights Law – no reciprocity, or in contractual terms, no consideration

(e) Jus Cogens norms – customary based law that is not a treaty

(1) Torture, slavery, genocide ⇒ you can’t bargain these away

(f) It is a hybrid of both (natural law, jus cogens, and positivism) and this can’t always be reconciled and neither can be maintained in theory

D) Case Study – September 11, 2001

1) 9/14 – Congressional Authority to use force (P. 70)

(a) Could he have gone to war without it?

(1) Constitution says that Congress must declare “war” – but “war” is a more archaic term.

(2) President is the Commander in Chief – but Congress authorizes the cash flow

(b) Seems as though they delegated this power to the President

© But – limitation seems to be involvement specifically n 9/11 2) 9/23 – Assets blocked via the President invoking the IEEPA powers (Int’l Emergency Economic Powers Act) which allow the Pres. sweeping emergency powers in the int’l arena

(a) Organizations or Individuals supporting or harboring are affected

(b) US Persons holding funds – even overseas 3) State Recognition – Taliban

(a) De Facto Govt.

(b) State of Afghanistan – state exists technically and legally (member of the UN)

(1) Government – recognized govt was the Northern Alliance, which was toppled by the Taliban. But – Northern Alliance still held a seat at the UN. 4) Self-Defense (Article 51, UN Charter)

(a) Specifically states “nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the UN…”

(b) Chapter VII (mandatory on states)

(1) Art 39 - Security Council determines the existence of any threat to the peace, or act of aggression and shall make recommendations or decide what measures shall be taken in accordance with 41-42 to maintain or restore int’l peace or security.

(2) Art 41 – short of armed force: economic sanctions

(3) Art 42 – use of armed force as necessary to maintain or restore peace 5) 9/12 - UN Security Council Resolution 1368

(a) Starts out by recognizing the inherent right of self-defense, sort of implies this is exactly that type of situation

(b) Unequivocally condemns – regards as a threat to int’l peace & security (magic legal words) 6) 9/28 – U.N. Security Council Resolution

(a) Calls on States to take action against terrorism

(1) Note: doesn’t bind the Taliban but does bind Afghanistan I Problem here is enforcement and who is bound 7) Difference between this action and Kuwait?

(a) Kuwait was a member and Iraq didn’t justify in legal terms

(b) No self-help allowed 8) Kosovo?

(a) Illegal – no Security Council resolution because Russia/China would have vetoed

(b) Seemed compelling – emerging norm that we don’t allow States to slaughter their own people

© NATO goes in anyway 9) Doctrine of Humanitarian Intervention

(a) Chapter VII has been used to justify the use of force in the past, such as Somalia and Haiti. Not expressly prohibited in the Charter

(1) Art 2 (4) only prohibits the use of force in a manner inconsistent with the purposes of the UN

(2) The only authorized use of force is for self-defense and regional defense

(3) Note: usually the Security Council will throw in those magic legal words. I “A threat to int’l peace and security” invokes the use of Ch. VII

(b) Allowing the UN Charter to be interpreted in a way that the use of force would be authorized for humanitarian intervention opens the possibility that all humanitarian concerns will be used as a pretext for otherwise impermissible use of force, thus undermining the essential purpose of the charter – the promotion and maintenance of peace. 10) Human Rights Issues in the above UN Charters

(a) Unintended consequence – gave cover to all countries to crack down on “terrorism”

(1) Couch other issues in the combat of terror

(2) There were no clear actions required before this “crack down” could occur

(b) No reference to humanitarian issues in these resolutions 11) What about military action?

(a) What governs the conduct in Afghanistan?

(1) Laws of War?

(2) Geneva Convention? (p. 998) I Afghan is a party–Taliban is not II Afghan is bound i.e., the Northern Alliance while the Taliban is not III Not clear if the US is bound vis a vis the Taliban – if they had volunteered to be bound, then US would have been as well.

(3) JAG – cultural compliance with Int’l Law, a body of lawyers whose job it is to advise on how to comply with the Laws of War

II) Sources and Evidence of Int’l Law

A) Treaties

1) A treaty creates int’l legal obligations with corresponding duties of compliance and remedies – including right of retaliation in the event of a breach

(a) Subject to the rules laid out in the treaty and to CIL (roughly equivalent to common law)

(b) Important source of int’l law

© May also create domestic legal obligations 2) Bilateral or Multilateral

(a) Treaty, convention, agreement, covenant, charter, statute and protocol 3) United States

(a) Only considered a treaty when entered into by the president with the advice and consent of the senate. (Article II Treaty) This becomes the “Supreme Law of the Land” and is equal to statutes, trumping any state authority (Missouri v. Collins).

(1) Note – this allows Congress to pass a treaty in an area they could not pass a Statute. This is an independent source of congressional authority.

(2) Ratification – President writes a formal letter (instrument of ratification) and sends it to the relevant party.

(b) Stages of treaty making in the US:

(1) Pres. negotiates – usually diplomats from State Dept. and others, return and present to the US

(2) Pres. can sign without submitting to the Senate (Executive Agreement)

(3) Pres. can sign and give to the Senate and sit on it (no requirement they vote on it)

(4) Pres. can choose not to ratify after consent from Senate I Usually occurs where there has been a change in the administration

© Bifurcation: Article II Treaty validly entered into, a new congress comes in and passes a statute with terms that contradict the treaty (last in time). Congress is deemed to have overruled that treaty. This does not affect our Int’l obligation.

(d) Executive Agreements: those entered into on the basis of his independent constitutional authority (Commander-in-Chief) even though they may be called Treaties for int’l law purposes

(1) Case Act (1 U.S.C. § 112b) – requires the Secretary of State to transmit to the Congress a copy of all int’l agreements concluded by the US without the advice and consent of two-thirds of the Senate I Enacted in 1972 – congressional effort to control the presidential power in foreign affairs II In passing, Congress has implicitly recognized the President has some executive authority to enter into binding agreements.

(2) SOFA (Status of Forces Agreements) I Detail where our soldiers overseas will face criminal charges, etc.

(3) Congressional executive agreements: simply approved by the Congress by a majority (not two-thirds). I Functionally equivalent to a treaty in US Courts II What if they don’t approve? Vietnam – executive agreements got the soldiers there. War Powers Resolution (1973) seems to implicitly acknowledge that the President has the ability to introduce US Armed Forces into hostilities in certain situations. 4) Formation

(a) R § 301 – basically, an agreement between states on matters other than purely commercial matters that aren’t intended to be governed by int’l law and it is one that is intended to be binding when entered into

(1) Therefore – the president may enter into agreements that are bad for domestic reasons but it will only mean that he has trouble at home

(b) Vienna Convention on the Law of Treaties

(1) International Law Commission (created by the UN General Assembly in 1947) set out to promote the progressive development of int’l law and its codification

(2) Sets forth the rules governing the formation, interpretation, and termination of treaties I Entered into force in 1980 (took 20 years) II US has signed but not ratified (US Courts have relied on it and the R documents acceptance of the terms of the Convention by the US)

(3) Article 2 defines a treaty as an int’l agreement concluded between States in written form and governed by Int’l Law I Written – but under CIL oral agreements are no less binding A Ex: Eastern Greenland Case – case where Norway says they are just kidding about the oral agreement reached: Denmark acknowledges Norway’s sovereignty over Spitzbergen in exchange for Norway acknowledging Denmark’s sovereignty over E. Greenland. ICJ says this agreement is binding (beyond all dispute the oral agreement is binding) 1. Look to the consideration – would one agree to recognize without some consideration? (careful though, consideration is NOT required in int’l law, but indicates intent) 2. We need some evidence of intent to be bound II Governed by Int’l Law? Seems to be based on intent of the parties. A If stated “this is not binding under int’l law” – then it isn’t. III Sierra Leon – amnesty provided in exchange for peace. A peace treaty but not between states. A Implication is that it can’t bind the Parties – int’l community is not prohibited from prosecuting these actors who received amnesty

(4) Article 11 – details the means of expressing consent as signature, exchange of instruments constituting a treaty, ratification, acceptance, approval or accession, or by any other means if so agreed I Usually treaties have some bifurcated process – two steps before entering into force, i.e., signature and ratification.

(5) Article 18 – Obligation not to Defeat the Object and Purpose of a Treaty Prior to its Entry Into Force I Obliged not to defeat the object and purpose when: A It has signed or exchanged instruments subject to ratification until it has made its intention clear not to become a party to the treaty OR 1. This is likely why Bush made it a point to “unsign” the ICC treaty B Expressed consent to be bound pending entry into force (provided no undue delay) II Hardest case is how to define the “objective purpose” A Ex: UN Convention on the rights of a Child 1. We signed but didn’t ratify – we were at the time executing children (under 18) 2. Are we defeating the objective purpose? a. Is the purpose really to prevent 17 year olds from being executed? Not likely – so this likely doesn’t defeat the “objective purpose” but an argument could be made b. Treaty has several articles – lots of topics covered 3. Different threshold here – a. You could breach the treaty had it been ratified b. You could argue a non-ratified treaty breach may not breach the objective purpose

© Even if not legally binding, it may still carry force as a “political commitment”

(1) States view it as a political or moral obligation and intend to carry it out in good faith

(2) Violation of a political agreement justifies the victim of that violation in using all the means permissible under int’l law to bring about cessation and obtain reparation (Article 33 of the UN Charter allows parties to submit for settlement) 5) Reservations (Section 2, Articles 19 – 23) (multilateral treaties only)

(a) Article 2 (1) (d) defines a reservation as a unilateral statement made by a State when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or modify the legal effect of certain provisions of the treaty in their application to that State

(b) Multilateral treaties would be difficult to agree to without some flexibility to overcome those hurdles

(1) Anything from not wanting the procedural obligations to apply to them, or making sure the obligations are compatible with peculiarities of its local law

(2) Ex: “with regard to Art. X(x) we will not comply or will comply if we can modify it in this way”

© Article 19 – Formulation of Reservations

(1) A state may formulate a reservation unless: it is prohibited by the treaty; treaty provides for specified reservations which do not include the reservation in question; OR the reservation is incompatible with the object and purpose of the treaty

(d) Article 20 – Acceptance of and Objection to Reservations

(1) If expressly authorized, no subsequent acceptance necessary unless provided

(2) If it appears the application of the treaty in its entirety is an essential condition of the consent of each one to be bound by the treaty, a reservation requires acceptance by ALL parties

(3) When the treaty is a constituent instrument of an int’l org., then the reservation requires acceptance of the competent organ of that org.

(4) If the reservation fall under the above, an objection does not preclude entry into force unless a contrary intention is definitely expressed by the objecting State I As soon as another state accepts – the reserving State is bound II An objecting state may say the treaty will not be in force between themselves and the reserving state (must be explicitly stated) III Note, would seem to make these treaties pointless – however, there is a diplomatic shaming effect

(5) Prof – reservations are a powerful tool. Why make a reservation instead of signing it?? Because of the political and diplomatic consequences – who wants to be the country who didn’t sign the human rights treaty? I In treaties with ratifying requirements – if a sufficient number object to a reservation (saying it won’t go into effect) you can get to a pt where not enough have ratified.

(e) Article 21 – Legal Effects of Reservations and of Objections to Reservations

(1) A reservation modifies for the reserving State in its relations with that other party the provisions of the treaty to which the reservation relates to the extent of the reservation and modifies those provisions to the same extent for that other party in its relations with the reserving State

(2) DOES NOT modify provisions for the other parties

(3) If entry into force was not opposed in the objection to a reservation – the provisions to which the reservation relates do not apply as between the two States to the extent of the reservation

(f) Article 22 – Withdrawal of Reservations – just know that it is possible.

(g) Article 23 – Procedure – reservations, objections, and acceptances must all be in writing and communicated to all states that have an interest.

(h) Prof – 12 months to make objections otherwise, you have been deemed to accept

(i) Prof – You can look at reservations as undermining treaties or a useful tool that is a flexible regime to accommodate the needs of all parties. 6) Interpretation

(a) Pacta sunt servanda – every treaty in force is binding upon the parties to it and must be performed in good faith

(1) Restatement § 325 comment says: most important principle of int’l law.

(2) Prof. – basic rule of int’l law is that promises are supposed to be kept and int’l law won’t work unless this is followed to some extent.

(b) Articles 31 & 32 of the Vienna Convention

(1) Interpreting body must conclude that the ordinary meaning of the text is either obscure or unreasonable before it can look to “supplementary means” I Policy reasons: in a multilateral treaty you want to have one central meaning – precisely trying to avoid the various meanings each party may attach. We don’t want states attempting to wiggle out of agreements. II States that later on want to become party to a treaty – they won’t want to if they think the treaty will be fluid or susceptible to different meanings or interpretations.

(2) Reluctant to use materials constituting the development and negotiation of an agreement as a guide to the interpretation (travaux preparatoires)

(3) Note the difference between these rules and the US Courts who tend to look at intent and the legislative history. (also different from ICJ, though not as severe) 7) Invalidity of Treaties (Articles 46 – 52 of Vienna Convention)

(a) Article 46 – Competence to Conclude Treaties

(1) A state may invoke that its consent was expressed in violation of internal law regarding competence to conclude treaties to invalidate (unless the violation was manifest and concerned a rule of its internal law of fundamental importance)

(b) Article 47 – Specific Restrictions on Authority to Express the Consent of a State

(1) States must make clear to other negotiating States prior to the expression of consent that the representative does not have complete authority – otherwise it may not be invalidated

© Article 48 – Error – the error must relate to a fact or situation which was assumed by that State

(d) Article 49 – Fraud – fraud must have induced the state to conclude the treaty

(e) Article 50 – Corruption of a Representative of a State – expression of a State’s consent has been procured through corruption of its representative directly or indirectly by another negotiating State.

(f) Article 51 – Coercion of a Representative of a State – consent has no legal effect when it is procured by the coercion of its representative through acts or threats directed against him

(g) Article 52 – Coercion of a State by the Threat or Use of Force – a treaty is void if its conclusion has been procured by the threat or use of force in violation of the principles of int’l law embodied in the Charter. (not retroactive per Prof because of colonial powers – would open can of worms)

(1) Considerable debate – Sinclair calls it “a rule of absolute nullity”

(2) What does the expression mean? Threat or use of force? I Economic pressure? (Indonesian agreement) Prof says does not apply to economic or political coercion, i.e. sanctions or political arm-twisting. II Agreements resulting from crisis? (Algiers Accord which released Iranian hostages)

(h) Jus Cogens (Article 53) – can’t have a treaty to contradict these (see further discussion below)

(1) Analogous to unconscionability in contract law - unenforceable 8) Suspension, Termination & Withdrawal

(a) By agreement/consent (Article 54, 57)

(1) Easy in bilateral agreements

(2) Multilateral – see Article 58. I Two or more parties may suspend between themselves alone A Possibility must be provided for by the treaty B Not prohibited and doesn’t affect the enjoyment by the other parties and is not incompatible with the object and purpose of the treaty

(b) Terms (Article 54, 57)

(1) Many specify, if and when they shall end I Ex: expiration dates; at the pleasure of either party

© Nature of Treaty (Article 56 (1) (b))

(1) A right of denunciation or withdrawal may be implied by the nature of the treaty so long as it is established that the parties intended to admit the possibility of denunciation or withdrawal

(2) Only applies where no provision regarding termination; requires twelve months (2).

