Introduction: What is International Law?
·
Aouzou strip
o
Chad says: treaty b/w our
colonizer (France) and Libya rules. That treaty recognized other treaties
between France and the other colonizers (Britain and Italy) in the region.
o
Libya says: the treaty is null
because France made us sign it and the strip belonged to our colonizers Italy
and the Ottomans.
o
ICJ says: Chad wins, their treaty
is most recent. Libya failed to challenge the border on several occasions and
Chad asserted its title to the strip on several occasions. Terra nullius applies (land belonging to no one. Possession =
title). Uti posseditis applies (existing
borders are presumed valid. Administrative borders recognized by colonizers
remain after decolonization).
·
Rainbow Warrior
o
France violated international law
by detonating a bomb in New Zealand’s territory.
o
UN Secretary-General creates a
customized remedy (which France eventually disregards).
·
ICJ Article 38
o
The IJC applies/construes to
disputes (in this order):
§ Treaties;
§ Customary
international law;
§ The
law of nations (general principles recognized by civilized peoples);
§ Scholarly
works.
Treaties and Treaty Law
·
Vienna Convention on Treaties
o
Article 7
§ Capacity
to enter a treaty requires that the representative have:
·
Appropriate full powers; or
·
Contracting States recognize him
as the representative to dispense with full powers.
o
Article 51
§ Coercion
through acts or threats against the representative renders the treaty null.
o
Article 52
§ Coercion
through threat or use of force in violation of international law renders the
treaty null.
o
Article 31
§ Interpretation
of treaties
·
Ordinary meaning
·
Context
o
Negotiations
o
Intent of the parties
o
Other agreements parties signed.
o
Article 56
§ Denunciation
or withdrawal without language providing for such.
·
Only if the parties intended or
there is an implied right.
o
Article 60
§ Denunciation
or withdrawal as a consequence of other party’s material breach.
·
Cyprus problem
o
Treaty of Guarantee gave Turkish
Cypriots (20% of the population) 30% of the power.
o
Greek Cypriots seek to amend or
withdraw from the Treaty.
o
Treaty provided for “action” by
the powerful opponents backing each side (Turkey and Greece) if either party
breaches.
o
Did Turkey have a right to
conduct flyovers? Was it in defense of the Turk Cypriots?
·
Reservations to treaties
o
Only applies to multilateral
treaties.
§ Bilateral
treaties require absolute agreement.
o
The reservation can’t undermine
the purpose of the treaty.
§ Each
state must determine this in good faith.
o
Reservations must be made BEFORE
signing
§ BUT,
states can withdraw reservations after signing.
·
When does a treaty have force?
o
Self-executing treaties
§ One
step; When the state’s representative signs, it is binding on the state and can
be invoked in domestic courts.
o
Non-self-executing treaties
§ Two
steps
·
State’s representative signs treaty,
then
·
National legislation enacted to
bind the state.
Custom and Soft Law
·
Customary international law
o
Is
§ A
state practice (objective)
·
What the state actually does or
has consistently done
§ That
is accepted as law; opinio juris
(subjective)
·
The reason for doing the state
practice is a sense of legal obligation.
o
e.g.
§ Uti posseditis
§ Jus cogens:
·
Peremptory, fundamental norms of
international law
·
Treaties violating jus cogens are null.
·
They are developed by broad
consensus
o
e.g., slavery, genocide, piracy.
o
Is binding on states even without
express consent
§ UNLESS,
the state persistently objects to it.
·
The
Paquete Habana
o
Objective analysis
§ Handbooks,
manuals, letters from commanders, etc.
o
Subjective analysis
§ Past
U.S. treatment of enemy non-combatants.
·
Foreign Direct Investment and
Expropriation problems
o
Background
§ Prompt,
adequate, and effective (objective) v. domestic law (subjective).
§ GA
Res (1962)
·
Expropriation shall be in accord
with int’l law and only for public
interest of the state.
§ GA
Res (1973) (de-colonization period)
·
Permanent, inalienable right of
sovereignty over domestic natural resources.
§ Convention
on the Economic Rights and Duties of States (1974)
·
Domestic law (power) prevails
unless otherwise agreed
o
SEDCO/Iran arbitration
§ International
law or domestic law?
§ GA
Resolutions do not necessarily reflect state practice.
