Public International Law outline by xiagong0815

VIEWS: 31 PAGES: 133

									                                  OUTLINE FOR INTERNATIONAL LAW

Table of Contents
I. INTRODUCTION: WHAT IS INTERNATIONAL LAW? WHY DO STATES COMPLY WITH IT? ...................... 2
   1. Defining International Law....................................................................................................................... 2
II. Sources of International Law ....................................................................................................... 4
   1. Treaties ............................................................................................................................................................ 4
   2. Customary International Law: General Principles and Opinio Juris ...................................... 13
   3. Equity and other sources of Law ......................................................................................................... 18
III. International Dispute Resolution ........................................................................................... 23
   1. Negotiation, Mediation, Conciliation, and Arbitration ................................................................ 23
   2. International Court of Justice ............................................................................................................... 26
IV. International Law in the United States.................................................................................. 34
   1. Article II Treaties ...................................................................................................................................... 34
   2. Treaties in US Law..................................................................................................................................... 36
   3. Presidential Power and Congress ....................................................................................................... 39
   4. Non-Article II Treaties ............................................................................................................................. 42
   5. Customary International Law in the United States ....................................................................... 43
   V. Allocation of Legal Authority among States .................................................................................... 47
      1. Jurisdiction to prescribe: Overview and Territorial Jurisdiction ....................................................... 48
      2. Jurisdiction to prescribe: Nationality............................................................................................................. 50
      3. Jurisdiction to prescribe: Protective, Passive Personality, and Universal ...................................... 52
      4. Jurisdiction to Enforce ......................................................................................................................................... 55
VI. Bases of Jurisdiction and Sovereign Immunity .................................................................. 66
   1. Bases of Jurisdiction ................................................................................................................................. 66
   2. Sovereign Immunity ................................................................................................................................. 76
   2. Sovereign Immunity Continued: Diplomatic and Head-of-State Immunities ...................... 90
VII. Individuals and Corporations in the International System .......................................... 97
VIII. The Act of State Doctrine ...................................................................................................... 111
IX. Recognition of States and Governments ............................................................................ 117
X. International and Regional Organizations; Individuals ................................................ 126




                                                                                    1
I. INTRODUCTION: WHAT IS INTERNATIONAL LAW? WHY DO STATES COMPLY WITH IT?


1. Defining International Law

Definition from Restatement Section 101:
   - “‘International law,’ as used in this Restatement, 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.”

Public International Law
    - governs the activities of governments in relation to other governments
Private International Law
    - governs the activities of individuals, corporations, and other private entities when they
        cross national borders

Entities that create international law:
- States
- International organizations (which are composed of states)

Subjects of international law, who bear the rights and duties of international law:
- states
   o international law developed to regulate states because of:
            the emergence of states
            state interaction
            development of the laws of war
                     Purpose for laws of war: it is in the mutual interests of all states to regulate
                        the conduct of war, and in trying to agree on rules that will make it
                        unlikely that war will happen.
   o The Classic Model of relations between/among states
            States are opaque (billiard ball theory – states hit each other one the outside but
                do not interfere with one another’s internal affairs) and we don’t really look at
                what’s inside
                     Thus, international law only regulated relations between states, and did not
                        regulate the internal affairs of states
            Now, international law is also used to regulate the internal affairs of states
- Individuals
   o The person has become increasingly accepted as an independent actor, subject to and
       benefiting from international law (this is a recent development)
   o Individuals are not parties to international law – they can be a bearer of duties and a
       beneficiary of rights, but they are not parties to international law
- corporations


                                                  2
-   international organizations
    o for the purposes of our class, an international organization is an organization composed
        either solely or primarily of states, like the United Nations

Sources of international law:
- Customary international law
   o Article 38 of the ICJ
- Treaties
   o A treaty is an agreement between states, between states and international organizations,
       or between international organizations, that is binding under international law (something
       binding under the laws of one state is not international)
   o Treaties are binding and legally enforced upon the parties to it
   o Treaties can be bilateral or multilateral
- The general principles of law recognized by civilized nations
- 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

Both the Statute of the ICJ, Article 38 lists the sources of international law (see p. 3 in book for
more)
- ICJ, Article 38:
   o “The Court, whose function is to decide in accordance with international law such
       disputes as are submitted to it, shall apply:
       (a) international conventions…
       (b) international custom, as evidence of a general practice accepted as law
       (c) the general principles of law recognized by civilized nations
       (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

The Restatement, Second, of Foreign Relations, Section 102, defines customary international law
- Restatement Section 102
   o “(2) Customary international law results from a general and consistent practice of states
      followed by them from a sense of legal obligation.” (referred to as “state practice”)
   o so customary law is composed of two elements:
           it is the general and consistent practice of states
           the states follow this practice out of a sense of legal obligation
   o it appears that only states make customary international law
   o customary international evolves – if enough states adopt a new practice, which is in
      violation of customary international law, the new practice becomes the new customary
      international law

Jus Cogens
- VCLT, Article 53: “a peremptory norm of general international law which is accepted by the
    international community of states as a whole as a norm from which no derogation is
    permitted”
- Includes genocide, torture, slavery




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II. Sources of International Law


1. Treaties

Basics:
- Treaties are a source of international obligation for those states that agree to be bound by
   them
- As the United States has not ratified the VCLT, treaties are legally binding under customary
   international law
- As for states that have ratified the VCLT, treaties are legally binding under Article 26 of the
   VCLT: Pacta Sunt Servanda
        o “Every treaty in force is binding upon the parties to it and must be performed by them
           in good faith.”
        o Thus, if a treaty creates legally binding obligations, then a breach of a treaty by one of
           its parties is a breach of international law
- A treaty enters into force when:
        o 1) The state has consented to be bound
        o 2) The treaty has entered into force
- Restatement Section 96: a treaty requires no consideration – it may create unilateral
   obligations (example – a treaty of surrender at the end of a war)
- Some treaties (multilateral treaties) have been called “legislative treaties”
        o These are treaties where states are trying to establish rules that will be followed by as
           many states as possible (the goal is to establish rules that every state will sign on to)
- A party is a state that is bound by a treaty; a signatory is a state that has signed but is not
   bound by a treaty

Vienna Convention on the Law of Treaties (“VCLT”)
- though the US has not ratified the VCLT, the US regards most of its provisions as customary
   international law
       o so, because the US is not a party to the VCLT, the US CAN violate the VCLT, but it
           cannot violate the provisions of the VCLT that are customary international law
- The VCLT frequently establishes rules that will apply as a default when a treaty doesn’t say
   how it will operate (Example – Article 24 (entry into force of a treaty))
- Specific Articles:
       o Article 2 (1)(a): Definition of a treaty – “an international agreement concluded
           between States in written form and governed by international law, whether embodied
           in a single instrument or in two or more related instruments and whatever its
           particular designation”
                Comments on this article




                                                 4
                  “concluded between states” – customary international law shows that
                   entities other than states can be parties to treaties, including
                   international organization
                   “in written form” – international agreements do not have to be in
                   writing according to customary international law
                  “governed by international law” – VERY important
                  “and whatever its particular designation” – the title of a document does
                   not necessarily determine whether a document is a treaty

o Article 2 (1)(g): Definition of a party to a treaty – “a State which has consented to be
  bound by the treaty and for which the treaty is in force”
      So there are two requirements:
              1) State consent
              2) the treaty must have entered into force
      a state party is legally bound to comply with a treaty

o Article 3: explains that the VCLT does not apply to international agreements between
  states and other subjects of international law

o Article 11: Means of expressing consent to be bound by a treaty:
      Treaties usually specify how states give consent
      Article 12: “Signature” – can be a sign of consent
              in processes with a signature and ratification, the signature
                demonstrates commitment and intent to ratify, but not necessarily
                consent to be bound
      Article 14: “ratification” – used to refer to an act by which a state
         demonstrates its consent to be bound by a treaty
              may involve an exchange or deposit of instruments of ratification
      Article 15: “accession” – an act by which a state expresses its consent to be
         bound when it has not previously signed a treaty
              sometimes treaties provide in their text that a treaty is open for
                signature until a certain date, after which parties may join the treaty by
                accession (legally, this makes no difference, but it may make a
                political difference)

o Article 18: a state is obliged to refrain from acts which defeat the purpose of the
  treaty if it has signed or ratified the treaty until it makes its intention clear not to
  become a party to the treaty, or it has expressed its consent to be bound by the treaty,
  pending the entry into force of the treaty and provided that such entry into force is not
  unduly delayed
       Additionally, in the period between signature and ratification, a state still has
           the duty not to take acts that defeat the purpose of the treaty
       Often, treaties (multilateral treaties in particular) will specify what has to
           happen before the treaty as a whole will come into force
                 VCLT has a provision in it stating when it will come into force



                                         5
          What happens when there is a long period when a large number of states have
           signed and ratified a treaty, but the treaty has not, for whatever reason, come
           into force? Article 18 states that a state is obliged to refrain from acts which
           would defeat the object and purpose of a treaty when the state “has expressed
           its consent to be bound by a treaty, pending the entry into force of that treaty
           and provided that such entry into force is not unduly delayed.”
          “unsigning” of the Rome Statute by the US – the Bush Administration merely
           notified the UN that it did not intend to become a party to the Rome Statute
                 the US’s actions bear significantly on Article 18 of the VCLT
                 because of the “unsigning,” the US is legally free to take acts to defeat
                   the object and purpose of the Rome Statute

o Article 26: Pacta Sunt Servanda
      “Every treaty in force is binding upon the parties to it and must be performed
         by them in good faith.”
      Thus, if a treaty creates legally binding obligations, then a breach of a treaty
         by one of its parties is a breach of international law

o Article 31: Interpretation of treaties: a treaty shall be interpreted in good faith in
  accordance with the ordinary meaning to be given to the terms of the treaty in their
  context and in light of its object and purpose (for more specifics, see supp. p. 58)

o Article 32: Supplementary means of Interpretation
      “travaux préparatoires” – preparatory work (drafting history)
      circumstances of the treaty’s conclusion

o Articles 34-38: rules regarding third-party states, which can become the bearer of
  rights or obligations under the treaty if they consent to it
       Must accept the obligation in writing
       We worry about this when a treaty creates obligations, rather than when it
          creates 3d party rights (Rome Statute issues in the United States: the Rome
          Statute creates the International Criminal Court (ICC), which has jurisdiction
          to try individuals for war crimes, genocide, and crimes against humanity (and
          maybe one day the crime of aggression); the ICC can try individuals who are
          nationals of states parties, or individuals who commit the aforementioned
          crimes in the territory of a state party)

o Articles 42-68: invalidity, termination and suspension of the operation of treaties
      Articles 46-52: invalidity of treaties, covering a state or its representative’s
         competence to conclude treaties, as well as error, fraud, corruption, duress,
         coercion
      Article 53: treaties conflicting with jus cogens
              A treaty is void if, at the time of its conclusion, it conflicts with a
                peremptory norm of international law
              If there is a norm that has the status of jus cogens, states may not opt
                out from it under a treaty


                                         6
                         There are cases where this provision has been invoked: Inter American
                          Commission on human rights (Surinam and the Netherlands)




       o Article 60: termination or suspension of a treaty as a consequence of its breach
             BILTERAL treaties: A material breach of a bilateral treaty by one of the
                parties entitles the other to invoke the breach as a ground for terminating the
                treaty or suspending its operation in whole or in part.
             MULTILATERAL treaties: A material breach of a multilateral treaty by one
                of the parties entitles:
                     The other parties by unanimous agreement to suspend the operation of
                        the treaty in whole or in part or to terminate it either
                             o In relation between themselves and the defaulting state or
                             o As between all the parties
                     A party specifically affected by the breach to invoke it as a ground for
                        suspending the operation of the treaty in whole or in part in the
                        relations between itself and the defaulting state
                     Any other party than the defaulting state to invoke the breach as
                        ground for suspending the operation of the treaty in whole or in part
                        with respect to itself if the treaty is of such a character that the 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
             Defines a material breach
             The provisions relating to breach do not apply to treaties or their provisions
                relating to the protection of the human person contained in treaties of a
                humanitarian character (the violation of the Genocide Convention by Rwanda
                is an example of this – you can’t respond to a breach of the Genocide
                Convention by committing genocide yourself)
             NOTE: A breach does not automatically induce an effect – it creates a
                situation which allows another state to decide what to do
                     States may not want to suspend or revoke the treaty for various reasons
                        (it wasn’t a breach of an important part of the treaty; states are picking
                        their battles; etc.)
                     Options other than those listed in Article 60:
                             o Keep the treaty in effect but seek damages
                             o Arbitration

Reservations to treaties
- A “reservation” is a statement by a party that wants to become a party to a treaty but wants to
   amend its rights or obligations under the treaty
   o VCLT definition: Article 2 (1)(d): “a unilateral statement, however phrased or named,
       made by a State, when signing, ratifying, accepting, approving or acceding to a treaty,



                                                 7
        whereby it purports to exclude or modify the legal effect of certain provisions of the
        treaty in their application to that State.”
-   Comes up most in multilateral treaties
-   VCLT Article 19: reservations are allowed unless (a) the reservation is prohibited by the
    treaty; or (b) the treaty provides that only specified reservations, which do not include the
    reservation in question, may be made; or (c) the reservation is incompatible with the object
    and purpose of the treaty.
-   VCLT Article 20: Acceptance of and Objection to Reservations
    o Reservations expressly authorized by treaties do not require any subsequent acceptance
        unless the treaty so provides
    o Acceptance by another state of a reservation makes the reserving state a party to the
        treaty in relation to that other state if or when the treaty is in force for those states
    o An act expressing a state’s consent to be bound by the treaty and containing a reservation
        is effective as soon as at least one other contracting state has accepted the reservation
    o Note: acceptance is assumed if no state objects to a reservation within one year of the
        notification of the reservation
-   VCLT Article 20 (2) – when the nature and purpose of a treaty require that all provisions of
    the treaty apply to all parties, in order to or state for make a reservation, that reservation must
    be accepted by all other states parties
-   VCLT Article 21: Legal effect of a reservation:
    o For the reserving state and other states that accept the reservation, the treaty is modified
        in its relations between the reserving and accepting states
    o For states that made no reservations, the treaty remains unmodified
    o For states that reject the reservation but do not oppose the entry into force of the treaty
        between themselves and the reserving state, the provisions to which the reservation
        relates do not apply between the two states to the extent of the reservation
              Example: if State A make a reservation concerning a part of a treaty, and State B
                 does not accept the reservation but wants State A to be a party, the treaty will be
                 enforced between states A and B as though that part of the treaty was not in that
                 treaty
    o Fragmentation of a treaty: the process by which reservations create different obligations
        among the various states parties
-   Pros and Cons of reservations
    o Pros
              Because the treaty is so important that it is desired that as many states as possible
                 sign on, regardless of their minor problems
              Treaties are meant to apply a uniform rule and solidify that rule, and so the more
                 states that have signed on, the stronger the treaty will be
              Fragmentation of treaties allows countries to adapt treaties to internal
                 constitutional requirements
    o Cons
              It may weaken the treaty, and we want the treaty to be as strong as possible
              It may defeat the purpose of a treaty
              It may allow parties to a treaty to reap the benefits of the treaty while not paying
                 the price of being a party to the treaty




                                                   8
-   Note: if a party to a treaty violates another party’s reservation which it had previously
    accepted, then it is violating the treaty with regard only to the reserving party


Declarations
- States will sometimes make declarations that are not legally binding, such as the Universal
   Declaration of Human Rights, FCN Agreement between the US and Japan, and the Economic
   Cooperation Agreement between the US and the Soviet Union
- “Soft Law”: instruments that are not legally binding by themselves but are a significant step
   towards law (a lot of states are made nervous by soft law)
- Why make declarations that are not legally binding?
       o States aren’t prepared to undertake a legal obligation, or they aren’t sure if other
           states are ready for it
       o Maybe it creates more political, rather than legal, pressure
       o There is the hope that such documents will gain such sufficient adherence from states
           that the documents will be a part of the process towards legal obligation (maybe
           followed by a treaty)

Advisory Opinion on Namibia (1972)
      Page: 215
      Procedural History:
            NATURE OF CASE: Advisory opinion as to legality of occupation. FACT
SUMMARY: south Africa (D) occupied Namibia under a claim of right to annex that territory,
but in violation of a United Nations (U.N.) Security Council Mandate which, though later
terminated due to South Africa's breach, empowered the Security Council to enforce its terms.
      Overview:
            FACTS: South Africa (D) began occupation of Namibia under a claim of right to
annex that territory and under a claim that the people of Namibia desired South African (D) rule.
South Africa (D) was a Member State of the United Nations and was subject to a U.N. Mandate
prohibiting Member States from taking physical control of other territories. The U.N. General
Assembly adopted Resolution 2145 (XXI) terminating the Mandate for South Africa (D), and the
Security Council adopted Resolution 276 (1970) declaring South Africa's (D) continued
presence in Namibia to be illegal and calling upon the other Member States to act accordingly.
The International Court of justice was called upon to render an advisory opinion.
      Rule:
            mandates adopted by the UN are binding upon all member states, and
violations or breaches result in a legal obligation on the part of the violater to rectify the
violation and upon the other member states to recognize the conduct as a violation and
refuse to aid in such violation.
      Issue:
            ISSUE: Are mandates adopted by the United Nations binding upon all
Member States so as to make breaches or violations thereof result in a legal obligation
on the part of the violator to rectify the violation and upon other Member States to
recognize the conduct as a violation and to refuse to aid in such violation?
      Outcome:
            HOLDING AND DECISION: Yes. Mandates adopted by the United


                                                  9
Nations are binding upon all Member States, and violations or breaches result in a
legal obligation on the part ,of the violator to rectify the violation and upon the other
Member States to recognize the conduct as a violation and to refuse to aid in such
violation. The Member States have assumed an obligation to keep intact and
preserve the rights of other States and the people in them. When a party to the
Mandate giving rise to this obligation fails to fulfill its own obligations under it, that
party cannot be recognized as retaining the rights that it claims to derive from the
relationship. The General Assembly found that South Africa (D) was in material
breach of the Mandate because of deliberate and persistent violations of it by
occupying Namibia. The Assembly has the right to terminate the Mandate with
respect to a violating Member State, which was accomplished by resolution 2145
(XXI) in this case. The decisions and resolutions of the Security Council in enforcing
such termination are binding upon all Member States, regardless of how they voted
on the measure when adopted. South Africa (D) is thus subject to the Mandate, the
resolution terminating it as to South Africa (D), and the enforcement procedures of
the Security Council. South Africa's (D) illegal action gives rise to an obligation to put
the violative conduct to an end. Mandates adopted by the United Nations are binding
upon all Member States and violations or breaches result in legal obligations on the
part of the violator to rectify the violation, and upon the other Member States to
recognize the conduct as a violation and to refuse to aid in such violation.
      Analysis:
            South Africa (D) did not restore independence to Namibia despite agreeing to
do so with the United Nations The General Assembly adopted a number of resolutions
imposing mandatory sanctions for enforcement South Africa [D) was "strongly
condemned" for its actions.

Appeal Relating to the Jurisdiction of the ICAO Council (India v.
Pakistan)(1972)
      Page: 215
      Procedural History:
            NATURE OF CASE: Proceeding before the International Court of Justice.
      Overview:
            FACT SUMMARY: Pakistan (D) claimed that the I.C.J. did not have jurisdiction
over a dispute regarding aviation treaties.
            FACTS: Pakistan (D) brought a complaint against India (P) before the Council of the
International Civil Aviation Organization (ICAO) for violation of treaty provisions after India
(P) unilaterally suspended flights of Pakistan (D) aircraft over Indian (P) territory. India (P)
appealed to the I.C.J., asserting that the treaties had been suspended by India (P) on grounds of a
breach by Pakistan (D) when it hijacked an Indian (P) plane. Pakistan (D) objected to the I.C.J.'s
jurisdiction, claiming India's (P) unilateral suspension had made the jurisdictional clauses
inoperative.
      Issue:
            ISSUE: Does a merely unilateral suspension per se render jurisdictional clauses
inoperative?
      Outcome:


                                                10
            HOLDING AND DECISION: [Judge not stated in casebook excerpt.) No. A
merely unilateral suspension does not per se render jurisdictional clauses
inoperative. If a mere allegation that a treaty was no longer operative could be used
to defeat its jurisdictional clauses, all such clauses would become potentially a dead
letter. The Court has jurisdiction.
      Rule:
            a merely unilateral suspension does not per se render clauses inoperative
      Analysis:
            The Court reasoned that any treaty could be destroyed by one party"s
assertion that the treaty was no longer operative. The main purpose of the treaty would
thus be compromised. It may precisely be one of the objects of jurisdictional clauses of
a treaty to enable that matter to be adjudicated upon.