(d) Material breach (of other party) (Article 60 – actual sections below)

(1) Bilateral – other party may invoke breach as ground for terminating or suspending in whole or in part I Language – withdraw from a multilateral, terminate a bilateral

(2) A material breach of a multilateral treaty entitles: I (a) other parties by unanimous agreement to suspend the treaty in whole or in part OR to terminate it either: A (i) between themselves and the defaulting State OR B (ii) between all the parties II (b) specially affected party may invoke it as a ground for suspending the operation in whole or in part in the relations between itself and defaulting State III © any party may invoke as a ground for suspending in whole or in part with respect to itself IF the treaty is of such a character that a material breach of its provisions by one party radically changes the position of EVERY party with respect to the further performance of its obligations under the treaty

(3) Material breach consists in: I (a) repudiation of the treaty not sanctioned by the present Convention II (b) violation of a provision essential to the accomplishment of the object or purpose of the treaty A Professor – look to the genuineness of this argument when applying © above.

(4) Paragraphs are w/out prejudice to any provision in the treaty applicable

(5) Paragraphs 1 and 3 – cannot apply to provisions relating to the protection of the human person contained in treaties humanitarian in character I Prof – everyone should observe human rights regardless of breaches

(6) Professor comments: I Efficient breaches – note in multilateral treaties, breach by one state permits the other state to suspend – i.e., won’t fulfill their end b/c you aren’t fulfilling yours – but this is not w/d – this is temporary, you can “unsuspend” without renegotiating A Bilateral treaties allow for termination II You must still take formal steps to terminate or suspend the treaty – as with reservations. (Article 65) A Make a written statement – if the other party doesn’t object, you are out. 1. Object? You must seek resolution ask indicated in Article 33 of Charter 2. If no solution to the objection in 12 months, then ICJ or arbitration under Article 66 (but I read this to mean only disputes re jus cogens) a. Note – not all states are subject to the jx of the ICJ, could cause a problem whereby a State would have to volunteer B 3 month default to suspend or terminate (Article 65 (2)) C Article 66 – Annex to VC contains a provision for UN to create conciliation convention – however Prof says this is non-binding arbitration. 1. Thus, remedies require voluntary submission – but usually States will work it out

(7) Remedies? I Specific performance – offending state agrees to make good the breach (we will let you back into our ports) II Damages – expectation, punitive III Note – mechanisms are voluntary, however, there is a high cost to pay for not agreeing – States are members to complex relationships and the costs of being a bad actor are high. A Shadow of the law settlements

(e) Supervening Impossibility (Article 61)

(1) Ex: Rights to navigate a river that dries up.

(2) The impossibility must result from the permanent disappearance or destruction of an object indispensable for the execution of the treaty (if temporary – then only suspend)

(3) Not used if the impossibility is a result of the breach by that party (Hungary v. Slovakia)

(f) “Fundamental change of circumstances” (Article 62) Terminate or Suspend

(1) Occurs with regard to those circumstances existing at the time of the conclusion of a treaty and which are not foreseen by the parties (Hungary v. Slovakia)

(2) Existence of those circumstances must constitute an essential basis of the consent of the parties to be bound by the treaty AND

(3) Effect of the change radically transforms the extent of obligations still to be performed (Hungary v. Slovakia)

(4) CANNOT invoke: I Boundary establishments (colonialism - those states must respect boundaries) II Result of a breach by the party invoking it

(g) Conclusion of a Later Treaty – Article 59 (not discussed in class)

(h) Hungary v. Slovakia – 1997

(1) ICJ rules on validity of Hungary’s termination of a Treaty with Slovackia’s predecessor (Czechoslovakia). ICJ uses the Vienna Convention as CIL (since not yet ratified by those countries). I Hungary uses impossibility of performance – not allowed where the termination results from the party’s own breach II Hungary uses change in circumstances – court says doesn’t transform the extent of obligations. Additionally, it requires unforeseeability and environmental law changes and political issues were not completely unforeseen. Not an essential basis of the consent of the parties. Exceptional circumstances only! III 6 Days notice of termination – not long enough – the Vienna convention reflects the obligation to act in good faith and 6 days does not meet that standard

B) Customary Int’l Law

1) Historically, all was customary law until the 19th Century when we begin to see multilateral treaties. Begins with the League of Nations (goal to codify and correct defects). Replaced by UN.

(a) Now – CIL and law by agreement (treaties) have equal authority as int’l law – See R §302 (f) 2) Written law is increasingly replacing the older customary laws. 3) Definition: traditionally consist of two main parts

(a) Subjective component – some sense that the States undertaking practices do so out of some obligatory feeling

(1) Opinio juris sive necessitates – mutual conviction that the recurrence is the result of a compulsory rule I Recurrence develops into an expectation that in similar future situations the same conduct will be repeated, evolving into a right and obligation II Wouldn’t occur where comity or courtesy is the motivation

(2) Ex: Ambassadors uniform – if just a tradition or custom in the weak sense (habit or convenience), the mere fact that they all do it does not make it a binding norm of CIL I If because they think it is LAW, then we will call it CIL

(b) Objective component – state practice 4) Restatement §102 (2) – a general and consistent practice of states followed by them out of a sense of obligation

(a) There is no need to show that the custom has been followed for centuries but for a short time everyone has done something consistently out of a sense of legal obligation

(b) No need for universal following – i.e., fishing rights can be CIL despite landlocked states not following or caring about them

© Contains the subjective element but doesn’t require formal official statements – acts and omissions will qualify, formal and administrative instructions to the State’s officers, other circumstantial forms.

(d) A norm of CIL is not binding on a state that declares its dissent from the principle during its development (must object in an open and consistent way). Called the “persistent objector” rule.

(1) Cuba story – explicit objection, but allows treaty to go forth.

(e) A rule established by agreement supersedes a prior inconsistent rule of CIL (unless a contrary intention is evinced)

(f) A new CIL will supersede inconsistent obligations created by earlier agreement if the parties so intend and the intention is clearly manifested 5) ILA (R is more authoritative, above, in the US)

(a) Defines as created and sustained by the constant and uniform practice of States and other subjects of int’l law in or impinging upon their int’l legal relations, in circumstances which give rise to a legitimate expectation of similar conduct in the future

(1) Legitimate expectation – seems to indicate subjective component is in definition.

(b) This definition also contains the “persistent objector” exception.

© Not usually necessary to demonstrate a subjective element before a customary rule can be said to have come into being (prof. thinks this is overstated) 6) States that come into existence after are still bound by CIL - (Can’t be a subsequent objector) 7) Explicit objections only - you can’t just not follow it, you have to object openly and consistently 8) State Practice:

(a) What might be evidence of state practice?

(1) Range of things – what they actually DO, i.e., do they station boats 15 miles or 2 miles out? What is done when mysterious ships show up? Reciprocal – how close do they allow US ships to get when shipping stuff, what about other countries? Press statements, public measures. Look at everything you can to try to demonstrate – even court disputes. 9) Opinio Juris – evidence?

(a) Look to the same things as state practice, i.e. formal statements, nature of acts or omissions, maybe can infer from State Practice.

(b) Just be sure to discuss why it is or isn’t convenience or habit – but obligation.

© Example: Dept. of State issues ruling on Guantanamo Prison and gives disclaimer – “this is in no way a legal obligation, but a matter of policy” They are laying the claim as a persistent objector. 10) CIL from a treaty?

(a) Treaties only bind parties to the treaties. Sometimes the treaties are entered into to codify already existing CIL.

(b) After some period of time, it looks like certain provisions of treaties become norms of CIL

(1) No set rule of how you know what makes something CIL – the minimum you could say is that treaties would be one of the forms of evidence mentioned above as evidence of CIL. 11) Instant CIL?

(a) General Assembly Resolutions – not a formal source of law but you could turn them into evidence of CIL – could be opinio juris (not a Security Council resolution or treaty, so not as significant)

(1) Not particularly obvious, however, that nations expect their reps to be authorized to make binding commitments.

(2) Is the Resolution unanimous? This might be given more weight.

(3) Draw a distinction between declarations of a principle as opposed to a mere declaration. I Declarations purport to express the community opinion – not a recommendation II Whether we give legal effect depends on two things (Schachter): A Whether the States actually mean to express that conviction (vote against nuclear weapons doesn’t mean they don’t intend to acquire them) B Whether the assertion in good faith by all States that a norm is legally binding is sufficient to validate the norm as law even though State practice is negligible or inconclusive III Do we really think that governments intend to be bound by Assembly Resolutions and that their representatives really have the authority to bind the govt.? A Does their failure to object really mean they are voting for a legal norm? IV Book seems to think it should be treated as evidence – rather than as a source. A Determine whether State practice both before and after the adoption varies.

(4) Prof – reasons for instant CIL. I Increasing role of non-state actors – challenging the centrality of states as makers of int’l law. A Lobbyists have increased – exerting a powerful influence.

(5) If a resolution just restates what everyone already does (outerspace declaration) – CIL

(6) What is the effect of a resolution on Non-Concurring States I Can’t be bound by a resolution, per se II BUT – South African Apartheid showed that persuasive evidence of an existing obligation might bind a dissenting State. A Their failure to comply did not vitiate this conclusion – and through sanctions and other pressures this ended. B Their dissent didn’t deprive the resolution of its evidentiary force

(b) Effect of Treaties on CIL

(1) Treaties speed up the slow process and form conclusive evidence of otherwise “soft law”

(2) Evidence of universal CIL only when States not parties to them conform their practice

© North Sea Continental Shelf Case – the ICJ found an indispensable requirement that State practice should have been both extensive and virtually uniform in the sense of the provision invoked – occurring in such a way as to show a general recognition that a rule of law or legal obligation is involved 12) CIL where there is no State Practice but hefty Opinio Juris

(a) Torture – nobody would argue it isn’t CIL, but it goes on everywhere

(b) Her suggestion in determining:

(1) Continuum – one hand you have practice and the other opinio juris (subjective). Generally you need some of each. The more you have of one, the less you need of another.

(2) If you have a lot of consistent practice, but can only find relatively small opinio juris – you could still probably make a fairly persuasive claim that the practice is engaged in because it is abiding by a rule.

(3) Discuss culture issues, if any. Right to culture.

(4) Distinction between traditional CIL which developed over a lengthy time, but during the last 60 years, rapid proliferation of treaties, int’l forum, phenomena that there is instant CIL. Don’t have a lot of years to fall back on. Yet it seems clear that everyone acknowledges. On the one hand – torture – one where nobody says it is fine. General rule of thumb – the greater the amount of agreement, the less you are going to need to show that everyone is consistently practiced.

(5) There are those who object to the whole notion of modern CIL – in this era of treaties we should discard it except as a gap filler. Too easy to make these agreements. Distorts the traditional understanding.

(6) Look out for novel CIL – is there really a norm.

C) Jus Cogens and General Principles of Int’l Law

1) General Principles of Int’l Law

(a) Article 38 of the Statute of the ICJ lists one of the sources of int’l law as “the general principles of law recognized by civilized nations

(b) R refers to “general principles common to the major legal systems of the world”

© Used when no law covers exactly the point before the Court i.e., no statute or judicial precedent (Prof refers to it as gap-filling)

(1) Common due to underdevelopment of the system in relation to the needs faced

(2) Judges I Will work to deduce a rule that will be relevant II Create one from analogous situations with existing rules III Directly from the general principles that guide the legal system A Emanating from justice B Equity C Consideration of public policy

(3) Chorzow Factory Case 1928 - Court declared “it is a general conception of law that every violation of an engagement involves an obligation to make reparation”

(4) Prof – more common in evidentiary issues i.e., should circumstantial evidence be allowed? I Corfu Channel case – circumstantial evidence is admitted in all systems of law and its use is recognized by int’l decisions.

(5) Administrative Tribunal – found a judgment rendered by a judicial body is res judicata and has binding force between the parties to the dispute

(6) Estoppel – court applied in one instance and not another – court has the discretion so long as customary int’l law doesn’t provide the solution (or some other source)

(d) Erdemovic – convicted of participating in mass executions of unarmed Bosnian Muslims, plead guilty, but, states it was under duress, i.e. he would have been killed had he not done it.

(1) Issue – court had to determine whether duress was a complete defense for the  - did so by reviewing the penal codes of 15 countries with civil law and case law of 8 countries. The concluded that it was largely inconsistent whether it applies to war crimes or crimes against humanity.

(2) Result – duress didn’t afford a complete defense to a soldier who was charged with a crime against humanity and / or a war crime involved with the killing of innocent human beings.

(3) This is the difference between the court finding it a mitigating defense and an affirmative defense. 2) Jus Cogens

(a) Cannot be bargained out of (CIL probably could)

(1) Peremptory norms – so fundamental that states cannot agree to contravene

(b) Article 53 of the Vienna Convention – a treaty is void if conflicts with a preemptory norm of general int’l law – defined as a norm accepted and recognized by the int’l community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general int’l law having the same character

(1) Note there is no agreement on the criteria for identifying the norms that are peremptory

(2) Article 44 (5) – the WHOLE treaty is void if it contains any provision in conflict with jus cogens

© Article 65 of the Vienna Convention – if a new peremptory norm of int’l law emerges an existing treaty which is in conflict with that norm becomes void and terminates from the time the norm is established

(d) Can’t be a “persistent objector”

(e) There is no defense

(f) Examples – so universally accepted that a court will generally say they don’t care

(1) Piracy

(2) Prohibitions on slavery

(3) Genocide

(4) Torture (arguable)

(g) Legal Positivists – concept does not exist or is too vague to be given legal meaning

(1) Free-will of the parties, i.e., consent only

(2) Goldsmith & Posner – treaties are law, but customary int’l law only reflects the confluence of state interest or coercion to compliance, convenient or forced, no normative pull

(3) Basically no need for opinio juris

(h) Natural Law – jus cogens limitation to the contractual power of parties was one common to all legal systems – sort of “public policy”

III) Int’l Law in the US Legal System

==A) Scope of the Treaty Power 1) Four types of US Treaties:

(a) Article II – Formal Treaty

(1) He shall have Power, by and with the advice and consent of the Senate to make Treaties, provided two thirds of the Senators present concur…

(2) Supreme Law of the Land: I Article VI Supremacy Clause: The Constitution and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, under the Authority of the United States shall be the supreme Law of the Land

(b) President may conclude int’l agreements on behalf of the US on the basis of US Congressional authorization

© President’s independent constitutional authorization to conduct foreign affairs – i.e., no Congressional approval

(d) President has authorization contained in an earlier Article II treaty 2) Vienna Convention uses the term “treaty” in a broader sense than the US Constitution

(a) One of the reasons that we didn’t ratify the Vienna Convention was that it would make any executive agreement a treaty. But we treat them equally anyway – so distinction without a difference 3) Scope of the Treaty Power and Limitations

(a) Subject matter limitation?

(1) Been said that the scope is limited to matters of int’l or external concern – however, those lines seem to be much blurrier, i.e., human rights can be both. I Seems like the distinction is no longer valid, but this could eat up descriptions in the Constitution (Brooks). Leaves us with some uncertainty.

(2) R 3rd – Constitution does not require that an int’l agreement deal only with ‘matters of int’l concern’ I US may make any agreement on any subject suggested by its national interests in relations with other nations.

(3) Supreme Court I Dicta uses simultaneous language – treaty power is broad…as long as it is used properly

(b) Federalism

(1) Constitution, supra, states that treaties are the supreme law of the land and therefore preempt inconsistent state law.

(2) Missouri v. Holland (1920) – treaty between Great Britain and the US called the Migratory Bird Treaty Act. Missouri challenges the treaty by arguing under the Tenth Amendment (which reserves powers not delegated to the US for the States); MO had the right to control using their Police Power. I Issue: Can the treaty power be used to regulate matters beyond the scope of Congress’ legislative power? YES. A Acts of Congress are the supreme law of the land only when made in pursuance of the Constitution, while treaties are declared to be so when made under the authority of the US. II The court is firm – this just has to be a national power, it is the logic of what it means to be a nation. This is why the Articles of Confederation failed. III Only one branch of govt. should speak on foreign affairs, senate gives consent, but once that occurs, you can’t have the states contradicting. We must have the capacity to speak with one voice. IV Note – court finds that the treaty does not contravene any prohibitory words in the Constitution. A Seems to suggest that the only limitation on the treaty power is this – contravening language. V Seems to indicate there will be no federalism limits to the treaty making power. Court doesn’t buy the Tenth Amendment argument. Reject also the Commerce Clause argument – MO doesn’t own the birds, they serve a purpose.