§ International
law (p/a/e) applies.
o
Libya arbitration
§ GA
Resolutions can be evidence of state
practice.
§ However,
Libya lost b/c ALL developed states w/ market economies abstained or voted
against the 1973 and 1974 Resolutions; and they all voted for the 1962 one.
·
Soft law
o
Non-binding codes of conduct
created by non-state international actors.
§ The
only remedy for not adhering to the codes is economic shunning, public
disgrace, bad media coverage, etc.
o
Standardizes certain things
§ E.g.,
language, weights, and measures
o
Not mentioned as a source of law
by the ICJ.
·
The final source of international
law is
o
Judicial decisions of various
states, opinions and writings of experts from various states, and arbitral
rulings.
Statehood
·
Requirements for statehood
o
Defined territory;
o
Permanent population;
o
Capacity to enter foreign
relations;
o
Operational government.
·
Statehood = sovereignty (the
right to do whatever you want in your borders to the exclusion of all other
states/powers).
·
How is statehood achieved?
o
Merger
o
Dissolution
o
Decolonization
o
Conquest
o
Secession
·
Two prongs
o
Subjective
§ E.g.,
self-determination.
o
Objective
§ International
recognition; e.g., UN membership.
·
Aaland Islands problem
o
Aaland Islanders wanted to secede
from Finland.
o
Is secession purely internal?
Probably yes.
o
ICJ: no secession allowed. No
oppression, Finland guarantees equality.
·
Yugoslavia problem
o
Yugoslavia was a mix of many
ethnicities (mostly Serbian) created post-WWI. Serbs retained most control over
Yugoslavian gov’t. Ethnic groups began to break away and Yugoslav army
retaliated.
o
Is this
§ Secession
·
An internal, sovereign matter (no
international involvement is allowed)
§ Or,
dissolution?
·
International involvement allowed
b/c there is no power that holds sovereignty.
o
Badinter Commission says
dissolution, U.S. intervenes.
§ However,
borders cannot be changed by use of force.
·
Recognition of statehood
o
Two views
§ Declaratory
·
International recognition is
purely political; statehood is really subjective.
§ Constitutive
(dominant view)
·
International recognition is
essential; statehood is objective.
o
Yugoslavia guidelines by European
Community
§ The
EC will recognize states IF… (human rights, respect for int’l law, etc.)
·
Succession after states break up
o
Who owns the assets? Who owes the
debts? Are treaties still in effect?
§ Vienna
Convention on Succession of States (Developed countries’ view)
·
Continuity: New state assumes the
rights and duties of the old state.
§ Developing
Countries say new states should start anew.
·
Recognition of new government
o
Two views
§ Estrada
·
How the new government came into
power doesn’t matter, only that it has power matters.
§ Tobar
·
Only democratic governments are
recognized as legitimate by the international community.
International Organizations
·
What?
o
IGOs
§ UN (global); OAS, EU, AU, etc. (regional)
·
How?
o Treaty; sacrifice of sovereignty.
·
Why?
o Human rights, economy, etc.
·
Do international organizations
have standing?
o
Yes, the U.N. can sue a state for
the death of an employee.
·
Non-state actors.
o
NGOs
§ Donor
funded
§ Civil
society NGOs
·
Usually western society.
·
No regulation
o
Corporations
§ Profit
funded
§ Whose
law applies to corporations?
·
In whichever state it is acting.
·
No universal laws (labor,
administration, corporate, etc.)
·
Regulation by OECD, GA, UNHCR,
ILO (but still soft law)
§ MNCs
often use subcontractors based in the country; someone else to blame for
faults.
o
NGOs and corps. only make soft
law
International and Domestic Law
·
Each state determines the reach
of international law in its domestic territory.
·
Domestic judgments are usually
enforceable abroad only by a treaty.
·
Two views
o
Monist
§ International
law and domestic law are the same, one system.
·
E.g., EU laws automatically trump
EU member-states domestic law.
o
Dualist
§ Additional
legislative steps are required to adopt international law as domestic law.
International law and the USA
·
3 ways to enact international law
and make the U.S. subject to international law
o
U.S. Const. Art. II
§ Treaties
entered into by President must be ratified by 2/3 Senate majority.
o
Executive-Congressional
§ Normal
legislative process; majority votes in both houses, President signs.
o
Sole Executive
§ No
democratic involvement.