Fisheries Jurisdiction (United Kingdom v. Iceland)(1973)
       Page: 221
       Procedural History:
             NATURE OF CASE: Proceeding before the International Court ofJ ustice.
       Overview:
             FACT SUMMARY: Iceland (D) claimed that a fishing treaty with the United
Kingdom (P) was no longer applicable because of changed circumstances.
             FACTS: In 1961, the United Kingdom (P) recognized Iceland's (D) claim to a 12-
mile fisheries limit in return for Iceland's (D) agreement that any dispute concerning Icelandic
fisheries jurisdiction beyond the 12-mile limit be referred to the International Court of Justice
(I.C.j.). When Iceland (D) in 1972 proposed to extend its exclusive fisheries jurisdiction from 12
to 50 miles around its shores, the United Kingdom (P) filed an application before the I.C.j.
Iceland (D) claimed that the agreement was no longer valid because of changed circumstances
since the 12-mile limit was now generally recognized and there would be a failure of
consideration for the 1961 agreement.
       Issue:
             ISSUE: In order that a change of circumstances may give rise to a ground for
invoking the termination of a treaty is it necessary that it has resulted in a radical transformation
of the extent of the obligations still to be performed?
       Outcome:
             HOLDING AND DECISION: (Judge not stated. in casebook excerpt.] Yes. In
order that a change of circumstances may give rise to a ground for invoking the
termination of a treaty it is necessary that it has resulted in a radical transformation of
the extent of the obligations still to be performed. The change must have increased the
burden of the obligations yet to be executed to the extent of rendering the performance
something essentially different from that initially undertaken. The change of
circumstances alleged by Iceland (D) cannot be said to have transformed radically the
extent of the jurisdictional obligation that was imposed in the 1961 Exchange of Notes.
       Rule:
             in order that a change in circumstances may give rise to a ground for
invoking the termination of a treaty it is necessary that it has resulted in a radical
transformation of the extent of the obligations still to be performed.
       Analysis:


                                                 11
            The original agreement between the parties provided for recourse to the
I.C.J. in the event of a dispute. Iceland's (D) economy is very dependent on fishing. The
Court did not reach the merits of Iceland's (D) argument here, however, but rather dealt
with the jurisdictional issues.

Gabcikovo-Nagymaros Project (Hungary/Slovakia) (1997)
      Page: 225
      Procedural History:
            NATURE OF CASE: Proceeding before the International Court of Justice
      Overview:
            FACT SUMMARY: Hungary (D) claimed that changed circumstances made
enforcement of a treaty with Slovakia (P) impossible.
            FACTS: Hungary (D) and Slovakia (P) had agreed in 1977 to build and operate a
system of locks along the Danube River comprising a dam, reservoir, hydroelectric power plant,
and flood control improvements. This project was never completed and both countries underwent
changes in their political and economic systems beginning in 1989. Hungary (D) first suspended
and then abandoned its part of the works and later gave notice of termination of the treaty. In
1992, Hungary (D) and Slovakia (P) asked the l.C.J. to decide on the basis of international law
whether Hungary (D) was entitled to suspend, and subsequently abandon, its part of the works,
on the basis of the doctrine of impossibility of performance.
      Issue:
            ISSUE: Must a fundamental change of circumstances have been unforeseen and
must the existence of the circumstances at the time of the treaty's conclusion have constituted an
essential basis of the consent of the parties to be bound?
      Outcome:
            HOLDING AND DECISION: [Judge not stated in casebook excerpt.] Yes.
A fundamental change of circumstances must have been unforeseen and the
existence of the circumstances at the time of the treaty's conclusion must have
constituted an essential basis of the consent of the parties to be bound. Where the
prevalent political and economic conditions were not so closely linked to the object
and purpose of the treaty as to constitute an essential basis of the consent of the
parties, there was no fundamental change of circumstances. The plea of
fundamental change of circumstances may only be applied in exceptional cases.
      Rule:
            a fundamental change of circumstances must have been unforeseen and the
existence of the circumstances at the time of the treaty’s conclusion must have
constituted an essential basis of the consent of the parties to be bound.
      Analysis:
            The Court relied on the Vienna Convention. The Vienna Convention may be
seen as a codification of existing customary law on the subject of termination of a treaty
on the basis of change in circumstances. New developments in environmental law were
not completely unforeseen.

Techt v. Hughes
     Page: 227
     Procedural History:


                                               12
           NATURE OF CASE: Appeal from inheritance dispute decided in favor of non-
citizen.
       Overview:
             FACT SUMMARY: Techt (D) claimed that she was entitled to take property in New
York on the basis of the Treaty of 1848 between the United States and Austria, despite the fact
that the U.S. and Austria were at war at the time.
             FACTS: Techt's (D) father, an American citizen, died intestate in New York. Techt
(D) had married an AustroHungarian citizen and, under federal law at that time, had lost her
United States citizenship as a result. Under New York law, Techt (D) could take property as
inheritance if she were found to be an alien friend. When the court found that Tech (D) was an
alien friend and that she could claim half the inheritance, her sister (P) appealed, claiming she
was entitled to the whole property because Techt (D) was an alien enemy. Since the U.S. was at
war with Austria-Hungary in 1919, the appeals court found Techt (D) was not an alien friend
under the statute. Techt (D) then argued that under the terms of the Treaty of 1848 between the
U.S. and Austria, nationals of either state could take real property by descent.
       Issue:
             ISSUE: Where a treaty between belligerents at war has not been denounced, must
the court decide whether the provision involved in a controversy is inconsistent with national
policy or safety?
       Outcome:
             HOLDING AND DECISION: (Cardozo, J.J Yes. Where a treaty between
belligerents at war has not been denounced, the court must decide whether the
provision involved in a controversy is inconsistent with national policy or safety. A treaty,
if in force, is the supreme law of the land. There is nothing incompatible with the policy
of the government, the safety of the nation, or the maintenance of the war in the
enforcement of this treaty, so as to sustain Techt's (D) title. Affirmed.
       Rule:
             where a treaty between belligerents at war has not been denounced, the
court must decide whether the provision involved in a controversy is inconsistent with
national policy or safety.
       Analysis:
             The court noted that the effect of war on the existing treaties of belligerents is
an unsettled area of the law. Some have said that treaties end ipso facto at time of war.
The court here found that treaties end only to the extent that their execution is
incompatible with the war.



2. Customary International Law: General Principles and Opinio Juris

Customary International Law

Basics
- Definition:
   o 1) recurrent or repeated state practice
   o 2) undertaken out of a sense of legal obligation


                                               13
    o 3) developed over time and
    o 4) recognized as law
-   Historically, this is the most important source of international legal obligations
-   Customary International Law does not have to be universal – it can be general, but it must
    have wide acceptance of states involved in the activity
    o In practice, we look to the practice of states that are involved in the policy area we are
        concerned with
-   What may be the significance of a small number of states following a certain practice?
    o Those states may be violating customary international law
    o Those states may be the states creating the customary international law concerning that
        activity, particularly if those are the only states that engage in that activity (those few
        states with nuclear weapons have a greater impact on customary international law
        concerning nuclear weapons than those states which do not have them)
-   Widespread departure from customary international law may be an indication that customary
    international law is shifting
    o Example: Bush has declared that certain acts of terrorism are actually acts of war
             This theory might be controversial, but because of the novelty of the situation, the
                old customary rules may no longer be applicable, and new rules must be
                developed
             If other states acquiesce to Bush’s declaration, this may lead to the development
                of a new customary international law

To determine what is customary international law, where do we look?
- Opinions of courts, like the ICJ
- Diplomatic relations between states
- Practice of international organs
- Domestic law of the states
   o If there is a consensus, this may provide evidence of customary law
   o For example, if it’s laws of coastlines, look to states that aren’t landlocked; the rules of
       landlocked states will probably not be as important
- Decisions of state courts
- State military and administrative practices
- Note: relevant state practice may include acquiescence (the state says nothing, either for or
   against the practice)
   o To avoid acquiescing, states must at least publicly declare their disapproval of a practice

Persistent Objectors
- during the development period of a new rule of customary international law, there may be a
   state that doesn’t agree and repeatedly declares it publicly
- legal effect of the persistent objector’s persistent objection:
   o the persistent objector is not legally bound by the law when it becomes customary
        international law
   o immunity from a customary rule lasts as long as they continue to object, unless the
        customary international law develops the status of jus cogens
   o the objections of one or a few persistent objectors will not prevent the rule from
        becoming a binding rule of international law



                                                14
    o however, if there are many persistent objectors and they are states that are primarily
      affected by the practice at issue, they can block the law from becoming customary
      international law

Special Custom
- typically this is regional
- customary law may develop and be binding within a region, but would not bind other regions

Relevance of treaties and general assembly resolutions on customary international law
- Can treaties be evidence of state practice?
   o We hesitate to look to treaties because treaties only bind states parties to the treaty
   o However, treaties be a legitimate source of evidence of state practice
           This depends on:
                    How widely ratified the treaty is
                           o Have all states that are relevant signed the treaty?
                           o Have all states signed the treaty?
                    The history of the treaty
                           o Was it drafted specifically with the intention of codifying rules that
                               were already customary under international law?
                    Although a state is never bound to a treaty it didn’t become a party to,
                       some principles that are reflected in the treaty might be binding under
                       customary international law (thus the treaty might provide evidence that
                       the principles are binding on states)
- Can General Assembly Resolutions be evidence of state practice?
   o Those resolutions that purport to set forth principles of international law may reflect
      customary international law, though they do not inherently bind anyone (the General
      Assembly doesn’t have the power to bind states to its resolutions)

General Principles of Law

Basics
- General Principles of Law are found by looking to the commonalities of the major legal
   systems of the world
- General principles of law are used to fill in gaps (by courts such as the ICJ) when there is no
   rule of customary international law or treaty provision on point
   o the court will look for major trends in states with well-developed legal systems
   o if there is a principle common to all of them, the ICJ will try to apply those principles
- general principles are listed in Article 38 of the ICJ statute, as a source of international law:
   o “general principles of law recognized by civilized nations”
            concept of civilized nations is seen as offensive in many countries

Opinio Juris

-   Definition of opinio juris: 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
    o These are not sources of law themselves


                                                 15
   o Experts have done a lot of the research and analysis which may be helpful in telling us
     what the law is, but their views aren’t binding on anyone
   o Decisions of international tribunals may be very weighty, but they may not be the last
     word

The Paquete Habana, 175 U.S. 677
       Page: 61
       Procedural History:
             Claimant shipmasters each appealed from the decrees of the District Court of the
United States for the Southern District of Florida condemning two fishing vessels and their
cargoes as prizes of the Spanish-American War, where the evidence showed that each vessel,
sailing under a Spanish flag, had been engaged in fishing off the coast of Cuba before being
captured by blockading squadrons.
       Overview:
             Claimants were masters of a sloop and schooner, with crews of three and six. While
they were out to sea, fishing along the coast of Cuba and near Yucatan, the United States
imposed a blockade of Cuba and declared war against Spain. When the vessels returned with
their catches of fresh fish, they were seized and a libel of condemnation of each vessel as a prize
of war was filed. The district court entered a final decree of condemnation and public sale at
auction. Claimants appealed. The Supreme Court first ruled that, pursuant to 26 Stat. 826 (1891),
it had appellate jurisdiction over the controversy without regard to the amount in dispute and
without certification from the district court, as required by prior statutory law. In reversing, the
Court ruled that, under the law of nations, in each case the capture was unlawful and without
probable cause. It was a rule of international law that coast fishing vessels, pursuing their
vocation of catching and bringing in fresh fish, were exempt, with their cargoes and crews, from
capture as prize of war. Although not reduced to treaty or statutory law, courts were obligated to
take notice of and give effect to that rule.
       Rule:
              It was a rule of international law that coast fishing vessels, pursuing their vocation of
catching and bringing in fresh fish, were exempt, with their cargoes and crews, from capture as
prize of war.
       Analysis:
             By an ancient usage among civilized nations, beginning centuries ago, and gradually
ripening into a rule of international law, coast fishing vessels, pursuing their vocation of catching
and bringing in fresh fish, have been recognized as exempt, with their cargoes and crews, from
capture as prize of war.
             International law is part of American law, and must be ascertained and administered
by the courts of justice of appropriate jurisdiction, as often as questions of right depending upon
it are duly presented for their determination. For this purpose, where there is no treaty, and no
controlling executive or legislative act or juricial decision, resort must be had to the customs and
usages of civilized nations; and, as evidence of these, to the works of jurists and commentators,
who by years of labor, research and experience, have made themselves peculiarly well
acquainted with the subjects of which they treat. Such works are resorted to by judicial tribunals,
not for the speculations of their authors concerning what the law ought to be, but for trustworthy
evidence of what the law really is.
             In the absence of higher and more authoritative sanctions, the ordinances of foreign



                                                  16
states, the opinions of eminent statesmen, and the writings of distinguished jurists, are regarded
as of great consideration on questions not settled by conventional law. In cases where the
principal jurists agree, the presumption will be very great in favor of the solidity of their maxims;
and no civilized nation, that does not arrogantly set all ordinary law and justice at defiance, will
venture to disregard the uniform sense of the established writers on international law.
             Enemy ships are good prize. Not all, however; for it results from the unanimous
accord of the maritime powers that an exception should be made in favor of coast fishermen.
Such fishermen are respected by the enemy, so long as they devote themselves exclusively to
fishing.
             By the general consent of the civilized nations of the world, and independently of any
express treaty or other public act, it is an established rule of international law, founded on
considerations of humanity to a poor and industrious order of men, and of the mutual
convenience of belligerent states, that coast fishing vessels, with their implements and supplies,
cargoes and crews, unarmed, and honestly pursuing their peaceful calling of catching and
bringing in fresh fish, are exempt from capture as prize of war. The exemption, of course, does
not apply to coast fishermen or their vessels, if employed for a warlike purpose, or in such a way
as to give aid or information to the enemy; nor when military or naval operations create a
necessity to which all private interests must give way. Nor has the exemption been extended to
ships or vessels employed on the high sea in taking whales or seals, or cod or other fish which
are not brought fresh to market, but are salted or otherwise cured and made a regular article of
commerce.
             The rule of international law that coast fishing vessels are exempt from capture as
prize of war is a rule which prize courts, administering the law of nations, are bound to take
judicial notice of, and to give effect to, in the absence of any treaty or other public act of their
own government in relation to the matter. The exemption of coast fishing vessels from capture is
perfectly justiciable, or, in other words, of judicial jurisdiction or cognizance. Nor are judicial
precedents wanting in support of the view that this exemption, or a somewhat analogous one,
should be recognized and declared by a prize court. By the practice of all civilized nations,
vessels employed only for the purposes of discovery or science are considered as exempt from
the contingencies of war, and therefore not subject to capture. It has been usual for the
government sending out such an expedition to give notice to other powers; but it is not essential.
             The power of confiscating enemy property is in the legislature, and the declaration of
war does not, of itself, vest the executive with authority to order such property to be confiscated.
The universal practice of forbearing to seize and confiscate debts and credits, the principle
universally received that the right to them revives on the restoration of peace, would seem to
prove that war is not an absolute confiscation of this property, but simply confers the right of
confiscation. The modern rule then would seem to be that tangible property belonging to an
enemy, and found in the country at the commencement of war, ought not to be immediately
confiscated; and in almost every commercial treaty an article is inserted stipulating for the right
to withdraw such property.
             3. The records of the Navy Department may be consulted by the Supreme Court of
the United States upon the question of the recognition of the exemption of coast fishing boats
from capture. 4. The works of jurists and commentators on the subject of international law are
resorted to by judicial tribunals, not for the speculations of their authors concerning what the law
ought to be, but for trustworthy evidence of what the law really is. 5. Coast fishing vessels, with
their implements, supplies, cargoes, and crews, when unarmed and honestly pursuing their



                                                 17
peaceful calling of catching and bringing in fresh fish, and not employed for a warlike purpose or
in such a way as to give aid or information to the enemy, are exempt from capture as prize of war
by the general consent of the civilized nations of the world, and independently of any express
treaty or other public act. 6. Prize courts administering the law of nations are bound to take
judicial notice of and give effect to a rule of international law exempting fishing vessels from
capture as a prize, when there is no treaty or other public act of their own government in relation
to the matter. 7. A vessel of 35 tons burden, with a crew of six men, engaged in coast fishing,
and on which the fish caught by the crew from the sea, amounting to about 10,000 pounds, are
kept alive on board, two thirds of which belong to the crew and the other third go to the owner of
the vessel as compensation for her use, is to be regarded as engaged in coast fishery, and not in a
commercial adventure, within the rule of international law exempting coast fishing vessels from
capture as prize.
       Outcome:
             The decrees condemning the vessels were reversed and, in each case, it was ordered
that the proceeds of the sales of each vessel and cargo be restored to the respective claimant, with
compensatory damages and costs.


3. Equity and other sources of Law

Prosecutor v. Tadic
      Page:
      Procedural History:
             Tadic (D) was prosecuted for alleged war crimes committed at a Serb-run
concentration camp in Bosnia-Herzegovina.
      Overview:
             Tadic (D) was prosecuted for alleged war crimes committed at a Serb-run
concentration camp in Bosnia Herzegovina. TadiC (D) challenged the tribunal's jurisdiction as
exceeding the authority of the U.N. Security Council. The trial court dismissed the challenge and
Tadic (D) appealed.
      Issue:
             Does the International Tribunal have jurisdiction to examine the plea against its
jurisdiction based on the invalidity of its establishment by the Security Council?
      Rule:
            The international tribunal has jurisdiction to examine the plea against its jurisdiction
based on the invalidlty of its establishment by the security council
      Analysis:
            Tadic (D) attacked the authority of the Security Council to establish a tribunal for the
determination of a criminal charge. The tribunal is authorized to be established for the
determination of such charges so long as it is "established by law." The Council requires that it
be "set up by a competent organ in keeping with relevant legal procedures, and that it observes
the requirements of procedural fairness."
      Outcome:
            (Judge Cassese, Presiding; Judges Li, Deschenes, Abi-Saab, and Sidhwa) Yes. The
International Tribunal has jurisdiction to examine the plea against its jurisdiction based on the
invalidity of its establishment by the Security Council. For an international tribunal to be


                                                 18
established according to rule of law, it must be established in accordance with the proper
international standards; it must provide all guarantees of fairness, justice, and evenhandedness, in
full conformity with internationally recognized human rights instruments. When a tribunal such
as the present one is created, it necessarily must be endowed with primacy over national courts.

The Diversion of Water from the Meuse (Netherlands v. Belgium)
      Page:
      Procedural History:
             The Netherlands (P) claimed that Belgium (D) violated an agreement by building
certain canals.
      Overview:
             The Netherlands (P) objected to the construction of certain canals by Belgium (D)
that would alter the water level of the Meuse River in violation of an earlier agreement. Belgium
(D) counterclaimed based on the construction of a lock by Netherlands (P) at an earlier time. The
Court rejected both claims.
      Issue:
             Do principles of equity form a part of international law?
      Rule:
            the principles of equity form a part of international law.
      Analysis:
            The Court also referred to Roman Law. A similar principle in Roman Law made the
obligations of a vendor and a vendee concurrent. Neither could compel the other to perform
unless he had done, or tendered. his own part .
      Outcome:
            (Hudson, J.) Yes. Principles of equity form a part of international law. Under Article
38, and independently of that statute, this Court has some freedom to consider principles of
equity. The maxim, "He who seeks equity must do equity," is derived from AngloAmerican law.

Corfu Channel Case (United Kingdom v. Albania)
      Page:
      Procedural History:
             The United Kingdom (D) claimed that Albanian (P) authorities should have warned
of the presence of mines in Albanian (P) waters.
      Overview:
             British naval personnel died as a result of the explosion of mines in Albanian (P)
waters. The U.K. (D) claimed Albania (P) was internationally responsible for damages
      Issue:
             Do elementary considerations of humanity create international obligations in peace
time?
      Rule:
            elementary considerations of humanity create internal obligations in peace time.
      Analysis:
            The Court found that the Hague Convention of 1907 did not apply. The Hague
Convention only applies in times of war. This case was decided on the basis of the principle of
freedom of maritime communication.
      Outcome:


                                                19
           [Judge not stated in casebook excerpt.] Yes. Elementary considerations of
humanity create international obligations in peace time. Every state has an obligation not to
knowingly allow its territory to be used for acts contrary to the rights of other states.

Filartiga v. Pena-lrala Relatives of decedent (P) v. Police officer (D)
       Page: 267
       Procedural History:
              Appeal of dismissal of wrongful death action.
       Overview:
              Filartiga (P) filed an action against Pena-Irala (D), contending he had tortured to
death Filartiga's (P) decedent.
              Filartiga (P) brought an action against PenaIrala (D), claiming that he had tortured to
death Filartiga's (P) decedent while Pena-Irala (D) was police InspectorGeneral. All parties were
Paraguayan citizens. jurisdiction was based on the Alien Tort Statute, 28 U.S.C. § 1350, which
provided jurisdiction for torts committed in violation of "the law of nations." The district court
dismissed for lack of jurisdiction. Filartiga (P) appealed.
       Issue:
              May torture be considered to violate the law of nations for purposes of the Alien
Tort Statute?
       Rule:
             torture may be considered to violate the law of nations for purposes of the alien tort
statute.
       Analysis:
              It is no great secret that what many members of the United Nations say in their
pronouncements and what they do in practice are not quite the same things. Torture is still
widely practiced if not in a majority of countries then in a significant number. Commentators
have argued that actual practice. not U.N. declarations. constitutes customary international law.
       Outcome:
              Yes. Torture may be considered to violate the law of nations for purposes of the
Alien Tort Statute. The prohibition against torture has become part of customary international
law. This is particularly evidenced by various United Nations declarations, such as the Universal
Declaration of Human Rights and the 1975 Declaration on the Protection of All Persons from
Torture. A declaration from the United Nations is a formal and solemn instrument, and can be
considered an authoritative statement from the international community. Beyond that, torture has
been officially renounced in the vast majority of nations. For these reasons, this court concludes
that torture violates the law of nations.