(3) Reid v. Covert (1957) -  wives of military husbands oversees murder their husbands. Tried without a jury in a military trial pursuant to an SOFA between the US and UK. I The US cannot act free of the Bill of Rights against its citizens abroad. A No agreement with a foreign nation can confer power on the Congress, or on any other branch of Government, which is free from the restraints on the Const. II The Fifth and Sixth Amendments give the right to a jury trial and grand jury indictment. Govt. says MO v. Holland, a treaty allows it. III Court finds that this is distinguishable – in Holland, they weren’t dealing with a treaty that contravened exclusive prohibition. You cannot use the treaty power to take away Constitutional rights. A How compelling is this distinction?

(4) Would MO v. Holland be upheld today? I No cases disapprove. But, seems to chip at the state power in favor of federal power. II But remember, not common that the President and Congress will do this – they don’t want the courts to limit the broad treaty power. Everyone wants it to remain broad. III Henken’s Argument: Since the treaty power was delegated to the federal govt., whatever is within the scope is not reserved to the states; the Tenth Amendment is not material. (I like this one) A Counter – federal power makes treaties exclusive – but not necessarily unlimited IV Bricker Amendment: A Attempt to preclude treaties from being self-executing and to make clear that treaties could not override the reserved powers of the States. B Eisenhower stops it – promises not to enter into any of the human rights treaties being developed at that time and would not attempt to use the treaty power to regulate domestic matters. V Possibly would uphold this for Article II treaties, but maybe not for executive agreements.

(5) What limits are proper on the treaty power? I Nobody wants the power to be unlimited. II Eliminating rights, regressive to human rights, and dangerous to foreign policy. III Federalism? Globalized era makes this almost impossible. IV We see the shift in history from the States as the protectors of our rights with the Fed. Govt. as the bad guys to, after the civil War, the States are the deniers of rights and the Fed. Govt. protects individual rights. A So what are you more worried about? Determines the scope you think the treaty power should have. B Does the US do bad stuff – or are they the protector of rights?

B) Self-Execution?

1) Meaning it creates a private cause of action. 2) Begins with Article VI – suggests that every treaty ratified by the US has the status of judicially enforceable law.

(a) Difference between int’l effect and domestic teeth 3) Supreme Court

(a) Recognizes a difference between self-executing and non-self-executing

(b) Foster v. Neilson – the treaty between US and Spain for Florida was in the language of a contract, therefore needed legislation to take effect as domestic law. 4) Rule: In the absence of implementing legislation, only self-executing treaties are judicially enforceable through a private right of action.

(a) Once ratified it is binding on int’l law and in US. If executive branch violates it they violate both int’l law and domestic law because it is the supreme law of the land.

(b) Courts are charged with interpretation – they determine whether self-executing or not

© Usually defer to the executive branch, i.e., intent of the parties. 5) Asakura v. City of Seattle (1924) - ∏ is a Japanese citizen living in Seattle. City passes ordinance making it unlawful for any person to engage in business unless he has a license and no license is granted unless a US citizen. Challenge the ordinance on the basis that it violates the treaty between the US and Japan in 1911 which gives liberty to enter, travel, reside and to carry on trade upon the same terms as native citizens.

(a) Remember – we already know that Japan can complain under this treaty. But the issue here is whether a Japanese citizen living in the US go to court to enforce an int’l treaty.

(1) If he is not able, means that implementing legislation was required.

(b) Court finds this treaty binding to the State of WA and the rule of equality established by the treaty cannot be rendered nugatory in any part of the US. Given that the treaty is like a statute and explicitly gives protection, it implicitly gives him the right to go to court and enforce the statute without the aid of legislation.

© Note – the treaty provided for equality, therefore, if pawn shops altogether were outlawed, then it wouldn’t conflict with the treaty because it wouldn’t be discriminatory. 6) United States v. Postal (1979) - s seized aboard a foreign vessel beyond the twelve-mile limit in violation of a particular provision of a treaty to which the US and the foreign country are parties. So, under the Convention on the High Seas – is it self-executing, therefore, allowing the s to object on the basis of jx? (Just because US breaches int’l law, doesn’t mean they get off the hook – it depends on whether the violated treaty is self-executing).

(a) “Kerr-Frisbie” doctrine – a  may not assert the illegality of his ostentation to defeat the court’s jx over him. Due process is satisfied when a fair trial in accordance with constitutional procedural safeguards end in conviction. Jx is only deprived of the court where the treaty is self-executing. Court holds this treaty is NOT SELF-EXECUTING. Not applicable domestically, therefore the ’s couldn’t assert it to end their prosecution. However, it doesn’t change the fact that it was bidning int’l law.  couldn’t use it, but the govt could.

(b) To determine if self-executing:

(1) Intent of the parties? I Language of the treaty A This treaty required legislative measures to be taken. B R2d § 141 states that a treaty cannot be self-executing to the extent it involves governmental action that can only be undertaken by Congress. II Circumstances surrounding the treaty’s promulgation where language is ambiguous. Factors: A Purposes of treaty and the objectives of its creators B Existence of domestic procedures and institutions appropriate for direct implementation C Availability and feasibility of alternative enforcement methods D Immediate and long-range consequences of either self or non-self

(2) Note that here there is conflicting state practice, i.e., treaty calls for 3 miles yet we consistently went 12 miles. 7) Usually treaty provisions calling for appropriation of money have long been treated as non-self-executing in order to preserve Congress’ constitutional authority over appropriations 8) Geneva Conventions are not self-executing (Hamdi) 9) Private right of action? Saying the treaty is self-executing is not the same as saying you have a private right of action, but it implies there is one. 10) Reservations, Understandings and Declarations

(a) Reservations are another way of preventing domestic effect of treaties by RUDs.

(1) Professor says the line is arbitrary between the three –

(2) Reservations: normally on issues where essentially you are modifying a treaty provision

(3) Understandings: interpretive statements that clarify or elaborate on, rather than change, the provisions of the treaty

(4) Declarations: statements of policy relating to the treaty that do not alter or limit its substantive provisions I “We declare this treaty to be non-self-executing” II Sometimes conflicts between the Senate and Executive Branch

(b) President communicates reservations when he ratifies the treaty (takes the final formal act required to indicate US adherence to a treaty)

(1) Normally indicates his views when he sends treaty to the Senate

(2) Senate also initiates or requires the entry of substantive reservations to treaties as part of their advice and consent role

© Debate – is it better to have more states with reservations leaving toothless treaties or have fewer treaties without reservations

(d) Domingues v. Nevada -  is sentenced to death penalty and asserts that the Senate’s reservation to the ICCPR is invalid and therefore he was illegally sentenced.  asserts this only because of a recommendation that we withdraw from that reservation by the HRC. The declaration asserted stated that the articles were not self-executing. Nevada holds that an express reservation by the Senate to a core provision of a treaty is valid.

(1) Dissent argues that we rejected one of the most vital terms with the reservation, which should mean we aren’t really party to it, yet we are.

(e) Beazley v. Johnson – Same argument in Texas. Again the court finds the declaration which makes the treaty non-self-executing, valid and therefore, we are not violating the treaty.

(f) CIL is also not self-executing.

C) Last-in-Time Rule

1) Supreme Court has long held that self-executing treaties and federal statutes have essentially equal status under US law, such that the later in time will prevail under US law in the event of a conflict.

(a) Breard v. Greene – Breard was convicted in the US for the rape and murder of a woman. He files a motion for habeas relief based on the violation of the Vienna Convention, which gives him the right to contact the Paraguayan Consulate when he was arrested. Court holds that the Vienna Convention allows for procedural rules of the Forum State. Since  did not bring this up until habeas appeal, this was procedurally not allowed.

(1) Second – AEDPA statute enacted in 1996 provides that a habeas petition alleging that he is held in violation of the “treaties of the US” will not be afforded an evidentiary hearing if he has “failed to develop the factual basis of the claim in a State court proceeding”. Therefore, this rule comes last and rules, meaning he can’t establish the violation with a hearing.

(2) Brooks: US played an important role in the above provision regarding consulate assistance and has a strong interest in guarding its nationals abroad. But not likely local police have the Vienna Convention. I Doesn’t matter that AEDPA doesn’t explicitly overrule previous statute or treaty – not necessary. Enough that it comes later and implicates the same issues. II Court doesn’t reach substantive issue of remedy – it is clear that we violated the Treaty. III Int’l reaction: Paraguay, not just Breard, was diplomatically making a fuss raising a fundamental fairness issue – US’s fault that he did not receive help.

(b) Evana Case: Mexican nationals, ICJ said US violating and ordered US to take appropriate measures to stop the execution. Bush issues an executive memo saying US would comply with the ICJ ruling as a matter of comity – ordering TX govt to give effect to the ICJ decision, i.e., determine whether there was error and decide accordingly. TX said Bush couldn’t tell them what to do – international law and Federalism intertwined.

© Don’t forget – even when Congress overrides a treaty as a matter of US law, the treaty is still binding on US internationally until validly terminated.

(d) Works either way – treaty may override old Federal Statute.

(e) Where there is an interpretation that allows both the Statute and the Treaty to co-exist, apply the Charming Betsey Canon first. 2) Note: treaty provisions are separable – one particular provision may be affected by Statute. 3) Continuing violation necessary? You would need one depending on the violation (not sure what this means). 4) If Congress tries to pass a Statute in derogation of a treaty in an area where they wouldn’t have power to act (in the absence of a treaty), they can’t because of general limitations on Congressional power, and perhaps the Treaty cannot therefore be voided by the last-in-time doctrine.


1) Congressional-Executive Agreements – those that are based on congressionally delegated or statutory authority

(a) Authorized in advance or approved after-the-fact by a majority of both houses of Congress

(b) Brooks: President will often ask the Congress, w/o conceding its necessity, for permission and vice versa.

© Made in the USA Foundation v. United States: Court answers whether Article II treaties are the exclusive means of making int’l agreements. NAFTA – leaders of 3 countries signed, Congress approved and adopted a year later with the Implementation Act. Made in the USA’s argument was that if president can do this by circumventing Constitutional procedure – there should be an amendment with that procedure. Court says “there is no explicit language in the Constitution which makes the Treaty Clause exclusive as to all int’l agreements”.

(1) Note: NAFTA was very controversial because Clinton knew he couldn’t get the Treaty passed under Article II – so he opted for this method of approval.

(2) Post-Congressional authorization gives full domestic force of a treaty. I No Constitutional authority to do this

(3) Basically – Court says Congress could have developed legislation on its own initiative with or without Presidential approval (if votes override veto).

(d) Congress can always disapprove of an agreement entered into.

(e) This means that a treaty failing under 2/3 (Article II) could just be resubmitted and passed under a Congressional–Executive Agreement (majority).

(f) Restatement 3rd: “the prevailing view is that the Congressional-Executive agreement can be used as an alternative to the treaty method in EVERY instance”.

(1) This means that if President and a simple majority agree – they can do practically anything to usurp State powers w/o getting the super majority to pass an Article II treaty. They have the same force of law in the US courts.

(2) Political majoritarian check on power – BUT what is the purpose of Article II if the govt. can do this?

(g) These are still subject to the same constitutional limits as Constitutional Treaties – may circumvent Federalism limits but not the Bill of Rights.

(h) Brooks Counter-argument: If it were to come before the Supreme Court limits may be placed on the treaty power. Executive branch would make the argument that the treaty power is fundamentally different from the Commerce Clause power because senate gives disproportionate power to smaller states (already well placed to give deference to the states). Senators were formerly appointed by legislatures.

(1) Supreme Court may uphold MO v. Holland and hold down federalism, but Congressional Exec. Agreements will not enjoy the same power. Thus if you want to abrogate state power – you can only do so by Treaties. 2) Presidential Executive Agreements – those that are based on independent Presidential Constitutional authority

(a) Also called “sole executive agreement”

(b) This is sort of the inherent foreign affairs power – Chief Executive Power, authority to receive ambassadors/ministers, Cmdr. In Chief Power, “take care” clause (constitution and laws are faithfully executed)

© Used infrequently and limited only by the requirement that they be reported to Congress after the fact (CASE ACT)

(1) Remember the Case Act also validates the idea that the President has this power.

(2) Missouri v. Holland – these agreements supersede State Law.

(d) US v. Pink (1942): Soviet govt. nationalizes private property including Bank with property in NYC. In 1933 US granted Soviet diplomatic recognition and soviets assigned to the US claims to certain nationalized assets in the US. US planned to use those assets to pay the US Citizens with private property in Russia that had been seized through a Presidential Executive Agreement.

(1) US sues insurance commissioner of NY to claim the assets of the insurance company. NY commissioner is protecting claims of foreign creditors of the company. Congress authorized a commissioner to handle the claims of US citizens re. the property in Russia (passively authorizing the treaty says the Court).

(2) Court notes that the US is trying to protect claims of its citizens of Russia. Russia could not be given recognition until those claims were settled and this was the method the President chose.

(3) “the powers of the President in the conduct of foreign relations included the power, without consent of the Senate, to determine the public policy of the United States with respect to the Russian nationalization decrees”

(4) Court says – President is the SOLE ORGAN OF THE FEDERAL GOVT IN THE FIELD OF INT’L RELATIONS. This is POLITICS, not for the courts. I This is just as valid as an Article II treaty that has the consent of the Senate. Court cites to Belmont which recognized this agreement as one that didn’t need the participation of the Senate.

(e) Dames & Moore v. Reagan: Iranian hostage case involving their seizure of the US Embassy in Tehran. Carter freezes assets under IEEPA and allows for US citizens to initiate judicial proceedings against those assets. ∏ files against those assets and receives a pre-judgment attachment. Carter/Regan sign and order (Algiers Accord) to release the hostages and “suspend” all claims. ∏ challenges the validity.

(1) Issue – President’s authority to suspend claims pending in American Courts. Court says that this Act (IEEPA) does not authorize suspension of the claims despite that it authorizes the nullification of the attachments. Congress has implicitly approved the practice of claim settlement by Executive Agreement. Court finds, therefore, that the President did not circumscribe the jx of the courts, but merely changed the substantive law governing those lawsuits by suspending those claims – reviving them in the Claims Tribunal.

(2) Congress is SILENT – haven’t disapproved.

(3) Brooks bottom line: matter of US law, not only treaties entered into with approval, executive agreements with prior or retroactive majority, but also agreements entered into without action will all be enforced as if entered into under Article II.

(f) Limits?

(1) Both cases say there are limits – but that those limits have not yet been reached.

(2) These deals solve very concrete problems – sort of one-off deals.

(3) Notwithstanding – there is some limit to trumping the State’s Laws. Political constraints – no President does things they don’t think they can get away with. The party could take a hit, political embarrassment. I Not likely Presidents will reach the limits – just a gradual pushing of the envelope

(4) Job of political branches – Courts won’t determine whether they are good decisions. 3) Department of State Circular 175

(a) 721.3 Considerations for Selecting Among Constitutionally Authorized Procedures

(1) Factors to consider to determine which procedure should be allowed: I Extent to which the agreement involves commitments or risks affecting the nation as a whole II Is it intended to affect State Laws III Can the agreement be given effect without subsequent legislation by congress IV Past US practice with similar agreements V Preference of Congress w/ this type of agreement VI Degree of formality desired VII Proposed duration of the agreement, need for prompt conclusion, desirability of concluding a routine or short-term agreement VIII General int’l practice w/ similar agreements

(b) Seems that Politics determines more than anything – calculating the number of votes

© Precedent plays a role – human rights, boundaries, immigration, extradition, diplomatic privileges, alliances, war and peace – all traditionally go to the Senate as Article II.