·
MO
v. Holland
o
Does 10th Amd. limit
the Federal treaty-making powers?
§ No.
States’ rights lose here b/c the birds are transitory objects.
o
Result: Bricker amendment, to
avoid binding the U.S. to human rights treaties.
·
Reid
v. Covert
o
CN provides trial by jury, grand
jury indictment, etc. for civilians. UCMJ does not provide these protections.
Treaty allowed for UCMJ jdx on servicemen and dependents.
o
Is wife deprived of CN’al rights
abroad?
o
Art. II treaties cannot violate
constitutional rights of U.S. citizens abroad.
·
Heirarchy of law
o
Constitution is first.
o
Then, international law and
legislation are on the same level
§ However,
“later in time” doctrine: The last rule enacted trumps the earlier rule.
·
But, statute should never be
construed to violate international law without clear legislative intent.
·
Made
in USA v. U.S.
o
NAFTA was enacted by
Executive-Congressional agreement.
o
There is a conflict in the
Constitution
§ Art.
II says Prez needs 2/3 Senate majority for treaties
§ Art.
I § 8 says Congress has power to regulate commerce
with foreign nations.
o
P says NAFTA did not get 2/3
Senate majority and is u/c
o
SCT: Political question,
nonjusticiable.
o
Practical note: If the SCT struck
it down, the U.S. would have to pull out of an active treaty, this is a
violation of the Vienna Convention.
·
Dames
& Moore v. Regan
o
Iran hostage crisis; President
agrees to Algiers Accords (sole Executive).
§ Stop
all claims against Iran’s assets in U.S.
o
P can’t execute his judgments on
Iran, says the President’s adoption of Algiers Accords is u/c because no
democratic involvement.
o
SCT: Youngstown Presidential powers categories:
§ 1+1
= All implied powers plus powers granted by Congress
§ 1+0
= Implied powers only
§ 1-1
= Implied powers with Congressional restrictions.
§ Here,
Congress has shown silent acquiescence by not commenting on President’s
handling of the matter; Presumption of validity.
§ The
SCT is giving the President power to negate an Article III judgment
·
Breard
v. Greene
o
Consular notification treaty;
U.S. agreed to compulsory ICJ jurisdiction.
o
Virginia violated the treaty
obligation, D failed to raise the issue at trial.
o
The Feds have no control over
state criminal law; Fed does “everything it can” (sends a letter to the
governor) to stop the execution.
o
Paraguay withdrew its ICJ action
(alleged economic threats).
·
LaGrand
o
Same, but Germany did not
withdraw.
o
ICJ final judgment held that the
U.S. was in error by failing to give any effect to the ICJ’s order to stay the
execution.
·
Avena
o
ICJ orders review in U.S. state courts
for actual prejudice to D; OK complies.
·
Alien Tort Statute
o
Part of 1789 Judiciary Act;
originally enacted for piracy, ambassadors, etc.
o
“The district courts shall have
original jurisdiction of any civil action by an alien for a tort only,
committed in violation of the law of nations or a treaty of the United States.”
o
Elements:
§ Plaintiff
must be an alien;
·
Court must have jurisdiction over
D.
§ Cause
of action must arise from international law or a treaty signed by U.S.
§ Cause
of action must have occurred outside of U.S. jurisdiction.
o
Filartiga
v. Pena-Irala
§ Paraguay
v. Paraguay; Extends the scope of U.S. jurisdiction.
§ Forced
disappearance and torture are recognized today as violations of international
law.
o
Sosa
v. Alvarez-Machain
§ Plaintiff
was abducted by Mexicans hired by the DEA to stand trial in the U.S.
§ Plaintiff
sues DEA for abduction.
§ SCT:
“Federal courts should not recognize private claims under federal common law
for violations of any international law norms with less definite content and
acceptance among civilized nations than the historical paradigms familiar when
ATS was enacted”
o
Khulumani
v. Barclays Bank
§ Federal
common law and international law recognized aiding and abetting as cognizable.
·
Limitations to ATS
o
Political Question
o
Foreign Sovereign Immunity
§ Act
of State Doctrine
·
If the court has to decide
whether or not the act of a sovereign was valid, the AoSD is a defense.