Sosa v. Alvarez-Machain
     Page: 269
     Procedural History:
             Appeal of judgment awarding damages to foreign national.
     Overview:
            [Alvarez-Machain (P) claimed he was involuntarily detained by bounty hunters and
brought to the United States.]
     Issue:
             Does the abduction of a foreign national amount to an "arbitrary arrest" within the


                                                 20
meaning of the Universal Declaration of Human Rights and the International Covenant on Civil
and Political Rights?
      Rule:
             the abduction of a foreign natural does not amount to an “arbitrary arrest” within the
meaning of the UNDHR and the ICCPR
      Analysis:
              This short case excerpt illustrates the concept of selfdetermination under
international law. No document can give rise to obligations as a matter of international law that
does not expressly purport to do so, and no state can be bound to any international pact without
its consent.
      Outcome:
              No. The abduction of a foreign national does not amount to an «arbitrary arrest''
within the meaning of the Universal Declaration of Human Rights and the International
Covenant on Civil and Political Rights. The Declaration does not impose obligations as a matter
of international law, and while the Covenant binds the United States as a matter of international
law, the United States ratified it on the express understanding that it was not self-executing, and
therefore did not itself create obligations that were enforceable in the federal courts .

Legal Status of Eastern Greenland (NoiWay v. Denmark) Occupier (D) v.
Sovereign (P)
      Page:
      Procedural History:
             Proceeding before the International Court of Justice.
      Overview:
             Denmark (P) claimed that a statement made by a Norwegian Minister was binding
on Norway (D). Denmark (P) wanted to obtain from Norway (D) its agreement not to obstruct
Danish (P) plans with regard to Greenland. The Minister for Foreign Affairs made a declaration
on behalf of the Norwegian government (D) that the Norwegian government (D) would not make
any difficulty in the settlement of the question.
      Issue:
             Is a reply given by the Minister of Foreign Affairs on behalf of his government
binding upon the country to which the Minister belongs?
      Rule:
            a reply given by the minister of foreign affairs on behalf of his govt. is binding upon
the country to which the minister belongs.
      Analysis:
            The Vienna Convention on the Law of Treaties is the main source of international
law on treaties. The Convention was ratified by 35 countries but not by the United States.
Unilateral statements may also be binding on states.
      Outcome:
             Yes. A reply given by the Minister of Foreign Affairs on behalf of his government is
binding upon the country to which the Minister belongs. It is beyond dispute that a reply of the
nature given here in response to a request by the diplomatic representative of a foreign power is
binding upon the country the Minister represents

Nuclear Tests Case (Australia & New Zealand v. France) Neighboring

                                                21
countries (P) v. Nuclear testing country (D)
       Page:
       Procedural History:
              Proceeding before the International Court ofJustice.
       Overview:
              Australia and New Zealand (P) demanded that France (D) cease atmospheric nuclear
tests in the South Pacific. France (D) completed a series of nuclear tests in the South Pacific.
Australia and New Zealand (P) applied to the !.C.). demanding that France (D) cease testing
immediately. While the case was pending, France (D) announced the series of tests was complete
and that it did not plan any further such tests. France (D) moved to dismiss the applications.
       Issue:
              May declarations made by way of unilateral acts have the effect of creating legal
obligations?
       Rule:
             declerations made by way of unilateral acts may have the effect of creating legal
obligations.
       Analysis:
             The unilateral statements made by French authorities were first communicated to the
government of Australia. To have legal effect there was no need tor the statements to be directed
to any particular state. The general nature and characteristics of the statements alone were
relevant for evaluation of their legal implications.
       Outcome:
              Yes. Declarations made by way of unilateral acts may have the effect of creating
legal obligations. The sole relevant question is whether the language employed in any given
declaration reveals a clear intention. One of the basic principles governing the creation and
performance of legal obligations is the principle of good faith. The statements made by the
President of the French Republic must be held to constitute an engagement of the State in regard
to the circumstances and intention with which they were made. The statements made by the
French authorities are therefore relevant and legally binding. Applications dismissed.

Frontier Dispute Case (Burkina Faso/Mali)
      Page:
      Procedural History:
             Interpretation of a statement made by tbe head of state.
      Overview:
             The Mali Head of State made a declaration tbat was interpreted to be a unilateral act.
      Issue:
             Do unilateral declarations made by heads of state bind the state to its terms only
when the intention confers on the declaration the character of a legal undertaking?
      Rule:
            unilateral declarations made by heads of state bind the state to its terms only when
the intention confers on the declaration the character of a legal undertaking
      Analysis:
            In the Nuclear Tests cases, the Court interpreted the French government's unilateral
declarations as effectively communicating the intent to terminate atmospheric testing. In that
case, the French government had no alternative but to express its intentions by unilateral


                                                22
declarations. This case is distinguished since the parties had the normal method of formal
agreement available.
      Outcome:
             Yes. Unilateral declarations made by heads of state bind the state to its terms only
when the intention confers on the declaration the character of a legal undertaking. It is for the
court to "form its own view of the meaning and scope intended by tbe author of a unilateral
declaration which might create a legal obligation." In order to assess the intentions of the author
of a unilateral act, account must be taken of all the factual circumstances in which the act
occurred. Here, there was nothing to hinder the parties from entering a formal agreement. Since
no such agreement was entered, there are no grounds to inter pret the Mali Head of State's
declaration as a unilateral act with legal implications.


III. International Dispute Resolution


1. Negotiation, Mediation, Conciliation, and Arbitration

There is a spectrum of mechanisms that states can use to resolve disputes in the international
plane; they range in their rigidity and binding character; they can be used simultaneously or in
tandem

Negotiation, Mediation, Conciliation

Negotiation
- Consultation
   o When a government anticipates that a decision or a proposed course of action may harm
       another state, discussion with the affected party can provide a way of heading off a
       dispute by creating an opportunity for adjustment and accommodation.
   o Usually an ad hoc process
- Forms of Negotiation
   o Negotiation between states is usually conducted through “normal diplomatic channels”
       (foreign offices, diplomatic representatives, etc.)
   o States may decide to institutionalize negotiation by creating a mixed or joint commission
   o Summit diplomacy

Mediation
- still a relatively informal process
- a common model: a (typically neutral) third party proposes ways to solve the crisis given
  whatever they’ve been told by the conflicting parties
  o contributing his “good offices”: the third party encourages the disputing states to resume
       negotiations or provides them with an additional channel of communication
- examples:
  o Northern Ireland (George Mitchell)
  o Dayton (Richard Holbrook)


                                                 23
Conciliation
- slightly more formal than mediation
- a commission is set up (either on a permanent or an ad hoc basis) which conducts its own
   investigation and attempts to determine terms of settlement that are likely to be accepted by
   both parties
   o there is a search for a solution, but no requirement to be bound by the process or the
       solution

Arbitration

Elements of Arbitration:
- Parties get to decide the scope of the arbitral tribunal powers
- If the tribunal decides a dispute not covered under the agreement, the decision is not
   enforceable
- The court has a policy of deference to arbitral tribunals
- States have to enforce arbitral awards
   o Example: if a party receives an arbitral award in Egypt and want to collect the award
       from a company in the United States, the party can do so

Basics
- more formal procedure for solving disputes
   o there are some standing bodies and procedures that parties can use or follow
   o states can also set up their own processes
- the decisions are binding, but there is a lot of flexibility on the part of parties who submit to
   arbitration about how they’ll submit to arbitration
   o for example, parties entering into a commercial contract can stipulate to arbitration, the
       form of arbitration, the forum in which the arbitration will take place, the body of law
       that will apply, and whether the arbitration will be binding
- though results are typically binding, and there are legal safeguards in place for the
   enforcement of arbitral decisions, states can challenge an arbitral award if they don’t like it
- different international contexts for arbitration:
   o disputes between two states
   o disputes between a state and citizens of another country
   o disputes between two private litigants from two different countries
- arbitration is attractive for private parties because:
   o in a transnational setting, there is concern about what body of law will apply unless it has
       been stipulated in advance
   o choosing the forum and the rules is appealing because you might otherwise be forced to
       litigate somewhere you don’t want to litigate
   o if you adjudicate in one party’s home state or another, the other side will worry that the
       home-state party has an advantage

Are there certain issues that parties shouldn’t submit to arbitration?
- Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, 473 US 614 (1985) p. 363
   o Claims were brought under US Anti-trust Law



                                                24
   o The Supreme Court held that a party to an international agreement with a general
     executory arbitration clause may not seek the aid of the federal courts for relief in a claim
     under the antitrust laws but must submit the claims to an arbitral tribunal
         However, the Court notes that if the foreign court does not apply US law
            correctly, the Court will take a second look at the issue
   o This case articulates a strong public policy in favor of arbitration, even when the case
     deals with enforcement of the US’s own antitrust law

Enforcement of international arbitral awards
- “confirming” and “vacating” international arbitral awards in the place where they are made
   o the prevailing party may commence proceedings in the national courts of the arbitral situs
       to “confirm” the award
   o the losing party may commence proceedings, also in the national courts of the arbitral
       situs, to set aside, vacate, or annul the award
- obtaining “recognition” or “enforcement” of an arbitral award
   o the prevailing party may seek to “enforce” the award, either in the arbitral situs or in a
       foreign court
   o a party to an arbitration may seek to have the award “recognized”
- national arbitration legislation
   o most nations have enacted local arbitration legislation which provides for the
       confirmation or vacation of locally-made arbitral awards
- international arbitration conventions
   o Particularly significant: the New York Convention (see p. 376-377)

Parsons & Whittemore Overseas Co. v. Societe Generale de L’Industrie du Papier (RAKTA),
508 F.2d 969 (2d Cir. 1974) p. 377
- Here, a party tried to avoid enforcement of an arbitral award against it
- The case examines the reasons why the party believes that the award should not be enforced
   o It would be contrary to public policy (the court finds that this exception to enforcement
       should be construed narrowly)
   o The party had an inadequate opportunity to present its defense (due process analysis)
   o The subject matter that was arbitrated was not within the agreement to submit to
       arbitration (again, this exception should be narrowly construed)
   o The award is in manifest disregard of the law
- All these reasons are rejected and the award is affirmed

Examples:
- Iranian students taking over the US embassy and took hostages
   o The new Iranian government ratified the action, which violated international law
      concerning humanitarian law and the rights of diplomats
   o What were Jimmy Carter’s options here?
           Negotiation
           Mediation – there was the Algiers Accord, which set up an Iran-US Claims
              Tribunal; this was a flexible, informal process
           Conciliation
           Arbitration



                                               25
-   Pan AM 103 (over Lockerbie, Scotland)
    o There were mediation efforts
           Search for a neutral venue for the trial: Libya refused to extradite its nationals to
             Scotland, but agreed to go to the Netherlands, and an area of the Netherlands
             “became” Scottish territory for the duration of the trial (used Scottish judges and
             procedure)
    o Recently – will Libya compensate families?



2. International Court of Justice

Basics:
- The ICJ has the widest reach, as it is potentially open to all states
- ICJ Statute Article 34, Paragraph 1: Only states can be parties to cases before the court
   o If a non-state actor has a problem with a state, they can’t sue the state before the ICJ

I) How the ICJ fits in the UN Charter
- UN Charter Article 2, Paragraph 3 – members of the UN undertake to settle their
    international disputes by peaceful means
- UN Charter Chapter 6 – generally requires parties to any dispute whose continuance is likely
    to endanger peace and security to solve the dispute by peaceful means, which refers to
    judicial settlements
            o Article 36, Paragraph 1 – Security Council can make recommendations as to how
                 disputes can be settled peacefully
            o Article 36, Paragraph 3: In making that kind of recommendation, the Security
                 Council should take into consideration that legal disputes should as a general rule
                 be referred by the parties to the ICJ in accordance with the provisions of the
                 Statute of the Court

II) Kinds of Jurisdiction under the ICJ
    1. contentious
           a. this is the jurisdiction over disputes between states
           b. there can be no contentious jurisdiction without the consent of the parties
    2. advisory
           a. this is open only to organs or specialized agencies of the UN (see ICJ Statute
               Article 65)

III) How, under the Statute of the ICJ, can states bring their disputes to the ICJ?

States have to consent to the jurisdiction of the ICJ

What are the possible ways of expressing consent to the contentious jurisdiction of the ICJ?
A) Ad hoc
B) Compromissory Clause
C) Compulsory Jurisdiction


                                                 26
D) Carryover jurisdiction from the Permanent Court of International Justice

A) Ad hoc – states will agree to bring a specific matter before the court (they do not agree
jurisdiction in all disputes, just the dispute in question)
        o ICJ Statute Article 36(1) – “all cases which the parties refer to it”
        o Here, there is no agreement between the parties to submit certain kinds of cases
            before the ICJ

B) Compromissory clause: All matters specially provided for in the UN Charter or in treaties and
conventions in force are under the contentious jurisdiction of the ICJ
      o Basically, states agree in a treaty that certain disputes will automatically be resolved
          before the ICJ if one state wants to take it there; if one party wants to take the matter
          before the ICJ, the other party must comply because of the compromissory clause
      o This is in ICJ Statute Article 36(1) (it is not in the UN Charter)
      o The ICJ does NOT have jurisdiction over all violations of the UN Charter – there
          must be a specific demonstration of consent in a treaty or some other document

C) Compulsory: ICJ Statute Article 36(2) “The states parties to the statute may at any time
declare that they recognize as compulsory the jurisdiction of the court in all legal disputes
concerning:
       o (a) The interpretation of a treaty
       o (b) any question of international law
       o (c) the existence of any fact which, if established, would constitute a breach of
            international obligation
       o (d) the nature or extent of the reparation to be made for the breach of international
            obligation
- Note: Compulsory jurisdiction must be reciprocal – there is no compulsory jurisdiction over
   a dispute in which only one party has agreed to compulsory jurisdiction (reciprocity rule)

-   Case of Certain Norwegian Loans (France v. Norway)(ICJ case)
       o Dispute over whether Norway had to make payment on international bonds in gold;
           the aggrieved parties were French nationals
                Norway believed that this case involved domestic jurisdiction, while France
                  believed that the ICJ had jurisdiction
                France relied on compulsory jurisdiction of the ICJ, as both states had made a
                  declaration agreeing to compulsory jurisdiction
                However, France had entered a reservation to its declaration of compulsory
                  jurisdiction that matters essentially within the national jurisdiction as
                  understood by the government of France
                Thus, because of the reciprocity requirement, Norway can make France’s
                  reservation its own, even though Norway did not make the reservation itself
                Thus, the ICJ finds that the matter should be taken up by Norwegian courts
                  rather than the ICJ


D) Carryover Jurisdiction from the Permanent Court of International Justice



                                                27
IV) How do states express their consent to be bound by the contentious jurisdiction of the ICJ?
- They make a declaration accepting jurisdiction of the ICJ
      o Through this declaration, they specify the scope of their acceptance
               The broadest scope of acceptance is to grant the court jurisdiction over all
                  disputes in international law
               ICJ Statute Article 36 (2) contains the potential universe of the ICJ’s
                  compulsory jurisdiction
- States can qualify their assent to jurisdiction by making reservations
      o This is what the US did when it accepted the compulsory jurisdiction of the ICJ
      o Compare the declarations accepting compulsory jurisdiction of the ICJ of Nicaragua
          (no reservations) and of the United States (reservations) (pp. 299-300)
               As to the US reservation (b), the ICJ gets the final words as to whether the
                  dispute is really within the domestic jurisdiction of the United States (Article
                  36 (6))

Armed Activities on the Territory of the Congo (Democratic Republic of
the Congo v. Rwanda)
       Page:
       Procedural History:
              Proceeding in the International Court ofJustice.
       Overview:
              The Democratic Republic of the Congo (P) brought an application against Rwanda
(D), and Rwanda (D) challenged the jurisdiction of the International Court of Justice. The
Democratic Republic of the Congo (DRC) (P) brought an application against Rwanda (D). DRC
(P) tried to base the jurisdiction of the International Court of justice on nine treaties with dispute
settlement clauses that provided for such jurisdiction. Rwanda (D) was not party to two of the
treaties, and with respect to the other seven, Rwanda (D) excluded dispute settlement obligations.
Rwanda (D) challenged the jurisdiction of the International Court of justice on the nature of its
obligations. The excerpt omits discussion of some of the treaties. The treaties involved were
Genocide Convention, Article IX; Convention on Racial Discrimination, Article 22; Convention
on Discrimination against Women, Article 29; World Health Organization Constitution, Article
75; Unesco Convention, Article XIV; Montreal Convention, Article 14; Vienna Convention,
Article 66; Convention Against Torture; and Convention on Privileges and Immunities of the
Specialized Agencies. Rwanda (D) was not party to the last two.
       Issue:
              Where one party to a treaty excludes dispute settlement obligations under the treaty
before becoming a party, and fails to take formal acts to bring about withdrawal of the
reservation, does the International Court of justice lack jurisdiction based on that treaty?
       Rule:
             where one party to a treaty excludes dispute settlement obligations under the treaty
before becoming a party, and fails to take formal acts to bring about withdrawal of the
reservation, the ICJ lacks jurisdiction based on that treaty.
       Analysis:
              The Court's analysis of all treaties involved was similar to that included in the
casebook excerpt. The main principle here is that where a state has apparently not granted


                                                 28
consent to the jurisdiction of the I.C.J., the I.CJ. will not advance the case past the preliminary
matter of jurisdiction, whatever atrocities have in fact been committed by the non-consenting
state. Additionally, where, as here. there is evidence of non-consent reversal of the position
requires an overt act by the state, in order to convince the Court that after all. consent to the
I.C.J.'s jurisdiction was granted.
       Outcome:
              Yes. Where one party to a treaty excludes dispute settlement obligations under the
treaty before becoming a party, and fails to take formal acts to bring about withdrawal of the
reservation, the International Court of Justice lacks jurisdiction based on that treaty. First,
Rwanda (D) may have committed itself at the time of a 1993 peace agreement to withdrawing all
reservations to human rights treaties, and the Rwanda (D) minister of justice effectuated the
withdrawal, but Rwanda (D) never took formal acts to bring about withdrawal of the reservation.
A decision to withdraw a reservation within a state's domestic legal order is not the same as
implementation of that decision by the national authorities within the international legal order,
which can only occur by notification to the other state parties to the treaty in question through
the Secretary-General of the United Nations. Second, the existence of a dispute that implicates
peremptory norms of general international law is not an exception to the principle that
jurisdiction always depends on the consent of parties. The DRC (P) may have made numerous
protests against Rwanda's (D) actions at the bilateral and multilateral levels, and therefore
satisfied pre· conditions to the seisin of the LC.j. in the compromissory clauses within some of
the treaties, including the Conven· tion on Discrimination against Women, but whatever the
dispute, there was no evidence that the DRC (P) sought negotiations with respect to
interpretation or application of the Convention. The DRC (P) also failed to show that it initiated
arbitration proceedings with Rwanda (D) under the Convention on Discrimination against
Women. The treaty cannot therefore form the basis of jurisdiction.