(1) While trade, finance, energy, fisheries, postal matters, and bilateral aviation regulations have regularly been concluded as Congressional-Executive agreements


1) Constitution is relatively silent about the formation of CIL – Article I, clause 10, says Congress can punish offenses against the law of nations.

(a) Treaties, if self-executing, preempt inconsistent state law (Article VI). Treaties can override earlier inconsistent statutes (last-in-time). CIL is not mentioned in Article VI and the Supreme Court has not defined the relationship it has with state law, federal statutes, and executive branch action.

(1) Book – “Supreme court seems to think the last-in-time rule makes it such that CIL doesn’t ‘bind’ congress.” May go the other way also. 2) Consists of obligations inferred from the general and consistent practice of states followed out of a sense of legal obligation (opinio juris) 3) Supreme Court has said that CIL is “part of our law” (unless last-in-time will make it not so)

(a) Paquete Habana (1900): Were two ships and their cargoes “prizes of war”? The ships sailed under the Spanish flag, but owned by a Cuban Spanish subject. No knowledge of war until stopped by the blockading squadron. They had no ammunition and did not resist. Filed libel for condemnation of the vessels and cargo as prize of war.

(1) Court finds that they were merely pursuing their vocation and are exempt from capture as a “prize of war”.

(2) Court says “int’l law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jx.” 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.

(b) Filartiga v. Pena-Irala (1980): (District Court case) Alien Tort Statute – “all causes where an alien sues for a tort only [committed] in violation of the laws of nations” (originally a way to go after pirates)

(1) Dr. Filartiga files suit against Pena-Irala for the death of his 17-year-old son who he believed to be killed in retaliation for the Dr.’s political activities and beliefs. Sees him walking in NY. Issue of whether a citizen can take this claim up.

(2) Court finds deliberate torture perpetrated under color of official authority violates universally accepted norms of the int’l law of human rights, regardless of the nationality of the parties, and therefore, if that person is served with process by an alien within our borders, 28 U.S.C. § 1350 provides federal jx.

(3) In analyzing whether it violated the law of nations – 1) “Courts must interpret int’l law not as it was in 1789, but as it has evolved and exists among the nations of the world today” and 2) that rule must command the ‘general assent of civilized nations’ I Even though there are violations of various acts of torture as defined under the UN the binding effect of those acts as a norm is not diminished. II Note even though the Charter claims not to be self-executing – no dissent from the minimum notion of the right to be free from torture.

© Garcia-Mir v. Meese (1986): (11th Cir.) Mariel Cuban immigrant detainees held in Atlanta. Argue that, because general principles of int’l law forbid prolonged arbitrary detention, we should hold that their current detention is unlawful. CIL is controlling only where there is no treaty and no controlling executive or legislative act or judicial decision. The power of the president to disregard int’l law in service of domestic needs is reaffirmed. Attorney General’s decision to hold them was a controlling executive act that trumped. Therefore, Cuban Immigrant detainees can be held indefinitely.

(d) Cases seem to say CIL is federal common law (in spite of Erie). Garcia rejects the idea that CIL can bind President or Congress.

F) Charming Betsy Canon

1) Supreme Court has long sought to construe federal statutes so that they do not violate either treaties or CIL.

(a) Murray v. The Schooner Charming Betsy (1804): Undeclared war between the US and France in the 1790s. US prohibited trade between them and the US Navy was under order to seize any vessel suspected of trading with the French. So they seize the Charming Betsy – but the owner is a Dutch citizen.

(1) Marshall says “an act of Congress ought never to be construed to violate the law of nations if any other possible construction remains”. Therefore, this Dutch citizen was not under the Statute.

(b) Possibly apply the last-in-time rule where the two can’t co-exist.

G) International Human Rights Law in the United States

1) Alien Tort Statute (1789): validly creates federal court jx for suits alleging torts committed anywhere in the world against aliens in violation of the laws of nations. 28 U.S.C. § 1350

(a) Steady increase in cases brought under this Statute. (See Filartiga) Courts have increasingly been willing to take a restrictive view of immunity. Limitation on diplomats. Increasingly not accepting that state actors have immunity.

(1) Congress could change this statute if wanted – but hasn’t.

(b) Increasingly willing to dispense with State Action requirements. Private actors can violate the “laws of nations” under this.

© Litigation seems to be attempting to expand violations of CIL beyond what is closer to jus cogens. Gives the power to one judge to define new CIL? Seems to violate Separation of Powers – some of these could very well be counter to executive branch policy.

(1) Seems to run up against general principle that the US should speak with one voice.

(2) Suarez case – rising out of Argentina’s dirty war. Court accepted disappearances as violating CIL.

(3) Gramaho case – Found that cruel inhumane treatment was a violation it was coextensive with behavior that would have been prohibited under the Constitution.

(4) UNOCAL case – settled – Burma govt. was using forced labor and torture for the benefit of a joint venture project involving Unocal to build a pipeline. Unocal knew about it, but not directly involved with the actions. Suing Unocal for the actions of a foreign govt.? Corps are freaking.

(d) Two political developments:

(1) Growing anxiety because of its reach to private actors

(2) Surge of support because it gets wrapped up with accountability for acts of terrorism 2) Torture Victim Protection Act (1991): gives both foreign and US victims of torture and “extrajudicial killing” the right to sue for damages in US courts. (Pg. 243 casebook)

(a) Requires that a ∏ must first exhaust adequate and available local remedies.

(b) Contains a 10-year statute of limitations (narrower than ATS)

© Only contains two specifically defined violations (narrower than ATS)

(d) Understood to be implementing legislation under the Torture Convention.

(e) Rectifies that US citizens under the ATS had no way of getting relief. Implicitly approved the Alien Tort Statute litigation.

(1) BUT – requires an individual who “under actual or apparent authority, or color of law, of any foreign nation.” 3) US citizens who sue domestic s for violations of CIL cannot invoke either the ATS or the TVPA because they lack a private right of action. 4) Kadic v. Karadzic (1995): Court of Appeals case

(a) Kadic and other Croat and Muslim citizens of Bosnia-Herzegovina claimed that Karadzic (the leader of the insurgent Bosnian-Serb forces) violated int’l laws of Bosnia. Originally the case was dismissed for lack of subject matter jx because the acts were not committed under the authority of the recognized State. Additionally whether he is immune because he is present in the US as in invitee of the United Nations (argues in the alternative – with two inverse defenses). (Alien Tort Statute and Torture Victim Protection are at issue here)

(1)  argues that norms of int’l law require State actors acting under the authority of that State – therefore he is not violating int’l law under the statute. Court disagrees.

(2)  argues that the Torture Victim Protection act to apply only to actions under the Alien Tort Statute. Court disagrees – Congress found that the Alien Tort Statute had other important uses such as claims based on torture and summary executions do not exhaust the list of actions that may be covered under it.

(3) Therefore, he is liable for war-crimes and genocide under the Alien Tort Statute. For the torture, however, he is not liable under the Torture Victim Protection Act because it requires State actors. However – he may possibly qualify under “color of law” terminology in the Act for the country of Yugoslavia. Remanded for decision on the crimes.

(4) NO head of state immunity for non-recognized state. 5) Sosa v. Alvarez-Machain (2004): Supreme Court

(a) Doctor who was a Mexican national involved in drug trafficking. He was kidnapped and brought here, then acquitted of the charges. Suing for arbitrary detention under § 1350 under the theory that arbitrary detention violates the laws of nations.

(b) The Court said that § 1350 is jx only – which technically would mean that a cause of action would have to be made by subsequent action of Congress. Despite this, the Court believes Congress thought there would be instant practical effect. Thus Congress must have believed there was already something that gave a right of action. Court says the causes of action need to be of the same kind as those recognized in 1789 – which doesn’t preclude development from the original three – piracy being one of them. (didn’t get the others)

(1) They did not, however, close the door on going after corporate actors.

© He lost – the detention only lasted 24 hours and there is no general acceptance and definiteness to be a violation of int’l law. Not analogous in its degree to acceptance as piracy, etc. was in 1789.

(d) Supreme Court cautions courts in adapting the law of nations to private rights. They also cite Erie which causes for concern about federal common law. Additionally, finding private rights violate int’l law should be left to the legislature and the judicial role should be limited. The danger of instant customary int’l law.

(1) Does in a footnote approve of Filartiga – jus cogens may qualify under § 1350. 6) Rasul case: Guantanamo detainees are free to pursue their § 1350 claims.

H) Federalism & Foreign Affairs

1) Summary of Constitutional provisions:

(a) Article I, Section 10 – prohibits the states from performing certain foreign relations functions, such as treaty-making

(1) Whether this was intended to be an illustrative list or exhaustive list might change your view.

(b) Article I, Section 8 & Article II – authorize the federal political branches to conduct foreign relations through the enactment of federal statutes and treaties

© Supremacy Clause (Article VI) – federal enactments are the Supreme law of the land

(d) Article III – extends the federal judicial power to cases involving these enactments and to other transnational controversies

(e) Article II “take care clause” – authorizes the President to enforce federal enactments 2) Tenth Amendment – Constitution only vests federal government with limited and enumerated powers 3) Zschernig v. Miller (1968): (Supreme Court case)

(a) A US citizen died in Oregon. No will. State is supposed to find your heir – which in this case lives in East Germany under communism. State has a rule that if you have a foreign heir and the State is in possession (probate court) the heirs in East Germany have to prove that the govt. is not going to confiscate the property from you. Why is this relevant? They just don’t want to make the communist govt richer.

(b) Supreme Court finds this violates federalism by interfering with int’l relations.

© Dormant Foreign Affairs Preemption: some state laws or activities relating to foreign affairs are preempted as a result of the national govts. unexercised, or “dormant” foreign affairs power.

(1) Court finds that even if the Feds don’t have a policy, they occupy the domain of foreign relations. Oregon doesn’t get to have a foreign policy. So, even when Cong. Or Pres. has not explicitly acted; the mere nature of Oregon Act intrudes on national powers to such an extent that is preempted.

(2) This would lead to state courts making judgments about the credibility of foreign governments

(d) What about “Buy American” statutes that require private contractors with state agencies to provide goods made in the US. See pg. 268-69.

(1) Mostly been upheld. Presumably on the non-discriminatory argument, i.e., equally against all foreign governments. If Congress passed a Statute saying enough of that protectionism, this would be struck down. (CA struck down as conflicting with Zschernig) 4) Crosby v. National Foreign Trade Council (2000): (Supreme Court case)

(a) Good citizens of MA are distressed about what is going on in Burma and decide that they want to bring about reform. Pass a statute restricting who they can do business with – corporations that do business with Burma are out. Congress comes along and passes a similar statute which creates a sanction regime and imposes them directly on Burma but gives President discretion to lift or waive them. Statute also directs President to develop a comprehensive multi-lateral approach to bring about democracy in Burma.

(b) This MA statute violates the WTO agreement. By the time it gets to the Supreme Court there are a number of disputes within the WTO. SC holds that the statute conflicts, although not on its face, and it changes and interferes with foreign policy.

© State law is going to be preempted when Congress intends to occupy a field or a Fed Statute conflicts. Preventing President from doing some of the things required and authorized to do.

(d) Brooks – limited only to the statute. 5) Barclays Bank v. Franchise Tax Board of CA (1994): (Supreme Court case)

(a) Upheld a CA rule that required all foreign corps to fill out tax forms. Court distinguishes from Zschernig because it isn’t directed at certain kinds of govts. This requirement applies equally and is non-discriminatory. Not directed at foreign policy.

(1) Limited to commerce only? 6) Apartheid Divestiture

(a) States pushed for divestiture when Reagan was president. He opposed and only wanted companies there to not discriminate under the theory that it would influence the Country slowly.

(b) Anxiety by Human Rights that would make all divestiture cases unconstitutional – but it actually had an effect in bringing down Apartheid. IV) STATES, THE UNITED NATIONS, AND THE ICJ

A) States and Governments

1) What is a state?

(a) 1933 Montevideo Convention on the Rights of the Duties of States provided:

(1) the state as a person of int’l law should possess the following qualifications: I a permanent population II a defined territory III government IV capacity to enter into relations with other states A Brooks: mostly to do with descriptively what other states have to say

(2) Brooks – legal definition, not a sociological definition. I Georgetown as a state? No permanent population. But size is not a factor. A Puerto Rico – lacks the capacity because it is a possession of the US II Number of states has changed over time: A State consolidation during the second half of the 19th Century B Decolonization of Africa and parts of China C Collapse of the Soviet Union, Yugoslavia, Split of Czech III World of States – they are the only actors in Int’l Law A There are still a surprising number of territories and populations which are not States or parts of States

(b) Restatement § 201 Comment elaborates:

(1) Defined territory – boundaries don’t have to be finally settled and an entity doesn’t cease to be a state even if occupied by another power or lost control temporarily

(2) Permanent population – significant and permanent

(3) Govt. – some authority exercising govt. functions and able to represent the entity in int’l relations

(4) Capacity to conduct int’l relations – must have competence to conduct int’l relations with other states, as well as the political, technical and financial capabilities to do so. I Doesn’t cease to be a state if it voluntarily turns over control to another state. 2) Who Decides What is a State?

(a) Restatement § 201 comment h – determined by other states when they decide whether to treat that entity as a state (such as voting admission into the UN)

(b) Duty to recognize? (Professor thinks the two theories merge in practice)

(1) Under the R, even if a state does not formally recognize another state, that state is required to treat an entity as a state if it meets the standards of § 201. (not if obtained by threat)

(2) Declaratory Theory: an entity that satisfies the requirements is a state with all the corresponding capacities, rights and duties, and other stats have the duty to treat it as such. I Recognition is declaratory – only confirming entity is a state and expressing intent to treat as such. II But note – satisfaction of the requirements is determined by other states. A Brooks: Community of existing states essentially gets to decide when and under what circumstances to recognize new members.

(3) Constitutive Theory: an entity is not a state in int’l law unless it is generally recognized as such by other states (most follow R, declaratory)

(4) Brooks says there is NO DUTY to recognize – no court to force a state to recognize. Perhaps by coercion. I In practice, it is in the interest of a state to recognize a state that everyone else is. II Flip side – perhaps a DUTY to NOT RECOGNIZE those that come into being in violation of int’l law.

© US LAW – President has the exclusive authority to recognize or not recognize a foreign state and the particular govt. of that state. (Article II – to appoint and receive ambassadors)

(1) Express or By Implication (although US as member of int’l org along with a state it doesn’t recognize does NOT imply recognition)

(2) President can conclude int’l agreements related to recognition without participation of Congress.

(3) We saw this in Belmont.

(4) How? Can be by treaty or by declaring itself a State and coming to the US and going to the Dept. of State and requesting it. They either grant it or not.

(d) Brooks: what about the right of self-determination? Democracy seems to be the goal? Although US says that they don’t grant it to just anybody. Imagine the conflicts that would arise around the world if just anybody could become a state. 3) Effect of Being a State?

(a) Entails certain rights and duties that just wouldn’t accrue to a non-state actor.

(b) Restatement § 206 – Capacities, Rights and Duties of States

(1) Sovereignty over its territory and general authority over its nationals I Brooks – you can use that territory the way you want and other states can’t invade

(2) Status as a legal person, with capacity to own, acquire and transfer property, to make Ks and enter into int’l agreements, to become member of int’l orgs, and to pursue and be subject to legal remedies

(3) Capacity to join with other states to make int’l law, as customary law or by int’l agreement

© Example: Holy See and State of Vatican City

(1) Pope is the head of the Roman Catholic Church while the Holy See is its govt. and diplomatic agent and its independent territory is the State of Vatican City. I This doesn’t fit into any established category of legal status 4) Who Governs the State?