·
U.S. courts practice judicial
self-restraint by not judging foreign sovereign governments.
·
Separation of powers; Judiciary
refusing to infringe on Executive’s foreign affairs powers.
·
Banco Nacional de Cuba v. Sabatino
o
U.S. exporter in Cuba and U.S.
importer contract for sugar. Cuba expropriates the sugar industry and U.S.
importer promises to pay Cuba for the sugar. U.S. importer pays the U.S.
exporter. Cuba sues in U.S. District Court.
o
SCT: Cuba wins. The U.S.
Judiciary does not sit in judgment of the acts of sovereign states. There is no
evidence that expropriation is a violation of international law; no universal agreement
as to the standard for compensation.
·
AoSD also applies in actions
against private parties.
o
Kirkpatrick
v. Tectonics
§ D
bribed Nigerian government; AG sues D under FCPA and wins.
§ FCPA
provides for private CoA and treble damages.
§ P
sues D; D says the AoSD bars the suit.
§ SCT:
The AoSD is inapplicable here because there was no sovereign act by a foreign
power. The government agent’s acceptance of the bribe is not a sovereign act.
Foreign Sovereign Immunity
·
FSI is a customary int’l law
norm.
·
FSI was once an absolute rule
o
Schooner
Exchange
case
§ France
captured a U.S. vessel; later, the owner saw the vessel at U.S. dock and sued
for its return.
§ SCT:
France is a juridical equal to the U.S. The Plaintiff is barred from suing
France b/c France has sovereign immunity, even if the action was clearly
illegal or immoral.
·
However, the U.S. conformed to
state practice by allowing exceptions:
o
Expropriation
§ Post-Sabatino legislation (AoSD is not a bar
to judging a foreign sovereign’s expropriation in violation of international
law).
o
Waiver
§ Express
(e.g., forum clause) or implied (e.g., failure to raise the defense).
o
Commercial
activity
with a direct effect on the U.S.
§ Applies
only to agents/instrumentalities of the government
§ Policy:
encouraging commerce; people know they have a CoA if they work with a sovereign
who might breach the K.
§ Argentina v. Weltover
·
D issues bonds to P; D
unilaterally restructures the bonds and defers payment to P; P seeks to redeem
the bonds, D refuses. P sues D in U.S.; D claims FSIA
·
SCT: Issuing sovereign bonds is a
way to stabilize currency, etc. However, it is still commercial activity b/c
Argentina was acting as a private player in the market, not as a regulator.
Anybody can issue a bond and Argentina was looking to make money. The purpose
was sovereign/governmental, but the nature was commercial. Furthermore, it had
a direct effect b/c bank accounts in New York were used for payment.
§ Saudi v. Nelson
·
P entered employment K to work in
Saudi hospital. P was tortured for continuing to raise objections to
conditions.
·
P sued Saudi (it was a state
hospital); Saudi claimed FSIA.
·
SCT: Torture is not a commercial
activity.
§ Antares v. Nigeria
·
D (Nigeria) made P pay fees for
the plane, P paid, D still refused to release plane.
·
P sues D in U.S.; D claims FSIA,
that it’s a non-commercial official act.
·
Court: This is commercial
activity, but no direct effect. That one U.S. company suffers economic harm is
not enough of an effect.
o
Terrorism
§ For
states listed as Terrorist States, U.S. has jurisdiction to hear Plaintiff’s
CoA arising out of the state’s acts of terrorism against him.
o
Real estate located in U.S.
o
Non-commercial torts committed in
U.S.
o
Maritime liens
What is the reach of domestic law?
·
Types of Jurisdiction
o
Jurisdiction to prescribe
(legislation)
o
Jurisdiction to adjudicate (sit
in judgment)
o
Jurisdiction to prosecute
·
Reach of jurisdiction
o
Territory
§ Within
the borders
§ Military
bases abroad.
o
Nationality
§ FCPA
applies to U.S. citizens abroad.
§ Taxes
·
Lotus case
o
French ship allegedly caused
Turkish ship to capsize; Turkey asks the French captain to come ashore; Turkey
fines and imprisons the captain. Who has jurisdiction?
o
ICJ: The burden of proof is on
the plaintiff (France). There is no international law as to who has
jurisdiction; all things not prohibited are permitted, thus Turkey can have
jurisdiction if it wants.
o
Lotus principle: All
things not prohibited in international law are permitted.
o
Result: Int’l Maritime Ass’n
creates a universal rule that whosever flag the ship is flying is the
jurisdiction it submits to.