Military and Paramilitary Activities in and Against Nicaragua (Nicaragua
v. United States)
       Page:
       Procedural History:
             Proceeding in the International Court of Justice.
       Overview:
             Nicaragua (P) filed suit in !984 against the Uuited States (D) claiming it was
responsible for illegal military and paramilitary activities in and against Nicaragua. The United
States (D) challenged the jurisdiction of the International Court of Justice to hear the case, as
well as the admissibility of Nicaragua's (P) application to the I.C.J. Nicaragua (P) filed suit in
1984 against the United States (D), claiming it was responsible for illegal military and
paramilitary activities in and against Nicaragua (P). The United States (D) challenged the
jurisdiction of the International Court of Justice to hear the case. Though the United States (D)
deposited a declaration accepting the compulsory jurisdiction of the Court in 1946, it attempted
to qualify that declaration in a 1984 notification referring to the declaration of 1946 and stating
in part that the declaration "shall not apply to disputes with any Central American State .... "The
United States (D) also argued that Nicaragua (P) had failed to deposit a similar declaration to the
l.C.J., and that the I.C.J. lacked jurisdiction on that ground as well. Nicaragua (P) argued that it
could rely on the 1946 declaration made by the United States (D) because it was a "state
accepting the same obligation" as the United States (D) when it filed charges in the l.C.J. against


                                                 29
the United States(D).Nicaragua(P) also pointed to its intent to submit to the compulsory
jurisdiction of the I.C.]. through a valid declaration it made in 1929 with I.C.).'s predecessor, the
Permanent Court of International Justice, even though Nicaragua (D) failed to formally deposit it
with that court. Finally, the United States (D) also challenged the admissibility of Nicaragua's (P)
application to the I.C.).
       Issue:
             (I) Does the International Court of Justice have jurisdiction to hear a dispute between
two states if each accepted the Court's jurisdiction? (2) Is the application by a state to the
International Court of Justice admissible where no grounds exist to exclude it?
       Rule:
             (1) the ICJ has jurisdiction to hear a dispute between two states if each accepted
court’s jurisdiction; (2)the application by a state to the ICJ is admissible where no grounds exist
to exclude it
       Analysis:
             The questions of jurisdiction and admissibility are very complicated, but are based
primarily on the principle that the I.C.J. has ono/ as much power as that agreed to by the parties.
A primary focus of the case was on the declarations-the 1946 declaration of the United States,
and the 1929 declaration of Nicaragua-and what each declaration indicated about the respective
parties' intent as it relates to the I.C.J.'s jurisdiction .
       Outcome:
             (I) Yes. The International Court of)ustice has jurisdiction to hear a dispute
between two states if each accepted the Court's jurisdiction. Nicaragua's (P) declaration of
1929 is valid even though it was not deposited with the Permanent Court, because it had
potential effect that would last for many years. Because it was made unconditionally and was
valid for an unlimited period, it retained its potential effect when Nicaragua (P) became a
party to the Statute of the I. C.). The drafters of the current Statute wanted to maintain the
greatest possible continuity between it and the Permanent Court. Nicaragua (P) may be
deemed to have given its consent to the transfer of its declaration to the l.C.]. when it accepted
the Statute. In addition, the conduct of Nicaragua (P) and the United States (D) suggest
that both intended to be bound by the compulsory jurisdiction of the I. C.)., and the
conduct ofthe United States (D) constitutes recognition of the validity of the declaration of
Nicaragua (P) of 1929. Because the Nicaraguan declaration of 1929 is valid, Nicaragua (P)
was a "state accepting the same obligation" as the United States (D) at the date of filing of
the charges with the I.C.)., and therefore could rely on the United States' (D) declaration of
1946. The 1984 notification by the Untied States (D) does not prohibit jurisdiction in this case,
because the United States (D) appended by its own choice a six months' notice clause to its
declaration, and it was not free to disregard it with respect to Nicaragua (P). The obligation
of the United States (D) to submit to the jurisdiction of the I. C.). in this case cannot be
overridden by the I 984 notification. The "multilateral treaty reservation" that was
appended to the United States' (D) declaration of 1946, which limited the I.C.).'s
compulsory jurisdiction, also does not prohibit jurisdiction in this case. Through the
declaration, the United States (D) accepted jurisdiction except with respect to "disputes
arising under a multilateral treaty, unless (I) all parties to the treaty affected by the decision
are also parties to the case before the Court, or (2) the United States of America specially agrees
to jurisdiction." Nicaragua's (P) application in this case relies on four multilateral treaties, and
the United States (D) argued that the !.C.). could exercise jurisdiction only if all treaty parties



                                                 30
affected by a decision were also parties to the case. But the effect on other states is not a
jurisdictional problem, and the United States' (D) objection to jurisdiction on the basis of the
multilateral treaty reservation is unfounded. (2) Yes. The application by a state to the
International Court of Justice is admissible where no grounds exist to exclude it. The United
States (D) challenged the admissibility of Nicaragua's (P) application on five separate grounds.
The first-that Nicaragua (P) failed to bring forth necessary parties-fails because there is no
"indispensable parties" rule. The second and thirdthat Nicaragua (P) is asking the Court to
consider the existence of a threat to peace, which is the eXclusive province of the Security
Council-fails because the l.C.J. can exercise jurisdiction concurrent with that of the Security
Council. Both proceedings can be pursued pari passu. The fourth-that the !.C.). is unable to deal
with situations involving ongoing armed conflict-is not a show-stopper because any judgment on
the merits is limited to the evidence submitted and proven by the litigants. The fifth-that the case
is incompatible with the Contadora process, to which Nicaragua (P) is a party-fails because there
is nothing compelling the l.C.J. to decline to consider one aspect of a dispute just because the
dispute has other aspects. The fact that negotiations are being conducted subject to the Contadora
process does not pose any legal obstacle to the exercise by the Court of its judicial function.

Legality of the Threat or Use of Nuclear Weapons
      Page: 626
      Procedural History:
              Advisory opinion
      Overview:
              The General Assembly and World Health Organization requested advisory opinions
from the International Court of Justice regarding the legality of nuclear weapons.
      Issue:
              May the International Court of Justice give an advisory opinion on any legal
question at the request of whatever body may be authorized by or in accordance with the Charter
of the United Nations to make such a request?
      Rule:
             the ICJ may give an advisory opinion on any legal question at the request of
whatever body may be authorized by or in accordance with the charter of the UN to make such a
request.
      Analysis:
             The Court also rejected arguments that it should refrain from rendering an advisory
opinion on the basis that such a reply might negatively affect disarmament negotiations, and that
the Court would be exceeding its authority and acting in a law-making capacity. The Court
rejected the latter argument on the basis that it simply states the existing law and does not
legislate, even if it sometimes must specify the scope and application of such law .
      Outcome:
              Yes. The International Court of Justice may give an advisory opinion on any legal
question at the request of whatever body may be authorized by or in accordance with the Charter
of the United Nations to make such a request. Only compelling reasons are justified for a refusal
to grant such an advisory opinion. The Charter of the United Nations authorizes the General
Assembly to make such a request; however, the Court lacks the jurisdiction to grant such an
opinion to the World Health Organization.



                                                31
Legal Consequences of the Construction of a Wall in the Occupied
Palestinian Territory United Nations (P) v. Israel (D)
       Page:
       Procedural History:
             Advisory opinion by International Court Justice. Israel (D) constructed a wall in
occupied Palestinian territory and the United Nations (P) objected. Israel (D) constructed a wall
in occupied Palestinian territory. The wall and its route impaired the freedom of the Palestinian
population. The U.N. General Assembly (P) demanded that it stop and reverse the construction
of the wall. The I.C.J. was asked to provide an advisory opinion on the matter. Palestine is not a
state nor a member in the UN, so it wouldn’t be a contentious case, this is the only way the ICJ
would work.
       Overview:

       Issue:
               Does the construction of a wall by Israel (D), the occupying power, in the occupied
Palestinian territory, violate international law, including the Fourth Geneva Convention of 1949,
fhe Hague Convention, and relevant Security Council and General Assembly resolutions?
       Rule:
              the construction of a wall by israel, the occupying power, in the occuppied
palestinian territory, violates intl. law, including the 4th geneva convention of 1949, the hague
convention, and relevant security council and general assembly resolutions
       Analysis:
              Judge Buergenthal, the only dissenter in the matter, is a US. citizen. In addition, the
United States was one of eight votes against asking the I.C.J. for an advis01y opinion. Ninety
members voted in favor of the opinion, and 74 members abstained.
       Outcome:
               Yes. The construction of a wall by Israel (D), fhe occupying power, in the occupied
Palestinian territory, violates international law, including the Fourth Geneva Convention of 1949,
the Hague Convention, and relevant Security Council and General Assembly resolutions. The
wall and the Israeli occupation impede the liberty of movement of the inhabitants of fhe
occupied territory, with the exception of Israeli citizens, as guaran teed under Article 12 of the
International Covenant on Civil and Political Rights. It also impedes access to work, health
facilities, education, and au adequate standard of living under the International Covenant on
Economic, Social, and Cultural Rights and the United Nations Convention on the Rights of the
Child. Finally, the wall changed the demography of the territory, because of fhe departure of
some Palestinians, which violates Article 49 of fhe Fourth Geneva Convention. Construction of
the wall also breaches Israel's (D) obligations under the Fourth Geneva Convention and the
Hague Convention because the route chosen for the wall infringes the rights of Palestinians in
the occupied territory, which cannot be justified by military exigencies or the requirement of
national security. The legal consequence of Israel's (D) actions in the matter is that all states are
under an obligation not to recognize the illegal situation resulting from fhe construction of the
wall, and all the states party to the Fourth Geneva Convention are under an obligation to ensure
compliance by Israel (D) with international humanitarian law. Finally, both Israel (D) and
Palestine are under an obligation to observe the rules of international humanitarian law. Illegal
action and unilateral decisions have been taken on all sides, and implementation of the relevant
Security Council resolutions is the only way to end the hostile situation.


                                                 32
             SEPARATE OPINION: (Higgins, J.) The International Court of Justice looked at
only a part of a much larger conflict between the two states, and should have considered the
bigger picture and spelled out what is required of both parties. Of paramount importance is the
protection of civilians. In addition, the real impediment to Palestine's ability to exercise its rights
as a self-determined people is not the wall, but Israel's (D) refusal to withdraw from Arab
occupied territory and for Palestine to provide conditions to allow Israel (D) to feel secure in
doing so. Further, while the wall seems to have resulted in a lessening of attacks on Israeli
civilians, the necessity and proportionality for the route selected, balanced against the hardships
for Palestinians, have not been explained. DISSENT: (Buergenthal, J.) The construction of the
wall raises important issues of humanitarian law, but the Court should have declined to issue an
advisory opinion because the Court failed to address Israel's (D) arguments that it was willing to
provide compensation and services for Palestinian residents, and that the wall was intended to be
a temporary structure. The Court's conclusions are not convincing, because it failed to
demonstrate adequately why it was not convinced that military exigencies and concern for
security required Israel (D) to erect the wall along the chosen route.

United States-Final Anti-Dumping Measures on Stainless Steel from
Mexico
      Page:
      Procedural History:
             Appeal to Appellate Body of the World Trade Organization (WTO).
      Overview:
             Mexico (P) complained that the United States (D) violated Article VI of GATT 1994
and the Anti·Dumping Agreement by using incorrect methodology for calculation of margins of
dumping. The panel that convened for the complaint did not follow the Appellate Body's prior
holdings, and instead relied on panel reports that the Appellate Body had reversed. Mexico (P)
complained that the United States (D) violated Article VI of GATI 1994 and the Anti-Dumping
Agreement by using incorrect methodology for calculation of margins of dumping. The
Appellate Body of the WTO had addressed similar complaints filed against the United States (D)
by the European Community and japan, but the panel that convened for Mexico's (P) complaint
did not follow the Appellate Body's prior holdings, and instead relied on panel reports that the
Appellate Body had reversed.
      Issue:
             In ruling on a dispute brought before a WTO panel, must the panel follow previously
adopted Appellate Body reports addressing the same issues?
      Rule:
            in ruling on a suit brought before the WTO panel, the panel must follow previously
adapted appellate body reports addressing the same issues
      Analysis:
            "Dumping" is the act of a manufacturer in one country exporting a product to another
country at a price that is either below the price it charges in its home market or is below its cost
of production. "Free market" advocates view "dumping" as beneficial for consumers and believe
that actions to prevent it would have negative consequences. The use of "zeroing" in the context
of calculating antidumping duties in domestic trade remedy proceedings has been one of the
most contentious issues in World Trade Organization dispute settlement, and that in part explains
the panel's deviation from prior rulings by the Appellate Body in this case .


                                                  33
      Outcome:
             Yes. In ruling on a dispute brought before a WTO panel, the panel must follow
previously adopted Appellate Body reports addressing the same issues. While Appellate Body
reports are not binding, except with respect to resolving the particular dispute between the
parties, subsequent panels are not free to disregard the legal interpretations and reasoning
contained in previous Appellate Body reports that have been adopted. The Appellate Body
functions to provide consistency and stability in interpretation of rights and obligations under
covered agreements, and the panel's failure to follow previously adopted Appellate Body reports
undermines the development of a coherent and predictable body of jurisprudence. The panel's
erroneous legal interpretation is corrected, and its findings and conclusions that have been
appealed are reversed. Whether the panel failed to discharge its duties under Article II of the
Dispute Settlement Understanding is not ruled upon.


IV. International Law in the United States


1. Article II Treaties

“He [the President] shall have Power, by and with the advice and consent of the Senate to make
Treaties, provided two thirds of the Senators present concur….”

What is the scope of the US Constitutional power to make treaties?

Note: the term “treaty” has a different meaning in Untied States law than it does in international
law

Four ways (within the framework of US law) that the US can become a party to an international
agreement
1) Article II treaty – an international agreement concluded by the US with the consent of 2/3 of
    the Senate
        o The Senate consents to treaties but does not actually ratify them
        o The president can sign any treaty without Senate advice and consent, but the president
           cannot ratify a treaty without the advice and consent of the senate
        o Once the Senate has given advice and consent, the President can still decide not to
           ratify the treaty
        o The senate may give consent but add reservations to the treaty (proposed
           amendments); the senate can also make consent to the treaty conditional upon the
           entrance of reservations
                 The president can decide whether the reservations gut the whole treaty
2) The president can do it all by himself: “sole executive agreement”
3) The president can do it on the basis of congressional authorization: “congressional-executive
    agreement”
        o This only requires a simply majority of both Houses of Congress, not consent of 2/3
           of the Senate


                                                34
4) The president can also create a treaty on the basis of another Article II treaty which gave the
   president the authority to create the second treaty (authorization is in the first treaty)

Are there any Constitutional limits on the power of the federal government to conclude treaties?

The two leading cases:

Missouri v. Holland, 252 US 416 (1920); p. 159
- Missouri wanted to stop enforcement of laws written by Congress to implement a treaty in
   which the United States agreed not to capture, sell or kill endangered migratory birds
       o Missouri’s objection was that this law violated the Tenth Amendment (that the
           powers not granted to the federal government were reserved to the states)
       o Missouri argued that the bids were in their territory and thus they were entitled to
           regulate treatment of the birds
- The Court found that the treaty and statute implementing it must be upheld
- How could a law of Congress become constitutionally valid by the fact that it is made to
   implement a treaty when that very same law would be invalid under the Tenth Amendment if
   it were not implementing a treaty?
       o Article II gives treaty-making power, and Article VI says that the Constitution and
           treaties are the supreme law of the land
                If there is a treaty in force in the US that is inconsistent with state law, the
                   treaty will prevail over the state law
       o Necessary and Proper clause: Art. I, Section 8, cl. 18
                Congress has the power to enact legislation which is necessary and proper to
                   execute all powers vested in the government by the Constitution, including the
                   laws of treaties made by the government
- Holding: (see p. 158)
       o “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 United States.”
       o This language raises the possibility that the exercise of the treatymaking power is not
           subject to the same constitutional limitations as acts of Congress
       o Thus, this case indicates the possibility that an act of Congress which would
           otherwise be unconstitutional can become constitutional when made pursuant to
           a treaty
       o However, this case does not resolve this question

Reid v. Covert, 354 US 1 (1957) p. 162
- Defendants were civilian dependents of armed servicemen who murdered their husbands on
   the overseas bases where they were stationed. They were tried by court-martial under the
   Uniform Code of Military Justice (UCMJ), where they were tried without a grand jury or a
   jury trial. The dependents alleged that they were denied a right to a jury trial and right to
   have their indictment presented to a grand jury pursuant to the Constitution. The right to try
   civilian dependents on the overseas base was granted by treaty.
- The United States argues Missouri v. Holland – the UCMJ was made because it was
   necessary and proper to execute a treaty, and thus it does not need to comply with the



                                                35
    Constitution (though it might be unconstitutional without a treaty, it is ok because it was
    made pursuant to a treaty)
-   The Supreme Court finds that “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
    of the Constitution.”
        o Nothing in the language of Article VI’s supremacy clause intimates that treaties and
           laws enacted pursuant to them do not have to comply with the provisions of the
           Constitution – laws pursuant to treaties must comply with the Constitution
-   The Supreme Court also says that treaties still prevail over inconsistent state law, and the
    Tenth Amendment is not a barrier to the federal government’s authority to make treaties
-   So the dependents were entitled to their constitutional rights in trial
-   The much more complicated question – what constitutional rights do people like these
    dependents have? What rights to foreigners have abroad?
-   Rule: if you have a treaty which conflicts with a subsequent Congressional act, the
    Congressional act prevails over the treaty unless it violates the constitution

Example of application of Reid: If the United States entered into a treaty in which it agreed that
abortion was illegal, and Congress attempted to write implementing legislation for that treaty,
that implementing legislation would be invalid because it violates the Constitution (Roe v. Wade)


2. Treaties in US Law

Status of treaties as law of the United States
- Supremacy Clause (p. 158) – Article VI: “This 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….”
        o Treaties are part of federal law
        o If there is inconsistent state law, the treaty prevails over state law
        o One qualification: this is referring to self-executing treaties (one that has effect
            without implementing legislation)


Hierarchy of Laws: (becomes relevant when there is a conflict between different sources of law)
   1) Constitution
   2) Self-executing treaties and acts of Congress (see later-in-time rule below)
   3) State law

Self Executing Treaties
- Definition: “a treaty that can be enforced by courts without domestic implementing
    legislation” – the treaty can be directly judicially enforced
    o If a treaty is not self-executing, there must be implementing legislation that gives effect
        to the terms of the treaty
    o It is possible for some provisions of a treaty to be self-executing while other provisions of
        a treaty are not self-executing
- Why might a treaty be non-self-executing?


                                                36
  o the United States may want time to reconcile domestic and international law
  o The treaty may be aspirational – a good deal of time is needed to bring it into effect
      domestically
  o To the extent that the US takes the treaty obligation seriously, a treaty might be phrased
      in general language, and Congress would want to be able to fine-tune the treaty through
      domestic legislation that implements the treaty
  o She says: making a treaty non-self-executing arguably enhances the democratic law-
      making process
           President has greater law-making power than congress when he concludes a treaty
           Non-self-executing treaty – congress has the opportunity to be involved in the
              process of making the laws of the treaty the laws of the land in the US – opens up
              the treaty to democratic scrutiny, prevents the president from making law
              unchecked
  o There is a concern about judges interpreting treaties, particularly broad treaties, and again
      people are worried that juridical interpretation bypasses the democratic process a little too
      much for some people
How do you know whether a treaty is self-executing or not?
- A treaty provision saying that states parties will enact any legislation that is necessary to
  bring the treaty into effect
  o in the US, this language has been interpreted to mean that the treaty is non-self-executing
  o This could also be interpreted to mean that you may not need to enact any legislation to
      bring the treaty into effect, and that the treaty is self-executing except for circumstances
      where implementing legislation is necessary
- US courts have often looked to the intent of the parties to determine whether the treaty is
  self-executing
  o It is said that the intention is the most important thing to consider
  o there is some debate about whose intentions matter; the prevailing view is that first you
      look to the intent of the parties, and then to statements by others
  o look to other sources, such as Senate RUDs, contextual factors
  o Note: many domestic courts will look only to the intent of the United States to determine
      whether a treaty is self-executing
           The United States manifests its intention whether a treaty is self executing in:
                    Floor debates in the Senate about the treaty
                    Senate’s declarations regarding its consent to a treaty
- The question of whether a treaty is self executing is treated differently in different countries
  o In some states, all or no treaties are self-executing
- Note: Negative prohibitions in a treaty are more likely to be considered self-executing than
  other provisions because those kinds of provisions can be enforced by courts without any
  further legislation having to be adopted

Asakura v. City of Seattle, 265 US 332 (1924), p. 169
- Plaintiff alleges that a Seattle ordinance regulating the business of pawnbroker violates a
   treaty
- plaintiff directly invokes a treaty provision (“…thou shalt not discriminate between the
   citizens of these two countries…”)in this case, which is before a US court; he can only do
   this if the treaty is self-executing


                                                37
-   how to determine whether the treaty is self-executing:
    o look to the language to see if it says
    o if the language is unclear, then look to the intent of the parties: look to the Senate
        (domestic legislation), presidential statements concerning the treaty
-   The court implicitly ruled that the treaty was self-executing by finding that the local
    ordinance that violated the treaty was invalid
    o Language indicating that the treaty is self-executing: “It operates of itself without the aid
        of any legislation…and it will be applied and given authoritative effect by the courts….”

RUDs:
- Reservations: VCLT 2(1)(d): “a unilateral statement, however, phrased or named, made by a
  State, when signing, ratifying, accepting, approving or acceding to a treaty, whereby it
  purports to exclude or modify the legal effect of certain provisions of the treaty in their
  application to that State.”
  o Amends the text of the treaty itself and the substantive obligations that the state has
  o States can enter reservations without calling them “reservations”
  o Both understandings and declarations may be disguised reservations
- Understandings: interpretive statements that do not purport to amend the terms of the treaty
  themselves
  o Understandings may be treated as reservations where they result in a modification of the
      treaty
- Declarations
  o These go to domestic law

Other constraints on whether a treaty is self-executing
- there are some constitutional provisions
   o if a treaty purports to do something that only Congress can do, then the treaty is seen as
       non-self-executing
            classic example: treaties calling for the appropriation of money (see p. 175)




Later-In-Time Rule (also called the last-in-time or subsequent-in-time rule)
- The Supreme Court says that self-executing treaties and congressional legislation have the
   same standing in international law
- What does it mean to say that a self-executing treaty and congressional legislation have the
   same status in American law?
   o When there is a conflict between the two:
            First general cannon: See if there is a way to reconcile the two so that the
              conclusion will be that they are both fully in force
            Second step: If the court cannot plausibly reconcile the two, the court will apply
              the later-in-time rule – whichever of the inconsistent laws in question came last
              in time will prevail to the extent of the conflict




                                                38
                     Thus, Congress can enact a law that is in conflict with a treaty of the
                      United States, and if the two cannot be reconciled the act of Congress will
                      trump the inconsistent treaty obligation
                     This does not nullify the treaty – you would be in breach of your treaty
                      obligations (see VCLT: article 27 – “A party may not invoke the
                      provisions of its internal law as justification for its failure to perform a
                      treaty.”)
                     Example: the US agrees, under treaty, to pay $$ to X. Congress enacts a
                      law that makes it impossible to perform the obligation. The domestic law,
                      due to the later in time rule, will be the rule of law. But outside the US the
                      original obligation under the treaty stands. The US would be in breach of
                      international law if it were to not make the payments. If the US did make
                      the payments, it would be in breach of domestic law.

Breard v. Greene, 523 US 371 (1998), p. 185
- Breard wanted to invoke the Vienna Convention on Consular Relations (VCCR) so as to
   avoid his own execution. However, he did not follow the proper procedures for such
   invocation.
- later-in-time argument – p. 187
   o the Court finds that the VCCR was preempted by a new 1996 domestic law, the
       Antiterrorism and Effective Death Penalty Act, and thus the new law prevented the
       plaintiff from establishing that the violation of his Vienna Convention rights was a
       problem
- the court decided to apply the procedural default rule: because Breard did not follow the
   necessary procedural rules for bringing a claim under the VCCR, he was not entitled to the
   protection of the VCCR


3. Presidential Power and Congress

How does the Constitution distribute the foreign affairs powers within the federal government?