(a) Restatement § 203 comment a., recognizing a specific govt. is “formal acknowledgement that a particular regime is the effective govt. of a state”

(b) Two major approaches to recognition of a govt.:

(1) Brooks: makes a big difference if a govt. is recognized – you can’t do much, denied access to courts, you don’t have standing. I If the US isn’t recognizing you and a lot of other states are, you might say it doesn’t matter – but the herding effect of the int’l community comes into play.

(2) Traditional – a state seeks to determine: I Effectiveness of control – to recognize a govt. which is not in effective control of the territory would constitute premature recognition and would be considered intervention with domestic affairs. II Stability and permanence – is there a reasonable prospect of permanency and what are the political conditions prevailing at the particular country III Popular support – the consent of the governed or the “ability to exact habitual, though not willing, obedience” IV Ability and willingness to fulfill obligations (worried about refusing to pay back debts – use recognition as a carrot and stick)

(3) Tobar Doctrine – the refusal of High Contracting Parties to recognize any other Govt which may come into power in any of the five Republics as a consequence of a revolution against the recognized govt. (not widely recognized)

(4) The Estrada Doctrine – I Only new states are recognized; when a new govt. comes into power either through Constitutional means or otherwise, its relations with other states remains unchanged. II Brushes aside all political issues of legal or moral character as irrelevant to the right of a govt. to be the representative of the State III Rejects intervention in the internal affairs of other states

(5) HUMAN RIGHTS effects recognition today. It is a lot harder to recognize when they seem to be an abusive government.

(6) New govts that have come into being in a way that seems deeply illegitimate will also affect recognition.

(7) Whether or not we like the replacing govt – i.e., in a revolution – probably shouldn’t have a major role in recognition – but may in practice. 5) Significance of Recognized Govt. in US

(a) Restatement § 205 states the consequences:

(1) Denied access to courts in the US

(2) Not entitled to property belonging to that state belonging in the US

(3) Give effect to acts of a non-recognized state if those acts apply to territory under the control of that regime and relate to domestic matters only.

(b) When freezing the funds of the Taliban – who gets it? We allow the govt. that we do recognize (Northern Alliance) to use it. Basically held in trust for the legitimate govt.

(1) We may use some to compensate creditors or our citizens. 6) Class discussion on Taiwan

(a) Product of history just like the Vatican – big and obvious example of a territory that seems like a state but is not technically considered a state.

(b) Declaratory Theory – seems to be a state

© Constitutive Theory – lacks recognition – so not a state

(d) Background: part of China, controlled by Imperial China. China gave Taiwan to Japan. Japanese government rules and its law prevails. After WWII, China wants Taiwan back. Victorious allies imposed on Japan to give China back. Complicated, however, because China is in the middle of Civil War. Results in the People’s Republic of China – and the Republic of China fleeing to Taiwan. They say Taiwan is the new headquarters of the ROC. PROC took over illegitimately – so they cannot be recognized.

(1) So – mainland China is under illegitimate control and ROC rules from Taiwan as a democratic and elected govt. Neither party has taken over the other. Both agree there is only one China.

(e) Communists PROC doesn’t go away and over time gets recognition because of the advantages – trade. Normalize the relationship.

(f) Govt. of Taiwan is very displeased – the states are backing down. Finally Carter recognizes PROC and they get a UN seat. Ceases to recognize Taiwan ROC because you can’t recognize both. But the US wants to be on good terms because of the shared ideology, loyalty, self-interest, military outpost, etc.

(g) Results in the Taiwan Relations Act – we officially have non-official ties with Taiwan. No embassies – but non-profit entities which in all respects are identical to embassies with diplomats. Treated in every respect like a State in the US – not an ambassador – but an executive director for the non-profit.

(h) Intersection of law with politics – entity that is and isn’t a state at the same time.

B) Changes in States and Governments

1) Who is Responsible for What when the Recognized Govt. Changes?

(a) Traditional Theory: changes in the govt or ideology of a state do not change the state or affect its rights or obligations

(1) China bearer bonds sold in the US – found China liable for those bonds despite the Govt changing..

(2) Theory is not always followed in the face of pragmatic modern state practice I Maybe a more acceptable theory is that of unjust enrichment II China claimed they are “odious debts” A The debts were not to the benefit of the people, but those running the country, and the people shouldn’t be required to pay it back B Sort of reverse unjust enrichment – evil dictator seizes power and siphons off funds to Swiss accounts and flees. How much sympathy we will have for these creditors depends on int’l trends and the power of politics. C Huge issue on 3rd World debt – corrupt govts. siphoning off both natural resources and borrowed money. Visibly and apparently – should we forgive the debts. D Most states recognize this doctrine – why you get groups and individuals forgiving or restructuring debts, i.e., Iraq.

(b) This doesn’t mean that they can’t formally withdraw from treaties – they just can’t repudiate them.

© Even the rule when a coup or revolution. 2) State Succession

(a) One state replaces another state with respect to the territory, capacities, rights, and duties of the predecessor state

(b) Three competing theories:

(1) Universal succession – succeeds to all

(2) Clean slate – succeeds to none

(3) Partial succession – succeeds to some

© Types of succession:

(1) New state totally absorbs the first (conquest, annexation, or merger)

(2) Takes only part of the territory of another (succession and movement of boundaries)

(3) State dissolves into two or more states (Soviet Union, Yugoslavia)

(4) New state is completely independent of the first (former colonies into the US)

(d) Restatement § 209: State Succession: State Property and Contracts

(1) Mostly everything passes to the new state – see pg. 454

(2) In general private property rights are not affected by a change in sovereignty

(3) Brooks: usually the burden is on the successor state to make a compelling argument as to why the obligations should not in fact apply to them. Int’l law in general favors stability. I RULE GETS EATEN BY EXCEPTIONS.

(e) Restatement § 210: State Succession: Int’l Agreements

(1) When part of the territory becomes part of another – the int’l agreements cease to have effect in respect of that territory and the int’l agreements of the successor state come into force there

(2) Absorbed – agreements are terminated for the absorbed state

(3) Part of a state becomes a new state – the new state does not succeed to the int’l agreements to which predecessor state was party unless expressly or by implication it accepts and the other parties acquiesce

(4) Pre-existing boundary and territorial agreements continue to be binding notwithstanding above.

(f) Vienna Convention on State Succession in Respect of Treaties (pg. 456)

(1) Seen as codifying CIL – only 17 states are parties as of 1/03

(2) Treaty favors continuity in treaty relations I Successor state continues to be bound by the treaties of its predecessor II State succession does not affect a boundary treaty III Succession does not affect certain rights and obligations pertaining to the use of territory IV Two or more unite – bound by ALL treaties with respect to the territory formerly covered by those treaties – and perhaps all of the new territory if the parties agree. V When a state splits – the new, smaller states are presumptively bound by predecessor treaties (Soviet Union – smaller states are bound) A Third Restatement would have these be “newly independent states” VI A state losing territory remains bound unless relating to that lost territory

(3) Provisions that don’t favor continuity I “clean slate” for a newly independent state II Apparently designed for former colonies who did not agree to the predecessor treaty III They may however consent to be bound by predecessor treaties IV CIL does not uniformly support this provision – as a result the Restatement does not have this distinction because it does not reflect consistent practice (BOOK) V Brooks: successor state will have a clean slate if you were controlled and had no control over the treaties entered into that may be disadvantageous. Unjust to require you to keep the treaty obligations created by the prior state. A Implicit in this judgment is whether the treaty involves good or bad ramifications.

(g) Vienna Convention on Succession of States in Respect of State Property (NOT in force)

(1) When two states unite – inherit the state property of predecessor

(2) Where part of territory is transferred – succession should be accomplished by agreement between predecessor and successor states

(3) Successor states succeed to movable property connected with the “activity” of the predecessor state in respect to that territory. Other movable property should pass in equitable proportion.

(4) Also recognizes the “newly independent state” I Controversial debt succession for this class – liberated from debt – this is most likely why it hasn’t entered into force

(h) Succession in Respect of Int’l Organizations

(1) Can successor states claim the UN seat of predecessor? Governed by the Charter, not Vienna convention. I Russia did succeed to the previous seat held by the Soviet Union – even its seat on the Security Council without amendment. II Doesn’t always happen – Yugoslavia, Pakistan, Czech III More likely to occur where the if other successors acquiesce, as in Russia. Also more likely if they were the dominant part of the predecessor and if other states acquiesce (most important). 3) Could the int’l community refuse to recognize Bush v. Gore issue?

(a) If the US was a less powerful country, maybe.

(b) What if Hillary wins – she repudiates the debt from Iraq. 4) State Failure

(a) Legal v. sociological definitions

(1) Ability to protect its citizens – threats outside and in

(2) Exercise an effective monopoly on domestic violence

(b) What do you do about state failure or weak states?

© Why do we care?


(2) Taken over by non-state actors – poses a threat to the int’l legal order and the region directly around the overtaken state

(3) States are often unable to comply with treaty agreements.

(4) Can’t insure k’s are enforced or protect the investments in property

(d) Strengthen – foreign assistance, design to increase capacity, military training, legislative assistance all designed to prop up and strengthen

(e) Challenges to the legal system –

(1) Notion of “failed” - Most are those that never really functioned well anyway. Structures are set up rather hastily, under pressure, dividing up ethnic groups and empower corrupt local elites

(2) The whole system is based on the premise that States are the building block – yet geographically, successful states just don’t work well in other parts of the world I Modern system seems to impose a blueprint for how societies should work II Imperialism of the form of the state which is much less successful in changing the facts on the ground

(3) Big challenge is the good and bad manifestations of non-state actors – I Humanitarian workers, terrorists II Does it really make sense to say we live in a universe of States? III Should we try to make these “failed” states successful? IV Maybe we should have a wider range of government forms and structures – not all of which would be States. A Might mean unbundling statehood ideas – that they should provide food, postal, etc.

(4) Increasingly, response to “failed states” is unbundling sovereignty and entering into exclusive agreements – giving back a little at a time their sovereignty – but not really ever getting it back. I Gradations of sovereignty - Afghanistan, Kosovo, Iraq. II Why should it be the case that these entities should all be seen as needing identical capacities exercised in the same way? A If you can collectivize certain functions, you may be able to utilize resources better.

(f) Theories predict the absolute demise of the state. Nation state as a major form is going to go away with a trend towards large entities, such as the EU.

(g) Brooks – more realistically, some states will cease to exist and others will become more powerful, such as US, China, India.

(1) Always has been a fiction to a degree – changing facts on the ground perpetually increasing the divergence of the formal legal structure of int’l law. How can we harness to work together on environmental, security, etc.

(h) Small developing states?

(1) Very little capacity to control your economy – you are going to have to deal with the arrangements made by the bigger states, not going to really have control over how you structure these things, penetration from outside, trade, changes in communications. Can’t control the flow of ideas, less capacity to ensure security for your people.

(2) WTO – an institution that is sovereignty limiting – but since smaller states can’t share in the benefits – we get a lot more out of it.

C) United Nations

1) Came into existence in 1945 2) Designed to prevent military confrontations among its members and to help resolve int’l disputes

(a) First Us Ambassador – Don’t imagine it will bring us to heaven but may save us from hell.

(b) Created at both a pessimistic moment (humans are bad) and optimistic moment (learning from the experience and ensuring it won’t happen again)

© UN imperfections were manifest from day one – built on the obvious contradiction that you needed to have it (nationalistic states couldn’t be trusted) but relied on those same states to maintain the peace and launch into this new area of int’l cooperation.

(d) Premised on cross-border aggression by states as its biggest problem. Illegal – with the loophole for self-defense.

(1) Increasingly the security threats are internal (genocide) or have been cross-border but from terrorists.

(2) Struggling to adapt to these challenges – this changing reality. 3) Membership

(a) Open to all peace-loving nations which accept the obligations of the Charter and are willing and able to carry out these obligations.

(b) Admitted on the recommendation of the Security Council

© Charter provides for suspension or expulsion of a member for violation of the principles of the Charter 4) Structures (six principle organs)

(a) General Assembly – main deliberative organ

(1) Reps from all Member States – each with a vote. Equal voice to every state – paradox with veto power still extending under the Security Council. I Brooks: one of the only for a forum the int’l community to come and argue/talk/discuss II Lots of interaction between people disseminated because everyone wants to be liked A Int’l law functions through interactions and the creations of networks and the internationalization of norms of behavior by states that filers down into domestic structures. B Just like junior high – every state sends their representative – meld the interests of others into your own interests. Trickles down into the norms and trends that people care about in the UN and filters down into national level C Some would say the sum of the States push the individuals – despite how much you like the rep from Cuba, you are instructed by your State 1. Don’t underestimate the power of personal relationships

(2) Important decisions require a two-thirds majority I Peace and security II Admission of new members III Budgetary matters

(3) Other decisions require a simple majority

(4) Function / Power I Make recommendations on – int’l peace and security, any question within scope of charter or affecting any organ, promotion of int’l political cooperation, development of law, int’l collaboration in economic, social, cultural, educational and health fields, peaceful settlement of any situation impairing friendly relations II Consider reports from the Security Council and other organs III Discuss questions relating to int’l peace and security except where Security Council is discussing IV Approve budget and apportion

(5) Sessions begin in Sept. with a general debate which leads to questions discussed in the Six Main Committees. I All issues are voted on through resolutions passed in plenary meetings (end of session) II Decisions have no legally binding force for govts. but have weight of world opinion III UN year-round work derives from the General Assembly decisions

(b) Security Council – primary responsibility for the maintenance of int’l peace and security

(1) Members – 15, with 5 permanent (China, France, Russia, United Kingdom and the US) and 10 elected for 2-year terms. (froze into place the power structure of the time) I One vote each II Procedural matters – 9 of 15 III Substantive matters – 9 votes, including the concurrency of all 5 permanent members (although they may abstain) IV De Facto pattern – being seen as a law-making body or doing so through CIL. This has benefits and problems. V Didn’t do much until about 1990 – this was due to the Cold War paralysis A Since the fall – it has increased dramatically, 43 peacekeeping operations. B Another sign – the creation of the int’l criminal tribunals (93) and for Rwanda (94). C IRAQ – remains the case that when you have a super power invested in a particular cause, it will do it its own way and the Security Council will be paralyzed. 1. Kosovo – NATO intervened, Chechnya.

(2) All members agree to accept and carry out the decisions of the Security Council I Only organ with the power to make decisions which Member States are obligated to carry out II Elects Judges of the ICJ with the Assembly

(3) Functions continuously

(4) Complaints of threat to peace I First step is to recommend that the parties try to reach an agreement peacefully II Some cases – council undertakes investigation and mediation III Dispatch a mission IV Appoint special representatives V Request the Secretary-General to use his good offices VI Where there is fighting – A May issue ceasefire directives B May dispatch military observers C Peacekeeping force to reduce tensions and keep opposing forces apart to create calm in which peaceful settlements may be sought D Chapter VII – may decide on enforcement measures 1. Economic sanctions, Arms embargoes, Collective military action

(5) Criminal Tribunals are subsidiary organs of the Council

© Economic and Social Council (ECOSOC)

(1) Coordinates the economic and social work of the UN and the specialized agencies and institutions I Human Rights commission reports to the Commission, UNICEF, UNHDR II More substantive and technically focused – passed proposed standard minimum rules for juveniles in detention. III Not binding law or treaties (influence CIL) IV Taken seriously – smaller and focused with lots of technical advisors

(2) 54 members serving 3-year terms, vote is done by simple majority

(3) Non-governmental Organizations (NGOs) I Under the Charter, this council may consult NGOs II Over 1600 NGOs have consultative status III Important sight for the creation of soft law – which hardens at one point or another.