·
American
Banana v. United Fruit
o
D threatened and used CR army to
gain control of P-competitor in Panama. P sued under Sherman Antitrust Act in
U.S.
o
SCT: D wins. Legislation is prima
facie territorial only; thus, the Sherman antitrust act only applies in U.S.
territory.
o
Policy: we don’t want sovereigns
trying to regulate their nationals in our country.
·
U.S.
v. Aluminum Co. of America
o
Alcoa joined an int’l cartel in
Canada to control steel prices worldwide and in U.S.; U.S. AG sued under
Sherman.
o
SCT: U.S. courts have jdx over
acts of U.S. entities abroad if there is an intent to impact the U.S. economy
and it does affect it.
·
Timberlane
v. Bank of America
o
U.S. bank tries to corner the
Honduran lumber market.
o
9th Cir.: Three part
test to determine if US anti-trust laws can reach an extraterritorial act:
§ Did
the alleged act result in some effect
on American foreign commerce?
·
Reasonable to
believe it was a cartel conspiracy.
§ Was
the effect large enough to present a cognizable injury to the P?
·
Definitely would
be cognizable under Sherman in U.S.
§ Are
the interests of the US sufficiently strong to justify an assertion of jurisdiction?
·
No conflict of
U.S. law w/ Honduran law. No embarrassment/encroachment.
·
Hartford
Fire and Insurance v. CA
o
D (UK reinsurers) coerced U.S.
insurers to change certain practices beneficial to consumers but detrimental to
the D. CA AG sued. A clear violation of Sherman, but not a violation of UK law.
D claims that int’l comity req’s dismissal when there’s a conflict of law.
o
SCT: UK law permits, but does not require, D to violate
Sherman. Thus, there is no direct
conflict of law. D concedes that the act intended to and did effect U.S.; thus,
jdx.
o
Scalia dissent: Presumption of
territoriality.
·
What do we do when there’s a
conflict re jurisdiction?
o
Persuasion
o
Negotiation
o
Persuasion with threat
o
Imposition of jurisdiction.
·
Boeing merger
o
The EU has the right to impose
fines on the U.S. corporations acting in their territory.
·
How far does U.S. law reach?
o
Nationality
§ Taxes
§ FCPA
§ Antitrust
activities w/ intent and effect
o
Territory
o
Corporations?
§ During
the Cold war, U.S. forbade corporations and their extra-U.S. subsidiaries from
performing gas Ks w/ USSR.
§ But,
European and British gov’ts forbade corporations from adhering to the U.S. law.
·
International law of jurisdiction
o
Protective principle
§ States
have jurisdiction over
·
The extraterritorial conduct
·
By non-nationals
·
Directed against state security
or vital security interest (e.g., counterfeiting, assassination plots, etc.)
§ E.g.,
if Canadians in Canada plan on overthrowing the U.S. government, the U.S. may
exercise jurisdiction.
·
However, this is theoretical; the
U.S. must talk to Canada to get them to hand over the criminals into U.S.
custody.
o
Passive personality principle
§ A
state may exercise jurisdiction based on the victim’s nationality (weakest
basis for jdx).
§ E.g.,
U.S. can exercise jdx over a non-U.S. criminal in France who assaults a U.S.
citizen.
o
Universal jurisdiction
§ The
only thing that matters is the nature of the act.
·
An act that is so heinous that
any state in the international community can exercise jurisdiction (e.g.,
piracy, slave trade, Pinochet’s war crimes, etc.)
·
Israel
v. Eickmann
o
Israel prosecutes a Nazi war
criminal.
o
Should Germany be the forum
state? Or Argentina (where D lived)?
o
ICJ: The state is acting as a
prosecutor/representative of the entire int’l community.
·
Jurisdiction to adjudicate:
Capturing criminals abroad
o
Slovko Mebdebevic
§ Was
a Serb/Croat commander who carried out war crimes. Afterwards, he lived in
Serbia. The UN criminal tribunal tricked him into entering territory where they
could catch him.
o
Israel
v. Eickmann
§ He
was kidnapped by Mossad/IDF in Argentina and brought to Israel. Does that
negate the ability to exercise jdx? Int’l community is silent.
o
Are renditions legal? It is a
political/foreign relations question.
o
Extradition
§ States
have treaties with each other. They are subject to norms:
·
It has to be a serious crime, not
just a misdemeanor. The treaties list which crimes are extraditable.