United States v. Curtiss-Wright Corp., 299 U.S. 304 (1936), p. 193
- Congress enacted a joint resolution delegating to the President the power to prohibit the sale
   of arms from the US to Bolivia
- The Constitutional issue in this case was whether there had been an unconstitutional
   delegation of authority by Congress to the President
- The opinion begins by assuming that the delegation of authority would have been
   unconstitutional had the matter been about internal affairs
- However, because it is about external affairs, it may be ok
- Why is it significant that the matter is about external affairs?
   o The Constitution gives the federal government certain legislative powers and leaves the
       rest to the states
   o The powers pertaining to foreign affairs go to the federal government (president and
       congress); the states could never have these powers because the power to conduct foreign



                                                39
      affairs passed directly to the federal government from the Crown; the colonies never
      possessed the power to conduct foreign affairs severally
    o Additionally, the opinion says that the President is the sole organ of the nation in external
      relations and its sole representative with foreign nations
-   Was there an unconstitutional delegation of power?
    o NO – because the president has the power to conduct foreign affairs, he has the power to
      create laws that deal with foreign affairs, regardless of whether Congress gives him their
      blessing; thus the Congressional authorization was just icing on the cake

Whenever there is a challenge to presidential authority, we are going to assess the validity
of the action by using the Jackson test from his concurrence
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952), p. 196 (the Steel Seizure case)
- When the steel workers went on strike during the Korean war, the president ordered that the
    steel mills be seized and kept open; when the president ordered this, Congress subsequently
    supported him
- Did the president exceed his constitutional powers?
- Majority Opinion:
    o What is the framework for answering this question?
             Justice Black says – look for authority in the Constitution or in an act of Congress
    o Holding:
             There was no act of Congress granting the power to the President (they had
                considered giving him the power but decided not to)
             Thus, the order had to come from the president’s powers under the Constitution
                     The government argued that
                            o the President’s power was derived from his commander-in-chief
                                power – he had to do what was best for the military, and seizing
                                the steel mills was what was best for the military since they were at
                                war
                            o the power should be implied from the aggregate of the President’s
                                constitutional powers
                     The court finds that the president’s action was in effect a legislative act,
                        and the Constitution tells us that Congress, and not the President, gets to
                        legislate
                            o This is a legislative act because it pertains to domestic labor
                                relations (which does not fall within his foreign affairs powers)
    o The majority took a formalistic approach and said that each branch of the federal
        government has its own “box” of authority; domestic labor relations are within Congress’
        box of authority, not the president’s
- Justice Jackson’s concurrence
    o He looks at the federal government’s power as more interactive – the Constitution creates
        a scheme of interdependence as well as separate powers
             These powers fluctuate in relation to what other branches have done
             He does not like the formalistic approach, and favors a functionalist approach
    o Sets out a framework for determining presidential powers




                                                 40
              1) when the President acts pursuant to an express or implied authorization from
               Congress, his authority is at its maximum, for it includes all that he possesses in
               his own right plus all that Congress can delegate
                    here, there is a presumption of validity, because Congress and the
                       President have pooled their valid powers
                    to overcome that presumption of validity, one must show that the Federal
                       Government as an undivided whole lacks the power; or that the delegation
                       of power to the President was unconstitutional (example: Congress gives
                       power to the president which is does not have the authority to delegate,
                       such as powers left to the states in the10th Amendment)
            2) when the President acts in the absence of either a congressional grant or denial
               of authority, he can only rely upon his own independent powers, but there is a
               zone of twilight in which he and Congress may have concurrent authority, or in
               which its distribution is uncertain
                    When you are in the zone of twilight and Congress does not act, the
                       president’s authority is enhanced, but is not per se constitutionally valid
                    Example of a twilight zone: war
            3) when the President takes measures incompatible with the expressed or implied
               will of Congress, his power is at its lowest ebb, for them he can only rely upon his
               own constitutional powers minus any constitutional powers of Congress over the
               matter
                    The constitutional validity of his act is sustained when he shows that he
                       acted within the scope of his constitutional powers
            Conceptualize the president’s power as a sphere, and Congress’ power as an
               overlapping sphere; in the overlap, both can act
                    When the president is in category three, he can only rely on his exclusive
                       zone of competency, MINUS what was in the twilight zone
   o Having set forth this framework, Jackson applies it to the seizure of the steel mills
            This case falls in the third category
                    Not Category 1 – No congressional authorization existed for the seizure
                    Not Category 2 – Congress had covered seizure of private property by
                       three statutory policies inconsistent with the seizure
                    Third Category: President claimed that he got the power to seize the steel
                       mills from the “commander in chief” clause of the Constitution
            Jackson then says that in internal affairs, it would be dangerous if the president
               had free reign over everything in the name of being commander in chief, so he
               finds that the president did not have the power to seize the steel mills
Hypothetical:
- Congress passes a law establishing diplomatic relations with Fidel Castro’s Cuba
- In this area, the president can choose to refuse to listen to Congress because the Constitution
   provides that the President appoints and receives ambassadors
- This authority is within the third category of Justice Jackson’s concurrence because the
   president is acting contrary to the will of Congress




                                                41
4. Non-Article II Treaties

Constitutional Validity of Executive Agreements
- In addition to Article II treaties (see above), the president can make treaties
   1) On his own authority: “Sole executive agreement,” “presidential executive agreement”
   2) When he acts pursuant to authority given by congress “Congressional-executive
       Agreement” (defined on p. 205 – “international agreements authorized in advance, or
       approved after the fact, by a majority of both houses of Congress”)

-   Two questions:
    1) Are there constitutional limits on the ability of the president to make either presidential-
       or congressional-executive agreements?
           a. Sure – if a treaty has to be concluded as an Article II treaty
    2) Are there some kinds of agreements that ought to be concluded as article II treaties, or is
       it up to the president to decide which approach he will take as to how to conclude the
       treaty?

Department of State Circular 175
There are three constitutional bases for international agreements other than treaties as set forth
below. An international agreement may be concluded pursuant to one or more of these
constitutional bases:
    (1) Agreements Pursuant to Treaty
    (2) Agreements Pursuant to Legislation
    (3) Agreements Pursuant to the Constitutional Authority of the President

Congressional-executive agreements:
Made in the USA Foundation v. US, 242 F.3d 1300 (11th Cir. 2001) p. 205
- plaintiffs challenged a trade agreement made by the President with the authorization of
   Congress (NAFTA Implementation Act) (we’re in Jackson category 1)
- plaintiffs allege that this has to be concluded as an Article II treaty, and is not legitimate in its
   current form
- the court rules that the trade agreement was legitimate:
   o Constitution textually commits the commerce power to Congress, and the NAFTA
       Implementation Act deals with commerce
   o Further, the president, in negotiating the trade agreement, was acting pursuant to his
       constitutional powers to conduct the Nations’ foreign affairs AND pursuant to a grant of
       authority from Congress (Justice Jackson’s framework: we have a presumption of
       validity because President acts within his own Constitutional powers and with the
       authority of Congress)
Hypothetical:
- If Congress tells the President that he cannot have diplomatic relations with Castro, but the
   President wants to have diplomatic relations with him, the President can have these
   diplomatic relations but is acting within the 3rd sphere from Justice Jackson’s concurrence

Presidential-executive agreements:
- either in Justice Jackson’s Category 2 or 3


                                                  42
United States v. Pink, 315 US 203 (1942) p. 213
- facts: US settles dispute with Russia by accepting lump sum payment for recognition of
   Russia’s new government; Congress tacitly recognized that policy
- Why was the Litvinov assignment valid?
   o The President has the power to receive ambassadors, which, according to the court,
       contains the implied power to make agreements concerning the recognition foreign
       governments
            “The authority is not limited to a determination of the government to be
               recognized. It includes the power to determine the policy which is to govern the
               question of recognition.”
   o Because the Litvinov assignment was a part of the agreement of recognition of the Soviet
       Government, it was within the power of the president to make this agreement alone
- Justice Jackson category 1:
   o President concluded an agreement on his own authority, and Congress tacitly consented

Dames & Moore v. Regan, 453 US 654 (1981), p. 215
- President suspended claims pending in American courts pursuant to the Algiers Accords, a
  presidential-executive action wherein the US agreed to terminate all legal proceedings in US
  courts involving claims against Iran
- How does the president have authority for this? It is a sole executive agreement
  (Presidential-executive agreement)
  o there is no congressional authorization for the president’s actions (neither the IEEPA nor
       the Hostage Act constituted authorization of the president’s actions suspending claims)
  o however, both acts give the president broad discretion in emergency situations (see p.
       217), and Congress acquiesced to the President’s action
  o there is a longstanding history of congressional acquiescence, enabling the president to
       settle claims with foreign states
            this is why the court believes that the executive agreement was acquiesced to by
                Congress
- although the court validated the president’s conduct, the court made clear that it did not give
  the president a blank check in the exercise of presidential decrees, because neither the IEEPA
  or the Hostage Act or the executive agreement authorized the settlement in and of themselves
  – it was the combination of the executive agreement, the acts, and the congressional
  acquiescence that made the agreement constitutional under the Jackson test
  o so we end up in Jackson’s category 1
  o this is a liberal interpretation of the Jackson framework



5. Customary International Law in the United States

Hierarchy of law within the domestic law of the Untied States
   1) Constitution
   2) Self-Executing Treaties & Congressional law
   3) State Law


                                               43
Where does customary international law fit into this hierarchy?

Ways that customary international law may be taken into account in a domestic court
- Ask: how does customary international law arise in a case?
      o If it is invoked by a party in a case as a source of the controlling rule
      o If it is incorporated by reference in a statute that has been enacted by Congress
      o If it is invoked by a court that uses it to interpret other laws

Murray v. The Schooner Charming Betsy, 6 US (2 Cranch) 64 (1804) p. 255
- Charming Betsy Cannon: “an act of Congress ought never to be construed to violate the law
  of nations if any other possible construction remains…”

Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980)
- the family of a Paraguayan torture victim to sued the torturer, a Paraguayan police officer
    living in the United States
- jurisdiction was claimed to be found under the Alien Tort Statute (28 US 1350)
        o the Alien Tort Statute states: The district courts shall have original jurisdiction of any
            civil action by an alien for a tort only, committed in violation of the laws of nations or
            a treaty of the United States
        o the court must determine whether torture is a violation of the “law of nations” (if not,
            the court will have no jurisdiction under the Alien Tort Statute)
- Should the law of nations be interpreted to mean the law of nations as it stands today or the
    law of nations as it stood in 1789?
        o The law of nations probably would not have included human rights in 1789
        o The court determines that customary international law should be interpreted as it
            stands today because it is an ever-evolving concept
- The court then undertook to determine whether torture was a violation of the law of nations
        o The court determined that torture was a violation of international law
        o The court cited:
                 UN General Assembly resolutions and declarations as evidence of state
                    practice and opinio juris, not as binding law (by themselves, General
                    Assembly resolutions do not have the force of law)
                 The laws of various different states that have laws prohibiting torture (US and
                    Paraguay) (it was important to show that there was state law, because General
                    Assembly stuff alone is not enough; it is not binding)
- The court does engage in a process of determining what customary international law is,
    which courts are often afraid of doing
- Was the court making customary international law in this case?
        o The court was finding customary international law – surveying the sources, and
            reaching a conclusion about what customary international law is
Doe v. Unocal
- Bush administration has launched an attack on the Filartiga precedent
        o They argue that the Alien Tort Statute is only jurisdictional and provides no cause of
            action, except for violations of the law of nations as it stood in 1789 (so the Alien
            Tort Statute would provide a cause of action for piracy but not for torture)




                                                 44
The Paquete Habana, 175 US 677 (1900), p. 226
- Ancient practice that fishing vessels pursuing their vocation are exempt from capture as a
   prize of war. Here, the US captured two Spanish fishing vessels as a prize of war.
- How did customary international law arise in this case?
       o The outcome of the case turned on the enforcement (or non-enforcement) of
           customary law prohibiting the capture of fishing vessels.
- The court concluded that:
       o The above practice had become customary international law
       o Thus the court demonstrated that customary international law can provide the
           controlling rule of a decision in some cases in US courts
       o “International law is part of our law, and must be ascertained and administered by the
           courts of justice of appropriate jurisdiction, as often as questions of right depending
           upon it are duly presented for their determination. For this purpose, where there is no
           treaty, and no controlling executive or legislative act or judicial decision, resort must
           be had to the customs and usages of civilized nations; and, as evidence of these, to the
           works of jurists and commentators, who by years of labor, research and experience,
           have made themselves peculiarly well acquainted with the subjects of which they
           treat.”
- WHAT to get out of the case: there is a vagary in the case, that is important: there are two
   interpretations of this case:
       o 1) Customary international law is subordinate to self-executing treaties and acts of
           congress (only binding in the absence of a treaty, an act of congress or the executive,
           etc.)
       o 2) Customary international law is on the same level as self-executing treaties and
           congressional acts, and therefore the later-in-time rule applies

Garcia-Mir v. Meese, 788 F.2d 1446 (11th Cir. 1986) p. 235
- Cuban refugees were accorded special immigration status, and had been detained in the
   Atlanta Penitentiary for a long time
- The Cuban refugees claim that customary international law was violated by their prolonged
   arbitrary detention
- Here, there was a relevant act of Congress, saying that the refugees could be detained
- The court found that the rule of Congress trumped the rule of customary international law, in
   regard to the first group of detainees
- As to the second group of detainees, the court found that an executive act by the Attorney
   General also trumps customary international law
       o Legally, how is this possible?
                Either the congressional acts generally trump customary international law, or
                   the congressional acts were later-in-time – it is not clear
                         The later-in-time interpretation is not as likely to have been the
                           intended interpretation of the court in this case.
- The United States would still be in breach of customary international law, despite the fact
   that the law could not be enforced domestically
- Two quotes:
       o “The public law of nations was long ago incorporated into the common law of the
           United States.” Paquete Habana



                                                45
       o “To the extent possible, courts must construe American law so as to avoid violating
         principles of customary international law.” Charming Betsy Cannon

Committee of US Citizens Living in Nicaragua v. Reagan, 859 F.2d 929 (1988) (handout)
- Facts:
      o There was an ICJ decision telling US to stop equipping, financing and supporting the
          Contras in Nicaragua
      o The asserted violation of this ruling was that the US had disobeyed the ICJ’s decision
          by continuing to aid the Contras
      o DC Circuit Court assumes that the US violated the ICJ’s judgment
- How did questions of customary international law arise in this case?
      o Treaty issue first: Committee alleges violation of Article 94 of the UN Charter,
          whereby each member undertakes to comply with ICJ decisions
               Court says that plaintiffs did not have standing to bring the case
               Court also says that because Congress passed a law later than when the US
                  Charter was signed, the congressional act trumps the US Charter because of
                  the later-in-time rule
      o Customary international law violations: plaintiffs allege that it is customary
          international law for parties to an ICJ suit to abide by ICJ decisions
               The court assumes that Congress’ decision to disregard the ICJ decision
                  violates international law
               The court then rules that even if there were a violation by the United States,
                  an enactment of Congress cannot be challenged on the ground that it
                  violates customary international law (“within the domestic legal realm,
                  that inconsistent statute simply modifies or supercedes customary
                  international law to the extent of that inconsistency” – later in time rule)
                       Will an act of Congress always prevail over customary international
                          law even where the act of congress was not later in time?
                              o The Paquete Habana suggests that the answer is yes – it’s still
                                  not clear
      o Jus Cogens violations: Plaintiffs alleged that Untied States failure to comply with the
          ICJ decision violates jus cogens
               The court says that the decisions of the ICJ do not have the status of jus
                  cogens (this was a pretty obvious conclusion)
               Many countries do not adhere to the ICJ, and not that many countries submit
                  to compulsory jurisdiction, so this can’t be jus cogens
               How do we know whether something has reached the status of jus cogens?
                       The standard is that: there must be a further recognition by the
                          international community as a whole that a norm is a norm from
                          which no derogation is permitted
- Dictum: the court speculates about what the outcome of the case would be if the US had
  violated a jus cogens norm
      o “Such basic norms of international law as proscription against murder and slavery
          may well have the domestic legal effect that appellants suggest….If Congress adopted
          a foreign policy that resulted in the enslavement of our citizens or of other




                                              46
           individuals, that policy might well be subject to challenge in domestic courts under
           international law.” (941)



V. Allocation of Legal Authority among States

There are three different kinds of jurisdiction that international law might be concerned with:
   1) jurisdiction to prescribe law (the authority of a state to make its policy applicable to
       persons or activities) (all of this is in Restatement 402, except for universal jurisdiction,
       which is in Restatement 404)
   2) jurisdiction to adjudicate (authority of the state to subject particular persons or things to
       its courts)
   3) jurisdiction to enforce (concerned with the authority of a state to use the resources of
       government to induce or compel compliance with it law; includes authority to arrest
       someone)

General cannon of construction in US law
- 1) Congressional legislation is presumed to be territorial in scope (it applies only to US
   territory) (but sometimes a law is understood to have extraterritorial affect)
- 2) “An act of congress ought never to be construed to violate the law of nations if any other
   possible construction remains.” Charming Betsy

Restatement, Section 403, qualifies the grounds of jurisdiction
- even when one of the grounds of jurisdiction is available, if the conduct in question has
   contact with more than one state it is necessary to satisfy an additional test, the test of
   reasonableness
- p. 659: “a state may not exercise jurisdiction to prescribe law with respect to a person or
   activity having connections with another state when the exercise of such jurisdiction is
   unreasonable.”

Three step analysis to determine whether a state can make its law applicable to persons or
activities under international law under the formulation of the Restatement Section 403:
    1) Was this exercise of jurisdiction supported by any of the five bases of prescriptive
         jurisdiction?
    2) If yes, was the exercise of jurisdiction reasonable?
             a. How do we know whether it was reasonable? The Restatement directs us to
                 evaluate “all relevant factors” including a list of factors it provides (see p. 660)
             b. The reasonableness test should be applied in all cases
    3) If you have concluded that it would be reasonable for more than one state to regulate the
         conduct, but one state tells you to act one way while the other state tells you to act the
         opposite way, how do you determine which state gets to have jurisdiction?
             a. Evaluate the interests of each country involved, and defer to the country whose
                 interests are greater




                                                  47
Note: the reasonableness test applies only to territorial, nationality, passive personality and
protective jurisdiction; it doesn’t apply to universal jurisdiction because it is assumed that there
is a common and equal interest on the part of all states to adjudicate these crimes


1. Jurisdiction to prescribe: Overview and Territorial Jurisdiction

Overview: Five bases for prescriptive jurisdiction under international law
1) territory
       - State has jurisdiction over property, persons, acts, or events occurring within its
           territory
       - not a controversial basis of jurisdiction
2) (active) nationality
       - states may regulate the conduct of their nationals wherever they are in the world
       - not a controversial basis of jurisdiction
3) passive personality
       - a state may prescribe law for situations where its nationals are a victim of the conduct
           being regulated
       - this has limited scope, and is pretty well accepted with regard to terrorist attacks
4) protective
       - a state can legislate crimes that it considers to be a threat to its security, integrity, or
           economic interests
       - common examples: espionage, counterfeiting (maybe terrorism)
       - this one is controversial – makes some countries nervous because of the possibility of
           arbitrary enforcement
5) universal
       - a state may legislate certain crimes that are contrary to the interests of the
           international community
       - in theory, every state has an interest in prescribing laws relating to these crimes
       - the only clear-cut cases of universal jurisdiction are piracy and war crimes (according
           to the book), but Orentlicher says the list is longer now, and terrorism is in the
           “maybe” category

Example: Case against Pinochet
        - Spain relied on universal jurisdiction to argue for Pinochet’s extradition from
            England to Spain
        - It also relied on Passive Personality (Spanish citizens were killed in Chile)
        - passive personality was found to be more persuasive than universal jurisdiction
        - No territorial jurisdiction – happened in Chile, not Spain
        - No active nationality – Pinochet was not Spanish
        - No protective principle – there was no imminent threat to Spain’s national security
            from Spain
Territorial Jurisdiction

Variations on territorial jurisdiction:



                                                 48
-   subjective territorial principle: jurisdiction to prosecute or punish crimes commenced
    within their territory but completed or consummated in the territory of another state
-   objective territorial principle: certain states apply their territorial jurisdiction to offenses or
    acts commenced in another state, but (i) consummated or completed within their territory, or
    (ii) producing gravely harmful consequences to the social or economic order inside their
    territory

Example:
- Someone in Canada fires a gun, and hits a person in the US
- The US can prosecute under the objective territorial principle because the act was completed
   in the US
- Canada could prosecute under the subjective territorial principle, because the act commenced
   within Canada

Hartford Fire Insurance Co. v. California, 509 US 764 (1993), p. 661
- Defendants, acting in London, were charged with conspiring to restrict the terms of certain
   kinds of insurance available in the US, in violation of the Sherman Act
- Issue: is there prescriptive jurisdiction to apply the Sherman Act, or any US law, to conduct
   that occurs in another country?
   o The Sherman Act has typically been interpreted according to the objective territorial
       principle – it deals with conduct that occurs outside the US but has a substantial and
       harmful effect inside the United States
   o Previous decisions found that he Sherman Act extended overseas; the new question was
       how far the Sherman Act extended
- Majority Opinion (Souter): the Sherman Act does apply to the acts in question
   o Does not address international law in depth; he merely addresses comity
            He frames the question as whether principles of comity ought to lead the court to
               exercise judicial restraint and not exercise jurisdiction over the London insurance
               companies
   o He says that there is only an issue where the laws of two states conflict in such a way that
       one cannot comply with the laws of one country without violating the laws of the other
       country: “The only substantial question in this case is whether ‘there is in fact a true
       conflict between domestic and foreign law’.”
            He finds that there is no conflict between US and British law (seems though he
               almost jumps right to the third part of the Restatement test in Section 403)
            Though the US made illegal what was legal in England, compliance with US law
               would not require violation of British law, so it’s ok
   o Is Souter right in suggesting that this is the only question that needs to be addressed?
            The Restatement reasonableness test says no – you still have to establish 1) that
               there is a recognized basis for prescriptive jurisdiction, and then 2) that it is
               reasonable for the state to exercise jurisdiction in the given case (look to
               reasonableness factors in Restatement); then you would perform Souter’s analysis