(d) Trusteeship Council

(1) Provide int’l supervision for 11 Trust Territories placed under the administration of 7 Member States

(2) Ensure that adequate steps were taken to prepare the Territories for self-government or independence

(3) All has been accomplished – meet when required I One theory is that this should work with the failing states to get them back on their feet or to take care of them. This is a credible int’l oversight.

(e) ICJ – Hague, Netherlands

(1) Settles legal disputes between states and gives advisory opinions to the UN and its agencies

(f) Secretariat

(1) An int’l staff working in duty stations around the world which carries out the diverse day-to-day work of the Org. I Staff is chosen very politically – the Secretary-General has almost no way of getting rid of people. (very hard for managerial reformers) II Lots of bureaucrats – people sitting around and doing nothing. Achingly slow.

(2) Secretary-General (head, appointed by General Assembly on the recommendation of the Security Council, term of 5 years) I Diplomat and advocate, civil servant, and CEO II Charged to “bring to the attention of the Security Council any matter which in his opinion may threaten the maintenance of int’l peace & security” III Use his good offices to prevent int’l disputes

(3) Staff of 8900 answering to the UN alone I They take an oath not to seek or receive instructions from any govt. or outside authority.

(g) Brooks: not a world govt. Can do nothing more and nothing less than what states want it to do or allow it.

(1) Critics at the GA level motivated by anti-Americanism, US points to the fact that we are the largest contributor I We also use 25% of the world’s resources, many of the things the UN does is at our request

(2) Don’t forget there are several agencies which do good work. 5) Budget

(a) Submitted to the General Assembly by the Secretary-General and approved for a 2-year period

(b) Funds come from Member States

(1) Based on a scale of assessments – capacity to pay

(2) Precarious – many fail to pay (very hard to do anything when you don’t have a reliable source of funds)

(3) Voluntary contributions keep it operating and its Working Capital Fund and by borrowing from peacekeeping operations

(4) Member states are assessed separately for costs of the Int’l Tribunals and peacekeeping ops

(5) UN funds (UNICEF & UNDP) have separate budgets 6) Reform

(a) HR Commission

(1) Reports to the UN General Assembly (?)

(2) You would think it would be led by states with good human rights records but hasn’t been.

(3) Consensus based – quite easy to block consensus.

(4) States just embarrass other states – became a forum in which disagreements were worked out with a lot of resolutions that didn’t have anything to do with Human Rights.

(5) Can it be reformed? I Everyone acts like it is important – always try to get Cuba resolutions. II States do care about what the others think of them – affects political capital III Even so we put a lot of energy into reforming

(b) Peacekeeping

(1) Stops a lot of conflicts and saves lots of lives.

(2) Dismal failure – because there have been times that the UN force would have been very helpful but there has been none because of paralysis AND because where they have been deployed have sometimes been ineffective. I 70k employed in peacekeeping – 500 heading. II Inadequate logistical planning and training. (No army) III UN has to ask nicely for troops – peacekeepers to Congo. IV Very much becoming forces that are non-western – Pakistan / Bangledesh. A Paid by the state sending them – State gets reimbursed at a flat rate B Strong disincentive to do this for wealthy countries – attractive to developing countries because they could make a profit C Problem – least well-trained militaries bear all the risks V Scandals – Yugoslavia: telling some to go to Skrevinicya and the Serbs come and slaughter them after simply telling the UN to step aside. Same with Rwanda.

(3) Ethnically based conflicts – not over territory and between military of different states. I Calls for very different skills and commitment – we aren’t being asked to monitor a peace agreement, but go in and protect citizens and stop a conflict. II UN finds itself in this world without the logistical capacity, the tools, or the political backup to accomplish this III Sierra Leon – 2000: They took hostage several peacekeeping troops and took their tanks, equipment and guns. IV Reform – she doesn’t’ think there will be any meaningful reform. Perhaps a permanent peace-building commission. Bring together the functions that are now scattered around.

(4) Bureaucracy? Seems impossible to reform.

D) International Monetary Fund and the World Bank Group

1) IMF – Word’s central monetary institution

(a) To promote int’l monetary cooperation and stability in foreign exchange

(b) Doesn’t extend assistance for economic development

© Provides assistance with balance-of-payment problems 2) WorldBank

(a) Provides long-term financing to those countries in need of reconstruction after WWII

(b) Now promotes economic and social progress in developing nations, bringing poor nations to a point of self-sustaining development

(1) The lender of last resort – catalyst for capital funding

E) International Court of Justice (ICJ)

1) Basics

(a) At the Hague in the Peace Palace. Established in 46 with great optimism.

(1) Would enable nations to peacefully resolve their disputes with each other.

(2) Elected by the General Assembly from the list put together by the Security Council. I 9-year terms, can be re-elected. II No 2 judges from the same state, in practice, one judge is from one of the permanent 5.

(b) Don’t get paid very much, meet only 2 hours per day, no clerks or infrastructure to allow them to take on many more cases.

© From the beginning it wasn’t structured or funded to really accomplish the goals. 2) Two kinds of cases

(a) Contentious case jurisdiction – settle disputes submitted to them by states

(b) Advisory opinions – (unlike the Supreme Court)

(1) Open only to organs or specialized agencies of the UN (Article 65) (Brooks said states too)

(2) States don’t usually want these opinions

© Law applied?

(1) Look back to Article 38 – tells where they will go.

(d) Stare decisis? NO – binding only between the parties in respect of that particular case (Article 59) 3) Jurisdiction (Articles 34-38) (pg. 289-90)

(a) States can declare and submit themselves voluntarily. 62 have formally declared they are willing to allow the ICJ to decide cases – compulsory jx. Many of them have reservations. (Article 36 (2))

(b) Can opt in on a case-by-case basis.

© Treaty can specify that the ICJ is where a dispute will be resolved.

(d) Haven’t decided too many cases

(e) Increasingly being replaced by subject specific tribunals because of its paralysis 4) France v. Norway (1957):

(a) Court had a problem with getting jurisdiction. In theory, they accept compulsory jx.

(b) Norway issues bonds providing the owners will get gold when they turn them in. They renege and say they will give something else. French say they don’t want something else. France brings to Court arguing they are int’l loans and cannot be unilaterally modified by Norway. France objects and the Court has to figure out if they have jx.

© Court looks to the formal statement accepting jx and notices that France placed a clause reserving national matters.

(1) Complementarity – idea that an int’l tribunal is only to function where the domestic can’t

(2) France says – they can decide what is domestic.

(3) Norway says they hadn’t included the clause, but the statute says the principle of reciprocity in acceptance of jx. So if France can’t allow them to rule on something domestic, then Norway can say it as well. Shoe on the other foot argument. This succeeds – Norway was entitled to except form the jx of the Court disputes understood by Norway to be essentially within its national jx.

(d) Problem – reduces jx to the lowest common denominator. Arguably the reason the court hasn’t been successful. Extremely easy to wiggle out of jurisdiction. 5) Nicaragua v. United States (1984):

(a) The court rejected the reciprocity argument in this case.

(1) Brooks – tortured logic the court takes to get out of jx is the lesson from this case.

(b) Nicaragua doesn’t like that the US is intervening in the affairs of another state, contra to the UN Charter and takes the case to the ICJ. This is very embarrassing to the United States.

(1) US doesn’t like to be told their policies aren’t good.

© Number of arguments

(1) US accepted compulsory jx – notice given was not sufficient, even by its own original terms.

(2) Reciprocity – Nicaragua’s acceptance of compulsory jx didn’t say they needed 6 months to get out, so the lack of that clause should apply to the US as if it didn’t have the clause. Court says – nice try but you still attempted to give us a few days – not ok under any means.

(3) Treaty gives jx – so forget it.

(d) Eventually, the ICJ finds jx. Precisely the same argument they used previously to not find jx. Maybe there were just too many reasons that there should have been jx. State Dept. expected the Court to find a way out.

(e) Admissibility – is this an appropriate kind of issue for the court to be ruling on. Separation of powers and political doctrine.

(1) US thinks the use of self-defense force is a US judgment call – not the Court.

(2) UN Charter gives the Security Council the authority – and the ICJ is stepping on the toes of that Council

(3) Issues like these are best sorted out with diplomacy

(4) ICJ rejects all of these – UN Charter gives them the primary, not the exclusive. ICJ thinks this is precisely the type of conflict they should rule on.

(f) Orders US to pay reparations. US was no longer defending at this point – they wouldn’t even legitimize the jx findings. Withdraws completely – gives the 6 months notice.

(1) The US had stopped participating at the point they determined they had jx.

(g) Our evaluation of the ICJ – detailed on 304-05

(1) US has failed to bring suits to court while other countries use only to sue the US

(2) ICJ has gone against consent

(3) ICJ acted unlawfully in re: El Salvador

(4) ICJ jx over armed forces is inappropriate 6) Enforcement

(a) UN Security Council decides upon measures to be taken to give effect to the Court’s judgment.

(1) They have yet to do so – mainly because of veto power.

(2) No clear way to enforce its judgments.

(b) Why does it matter – Nicaragua:

(1) US refused to pay and withdrew from the ICJ. Becomes a moot issue because a new govt. takes over Nicaragua.

(2) Is it better to have a broader group participating or better to have a small but committed group?

(3) Nations that stay in have a higher degree of commitment – within a small regime they are relatively enforceable. Or on the contrary – does it weaken the int’l justice system when you have large players leaving?

© Ask if it is good that the court flexed its muscle? Or was it bad insofar that the more the court is out of line that it doesn’t do what its constituents want? When the court gets out in front – with a weak community without consensus – even though they may be right, nobody will pay attention. It is better for the court in advancing norms or is that worse. We may need the counter-majoritarian entity.

(d) What about Kosovo? Yugoslavia claimed it violated various provisions. There were substantive humanitarian violations. ICJ found a jx way to get out of this case. 7) Is the ICJ chop liver?

(a) Some will say it is completely irrelevant. So unenforceable that it is a glorified, slow-moving arbitral body that doesn’t work.

(b) Still – it makes a difference. It isn’t the Supreme Court for the world, but it still makes a difference in determining what int’l law is. ICJ decisions get cited all the time – by courts and by professors and restatements.

© Significance seems to be a downstream rippled effect.

(1) In jurisprudence around the world they do have a long-term impact on how nations understand, in the long-run states have their own courts using it as authoritative interpretations

(2) Continues to be a forum that is hard to completely trivialize

(3) Look at the recent Death Penalty case – Bush at the last minute decides to give effect to the ICJ even though it is contrary to what he believes. Hard to say that the ICJ doesn’t matter. This seems to be a reputation issue – the costs just were too high.

F) International Criminal Court

1) ICJ Convicts States – not individuals.

(a) You can order a state to pay reparations, but that is about it. 2) ICC is to have jx over individual conduct and put people in jail.

(a) Started working on it in 1949 and finally came up with good enough text and sufficient political will in 1994.

(1) The Cold War had ended and the conflict in the former Yugoslavia gave new thrust

(2) Ironically – the breaking of polarized politics enabled some pretty nasty stuff to start happening

(3) This notion was coming out of and fueled by the int’l shock at the events

(b) Ad hoc criminal tribunals were created for Yugoslavia and Rwanda

(1) Seems silly – why spend this money when we could have an int’l permanent court

© Negotiated similar to other multi-lateral treaties

(1) Argued about the text

(2) US was very involved and was initially a strong supporter in shaping the text

(3) Ultimately a meeting in Rome in 98 and at the very last instant the US found itself ordered to vote no and became 1 of 7. But the ICC was scheduled to come in force – it had 60 ratifications. Entered into force in July 2003.

(d) Technically it is not an organ of the UN (tribunals are)

(1) Independent although it is a cooperating entity 3) Jurisdiction

(a) Over crimes against humanity, genocide and war crimes.

(b) Defined by the elements of crimes which were themselves negotiated. Not necessarily the same definitions as the ICJ and Vienna.

© Crimes of aggression: Nobody could agree on what this was (unlawful to use force).

(1) One mans aggressor is another’s self-defender

(2) Court won’t actually have it until we define it. (Unlikely)

(d) No retro-active jx.

(1) The jx of the court extends to nationals of govts that have ratified the Rome Statute and crimes occurring in their territory I Shepard says this violates int’l law by extending jx territorially – purporting to extend itself to the nationals of non-member states. (US commits crime in France, ICC technically has jx) II BUT – this type of jx already exists. France could choose to prosecute under their own laws or to delegate to an int’l body. But it does violate treaty law.

(e) Any individual can be tried – no immunity regardless of status

(f) Prosecutor can initiate prosecutions of his own accord – NGOs and States can ask.

(1) Security council can refer a crime

(2) Even if a state is not a member – the Security Council trumps

(3) Referred Darfur – US abstained (Congo wasn’t a member – therefore this was the only way to get the case in)

(4) Uganda – Court issued its first arrest warrants.

(5) Congo 4) US Concerns?

(a) Concerned about politically motivated or frivolous prosecutions

(b) US is different – fair to be treated differently in these situations, global deployments that no other state has – our troops are at risk around the world.

(1) Lots of people don’t like us

(2) We have an obligation to our soldiers that we don’t let them do this

(3) US wanted a special exception or a veto

(4) Concern is not totally crazy – not implausible that there are states that would like to politically embarrass us

© ICC statute has multiple layers of protection to prevent politically motivated prosecutions

(1) Subsumed under complementarity – not supposed to take on a case where national courts are functioning and able, not a substitute for domestic processes I A court of last resort II Not going to take on cases with well-developed judicial and accountability systems unless they are politically charged

(2) Designed to ensure that the court doesn’t overreach and intrude on domestic matters of member states

(3) The state can basically say they are investigating it – then the ICC doesn’t get involved, unless the investigation is bad faith (Article 18) I Multiple appellate levels on this question alone. (Prosecutor can only override with their permission) II State doesn’t have to prosecute – only investigate in good faith A But this is where the US doesn’t agree – this is exactly where the court could get the wealthier states with their own systems B Ex: deaths of US detainees. Under the ICC the doctrine of command responsibility says that commanders can be liable for the behavior of subordinates, even if not ordered. C Not unreasonable to think they could get past appeals on this “good-faith” 5) Article 98

(a) Allows states to negotiate bi-lateral agreements which set out procedures for turning people in or guaranteeing immunity from ICC jx.

(1) US has many of these – with almost all members of the ICC

(2) Congress threatened to cut off aid to states that didn’t sign

(3) Good or bad? I Price might be that some bad actors go free – but it may be more likely to go after bad actors in the Congo. II Weak states are treated differently – is this the only court for Africa? 6) Article 9

(a) Required a detailed enumeration of the elements of crimes – ICC has jx against crimes against humanity and war crimes

(1) BUT they can decide what those things mean by drawing from int’l law principles and customary law

(2) US was concerned about this – don’t want complete discretion in deciding crimes

(3) So – lengthily hashed out the elements

(b) In certain areas critics charge that the elements restrict some developments in int’l law 7) Article 72

(a) Allows states to refuse to turn over anything that is sensitive to that states national security

(1) Courts don’t have satellites – depend on the States to provide 8) Article 16 – Security Council Block

(a) Essentially the Security Council can veto ICC prosecutions from moving forward

(b) You would have to have non-veto promises

© Significant political control mechanism by the more powerful States 9) Brooks:

(a) Any powerful state has all sorts of wiggle room and it is unlikely we will ever see a prosecution of a national of a powerful state acting on behalf of that govt.

(b) Toothless except with regard to pariah states and pariah non-state actors

© Overheated rhetoric is not so prominent – US has seemed to calm down (summarized as it goes up)

(d) Is it better to have a court that goes after some people than not to have a court? But this still reinforces the double standard on wealthier states.