·
Double criminality
o
It must be punishable in both jurisdictions.
·
Doctrine of specialty
o
He can only be prosecuted for a
crime(s) listed in the treaty
·
Political
o
If the crime is political (e.g.,
protesting), discretion to NOT extradite.
·
Due Process
o
If the requesting state will not
exercise DP, discretion not to extradite.
·
Public policy
o
The crime/punishment must not
conflict with the public policy of the state.
o
E.g., France does not impose a
death penalty; a Frenchman was tried in absentia and sentenced to death; France
would not extradite him b/c public policy.
·
Sosa
v. Alvarez-Machain
o
The treaty did not address
trans-border kidnapping.
o
SCT: That which is not prohibited
is permitted (Lotus). B/c the treaty
did not address it, it is OK.
o
Whether or not kidnapping is a
legitimate means for gaining jdx depends on the state’s domestic laws.
The Use of Force
·
Intro
o
WWI was so big that a large
number of children of upper class Europeans actually died in battle.
§ This
finally was enough to lead to change; Led to the League of Nations.
o
Post-WWII, prohibition of UoF
became a jus cogens norm.
o
UN Charter Art. 2(4)
§ No
threat or use of force.
·
What is “force”?
o
A breach of territorial integrity
or political independence.
§ NOT
sanctions; there must be some physical military or destructive material
involved.
·
Self-Defense
o
States clearly have a right to
self-defense to repel occurring offenses (e.g., as enemy troops march across border).
§ However,
2 views regarding the right to retaliatory self-defense.
·
States must get UNSC permission
first;
·
States are free to retaliate
immediately.
·
UNSC role
o
5 permanent members with veto
power.
o
Authorizes UoF; authorizes AND
enforces collective sanctions making it illegal for ALL UN members to trade w/
a state (however, black markets exist).
·
Waiver(?) of UoF prohibition
o
Grenada invasion
§ Caribbean
neighbors and OAS requested U.S. invasion after a coup.
o
Can a state request military
support from another state in
§ Putting
down an insurrection?
§ Exercising
SD?
·
Responsibility to protect
o
R2P is not a justification for
UoF.
o
Sovereignty is favored over human
rights for precedential purposes
·
Iraq example
o
First, Iran-Iraq War. Saddam in
debt and owed billions to Kuwait
o
Invasion of Kuwait
§ Saddam’s
legal justifications for invading Kuwait
·
Righting a colonial wrong
·
Kuwait violated OPEC
·
Slant drilling
o
Response
§ First,
unilateral U.S. sanctions; then, UNSC collective sanctions.
§ Saddam’s
response: Refusal to comply; U.S. Navy’s UoF in enforcing the blockade of
Kuwait’s ports act of war; sanctions only serve to hurt Kuwaitis.
§ Gulf
War I
·
UNSC authorizes UoF to expel Iraq
from Kuwait. NOT to invade Iraq; containment strategy: severe economic sanctions,
supervision, WMD monitoring, oil for food program.
§ 9/11
·
U.S. undeniably had a right to
invade Afghanistan. After, U.S. alleged Iraq’s support of terrorist groups and
noted Saddam’s refusal to allow UN inspectors and boasting of WMDs (he had to
in order to scare Iran).
o
France, Russia, China refused to
authorize UoF.
o
U.S. cited UNSC Res (1991) that
authorized “all means” to force Iraq to comply.
§ France,
Russia, China said the 1991 Res expired and was abrogated by post-GWI
sanctions.
§ U.S.
and coalition invaded on anticipatory Self Defense.
§ Gulf
War II
·
Intel failure; no WMDs, no
connections to terrorism.
·
Slippery slope of pre-emptive SD.
o
Any state can allege pre-emptive
SD; what constitutes a credible threat?
·
Syria
o
China and Russia veto b/c of U.S.
role in Libya.
§ Libya
started as a no-fly zone for protection of citizens.
§ U.S.
went beyond that to seek overthrow of Gaddafi.
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