-   Dissent: Scalia
    o The principle question is whether the Sherman Act reaches the conduct in question
    o First, he looks at two cannons of statutory construction in American law:



                                                  49
              1) “legislation of Congress, unless a contrary intent appears, is meant to apply
               only within the territorial jurisdiction of the United States”
                    Sherman Act was already found to apply extraterritorially
            2) “an act of Congress ought never to be construed to violate the laws of nations if
               any other construction remains” (Charming Betsy)
                    prescriptive jurisdiction
    o He then performs the analysis Souter should have performed to determine if the Sherman
      act applies to the case at hand:
            you have to establish 1) that there is a recognized basis for prescriptive
               jurisdiction, and then 2) that it is reasonable for your state to exercise jurisdiction
               in the given case (look to reasonableness factors in Restatement); then perform an
               analysis similar to Souter’s analysis (can you apply the law of your state without
               requiring the defendant to violate the laws of the other state?)
            Reasonableness analysis:
                    He recognizes that the UK has a great interest in maintaining jurisdiction
                       over this issue
                    He also says that the US interest in regulating here is slight, because of
                       another act that allowed for the Sherman Act to be overridden (if the
                       Sherman Act can be overridden, it can’t be that important)
                    Scalia concludes that it is unreasonable for the United States to apply its
                       law here
    o Is it really unreasonable for the US to apply its law in this situation, given that the act in
      question was intended to have a negative effect on the United States?
            Why did Scalia reach this result? Are there any advantages to the result he
               reached?
                    It may be better to be certain which country gets to regulate the actions of
                       companies
                    It may be easier for US companies to compete on a level playing field in
                       the UK if they aren’t subject to US regulation
                    Flip the sides – do we want the UK to be able to do this to the US
-   Whose opinion was better – Souter or Scalia?
    o We think Souter’s outcome might have been better, but Scalia’s analysis was definitely
      better – follow this analysis


2. Jurisdiction to prescribe: Nationality

Active Nationality Principle
- Nationality jurisdiction: the right of a state to regulate the conduct of its citizens or nationals
   anywhere in the world
- This include citizens and corporations
   o when US citizens go abroad, they are still subject to US law, but must also follow the
       laws of whatever other state they are in
- the application of this principle has provoked a lot of controversy, particularly with
   corporations



                                                 50
Treating companies as US nationals
- The tests for determining the nationality of a corporation:
   o Place of incorporation
   o Place of registered business
- Is it reasonable for the US to apply its laws to a company that is overseas, given the
   reasonableness factors of the restatement?

Story of Fruehauf-France (p. 671-672)
- Facts
   o French subsidiary of a US company bid on a contract, won the contract, and as a result
       had to do business in China
   o the US parent company told the subsidiary that it could not do the contract
   o the US president of the subsidiary resigned, the French directors of the subsidiary decided
       to fulfill the contract
   o the US government did not penalize the subsidiary or the parent company
- Analysis:
   o for international law purposes, the subsidiary was a French citizen because it was
       incorporated in France
   o it is not likely that the US parent company had recourse in international courts

Compagnie Europeenne des Petroles S.A. v. Sensor Nederland B.V. case, p. 676
- US prohibited sales that would support the Soviet pipeline; this affected subsidiaries of US
  corporations and companies incorporated in Europe and elsewhere
- Dutch company (subsidiary of a US company) was sued by a French company because the
  Dutch company did not want to comply with the terms of a contract it made with the French
  company
  o Dutch company said it was subject to US regulations prohibiting the sale, and would have
      to pay fines if it complied with the contract (International law comes up in this case
      through the defense asserted by the Dutch company)
  o The Dutch court seems to assume that the Dutch company might have a valid defense if
      the US has the jurisdiction to prescribe this law
- Carefully analysis of bases for jurisdiction
  o There is no choice of law clause in the contract, so then we look to see whether the US
      has prescriptive jurisdiction
  o Nationality: if Sensor were a US corporation, the US could have regulated it even as it
      acted outside the US; test for nationality is not determined by ownership interest (as US
      would argue), but by incorporation and place of registered business, and the Dutch
      company was incorporated in the Netherlands
  o Protective principle – protective principle does not justify one country’s forcing another
      country’s companies to advance US foreign policy
  o Territorial (objective) – the court could not see how the export to Russia of goods not
      originating in the Untied States by a non-American exporter could have any direct and
      illicit effect in the US
- Note: remember that the US was indirectly limiting the operation of the French company by
  limiting the operation of the Dutch company; the connection between the US and the French
  company is even more tenuous



                                               51
Blocking Statutes:
- When the US passes a controversial, extraterritorial regulation, other states may pass a
   blocking statute prohibiting their nationals from complying with the US law
- Blocking statutes thus restrict US prescriptive jurisdiction

Foreign State Compulsion Doctrine
- If a company cannot comply with a particular regulation of a state because another state is
   forcing it to disobey the regulation, the company can assert the foreign state compulsion
   doctrine to try to avoid prosecution
   o Basically the company would say – “It’s not my fault I’m disobeying State X’s
       regulation. State Y made me do it.”


3. Jurisdiction to prescribe: Protective, Passive Personality, and Universal

Introductory notes:
- these bases of prescriptive jurisdiction are not as sound as territorial jurisdiction or
    nationality jurisdiction, and are applied only in limited circumstances
- the parameters of these principles evolve, which may cause disagreements between nations
    and in courts

Protective Principle
- Restatement 402, p. 688:
   o “…a state has jurisdiction to prescribe the law with respect to…(3) certain conduct
        outside its territory by persons not its nationals that is directed against the security of the
        state or against a limited class of other state interests.”
             This principle is limited to conduct that occurs outside a state’s territory, by
                noncitizens
- This is not a catch-all principle – it has a very narrow scope
- Examples of conduct that come under the protective principle:
   o Security (espionage, counterfeiting, falsification of official documents)
   o Terrorism?
   o Customs and immigration laws
   o Perjury before consular officials
United States v. Romero-Galue, 757 F.2d 1147 (11th Cir. 1985) p. 688
- Issue: whether Congress, in enacting Section 955(a)(c) (which makes it a crime for all
   vessels within US waters to knowingly or intentionally possess marijuana with the intent to
   distribute it), intended to reach possession of marijuana by foreigners aboard a foreign vessel
   on the high seas
- The court finds that although the ship is outside US waters per Section 955 (a)(c), if there is a
   treaty between the US and the country concerned which allows the US to enforce jurisdiction
   on a foreign ship, that treaty will define customs waters rather than Section 955(a)(c)
   o Thus, whether such a treaty exists between the US and Panama (here, the ship was
        Panamanian) is a matter for the lower court
- In dicta, the court addresses the protective principle:


                                                  52
   o In dicta, the court says that the US could still exercise jurisdiction over the Panamanian
     ship even if there is no treaty because the protective principle would allow the US to
     prosecute foreign nationals on foreign vessels on the high seas for possession of narcotics
     (and in some way inherently harmed the US)
   o “The protective principle permits a nation to assert jurisdiction over a person whose
     conduct outside the nation’s territory threatens the nation’s security or could potentially
     interfere with the operation of its governmental functions.”

Note: Orentlicher says that the US overstepped its jurisdictional boundaries when it tried to
regulate foreign corporations under the protective principle (see Sensor case)

Passive Personality
- Restatement Section 402 (p. 691)
   o “…a state may apply law…to an act committed outside its territory by a person not its
       national where the victim of the act was its national.”
- States agree on only a limited number of crimes that are subject to jurisdiction under this
   principle –
   o It is increasingly applied to terrorist and other organized attacks on a state’s nationals by
       reason of their nationality, or to assassination of a state’s diplomatic representatives or
       other officials.
   o It is gaining acceptance with respect to human rights abuses
            Example: when the Spanish judge brought suit against Pinochet, he brought suit
               on behalf of Spanish citizens who were killed by Chileans in Chile
   o It does not apply to regular torts (such as murder)

United States v. Columba-Collela, 604 F.2d 356 (5th Cir. 1979) p. 691
- Facts: A British citizen living in Mexico agrees to sell a car that is in Mexico but was stolen
   from Texas by someone else
- Issue: can the British citizen be prosecuted under US law?
- Protective Principle analysis: the protective principle does not bear on this case because the
   case does not involve a threat to national security or directly interfere with government
   operations
- Objective Territoriality Principle analysis: the man did not steal the car, and while the selling
   of the car may make it harder for the victim to get his car back, this connection to harm in the
   US is too attenuated
- Passive Personality analysis: passive personality does not apply here because passive
   personality covers only a narrow category of crimes that does not even include murder, let
   alone car fencing

Sample analysis: 18 USC 1203: Hostage Taking (p. 695 – quiz yourself! )
- How are the various provisions supported under principles of jurisdiction?
- Section (b)(1)
   o (A) victim: passive personality; offender: nationality
   o (B) universal jurisdiction; universal is really the only one that applies because:
           the criminal is not a US citizens
           crime wasn’t committed in US



                                                53
           there is no effect in the US
    o (C) protective principle

Hypothetical:
- a foreign national is taken hostage by another foreign national in a state other than the US,
   and the hostage takers are making demands of the US
- protective principle would apply (security interest), and perhaps universal jurisdiction (if this
   would be considered terrorism)

Universal Jurisdiction
- Restatement Section 404 (p. 698)
   o “A state has jurisdiction to define and prescribe punishment for certain offenses
       recognized by the community of nations as of universal concern, such as piracy, slave
       trade, attacks on or hijacking of aircraft, genocide, war crimes, and perhaps certain acts of
       terrorism, even when none of the bases of jurisdiction indicated in 402 is present.”
- Distinguish universal jurisdiction from the concept of an international crime
   o universal jurisdiction is about when a state can apply its law no matter where the crime
       occurs and no matter who was hurt or who did it
            the most natural way of getting universal jurisdiction if when the person just
                shows up in your territory
   o international crimes have to do with laws that are not the laws of any one state –
       international crimes are crimes that are enacted under international law generally
   o universal jurisdiction exists over international crimes, but they are still conceptually
       distinct

-   Even with universal jurisdiction, courts cannot act unless they actually get jurisdiction over
    the criminal (must serve them with papers, etc.)
    o The most natural way this happens is when the person shows up in the territory (on their
        way to a summit, etc.)

United States v. Usama Bin Laden, 92 F. Supp. 2d 189 (S.D.N.Y. 2000), p. 701
- Defendants are charged with a variety of crimes stemming from the August 1998 bombings
   of the US Embassies in Nairobi, Kenya
- This case is in the book under universal jurisdiction, but she says it is a better example of the
   protective principle
- Rules to remember from this case:
   o Although Congress has the power to regulate conduct performed outside the US, courts
       are to presume that statutes written by Congress apply only to acts performed within US
       territory unless Congress manifests an intent to reach act performed outside US territory
   o In determining whether a statute is meant to be applied extraterritorially, courts should
       look to the text, structure, and legislative history of the statute
   o There is a limited exception to this standard approach for “criminal statutes, which are, as
       a class, not logically dependent on their locality for the Government’s jurisdiction, but
       are enacted because of the right of the Government to defend itself against obstruction, or
       fraud wherever perpetrated, especially is committed by its own citizens, officers, or




                                                54
       agents.” United States v. Bowman, 260 US 94, 98 (1922). (This principle, called the
       Bowman rule, is most directly related to the protective principle of jurisdiction.)
   o   Nexus argument: the Davis court announced that “in order to apply extraterritorially a
       federal criminal statute to a defendant consistently with due process, there must be a
       sufficient nexus between the defendant and the United States, so that such application
       would not be arbitrary or fundamentally unfair.” 905 F.2d 245, 248-249 (9th Cir. 1990)
            This court concludes that “where an attempted transaction is aimed at causing
               criminal acts within the United States, there is a sufficient basis for the United
               States to exercise jurisdiction….”
            The court also concludes that if the extraterritorial application of a statute is
               justified by the protective principle, such application accords with due process
   o   The court notes that
            The passive personality principle is increasingly accepted as applied to terrorists
               and other organized attacks on a state’s nationals by reason of their nationality, or
               to assassination of a state’s diplomatic representatives or other officials….”
               (citing Restatement § 402, cmt. g.)
            “universal jurisdiction is increasingly accepted for certain acts of terrorism….”
               (citing Restatement § 404, cmt. a.)
   o   both universal jurisdiction and the protective principle are bases for jurisdiction by the
       United States over the death of foreign citizens
   o   the case goes through a reasonableness analysis to determine whether it would be
       unreasonable for the US to apply a specific law to the deaths of ordinary foreign nationals
       on foreign soil (see p. 707 for details), and finds that such application is reasonable


4. Jurisdiction to Enforce

When is it acceptable for a state to enforce its laws against people and punish them for violations
of those laws?
- Restatement, Section 431 (p. 710)
    o Jurisdiction to enforce is the authority to induce or compel compliance or to punish
        noncompliance with laws or regulations
    o States must have jurisdiction to prescribe its own law in order to have jurisdiction to
        enforce its own law
            As to jurisdiction to enforce the law of another state, states can cooperate together
               to have extradition proceedings, etc.
- Jurisdiction to enforce is largely territorial, because it is a mini-invasion to go into another
    country and nab someone
    o Restatement, pp. 712-713: enforcement is territorial, except when one state has consent
        from another state

Prevailing view of international law and jurisdiction to enforce:
- if you abduct someone without their state’s consent, you have violated that state’s
   sovereignty




                                                55
-   even if someone is illegally abducted from one country by another country, the abducting
    country can try the abductee if the country from which he was abducted does not demand his
    return
    o example: Eichmann – Israel abducted Eichmann from Argentina (claiming universal
        jurisdiction); Argentina considered its sovereign rights to be violated, but it did not
        demand his return; although Israel may owe reparation, whether they have to return
        Eichmann depended on whether the return was demanded by Argentina

The Paquete Habana
      Page:
      Procedural History:
              Appeal from judgment condemning two fishing vessels and their cargoes as prizes of
war. The owners (D) of fishing vessels seized by officials of the United States (P) argued that
international law exempted coastal fishermen from capture as prizes of war.
      Overview:
              The owners (D) of two separate fishing vessels brought this appeal of a district court
decree condemning two fishing vessels and their cargoes as prizes of war. Each vessel was a
fishing smack, running in and out of Havana, sailing under the Spanish flag, and regularly
engaged in fishing on the coast of Cuba. The cargoes of both vessels consisted of fresh fish,
which had been caught by their respective crews. Until stopped by' the blockading United States
(P) squadron, the owners (D) had no knowledge of .. the existence of a war or of any blockage.
The owners (D) had no arms or ammunition on board the vessels and had made no attempt to run
the blockade after learning of its existence. The owners (D) did not offer any resistance at the
time of capture. On appeal, the owners (D) argued that both customary international law and the
writings of leading international scholars recognized an exemption from seizure at wartime of
coastal fishing vessels.
      Issue:
              Are coastal fishing vessels, with their cargoes and crews, exempt from capture as
prizes of war?
      Rule:
             coastal fishing vessels, with their cargo and crews, are exempt from capture as prizes
of war.
      Analysis:
             This short case excerpt illustrates a seminal case for the concept that international
law is part of U.S. domestic law, and that international norms may be considered in determining
individual rights in federal cases . In a dissenting opinion that was not published in the main
body of this casebook, Chief Justice Fuller argued that the captured vessels were of such a size
and range as to not fall within the exemption. The Chief Justice also contended that the
exemption in any case had not become a customary rule of international law, but was only an act
of grace that had not been authorized by the President.
      Outcome:
             (Gray, J.) Yes. Coastal fishing vessels, pursuing their vocation of catching and
bringing in fresh fish, have been recognized as exempt, with their cargoes and crews, from
capture as prizes of war. The doctrine that exempts coastal fishermen, with their vessels and
cargoes, from capture as prizes of war, has been familiar to the United States (P) from the time of
the War of Independence, and has been recognized explicitly by the French and British


                                                56
governments. Where there are no treaties and no controlling executive or legislative acts or
judicial decisions, as is the case here, resort must be had to the customs and usages of civilized
nations, and, as evidence of these, to the works of jurists and commentators, who are well
acquainted with the field.· Such works are resorted to by judicial tribunals, not for the
speculations of their authors concerning what the law ought to be, but for trustworthy evidence
of what the law really is. At the present time, by the general consent of the civilized nations of
the world, and independently of any express treaty or other public act, it is an established rule of
international law that coastal fishing vessels, with their implements and supplies, cargoes, and
crews, unarmed and honestly pursuing their peaceful calling of catching and bringing in fresh
fish, are exempt from capture as prizes of war. Reversed.

Banco Nacional de Cuba v. Sabbatino
       Page:
       Procedural History:
             Appeal from an action for conversion. Banco Nacional de Cuba (P) assigned the bills
of lading for a shipment of sugar contracted between Farr, Whitlock & Co., an American
commodities broker and another Cuban bank, instituted this action, alleging conversion of the
bills of lading and seeking to recover the proceeds thereof from Farr, and to enjoin Sabbatino
(D), a court-appointed receiver, from exercising control over such proceeds.
       Overview:
             Farr, Whitlock & Co. (Farr), an American commodities broker, contracted to
purchase Cuban sugar from a wholly owned subsidiary of Campania Azucarera Vertientes--
Camaquey de Cuba ( CA V), a corporation organized under Cuban Jaw whose stock was owned
principally by United States residents. Farr agreed to pay for the sugar in New York upon
presentation of the shipping documents. Shortly thereafter, a law was enacted in Cuba giving the
government power to nationalize by forced expropriation of property or enterprises in which
American nationals had an interest. The sugar contracted for by Farr was expropriated from
Campania Azucarera. In order to obtain consent from the Cuban government before a ship
carrying sugar could leave Cuba, Farr entered into contracts, identical to those it had made with
CA V, with the Banco Para eJ Comerdo de Cuba, an instrumentality of the Cuban government.
This bank assigned the bills of lading to the Banco Nacional de Cuba (P), also an instrumentality
of the Cuban government, who presented the bills and a sight draft as required under the contract
to Farr in New York in return for payment. Farr refused the documents after being notified by
CA V of its claim to the proceeds as rightful owner of the sugar. Farr was served with a court
order that had appointed Sabbatino (D) as receiver of CAY's New York assets and enjoined it
from removing the payments from the state. The Banco Nacional (P) then instituted this action,
alleging conversion of the bills of Jading seeking to recover the proceeds thereof from Farr, and
to enjoin Sabbatino (D), the receiver, from exercising dominion over such proceeds. The district
court granted summary judgment against Banco Nacional (P), holding that the Act of State
Doctrine does not apply when the questioned foreign act is in violation of international law. The
court of appeals affirmed the judgment.
       Issue:
             Does the judiciary have the authority to examine the validity of a taking of property
within its own territory by a foreign sovereign even if the taking violated international law?
       Rule:
             pursuant to the act of state doctrine, th ejudicary will not examine the validity of a


                                                 57
taking of property within its own territory by a foreign soverign govt., recognized by this country
in the absence of intl agreements to the contrary, even if the taking violates customary intl law.
       Analysis:
             In the instant case the Court also concluded that the Act of State Doctrine, even in
diversity of citizenship cases, must be determined according to federal rather than state law. The
Court stated that it is constrained to make it clear that an issue concerned with a basic choice
regarding the competence and function of the judiciary and national executive in ordering our
relationships with other members of the international community must be treated exclusively as
an aspect of federal law .
       Outcome:
             (Harlan, J.) No. The Judicial Branch will not examine the validity of a taking of
property within its own territory by a foreign sovereign government, extant and recognized by
this country at the time of suit, in the absence of a treaty or other agreement, even if the
complaint alleges that the taking violates customary international law. The plain implication of
past cases is that the Act of State Doctrine is applicable even if international law has been
violated. The Act of State Doctrine does not deprive the courts of jurisdiction once acquired over
a case. It requires only that when it is made to appear that the foreign government has acted in a
given way on the subject matter of the litigation, the details of such action or the merit of the
result cannot be questioned but must be accepted by our courts as a rule for their decision. It
results that title to the property in this case must be determined by the result of the expropriation
action taken by the authorities of the Cuban government. The damages of adjudicating the
propriety of such expropriation acts, regardless of whether the State Department has, as it did in
this case, asserted that the act violated international law, are too far-reaching for the judicial
branch to attempt. The judgment of the court of appeals is reversed and the case remanded to the
district court.
             DISSENT: (White, J.) According to the majority opinion, riot only are the courts
powerless to question acts of state proscribed by international law, but they are likewise
powerless to refuse to adjudicate the claim founded upon a foreign law; they must render
judgment and thereby validate the lawless act. The Act of State Doctrine does not require
American courts to decide cases in disregard of international law and of the rights of litigants to
a full determination on the merits.