(e) Why did states sign? Because they want a good reputation. Weaker states wanted to send the sign that they were on board and don’t think they are the kind of state that will be shown to have done or allowed these crimes. V) JURISDICTION TO PRESCRIBE

A) The authority of a state to make its substantive laws applicable to particular persons and circumstances

1) E.g., antitrust litigation – how can US seek to control a French or Japanese corp. 2) Policy

(a) Difficulty over the technical stuff is that increasing globalization has given non-state actors (corps and terrorists) a very strong incentive to take advantage of these rules to evade via jx rules.

(b) States have responded by finding ways to expand national jx and trying to develop regimes that create int’l bodies to adjudicate or make deals on who will adjudicate and make the law

B) Adjudicative jx: regardless of which state has the authority to create law that can be binding on outside actors, when does that State have a right under int’l law to have its own courts determine disputes under that law.

C) Enforcement Jx: jx to enforce law against particular persons or in particular circumstances

D) US Law

1) More aggressive approach to asserting extraterritorial jx over other states

(a) US entities (courts, administrative agencies, executive branch) routinely apply int’l law when it comes to conflicts and questions – sometimes they apply it directly (Charming Betsy, interpretive)

(b) More difficult when we get into sanctions – controlling behavior of foreign operations of foreign subsidiaries of a US corp 2) Narrow view when they try to assert it against us (US exceptionalism)

(a) But – we do have interests that are global and are somehow different than other states.

E) SIX Bases of Prescriptive JX (in descending order of acceptance)

1) Territory

(a) A state has jx over conduct that occurs within its borders and over persons who engage in conduct within its borders

(1) Includes territorial seas, ships at sea, and ports.

(2) So basic that in the US and int’l law there is a rebuttable presumption against extraterritorial statutes 2) Nationality

(a) Right of a state to regulate the conduct of its citizens or nationals anywhere in the world

(1) Congress can legislate with respect to the conduct of a US National anywhere in the world (subject to reasonableness)

(2) Issue of corporate nationality – citizens of the state they are incorporated in; but many statutes cite to “any person, or any property, subject to the US”

(b) Most states won’t bother for petty crimes

© Fruehauf: a US corp. formed in Detroit had a subsidiary in France, incorporated in France, with a board of directors consisting of a mixture of nationals – of which US nationals were in control. French subsidiary enters into a contract with another French corp. to make trucks for export. Somehow it is discovered that those trucks are bound for China and we had a sanction regime against them. US Treasury catches wind and goes to the Detroit parent and says you cannot allow fulfillment of the K and will be prosecuted if you do.

(1) They order the Board to cancel the K with the third co. That co. doesn’t care, they want the k fulfilled and are relying that it will be. Intend to go after the co. in court. Treasury won’t bend.

(2) Three French directors resign and go to French court. American directors are scared of criminal liability. French directors want France to create and appoint a temporary director to oversee the company as we carry out the contract with the other French company. French court does this.

(3) American board members appeal to no avail. Court says the third corporation will be able to go to court and collect damages, will wreck the company, put people out of work, we want the taxes, etc. French economy at stake. Ultimately don’t care about American criminal liability. I Treasury of course took pity on them.

(4) Straightforward application of the Nationality Principle. Not trying to do anything directly against the French corp., only directing US citizens to follow US law. In practice it can get controversial when it threatens economies.

(d) US Sanctions of Libya – Orders London branch of US to freeze Libyan accounts. UK orders them to not freeze those assets. US ended up granting a waiver because the UK wouldn’t back down. 3) Extraterritorial basis for prescriptive jx: (EFFECTS DOCTRINE)

(a) Objective territorial principle defined in book: The setting in motion outside of a State of a force which produces as a direct consequence an injurious effect therein justifies the territorial sovereign in prosecuting the actor when he enters its domain

(b) Extension of territory for the global world

(1) Fire a gun outside border of the US into the US – can the US get jx? Yes, even though the conduct and actor weren’t on our territory. I DOESN’T MEAN WE CAN GO GET THEM – that would be executive jx. II If the American drops dead and the French authority takes person into custody, we may want them extradited, but France might say no.

© Lotus Case: two ships in the high seas. One is Turkish and one is French. The French ship sinks the Turkish ship and there is property loss and death. Turkey is upset, seizes the officers and hauls them back to Turkey and puts them on trial. France objects.

(1) Turkey argues that they have the right even though it wasn’t on Turkish soil ⇒ the EFFECTS of the conduct were in Turkish territory. Actions that occur outside that have an effect in our territory will give us jx. Permanent Court of Justice agreed.

(2) They took a positivist, minimus point of view – everything that is not prohibited is permitted.

(d) Disputed?

(1) Economic activity – antitrust issues

(2) US Aluminum Co case: Canadian firm that was involved in a cartel based Switzerland that was restricting exports to the US. Violated our antitrust law. Sought to go after them in our courts. The actions weren’t illegal in the place of nationality, the place of incorporation, or the place where they were acting. Didn’t break the law and you can’t assert jx. But the courts said – even though the bad acts were committed by non-US company outside the US, the effects were felt upon US territory. 2nd Cir. agreed. (Principle was upheld in SC in another case)

(e) Limitations?

(1) Restatement wanted to make it a balancing test – how substantially was the effect on the country claiming jx. Was the effect direct and foreseeable or incidental and accidental? Is this reasonable?

(2) Area is a mess. Courts do try to engage this test, but is very difficult and not predictive of the outcome.

(3) Dow Jones case: Alleged online that an Australian citizen was involved in illegal activity in the US. The Australian citizen sued for defamation. Published by a NY corporation and the server was in NJ. Very few prescribed in Australia, but they held to have jx. I Problem – you could find yourself worrying about libel suits all over the world if you have a blog. But important to note, that if you are talking about someone in Ghana, not likely you have assets there and therefore not likely there will be executive jx.

(f) Helms-Burton Act: act triggered by Cuba shooting down two private planes that had been dropping leaflets. Cuba says – foreign planes in our territory, we will shoot them down. Sanction regime that goes much farther including the following two provisions:

(1) Denied a visa if found to be trafficking in nationalized property

(2) If an American national had lost property after 1959 because of the nationalization, they could go to court in the US and seek damages in Federal court against anyone or any corp who trafficked up to treble damages.

(3) This does include a waiver provision for the President.

(4) This is actually a secondary boycott – like Burma Mass. boycott. Legislation would have caused any foreign company that might involve property nationalized from a citizen could be subject to huge lawsuits and liability here in the US.

(5) Trying to influence the actions of other states – by forcing sanctions they may not agree with.

(6) Protests everywhere, blocking legislation prohibiting cooperation by their nationals including penalties. Barred courts of objecting states from enforcing judgments pursuant to the Act. I Some even made claw-back provisions – allowing any corp with a judgment against it in US to seek equivalent damages against the ∏ who won in the US case.

(7) Clinton and Bush sign waivers.

(8) Logic – effects doctrine. I Might mean that they could go after the Cuban govt., but it wasn’t the foreign corporations that caused the harm. They don’t have any further effect – property is already gone. II Does it violate int’l law to nationalize property? What about genocide – of course, jus cogens. Does this Helms-Burton act violate int’l law? (see pgs. 681-84) A Discussion of how it runs up against Sabatino. Company had k with a sugar company that becomes nationalized. Cuba fulfills the k and the company decides to pay the former owner instead of Cuba. Cuba takes them to court to collect. Supreme Court says that nationalizing property doesn’t violate int’l law, despite disagreement with the policy. Goes to the traditional understanding that one state does not look inside or pass judgment on another state’s policies and laws–Act of State doctrine. 1. Why doesn’t this preclude litigating under Helms-Burton? 2. Note – it would appear that the subject matter is important to the decision here – whether or not it is a clear violation of int’l law, i.e., Rwanda. The issue at the root is power politics. 4) Protective Principle

(a) States get jx over actions outside of their border by non-nationals insofar as that conduct is directed against crucial state interests usually defined as security.

(1) US v. P Russo – Alien while knowingly in Canada makes false statements on a visa application to get into the US. A US crime to perjure yourself on a US application. Enforcement of this if they aren’t in the country – US wouldn’t care. But once here, the US will claim it even though it hasn’t occurred in our territory but it was injurious to the security of the United States.

(2) United States v. Romero-Galue – Court of Appeals, 1985. Coast Guard patrolling the high seas (350 miles) and notices a fishing boat that is not rigged and is not flagged. Under the law of the sea, Coast Guard has Right to Approach unflagged ship. Find Panamanian registration and 4 and ½ tons of marijuana. Embassy acquiesces and allows to the boat to be taken back to Key West and the people are prosecuted for violating U.S. Narcotics laws. I US has jx because of protective principle – clearly drug smuggling is directed against crucial state interests. Note, however, at this time a war between US and Panama leaving Panama with no real choice but to submit their nationals to this jx. This didn’t even require intent to distribute in the US. Probably wouldn’t survive other layers of review. II This US law – really intended to prosecute foreigners? 5) Passive Personality

(a) Assert jx when your national is a victim or the conduct affects your national, e.g. French citizen in Paris murders US citizen in Paris. We could try to get prescriptive jx over this person on this principle.

(1) Not all States’ courts respect it – but no norm prohibiting.

(2) Note – under effects doctrine, if the guy shot across the border is not a US citizen, you have jx under effects, not passive personality. When it hits an American – then we have passive.

(b) United States v. Columba-Collela – Court of Appeals, 1979. Guy in Mexico goes into a bar and meets Keith. Keith tells  he has a car that was stolen in the US and asks if he can find a buyer.  agreed and took possession of the car. Arrested by Mexican police and turned over. Convicted under US law. Overturned the conviction because he didn’t steal the car, but merely found a buyer. He is not in any way himself injuring an American citizen – that occurred on US soil when the car was stolen.

(1) Sort of presuming that Mexican laws can solve this problem as effectively as any US law would. If you extend and start passing this legislation petty crimes committed in foreign countries would clog the courts here. Picking pockets of our nationals in Acapulco – we aren’t going to make this a federal crime.

© Increasingly states are passing legislation to get at serious int’l crimes under this principle.

(1) Implementing legislation to implement the convention of the taking of hostages.

(2) Mostly serious crimes that are particularly hard to get at with the standard jx doctrines. Where there is no universal jx, but substantial multilateral support.

(3) No big lobby opposing this type of jx. In a world that is interconnected we have new threats and it may be far preferable to ad hoc assertions of jx. 6) Universal

(a) Classic example was Pirates. Enemies of all mankind under CIL. Any state that could get a hold of them are entitled to prosecute them, wherever the actions took place.

(1) Notwithstanding the fact that none of them might be nationals.

(2) Globalization makes it hard to limit this jx – everything affects everything.

(b) Alien Tort Statute: Rests on civil universal jx. Says US has jx over torts against aliens. Not really protective principle because it isn’t really our interest. Rests on the notion that there are certain kinds of acts that all have a legitimate interest in going after. This is relatively unusual for a Statute.

© Increasingly used for genocide and war crimes in the criminal context. Concept is the same – certain crimes have int’l significance that goes beyond the state in which they occur. Any state that has the capacity has the right and arguably the duty.

(1) Some treaties give rise to this type of jx I Torture treaty in the UN has a universal jx clause. II Genocide Convention (doesn’t contain but is thought to have universal jx) III Int’l convention for the depressant of financing of terrorists

(2) Israel’s abduction of the Nazi Criminal

(3) Pinochet was a the dictator of Chile and presided over a regime which did nasty stuff including torture, disappearance, murder – all in the context of anti-communism. Also developed domestic immunity legislation that said he could never be prosecuted. So, after citizens were barred from redress because of this legislation. He went to England for medical treatment and a Spanish judge issues a warrant for his arrest and ask England to extradite. I Britain has an extradition treaty with Spain – but Pinochet is a former head of state. Unpalatable. Pinochet argues immunity. House of Lords finally determine that he doesn’t have immunity. The first decision was overturned because of the appearance of impropriety. II The next decision says that since Britain ratified the torture convention, they did have an obligation to punish or extradite to the extent that a small number of offenses occurred after ratification and the Torture convention does not provide immunity to heads of state. However, the British home secretary sent him back to Chile for humanitarian reasons (he was elderly and not in good health. III Pathbreaking – recognized universal jx under the Torture Convention and that heads of state don’t have immunity under it. Chilean courts, as a result, lifted immunity and numerous efforts have been made to prosecute him and lower-level associates. Broke the taboo essentially. Also gave impetus to other prosecutors. Belgium followed by prosecuting and convicting 4 Rwandans. Remember, however, this case did involve some Spanish nationals.

(4) Due Process? I We don’t necessarily want courts that don’t have due process bringing Universal jx claims.

(5) Efforts have been to try to come up with some limiting principles that would be codified in the UN, also efforts to repudiate the whole thing.

(6) Easy to pick a case you like – but think of it in terms of things you don’t like. Possibly gives favorable light to the ICC – a court required to adhere to the highest standards with multiple safeguards to ensure political bias wont’ get through the screen. But – the rules quite possibly have swallowed the court. I Possibly the argument from the supplement. Discuss the hybrid court idea.

F) Limiting Doctrines – why these principles don’t create a free-for-all. Voluntary judge-made doctrines to restrict their own jx.

1) Comity

(a) Not a legal obligation, something more than a courtesy. A reciprocity convenience based doctrine.

(1) Courts of one nation shall respect the judicial rulings of law of other nations.

(2) May apply Danish law in a US court.

(b) Not CIL – not done out of obligation. Often involve treaty regimes – but even aside from that courts will enforce them.

© Also given as a reason for courts to respect the law and judicial process of other nations.

(d) Hartford Fire Insurance Co. v. CA: SC (1993): British reinsurers want to get primary insurers to put into the policies that US holders will have various restrictions and CA thinks this violates the Sherman Antitrust Doctrine. (it definitely would if it were a US co.) Hartford argues that the district court should have declined to exercise jx under the principle of comity. This action is not illegal in Britain and Britain has its own anti-trust regime. Souter finds that since it isn’t illegal and British didn’t order it either, comity doesn’t have much force. So, where a company is subject to regulation by two states and can comply with the laws of both, jx may be exercised under the effects doctrine.

(1) Scalia: Reminds us of Charming Betsy. Should not construe statutes to violate CIL. So, we should be respective of the legal regimes of other states. Britain has rules of their own that are well thought out and it is a slap in the face to say that we don’t care. 2) Forum Non Conveniens

(a) Judge-made doctrine. Party may claim that another venue is more convenient and better able to determine the case. Judge will dismiss. VI) Sovereign Immunity

A) Immunity of Governments

1) Pre-1900s

(a) Broad – but was not granted when the litigation involved ownership or other interests in commercial real property (immovables) in the territory or when it involved an interest in an estate locally administered (one leaves money to France).

(b) Absolute – French banker lends money to state-owned British Company. Can’t go to France to recover if they decide not to pay back. Possibly sue in Britain if they waived their own immunity.

(1) Schooner Exchange v. M’Faddon: 1812 – Found that French govt. was immune from the jx of the US Courts and therefore was able to retain the vessel (which they stole from US citizens). Marshall presumed a perfect equality and absolute independence of sovereigns. The reason the ship was here was because it is one of a friendly nation, here at the US’ invitation, allowed to be in our waters, outrage to just grab it.

© Incentives not to routinely renege on loans and commit torts?

(1) Reputation

(2) Reciprocity – other states would do the same.

(d) What recourse for the banker? Your own govt – ask them to stand up for you. Maybe the French ambassador in London will administer a complaint or ask the govt. to do something. Only recourse is via your own state.

(1) If you are going to get anything, you have to hope your State is sufficiently motivated to seek redress on your behalf. 2) 1900s

(a) Restrictive Immunity: Judicial practice developed denying immunity from jx to a foreign state when it was made a respondent for commercial or so-called private acts. An extension of the real property notion, supra.

(1) Where the state is not acting as a public power, but does what private persons do, and as such, is acting in a civil and private capacity. No compelling reason to give them sovereign immunity. 3) US late in adopting – Tate Letter

(a) Schooner Exchange was good law up until 1952 – represented the view of the courts and the Executive Branch.

(b) US continually finds itself continually subject to the jx of other states who practiced the restrictive theory prior to WWII, despite applying absolute to those same States.

(1) Additionally, growing number of states engaged in int’l commerce through state-controlled enterprises and it undermined US business interests.

(2) Berissi Bros. v. the Pesaro: 1926 - The SC affirmed immunity granted to a ship that was engaged in commercial activities which it failed to follow through with. This was despite the Department of State which found that no immunity existed for that ship because it was not a ship of war (therefore public act), as in Schooner. SC, however, said principles of immunity are applicable alike to all ships held and used by a govt for a public purpose – which advancing the trade of its people was. They choose not to show deference.

(3) Compania Expanola de Navegacion Maritima v. The Navemar: 1938 – SC states for the first time that the Executive Branch suggestions of immunity were binding upon the courts. This occurs the same year as ERIE. I Why? Something to do with the build-up. In security crisis – tend to defer to the Executive Branch. By the end of the war, going from rebuke in Pesaro to saying that when EB says they have immunity, we are bound by it. Essentially continues to be the case.

© For a while, they selectively intervene in cases.

(d) Tate Letter 1952 – No longer will the US grant immunity for certain types of cases. Widespread and increasing practice on the part of govts engaging in commercial activities makes necessary a practice which will enable persons doing business with them to have their rights determined in the courts. Hereinafter, follow the restrictive theory.

(1) Hurting capitalism, helping communism.

(2) Soviet has controlled commerce – no private enterprise. We didn’t approve. Under absolute theory, all of their transactions are immune and ours aren’t.

(3) State Department develops procedures for determining immunity which do not always produce consistent decisions. Case by case basis – granting waivers where they find it appropriate and all the while leaving it up to the judges (who are overwhelmingly deferring). I Quasi-judicial hearings. No appeals. 4) Foreign Sovereign Immunities Act (Post-Tate)

(a) Codifies the restrictive immunity theory of sovereign immunity as presently recognized in int’l law. Foreign states have immunity subject to the following:

(1) Mostly follows the private v. public activities.

(2) States may choose to waive (pursuant to a k, or maybe to signal benefits)

(3) Implied waivers (similar to failure to assert personal jx)

(4) Counterclaims exception: if a foreign state files suit against a US co. in US court, and they counterclaim, there is no foreign immunity in those situations. Voluntarily subjected themselves

(5) Non-commercial torts done in the US. I Republic of Chile – 1980: Chilean govt. planted a car bomb in the car of an official and it killed the US citizen assistant. Requires that the torts be done in the US. No sovereign immunity because it was a non-commercial tort inside the US and the court found Chile was non-immune. Could argue that this was a public act – what states do. Clouded.

(6) Terrorist Acts: state-sponsored terrorism. You can seek civil damages.

(7) Taking of property rights – Sabatino. Partial overruling of Sabatino with the burden on the people trying to destroy immunity.

(8) Covers not only states, but the political subdivisions and agencies of a State.

(b) Transfers the determination from the executive branch to the judicial branch

(1) Reduces foreign policy implications (provides deniability)

(2) Assures litigants of due process

(3) Provides a certain amount of certainty

(4) Conforms to other processes around the world that favor judges making the call

© If proper service is made on a foreign state , personal jx exists for any claim with federal subject matter jx (doesn’t occur if there is immunity)

B) Inviolability of Embassies and Immunity of Diplomats

1) Legal Status of Embassies and Consulates

(a) Premises are generally immune under US law from attachment or execution

(1) Special Status

(2) Not property of sending state. I US citizen protests Iranian embassy then go and commit criminal acts inside the property. Protestors raise the defense that US courts don’t have jx. Won’t work.

(b) Inviolable

(1) Immune from any exercise of jx by the receiving state that would interfere with their official use

(2) Two separate obligations on the receiving state under the Convention: I Refrain from acting within the diplomatic premise A Missions are immune from searches, seizures, attachment, execution, or any other form of govt. enforcement jx that would interfere with the use 1. Can’t go in unless invited. B Zaire mission was immune from eviction for failing to pay rent (1993) II Protect diplomatic premises from private interference A US and DC curtail permissible private activity within 500 feet of diplomatic premises by Statute B When Iranian took hostages – BIG DEAL that Iran sided with the hostage takers. Reciprocity is what makes this world of int’l law and obligations work.

(3) Of course, still free to waive immunity. (State in rent agreement)

(4) Legal justification? I Functional necessity – diplomats carry out highly confidential, sensitive and unpopular activities on the premises and the premises are required for those functions.

© Jurisdiction?

(1) Go into British embassy and shoot. United States has jx. Does Britain? Most likely yes through territorial jx claim because it functions like their territory. Number of ways to assert jx.

(2) Protestors example again.

(3) While the laws of the receiving state cannot be enforced, these laws apply with equal force within the diplomatic premise walls. I Local law governs wherever inviolability either isn’t invoked or doesn’t apply II Whether an action triggers criminal or civil liability is determined by the receiving state’s law 2) Personal Immunity for Diplomats

(a) Universally recognized and governed by the Vienna Convention on Diplomatic relations

(b) Grotius based this on extraterritoriality – the fiction that a diplomat and his residence legally remained in the sending state.

(1) Vienna Convention abandons – it is just a functional necessity. Helps the diplomat perform his duties.

© Article 29 – “the person having a diplomatic agent shall be inviolable. He shall not be liable to any form of arrest or detention. The receiving state shall treat him with due respect and shall take all appropriate steps to prevent any attack on his person freedom or dignity.”

(1) Georgian Diplomat kills teenager while drunk driving. Immune. However, the Georgian president waived this immunity to criminal prosecution but not civil.

(d) Commercial exception provided in Article 31 –

(1) “A diplomatic agent shall also enjoy immunity from the receiving state’s civil and administrative jx, except in the case of an action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving State outside his official functions” I Roughly tracks the exceptions found in the restrictive theory. II Interpreted narrowly – only trade or business engaged in for personal profit – not for business relationships that are incidental to the daily life of a diplomat. III Mufti 1996 – diplomatic immunity extended to a suite brought by diplomat’s domestic servant concerning her employment relationship with the diplomat. Court in this case determined that the employer was immune because it was his diplomatic status that required him to have employees of this nature. Stems from the old fashioned view that you cannot look inside of what a foreign state does. IV Courts presume US statutes are not extraterritorial – aside from possibly slavery and torture

(e) Seems to be impunity – very controversial. 3) Consular Immunity

(a) Merchants who carry out their duties as consuls in addition to carrying out their trade

(b) Immune from liability for official acts – those who are nonprofessional consuls or honorary

© Considered inviolable if it is their career

C) Head-of-State

1) Even more absolute immunity (diplomat when abroad, head of state when local) 2) Belgium v. Congo: ICJ

(a) Belgium formerly had universal jx over int’l crimes when neither victims/perpetrators had nexus with Belgium. It exercised this with 4 Rwandans (although no officials). After this and Pinochet, Belgium prosecutors and courts decided to go after foreign heads of state. First, they go after the incumbent Foreign Minister for crimes against humanity while serving in a non-ministerial post by making speeches which incited the massacre of Tutsi. Congo challenges to the ICJ.

(b) Parties agreed to take on the narrow question of status of sitting foreign minister. Sitting minister of state is absolutely immune from foreign state. Leaves open for the possibility that

(1) Congo could prosecute if chose under domestic or int’l law.

(2) Congo could waive and allow foreign state to prosecute.

(3) After he ceased public office (providing there is jx) may be tried by another state for acts committed prior, subsequent, or private acts during. I Unclear what a private crime is?

(4) Additionally incumbent or former foreign ministers may be tried by int’l criminal tribunals having jx.

© ICJ also stated that he didn’t have impunity – but immunity.

(d) But – seems to suggest that former foreign ministers may never be tried abroad for “official” acts committed during their tenure, even though under int’l law certain crimes cannot be defended as having been “official” acts (e.g., genocide).

(e) Brooks – you can view this case has simply drawing a distinction between int’l tribunals and nat’l tribunals rather than granting full immunity in all cases.

(1) Likely will lead to courts deciding head of state immunity more cautiously. 3) Could a State immunize everyone by going down the line and deeming them to be some kind of minister when traveling abroad?

(a) Most likely, criminal tribunals would argue this is illegitimate. 4) Foreign Sovereign Immunity Act?

(a) Traditional rule still reigns. Personal liability of high-ranking state actors seems to still be immune.

(b) Most national tribunals will continue to be relatively cautious respecting the traditional view.

© Mumgabe and Zemin – could be viewed as showing that courts will be bound by the immunity views issued by the executive branch.

(1) US courts cannot go after foreign heads of state – not while serving as a diplomat. 5) Pinochet

(a) Remember with this case it was torture, pursuant to the Torture Convention, which did not provide immunity. Additionally, he was not the incumbent head-of-state.

(b) Some may interpret the Belgium as in line with Pinochet by saying that some crimes could never give rise to immunity, i.e., torture.

© The Belgium ruling seems to narrow this movement. Could also be seen as in line with it. 6) Criminal Tribunals

(a) Reject head of state immunity. 7) Policy

(a) There are compelling reasons to not allow absolute immunity regarding sitting/former heads of state.

(b) On the other hand, mischief would be caused if you allow individual states to make decision of whether to respect immunity of foreign heads of state.

© Thus, we want an int’l body making these decisions. However, they arise in the case where no int’l body is making them. 8) Military Heads

(a) Official position vis a vis an int’l tribunal by UN SC, will do you no good whether head of state or military leader.

(b) Will immune you in most, but not all, national courts.

© Nobody knows how far down the chain of command immunity will extend 9) Determination of immunity:

(a) The determination of immunity is very fact specific. A former diplomat may nevertheless qualify if he has diplomatic passport and is on “official” business. It’s very difficult to form a catch-all rule.

(b) Relevant –

(1) Status

(2) Purpose

(3) Place

(4) Waiver

(5) Functional understanding will rule when in doubt – rather than technical

© US has stripped people of diplomatic immunity upon discovery of what they were doing

(d) Jus Cogens have become so important – states can’t decide to violate them. Therefore, they can’t be public acts. So they must be private acts and thus punishable.

(e) Tensions will not be resolved except in a case-by-case basis unless there is a rapid progression toward world government. VII) State Responsibility and Int’l Human Rights

A) State Responsibility

1) Historical Roots of Human Rights

(a) Human rights come from ancient – the earliest societies, every major philosophical or religious theory all have rights for the treatment of individuals.

(b) European – the rise of the rights charters in European cities – the magna carta, etc.

(1) Magna Carta – didn’t have all that much to do with inherent human rights, but represented a successful protest of nobles against the King.

© City charters grew out of the rise of mercantile craft or guilds that were town based – town-by-town, guild-by-guild, reciprocity based sorts of treaties. They began to have enough power to negotiate agreements that look like rights agreements – concern due process, self-governance, etc. They were respected on reciprocity.

(1) Negative Rights – the right to be left alone.

(2) Not ground in universal humanity/dignity. More or less a group of people who were able to exert their power to stop certain treatment against themselves.

(d) More elaborate theories of human rights – not necessarily negotiations regarding the treatment of themselves.

(1) Very influential throughout Europe.

(2) French and US declarations – clearly about human rights at the roots. Conception of humans as humans with certain sets of rights that they ought to be able to exercise against govt.

(3) Interestingly, they are rights grounded in natural law theory. (Wouldn’t this mean a sense of morality is involved) I As Americans, the rights we feel we inalienably have would seem to influence the way we think about other people in other states and about our obligations towards other states and other persons in other states.

(e) Int’l law was thought of as entirely relations between states. So the rise of human rights as int’l law is new and controversial.

(f) End of the Thirty Years War – end of the earthly power of the Holy Roman Empire.

(1) Shift from permeable state lines to secular territorial based structure.

(2) This shift is ironic – Roman Empire wrote about inherent human rights. When you no longer have this higher law, you have the notion that it is purely an earthly power and it is nobody’s business what states do – people cease to exist. I No rights, no standing in int’l law. It sees only states. 2) For Aliens (first wedge in the idea of “states” not people)

(a) Int’l law only applied to a state’s treatment of aliens within its territory, not to the state’s treatment of its own nationals

(b) All of this is coming from the original idea that int’l law doesn’t recognize individuals – states.

(1) If a person is property of state A and is enslaved by state B, state A was injured. Person had no recourse. Rather, between sovereign states and their subjects. If state B interfered with the property of A, had an int’l obligation to compensate A for harm. Enforced NORMS. I Set of norms rose up mostly in context of due process, which then becomes individual rights in the modern human rights era.

© No State is bound to admit aliens

(d) Each state had responsibility to deal fairly, not deny them due process, not arbitrarily deprive of life/property and not to enslave. Not just prohibition against affirmative actions, but duty to take reasonable care in protecting foreign nationals from private and state actors.

(1) Primitive system of reciprocity and somewhat unreliable. Everyone has incentive to develop legal rules for non-nationals in the borders of their states. I Latin American states took the position that the duty to aliens extended no further than dealing with own citizens – so long as you didn’t treat them worse than your own.

(2) They must also provide remedies.

(3) There are repeat interactions. CIL begins to develop.

(4) These rules make life easier.

(5) Then they are enshrined in treaties and conventions.

(6) All based on the theory that an injury to an individual is an injury to the state.

(e) That alien must, however, accept the institutions of that state as he finds them

(1) No right to demand equal treatment as that of citizens

(f) If treated below the objective standard, must seek help from their State.

(1) That state may be unwilling, may delay relief, and may leave no remedy of their own.

(2) Everyone knows the idea that it is an injury to the State fails here – damages are going to be measured in harm to that individual.

(3) This fiction was necessary precisely because they weren’t treating their own citizens well. I In states with a low standard of justice – the alien’s position is privileged under int’l law objective standard of treatment II If implying there is an obligation to individuals – implies that state has an equal obligation to their own citizens. 3) How do you decide if conduct can be fairly attributed to states?

(a) R § 711: A state is responsible under int’l law for injury to a national of another state caused by an official act or omission that violates:

(1) A human right that…a state is obligated to respect for all persons subject to its authority

(2) A personal right, that under int’l law, a state is obligated to respect for individuals of foreign nationality; or

(3) A right to property or another economic interest that, under int’l law, a state is obligated to respect for persons, natural or juridical , of foreign nationality

(b) Attribution of Conduct to the State (R)

(1) A state acts through people exercising the state’s machinery of power and authority I Includes those of successful revolutionary regimes II De facto agents under direct control of those in power

(2) Int’l law does not attribute conduct of a nonstate character to a state I Mobs, corporations, trade unions, unsuccessful insurgents II Failure of duty is different from actual acts of nonstate actors

(3) A state may act through its own independent failure of duty or inaction when an int’l obligation requires state action in relation to nonstate conduct I Nongovernmental death squads allowed by responsible govt officials averting their eyes or over collusion is conduct attributable to a state

© If attributed, they must exhaust local remedies before going to home states. Only if those domestic procedures break down in some way that he is supposed to go to his own state to redress the other state’s actions. If they choose to act, or not, the individual is stuck. No obligation of the state to pursue. If they do – it would be done through diplomacy.

(1) Usually worked out without much fuss.

(d) Still alive today

(1) Singaporean tourist stopped at border – taken very seriously.

(2) La Grand case – Obligation under CIL even there should have been high standards of due process owed to the state of the nationality of the individual.

(3) Begin to see the laws on individual level.

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