Missouri v. Holland
      Page:
      Procedural History:
             Action seeking a declaratory judgment. Missouri (P) brought this suit to prevent
Holland (D), a game warden ofthe United States, from attempting to enforce the Migratory Bird
Treaty Act on the ground that the statute was an unconstitutional interference with the rights
reserved to the states by the Tenth Amendment.
      Overview:
             This is a bill in equity brought by the state of Missouri (P) to prevent Holland (D), a
game warden of the United States, from attempting to enforce the Migratory Bird Treaty Act, the
enactment statute of a treaty between the United States and Great Britain proclaimed by the
President. The ground of the bill is that the statute is an unconstitutional interference with the
rights reserved to the states by the Tenth Amendment, and that the acts of Holland (D) done and
threatened under that authority invade the sovereign right of the state of Missouri (P) and


                                                 58
contravene its will manifested in statutes. A motion to dismiss was sustained by the district court
on the ground that the act of Congress is constitutional.
       Issue:
               Are treaties the supreme law of the land when made under the authority of the
United States?
       Rule:
              acts of congress are the supreme law of the land only when made in pursuance to the
constitution, while treaties are declared to be so when made under the authority of the U.S.
       Analysis:
              Justice Sutherland, in discussing the foreign affairs power in United States v. Curtiss-
Wright Export Corp., 299 U. S. 304 (1 936), stated that as a result of the separation from Great
Britain by the colonies acting as a unit, the powers of external sovereignty passed from the
Crown not to the colonies severally but to the colonies in their collective and corporate capacity
as the United States. Even before the Declaration, the colonies were a unit in foreign affairs, and
the powers to make treaties and maintain diplomatic relations, if they had never been mentioned
in the Constitution, would have vested in the federal government as necessary concomitants of
nationality.
       Outcome:
              {Holmes, J.) Yes. 1t is contended that a treaty cannot be valid if it infringes the
Constitution, that there are limits, therefore, to the treatymaking power, and that one such limit is
that what an act of Congress could not do unaided, in derogation of the powers reserved to the
states, a treaty cannot do. Although it is true that acts of Congress are the supreme law of the
land only when made in pursuance of the Constitution, treaties are declared to be so when made
under the authority of the United States. Furthermore, valid treaties are as binding within the
territorial limits of the states as they are elsewhere throughout the dominion of the United States.
Since the Migratory Bird Treaty Act was made pursuant to a treaty between the United States
and Canada, its provisions are the supreme law of the land and binding on the state of Missouri
(P). The treaty and the statute must be upheld. The decree of the lower court is affirmed.

Whitney v. Robertson
      Page:
      Procedural History:
             Appealfromjudgmentfordefendant in customs dispute. Whitney (P) claimed that a
treaty between the U.S. and the Dominican Republic guaranteed that no higher duty would be
assessed on goods from the Dominican Republic than was assessed on goods from any other
country and that duties had been wrongfully assessed on his sugar imports.
      Overview:
             Whitney (P) sought to recover the duties he had paid for importing sugar from the
Dominican Republic. Whitney (P) alleged that sugar from Hawaii was admitted free of duty and
that under the terms of a treaty, the United States could not assess a higher duty on imports from
the Dominican Republic .
      Issue:
             Where a treaty and an act oflegislation conflict, will the one last in date control?
      Rule:
            where a treaty and an act of legislation conflict, the one last in date will control
      Analysis:


                                                 59
            A treaty is not abrogated or repealed by a later inconsistent statute. The treaty still
exists as an international obligation. The terms of the treaty may not be enforceable, however.
      Outcome:
            (Field, J.) Yes. Where a treaty and an act of legislation conflict, the one last in date
will control. The act of Congress under which the duties were collected was passed after the
treaty and therefore is controlling. Affirmed.

Breard v. Greene
       Page: 686
       Procedural History:
              Appeal from denial of habeas corpus. Breard (D) claimed that his conviction should
be overturned because of alleged violations of the Vienna Convention on Consular Relations.
       Overview:
              Breard (D) was scheduled to be executed following his conviction for murder.
Breard (D) filed for habeas relief in federal court, arguing that the arresting authorities had
wrongfully failed to inform him that, as a foreign national, he had the right to contact the
Paraguayan consulate (P).
       Issue:
              When a statute that is subsequent in time is inconsistent with a treaty, does the
statute render the treaty null?
       Rule:
             when a statute that is subsequent in time is inconsistent with a treaty, the statute to
the extent of conflict renders the treaty null.
       Analysis:
             The Court also held that the Eleventh Amendment barred suits against states. The
Consul General of Paraguay [PJ tried to raise a§ 1983 suit. The Court found that Paraguay [P)
was not authorized to do so.
       Outcome:
             (Per curiam) Yes. · . .4 When a statute that is subsequent in time is inconsistent with
a treaty, the statute to the extent of conflict renders the treaty null. Breard's (D) argument that the
Vienna Convention was violated must fail because Congress enacted the Antiterrorism and
Effective Death Penalty Act after the Vienna Convention. The Executive Branch has authority
over foreign relations and may utilize diplomatic channels to request a stay of execution. Petition
denied.

Foster v. Neilson
      Page:
      Procedural History:
            Appeal from decision for defendant in dispute over land. Foster (P) and Elam
claimed that a tract ofland in Louisiana had been granted to them by the Spanish governor
      Overview:
            Foster (P) and Elam sued to recover a tract of land in Louisiana that the Spanish
governor had granted them. Neilson (D) successfully argued that the grant was void because it
was made subsequent to the transfer to France and the United States of the territory on which the
land was situated. Foster (P) and Elam relied on a treaty between the United States and Spain
that provided that all grants of land made by Spain would be ratified by the United States. The


                                                  60
case was taken to the U.S. Supreme Court on a writ of error.
      Issue:
             When the terms of a treaty require a legislative act, can the treaty be considered law
before such time as the legislature ratifies and confirms the terms?
      Rule:
            when the terms of the treaty require a legislative act, the treaty cannot be considred
law until such time as the legislature ratifies and confirms the terms.
      Analysis:
            Some international agreements are self-executing. Others are non-self-executing. The
court must decide whether an agreement is to be given effect without further legislation .
      Outcome:
            (Marshall, C.J.) No. When the terms of a treaty require a legislative act, the treaty
cannot be considered law until such time as the legislature ratifies and confirms the terms. The
treaty does not operate in itself to ratify or confirm title in land. The legislature must act before
the terms of the contract are binding. Affirmed.

Medellin v. Texas
       Page:
       Procedural History:
              Appeal of death sentence. After Texas (P) convicted Jose Medellin (D) of rape and
murder, he appealed on the grounds that Texas (P) failed to inform him of his right to have
consular personnel notified of his detention by the state, as required under the Vienna
Convention. On appeal to the U.S. Supreme Court, Medellin (D) argued that a case decided by
the International Court of Justice suggested that his conviction must be reconsidered to comply
with the Vienna Convention.
       Overview:
              jose Medellin (D), a Mexican national, was convicted and sentenced to death for
participating in the gang rape and murder of two teenage girls in Houston. In his appeal,
Medellin (D) argued that the state had violated his rights under the Vienna Convention, to which
the United States is a party. Article 36 of the Vienna Convention gives any foreign national
detained for a crime the right to contact his consulate. The U.S. Supreme Court dismissed the
petition and Medellin's (D) case was remanded to the Texas Court of Criminal Appeals, which
also denied him relief. The U.S. Supreme Court took up his case again, and Medellin's (D)
argument rested in part on a holding by the International Court of justice in Case Concerning
Avena and Other Mexican Nationals (Mex. v. U.S.), 2004 !.C.). 12, that the United States had
violated the Vienna Convention rights of 51 Mexican nationals (including Medellin (D)) and that
their state-court convictions must be reconsidered, regardless of any forfeiture of the right to
raise the Vienna Convention claims because of a failure to follow state rules governing criminal
convictions. Medellin (D) argued that the Vienna Convention granted him an individual right
that state courts must respect. Medellin (D) also cited a memorandum from the U.S. President
that instructed state courts to comply with the I.C.j.'s rulings by rehearing the cases. Medellin (D)
argued that the Constitution gives the President broad power to ensure that treaties are enforced,
and that this power extends to the treatment of treaties in state court proceedings.
       Issue:
             (!) Does the U.S. Constitution require state courts to honor a treaty obligation of the
United States by enforcing a decision of the International Court of Justice? (2) Does the U.S.


                                                 61
Constitution require state courts to provide review and reconsideration of a conviction without
regard to state procedural default rules as required by a Memorandum by the President?
       Rule:
              1. the Us const does not require state courts to honor a treaty obligation of the US by
enforcing a decision of the ICJ
              2. the Us const does not require state courts to provide review and reconsideration of
a conviction without regard to state procedurule default rules as required by a memorandum by
the president
       Analysis:
              Medellin (0) was executed on August 5, 2008, after lastminute appeals to the U.S.
Supreme Court were rejected. Governor Rick Perry rejected calls from Mexico and Secretary of
State Condoleezza Rice and Attorney General Michael Mukasey to delay the execution, citing
the torture, rape, and strangulation of two teenage girls in Houston as just cause for the death
penalty. Though a bill was introduced in the House of Representatives to respond to the Court's
ruling, Congress took no action .
       Outcome:
              (Roberts, C.J.) (!) No. The U.S. Constitution does not require state courts to honor a
treaty obligation of the United States by enforcing a decision of the International Court of
Justice. The Vienna Convention provides that if a person detained by a foreign country asks, the
authorities of the detaining national must, without delay, inform the consular post of the detainee
of the detention. The Optional Protocol of the Convention provides that the International Court
of Justice is the venue for resolution of issues of interpretation of the Vienna Convention. By
ratifying the Optional Protocol to the Vienna Convention, the United States consented to the
jurisdiction of the I. C.). with respect to claims arising out of the Vienna Convention. In 2005,
however, after Avena was decided, the United States gave notice of withdrawal from the
Optional Protocol. While Avena constitutes an international law obligation on the part of the
United States, it does not help Medellin (D) because not all international law obligations
automatically constitute binding federal law. Avena does not have automatic domestic legal
effect such that the judgment if its owh force applies in state and federal courts, because it is not
a self-executing treaty, and Congress did not enact legislation implementing binding effect.
Thus, the I. C.). judgment is not automatically enforceable domestic law, immediately and
directly hinging on state and federal courts under the Supremacy Clause. (2) The U.S.
Constitution does not require state courts to provide review and reconsideration of a conviction
without regard to state procedural default rules as required by a Memorandum by the President.
The presidential memorandum was an attempt by the Executive Branch to enforce a non-self-
executing treaty without the necessary congressional action, giving it no binding authority on
state courts.
              CONCURRENCE: (Stevens, J.J Although the judgment is correct, Texas (P) ought to
comply with Avena. Avena may not be the supreme law of the land, but it constitutes an
international law obligation on the part of the United States. Since Texas (P) failed to provide
consular notice in accordance with the Vienna Convention, thereby getting the United States into
this mess, and since that violation probably didn't prejudice Medellin (D), Texas (P) ought to
comply with Avena. DISSENT: (Breyer, ).) the Supremacy Clause requires Texas (P) to enforce
the l.C.j.'s judgment in Avena. The majority does not point to a single ratified U.S. treaty that
contains the self-executing language it says is required in this case. The absence or presence of
language in a treaty about a provision's self-execution proves nothing. The relevant treaty



                                                 62
provisions should be found to be selfexecuting, because (1) the language supports direct" judicial
enforceability, {2) the Optional Protocol applies to disputes about the meaning of a provision
that is itself self-executing and judicially enforceable, {3) logic requires a conclusion that the
provision is self-executing since it is "final" and "binding," {4) the majority's decision has
negative practical implications, (5) the !.C.). judgment is well suited to direct judicial
enforcement, (6) such a holding would not threaten constitutional conflict with other branches,
and (7) neither the President nor Congress has expressed concern about direct judicial
enforcement of the !.C.). decision.

Hamdan v. Rumsfeld
       Page:
       Procedural History:
              Appeal from circuit court holding that a military commission violated a detainee's
rights under the Geneva Convention. A u.s. military commission began proceedings against
Hamdan (P), who was captured in Afghanistan. Hamdan (P) challenged the authority of the
commission.
       Overview:
              Salim Ahmed Hamdan (P) was captured by Mghani forces and imprisoned by the
U.S. military in Guantanamo Bay. He filed a petition for a writ of habeas corpus in federal
district court to challenge his detention. Before the district court ruled on the petition, a U.S.
military commission began proceedings against Hamdan (P), which designated him an enemy
combatant. Hamdan (P) challenged the authority of the commission, arguing that the commission
trial would violate his rights under Article 102 of the Geneva Convention, which provides that a
"prisoner of war can be validly sentenced only if the sentence has been pronounced by the same
courts according to the same procedure as in the case of members of the armed forces of the
Detaining Power." The district court granted Hamdan's (P) habeas petition, ruling that a hearing
to determine whether he was a prisoner of war under the Geneva Convention must have taken
place before he could be tried by a military commission. The D.C. Circuit Court of Appeals
reversed the decision, finding that the Geneva Convention could not be enforced in federal court
and that the establishment of military tribunals had been authorized by Congress and was
therefore not unconstitutional.
       Issue:
             (I) Was the military commission established to try those deemed "enemy
combatants" for alleged war crimes in the War on Terror authorized by the Congress or the
inherent powers of the President? (2) May the rights protected by the Geneva Convention be
enforced in federal court through habeas corpus petitions?'
       Rule:
             1. the military commission established to try those deemed “enemy combatants” for
alleged war crimes in the GWOT was not authorized by congress or the inherent powers of the
president
             2. the rights protected by the geneva convention may be enforced in federal court
through habeas corpus petitions.
       Analysis:
             Many U.S. and international human rights organizations have determined that
violations might occur through the non-application of the Geneva Convention to detainees in the
U.S. war on terrorism


                                               63
       Outcome:
             (I) No. The military commission established to try those deemed «enemy
combatants" for alleged war crimes in the War on Terror was not authorized by the Congress or
the inherent powers of the President. Neither an act of Congress nor the inherent powers of the
Executive Branch laid out in the Constitution expressly authorized the sort of military
commission at issue in this case. Absent that express authorization, the commission had to
comply with the ordinary laws of the United States (D) and the laws of war. (2) Yes. The rights
protected by the Geneva Convention may be enforced in federal court through habeas corpus
petitions. The Geneva Convention, as a part of the ordinary laws of war, could be enforced by
the U.S. Supreme Court, along with the statutory Uniform Code of Military Justice (UCMJ),
since the military commission was not authorized. Hamdan's (P) exclusion from certain parts of
his trial deemed classified by the military commission violated both of these, and the trial was
therefore illegal. Article 3, or «common Article 3" as it is sometimes known, does apply to
Hamdan (P), despite a holding to the contrary by the court of appeals, and arguments to the
contrary by the government. Common Article 3 provides minimal protection to individuals
associated with neither a signatory nor a non-signatory "Power" who are involved in a conflict in
the territory of a signatory. Common Article 3 is applicable here and requires that Hamdan (P) be
tried by a "regularly constituted court affording all the judicial guarantees which are recognized
as indispensable by civilized peoples."

United States v. Belmont
      Page:
      Procedural History:
              Appeal from denial of claim for payment of money deposited by Russian
corporation. The United States (P) claimed that it was due funds deposited in a U.S. bank by a
Russian corporation that had been nationalized by the Soviet government.
      Overview:
              A Russian corporation had deposited money in Belmont (D), a private bank in New
York City, prior to the 1918 nationalization and liquidation by the Soviet government of the
corporation. In 1933, the Soviet Union and the United States (P) agreed to a final settlement of
claims and counterclaims. The Soviet Union agreed to take no steps to enforce claims against
American nationals and assigned and released all such claims to the United States (P). When the
U.S. (P) sought to recover the money, the court held that the situs of the bank deposit was within
the state of New York and was not an intangible property right within Soviet territory and that it
would be contrary to the public policy of the State of New York to recognize or enforce the
nationalization decree. The United States (P) appealed and the U.S. Supreme Court granted
certiorari.
      Issue:
              Does the national government have complete power in the conduct of international
affairs?
      Rule:
             the national govt has complete power in the conduct of intl. affairs and states cannot
curtail or interfere in that power
      Analysis:
             The Court noted that recognition of the Soviet Union and the release of all claims
were interdependent Thus it was purely in the realm of foreign policy to make this agreement


                                                64
States cannot interfere in the conduct of foreign relations.
      Outcome:
            (Sutherland, J.) Yes. The national government has complete power in the conduct of
international affairs and states cannot curtail or interfere in that power. The United States (P)
recognized the Soviet government coincidentally with the assignment of all claims. The
President has the power to conduct foreign relations, without the consent of the Senate. In
respect of foreign relations generally, state lines disappear. Reversed and remanded.

Roper v. Simmons
       Page:
       Procedural History:
             u.s. Supreme Court review of a state court determination involving a death sentence
for a juvenile offender. After Christopher Simmons (D) was convicted of a murder he
committed when he was 17 years old, the Missouri Supreme Court ruled that the death penalty
was unconstitutional as applied to persons under the age of 18. The U.S. Supreme Court
reviewed the decision.
       Overview:
              The state of Missouri (P) convicted Christopher Simmons (D) of a murder he
committed when he was 17 years old. The Missouri Supreme Court ruled that the death penalty
was unconstitutional as applied to persons under the age of 18, and set aside the sentence of
death imposed on Simmons (D). The U.S. Supreme Court reviewed the decision, and in the
process of reaching its conclusion, considered the opinion on the matter of the international
community.
       Issue:
              Is the opinion of the world community relevant, though not controlling, to
consideration of the juvenile death penalty in the United States?
       Rule:
             the opinion of the world community is relevant, though not controlling, to the
consideration of the juvenile death penalty in the US.
       Analysis:
             Not stated in the casebook excerpt is that the Court applied the "evolving standards
of decency" test Justice Kennedy cited a body of sociological and scientific research that found
that juveniles have a lack of maturity and sense of responsibility compared to adults. The Court
reasoned that in recognition of the comparative immaturity and irresponsibility of juveniles,
almost every state prohibited those under age 18 from voting, seiVing on juries, or marrying
without parental consent Kennedy reasoned that the trend internationally against the death
penalty for minors was relevant because of its basis in this evolving notion that the death penalty
is inappropriate for juvenile offenders because of their instability and emotional imbalance.
       Outcome:
             (Kennedy, J.) Yes. The opinion of the world community is relevant, though not
controlling, to consideration of the juvenile death penalty in the United States. Precedent
suggests that reference to the laws of other countries and to international authorities for
interpretation of the prohibition of "cruel and unusual punishments" is proper. Every country in
the world has ratified the U.N. Convention on the Rights of the Child, which contains an express
prohibition on capital punishment for crimes committed by juveniles under 18, except Somalia
and the United States. Since 1990, only seven countries other than the United States have


                                                65
executed juvenile offenders, and since then each country, except the United States, has either
abolished capital punishment for juveniles or made public disavowal of the practice. The United
Kingdom's abolishment of the death penalty for juveniles, which is particularly relevant given
the ties between the United Kingdom and the United States, occurred before the international
conventions on the subject were created. International opinion against the death penalty for
minors is based in large part on the understanding that the instability and emotional imbalance of
young people may often be a factor in the crime, and that opinion, while not controlling, is
relevant. The Eighth and Fourteenth Amendments forbid imposition of the death penalty on
offenders under the age of 18 when the crime was committed. Affirmed.




VI. Bases of Jurisdiction and Sovereign Immunity
1. Bases of Jurisdiction

AI-Skeini v. Secretary of State for Defence
       Page:
       Procedural History:
              Wrongful death proceedings under international convention.
       Overview:
              The families (P) of six Iraqi civilians who were killed in Basra in 2003 where the
United Kingdom (D) was an occupying power appealed a decision by U.K. authorities not to
conduct an independent investigation into the circumstances of the deaths, arguing that the
Human Rights Act 1998 has extraterritorial application where the United Kingdom (D) is an
occupying power. Six Iraqi civilians were killed in Basra in 2003 where the United Kingdom (D)
was an occupying power. Five of them were shot dead by members of U.K. armed forces in the
course of patrol operations, and the sixth was arrested and died in a military base. U.K.
authorities refused to conduct an independent investigation into the circumstances of the deaths.
The U.K. government argued that the deaths occurred outside the territory of the United
Kingdom (D), and consequently the European Convention for Human Rights, which imposes an
obligation for independent and thorough investigation, does not apply. The families (P) of the
deceased sued.
       Issue:
              Did the Human Rights Act 1998 apply to acts of a U.K. public authority performed
outside its territory only where the victim was within the jurisdiction of the United Kingdom (D)
for purposes of the European Convention on Human Rights?
       Rule:
             the HR act of 1998 applied to acts of a UK public authority performed outside its
territory only where the victim was within the jurisdiction of the UK for purposes of the ECHR
       Analysis:
             There were actually four Lords forming the majority (Lord Rodger included), and
Lord Bingham was the sole dissenter. Lord Rodger's basic rule is that the presumption against
extraterritoriality must be seen against the background of international law, that Parliament had a
legitimate interest in regulating the conduct of its citizens, and therefore could intend its


                                                66
legislation to affect their position in other states.
       Outcome:
             (Rodger ofEarlsferry, L. [for the majority]) Yes. The Human Rights Act 1998 applied
to acts of a U.K. public authority performed outside its territory only where the victim was
within the jurisdiction of the United Kingdom (D) for purposes of the European Convention on
Human Rights. The rule of statutory construction adopted by Lord Bingham must be taken
against the background of international law, and jurisdiction under the HRA should be co-
extensive with the interpretation given by the European Court to jurisdiction under the
Convention. The Convention applies outside the territory of the United Kingdom (D) where the
deceased were linked to the United Kingdom (D) when they were killed. The HRA does not have
a more restrictive jurisdictional scope than the Convention rights it was meant to implement.
With the exception of the claimant who had been mistreated inside a British military c detention
unit, the claimants were not within U.K. juris·. diction within the meaning of the Convention.

United States v. Aluminum Co. of America
      Page:
      Procedural History:
              Appeal from a prosecution for violation of the Sherman Act.
      Overview:
              The United States (P) brought this action against the Aluminum Co. of America (D)
and Aluminum Limited (D), a Canadian corporation formed to take over the properties of
Aluminum Co. of America (D) outside the United States, for violation of the Sherman Act by the
participation of each company in a foreign cartel called the Alliance. A foreign cartel called
Alliance, a Swiss corporation, was created by an agreement entered into in 1931 among a French
corporation, two German corporations, one Swiss corporation, one British corporation, and Alu
minum Limited (D). Aluminum Limited (D) was a Canadian corporation formed to take over
properties of the Aluminum Co. of America (D) outside the United States. The original 1931
agreement provided for the issuance of shares to the signatories and a quota of production for
each share, the shareholders to be limited to the quantity measured by the number of shares held
by each. Alliance was free to sell at any price it chose. No shareholder was to obtain or sell
aluminum produced by anyone not a shareholder. Another agreement in 1936 abandoned the
system of unconditional quotas and substituted a system of royalties. The shareholders agreed
that imports into the United States should be included in the quotas. Thereafter, the United States
(P) brought this action against the Aluminum Co. of America (D) and Aluminum Limited (D) for
violation of the Sherman Act that prohibits every contract, combination, or other conspiracy in
restraint of trade among the several states or with foreign nations. The district court found that
the 1931 and 1936 agreements did not suppress or restrain the exportation of aluminum to the
United States (P) and that America (D) was not a party to the Alliance. The United States (P)
appealed.
      Issue:
              May a state impose liabilities, even upon persons not within its allegiance, for
conduct outside its borders that has consequences within its borders?
      Rule:
             any state may impose liablities even upon persons not within its allegiance for
conduct outside its borders that has consequences within its borders that the state reprehends.
      Analysis:



                                                67
              The general words of the Sherman Antitrust Act should not be read without regard to
the limitations customarily obseiVed by nations upon the exercise of their powers. Thus. one
should not impute to Congress an intent to punish all whom its courts can catch, for conduct that
has no consequences within the United States. There may be agreements made beyond the
borders of the United States not intended to affect imports or exports that do affect them. Almost
any limitation of the supply of goods in Europe, for example, or in South America, may have
repercussions in the United States if there is trade between the two. Yet, when one considers the
international complications likely to arise from an effort in the United States to treat such
agreements as unlawful, it is safe to assume that Congress certainly did not intend the Sherman
Antitrust Act to cover them.
       Outcome:
              (L. Hand, Swan, and A. Hand, ).) Yes. It is settled law that any state may impose
liabilities, even upon persons not within its allegiance, for conduct outside its borders that has
consequences within its borders that the state reprehends. Under the Sherman Antitrust Act, both
the 1931 and the 1936 agreements of the Alliance would dearly have been unlawful had they
been made within the United States (P); and, though made abroad, both are unlawful if they were
intended to affect imports and did affect them. The evidence shows that the shareholders of
Alliance intended to restrict imports, thus shifting the burden of proof of whether they in fact
restricted imports into the United States to Limited (D). In the first place, a depressant on
production, as was encompassed within the 1936 agreement, which applies generally, may be
assumed to distribute its effect evenly upon all markets. Again, when the parties in the instant
case specifically made the depressant apply to a given market, there is reason to suppose that
they expected the effect to be a lessening of what would otherwise have been imported. Since the
underlying doctrine of the Sherman Act was that all factors that contribute to determining prices
must be kept free to operate unhampered by agreements, this court must conclude that the 1936
agreement violated the Act

Hartford Fire Insurance Co. v. California
      Page:
      Procedural History:
             Appeal from a judgment as to jurisdiction and application of domestic law to a
foreign company in a federal antitrust action.
      Overview:
             Claiming that Hartford Fire Insurance Co. (D) and other London-based reinsurers
(D) had allegedly engaged in unlawful conspiracies to affect the market for insurance in the
United States, California (P) instituted an action against Hartford (D), under the Sherman Act,
which the reinsurers (D) sought to dismiss under the principle of international comity. California
(P) brought an action against Hartford Fire Insurance Co. (D) and other London-based reinsurers
(D) alleging that they had engaged in unlawful conspiracies to affect the market for insurance in
the United States and that their conduct in fact produced substantial effect, thus violating the
Sherman Act. Hartford (D) argued that the district court should have declined to exercise
jurisdiction under the principle of international comity. The court of appeals agreed that courts
should look to that principle in deciding whether to exercise jurisdiction under the Sherman Act
but that other factors, including Hartford's (D) express purpose to affect U.S. commerce and the
substantial nature of the effect produced, outweighed the supposed conflict, requiring the
exercise of jurisdiction in this case. Hartford (D) appealed.


                                                68
       Issue:
              Where a person subject to regulation by two states can comply with the laws of both,
may jurisdiction be exercised over foreign conduct since no conflict exists?
       Rule:
             where a person subject to regulation by two states can comply with the laws of both,
jurisdiction may be exercised over foreign conduct since no conflict exists.
       Analysis:
             Black's Law Dictional}', p. 242 (5th ed. 1979), defines "comity of nations" as "[t]he
recognition which one nation allows within its territmy to the legislative, executive. or judicial
acts of another nation, having due regard both to international duty and convenience and to the
rights of its own citizens or of other persons who are under the protection of its laws." When it
enacted the Foreign Trade Antrtrust Improvements Act of 1982 (FT AlA), Congress expressed
no view on the question of whether a court with Sherman Act jurisdiction should ever decline to
exercise such jurisdiction on grounds of international comity, an issue that the Court declined to
address in this case. Justice Scalia endorsed the approach of the Restatement (Third) of Foreign
Relations Law, advocating that a nation having some basis for jurisdiction should nonetheless
refrain from exercising that jurisdiction when the exercise of such jurisdiction is unreasonable.
       Outcome:
             (Souter, J.) Yes. Where a person subject to regulation by two states can comply with
the laws of both, jurisdiction may be exercised over foreign conduct since no conflict exists. The
Sherman Act applies to foreign conduct that was meant to produce and does in fact produce
some substantial effect in the United States. Even assuming that a court may decline to exercise
Sherman Act jurisdiction over foreign conduct, international comity would not prevent a U.S.
court from exercising jurisdiction in the circumstances alleged here. Since Hartford (D) does not
argue that British law requires it to act in some fashion prohibited by the law of the United States
or claim that its compliance with the laws of both countries is otherwise impossible, there is no
conflict with British law. Since there is no irreconcilable conflict between domestic and British
law, the reinsurers (D) may not invoke comity. Affirmed. DISSENT: (Scalia, J.) The district
court had subjectmatter jurisdiction over the Sherman Act claims, and it is now well established
that the Sherman Act applies extraterritorially, despite the presumption against extraterritoriality.
But, even where the presumption against extraterritoriality does not apply, statutes should not be
interpreted to regulate foreign persons or conduct if that regulation would conflict with principles
of international law. The activity at issue here took place primarily in the United Kingdom, and
Hartford (D) and the other reinsurers (D) are British subjects having their principal place of
business or residence outside the United States. Great Britain has established a comprehensive
regulatory scheme governing the London reinsurance markets and clearly has a heavy interest in
regulating the activity. Finally, § 2(b) of the McCarran-Ferguson Act allows state regulatory
statutes to override the Sherman Act in the insurance field, subject only to a narrow exception,
suggesting that the importance of regulation to the United States is slight.

Blackmer v. United States
      Page:
      Procedural History:
           Appeal from contempt conviction.
      Overview:
           Blackmer (D) was found to be in contempt of conrt for failing to respond to


                                                 69
subpoenas served upon him in France requiring his appearance in the United States. Blackmer
(D) was a U.S. (P) citizen who resided in France. He was served subpoenas to appear in court as
a witness in a criminal trial in the United States. When he failed to respond to the subpoenas,
contempt proceedings were initiated and Blackmer (D) was found guilty and fined. Blackmer (D)
appealed, claiming the federal statute was unconstitutional.
      Issue:
             For the exercise of judicial jurisdiction in personam, must there be due process?
      Rule:
            for the exercise of judicial jurisdiction in personam, there must be due process
      Analysis:
            The Court did not find the statute to be unconstitutional. Blackmer (D) alleged that
there was inadequate notice. Since Blackmer (D) retained his U.S. citizenship, he was still
subject to U.S. authorities.
      Outcome:
            (Hughes, C.J.) Yes. For the exercise of judicial jurisdiction in personam, there must
be due process. Due process requires appropriate notice of the judicial action and an opportunity
to be heard. The statute provides that when the presence of a citizen of the United States who
resides abroad is required in court, a subpoena be issued addressed to a consul of the United
States. The consul must serve the subpoena on the witness personally with a tender of traveling
expenses. Upon proof of such service and of the failure of the witness to appear, a court order
may be issued. If the witness fails to comply with the court order, the court may adjudge the
witness guilty of contempt. Congress acted pursuant to its authority in enacting the statute and it
could prescribe a penalty to enforce it. Affirmed.

United States v. Vousef
      Page:
      Procedural History:
            Appeal of criminal conviction.
      Overview:
            Ramzi Yousef (D), Wali Khan Amin Shah (D), and Abdul Hakim Murad (D)
appealed from judgments of conviction entered in the United States District Court for the
Southern District of New York on charges relating to a conspiracy to bomb twelve U.S.
commercial airliners in Southeast Asia.Ramzi Yousef (D) entered Manila under an assumed
name in order to execute a plan to attack U.S. airliners. Under the plan, bombs would be placed
aboard twelve U.S. aircraft with routes in Southeast Asia by five individuals. The conspirators
would board the plane, assemble the bomb while in flight, and then exit the plane during its first
layover. The plot was discovered two weeks before the intended execution, when Yousef (D) and
Murad (D) accidentally started a fire while burning chemicals in their Manila apartment. The fire
department involved the police department, which found the bomb components, a laptop with
notes on the plan, and other evidence. Philippine authorities arrested Murad (D) and Shah (D),
but Shah (D) escaped and evaded capture until a year later. Yousef (D) fled to Pakistan, but was
captured the following month. Through a multi-count indictment, Yousef (D), Murad (D), and
Shah (D) were charged with various crimes related to their conspiracy to bomb the planes. A jury
found all three guilty on all counts.
      Issue:
            Did the U.S. government (P) exceed its authority by trying an alleged terrorist in the


                                                70
United States, when the criminal conduct occurred outside the United States, but involved its
airliners?
       Rule:
             the US government did not exceed its authority by trying an alleged terrorist in the
US when the criminal conduct occurred outside the US but involved its airlines
       Analysis:
             The Tokyo Convention on Offences and Certain Other Acts Committed on Board
Aircraft generally regulates jurisdiction over crimes committed on aircraft International law
generally requires that there be a genuine link between the state and the aircraft in order for the
state to lawfully assert jurisdiction over crimes committed on board.
       Outcome:
             [judge not stated in casebook excerpt.] No. The U.S. government (P) did not exceed
its authority by trying an alleged terrorist in the United States, when the criminal conduct
occurred outside the United States but involved its airliners. jurisdiction is supported by both
domestic and international law. Because the federal court had jurisdiction over the substantive
crimes charged, including attempted destruction of aircraft in the special aircraft jurisdiction of
the United States, it also had derivative jurisdiction over the conspiracy charges. Congress is
presumed to intend extraterritorial application of criminal statutes where the nature of the crime
does not depend on the locality of the criminal acts and where restricting the statute to U.S.
territory would severely diminish the statute's effectiveness. With respect to whether customary
international law provides a basis for jurisdiction over the case, United States law is not
subordinate to customary international law or necessarily subordinate to treatybased international
law. Moreover, customary international law does provide a substantial basis for jurisdiction by
the United States through the "passive personality principle," because the case involved a plot to
bomb U.S. aircraft that would have been carrying U.S. citizens and crews destined for cities in
the United States. jurisdiction is also appropriate under the "objective territorial principle"
because the purpose of the attack was to influence U.S. foreign policy. Finally, Yousef's (D)
conduct constitutes conduct proscribed by the Montreal Convention, and his prosecution and
conviction is both consistent with and required by the United States' treaty obligations and
domestic law.

United States v. Vasquez-Velasco
      Page:
      Procedural History:
              Appealofcriminalconviction.
      Overview:
              Javier Vasquez-Velasco (D), a member of a drug cartel in Guadalajara, and several
other members, beat and killed (John] Walker [an American citizen writing a novel in Mexico]
and [Alberto] Radelat [a photographer and U.S. legal resident]. He was convicted under U.S.
law. On appeal, Vasquez-Velasco (D) argued that U.S. penal laws do not apply
extraterritorially.United States v. Felix-Gutierrez, 940 F.2d 1200 (9th Cir. 1991), cert. denied,
508 U.S. 906 (1993), a case in which a defendant was convicted of kidnapping and murdering
Enrique Camarena, an American Drug Enforcement Agency (DEA) agent, and Alfredo Zavala, a
DEA informant, was the basis for the appeal by the defendant in this case, Javier Vasquez-
Velasco (D). Vasquez-Velasco (D), a member of a drug cartel in Guadalajara, and several other
members, beat and killed (John] Walker [an American citizen writing a novel in Mexico] and


                                                71
[Alberto] Radelat [a photographer and U.S. legal resident]. At trial, the U.S. government (P)
argued that Vasquez-Velasco (D) and his three co-defendants committed the crimes to further
their positions in a Guadalajara drug cartel. The murders Velasco (D) was charged with were
allegedly retaliatory actions against a DEA crackdown. He was convicted in a jury trial of
committing violent crimes in aid of a racketeering enterprise in violation of 18 U.S.C. § 1959.
On appeal, Vasquez-Velasco (D) argued that U.S. penal laws do not apply extraterritorially.
       Issue:
              Is the extraterritorial application of a penal statute to the murder of a U.S. citizen
mistaken for a federal agent consistent with principles of international law?
       Rule:
             extraterritorial application of a penal statute to the murder of a US citizen mistaken
for a federal agent is consistent with the principles of intl. law.
       Analysis:
              The objective territorial and protective principles apply because the defendant in this
case murdered the two U.S. citizens on the mistaken belief they were DEA agents, and their
murders might intimidate the DEA and local police and drug agencies, who might otherwise
cooperate with the DEA. The case therefore turns on the defendant's subjective beliefs; if the
government had been unsuccessful in its argument that the murders were committed as
retaliation against the DEA, extraterritorial jurisdiction would be harder to apply.
       Outcome:
             (Fletcher, J.) Yes. Extraterritorial application of a penal statute to the murder of a
U.S. citizen mistaken for a federal agent is consistent with principles of international law.
International law generally permits the exercise of extraterritorial jurisdiction under the objective
territorial principle, under which jurisdiction is asserted over acts performed outside the United
States (P) that produce detrimental effects within the United States (P), and the protective
principle, under which jurisdiction is: asserted over foreigners for an act committed outside .the
United States (P) that may impinge on the territorial integrity, security, or political independence
of the United States (P). Extraterritorial application of 18 U.S.C. § 1959 to violent crimes
associated with drug trafficking is reasonable under international law principles, since it is a
serious and universally condemned offense. Despite the fact that the crimes in this case did not
involve the murder of a DEA agent, extraterritorial jurisdiction is still appropriate because,
according to the government's theory, the cartel members mistook Walker and Radelat for DEA
agents. As in Felix-Gutierrez, the crime was directed against the United States (P) .

Regina v. Bartle, Bow Street Stipendiary Magistrate and Commissioner
of Police, Ex parte Pinochet
      Page:
      Procedural History:
            Appealfrom arrest and extradition order.
      Overview:
            Pinochet (D) claimed that he could not be extradited because he was not guilty of
any crime under English law. An English magistrate issued an arrest warrant for Pinochet (D),
the former head of state of Chile, at the request of a Spanish investigating judge for extradition.
The House of Lords found that Pinochet (D) could not claim immunity in regard to torture that
had been made a universal crime by the International Convention Against Torture and other
Cruel, Inhuman, or Degrading Treatment or Punishment of 1984. Pinochet (D) claimed torture


                                                 72
was not strictly an international crime in the highest sense.
      Issue:
             Is torture an international crime?
      Rule:
            torture is an international crime
      Analysis:
             The Torture Convention created an exception to the otherwise applicable immunity
of present and former heads of state from criminal process. Pinochet (D] ultimately was found to
be too sick to stand trial. He was allowed to return to Chile.
      Outcome:
            (Lord BrowneWilkinson) Yes. Torture is an international crime. The Torture
Convention was agreed not to create an international crime that had not previously existed but to
provide an international system under which the international criminal-the torturer-could find no
safe haven. All state parties are required to prohibit torture on their territory and to take
jurisdiction over any alleged offender who is found within their territory. Torture is to be treated
as an extraditable offense and will be considered to have been committed not only in the place
where it occurred but also in the state where either the alleged offender or victim is a national.

United States v. Vousef
       Page:
       Procedural History:
             Appeal of criminal conviction.
       Overview:
             Ramzi Yousef (D), Wa!i Khan Amin Shah (D), and Abdul Hakim Murad (D)
appealed from judgments of conviction entered in the United States District Court for the
Southern District of New York on charges relating to a conspiracy to bomb twelve U.S.
commercial airliners in Southeast Asia. The district court held that the principle of universal
jurisdiction was applicable, because Yousefs (D) conduct qualified as a "terrorist" act.Ramzi
Yousef (D) entered Manila under an assumed name in order to execute a plan to attack U.S.
airliners. Under the plan, bombs would be placed aboard twelve U.S. aircraft with routes in
Southeast Asia by five individuals. The conspirators would board the plane, assemble the bomb
while in flight, and then exit the plane during its first layover. The plot was discovered two
weeks before the intended execution, when Yousef (D) and Murad (D) accidentally started a fire
while burning chemicals in their Manila apartment. The fire department involved the police
department, which found the bomb components, a laptop with notes on the plan, and other
evidence. Philippine authorities arrested Murad (D) and Shah (D), but Shah (D) escaped and
evaded capture until a year later. Yousef (D) fled to Pakistan, but was captured the following
month. Through a multi-count indictment, Yousef (D), Murad (D), and Shah (D) were charged
with various crimes related to their conspiracy to bomb the planes. A jury found all three guilty
on all counts. The district court held that the principle of universal jurisdiction was applicable,
because Yousefs (D) conduct qualified as a "terrorist" act.
       Issue:
             Does universal jurisdiction arise under customary international law only where
crimes (I) are universally condemned by the community of nations, and (2) by their nature occur
either outside of a state or where there is no state capable of punishing, or competent to punish,
the crime~


                                                73
       Rule:
             universal jurisdiction arises under customary international law only where crimes: 1.
are universally condemned by the community of nations, 2. by their nature occur wither outside a
state or where there is no state capable of punishing, or competent to, punish the crime
       Analysis:
             One of the biggest impediments to defining "terrorism" is state-sponsored terrorism,
or acts of state employed to effect coercion. The terrorism that is commonly understood in the
United States is not similarly defined in many parts of the world. Whenever the acts of terrorism
are a case's focus--whether one involving universal jurisdiction or another issue-courts will be
hesitant to impose a definition.
       Outcome:
             [Judge not stated in casebook excerpt.) Yes. Universal jurisdiction arises under
customary international law ouly where crimes (I) are universally condemned by the community
of nations, and (2) by their nature occur either outside of a state or where there is no state capable
of punishing, or competent to punish, the crime. Universal jurisdiction is historically restricted to
piracy, war crimes, and crimes against humanity, and unlike those offenses, «terrorism" does not
have a precise definition and has not achieved universal condemnation.

United States v. Alvarez-Machain
      Page:
      Procedural History:
             Review of dismissal of federal indictment.
      Overview:
             Alvarez-Machain (D), abducted from Mexico for trial in the United States (P) by
Drug Enforcement Agency (DEA) agents, contended that his abduction was illegal because of an
extradition treaty between the United States (P) and Mexico.Alvarez-Machain (D) was abducted
from his office in Mexico by persons working for DEA agents. He was wanted in the United
States (P) for alleged complicity in the torture-murder of a DEA agent. Alvarez-Machain (D)
moved to dismiss the indictment, contending that his abduction violated a U.S.-Mexico
extradition treaty. The district court agreed and dismissed the indictment. The court of appeals
affirmed, and the U.S. Supreme Court granted review.
      Issue:
             Does the presence of an extradition treaty between the United States and another
nation necessarily preclude obtaining a citizen of that nation through abduction?
      Rule:
             the presence of an extradition treaty between the Us and another nation does not
necessarily preclude obtaining a citizen of that nation through abduction.
      Analysis:
             Alvarez-Machain (D) lost this battle but won the war. He was tried in Los Angeles in
1993. At the close of the prosecution's case. the ttial judge, Edward Rafeedie, dismissed the case
for lack of evidence. The judge used some harsh language in his order, apparently believing the
case should never have been brought.
      Outcome:
             (Rehnquist, C.J.) No. The presence of an extradition treaty between the United States
(P) and another nation does not necessarily preclude obtaining a citizen of that nation through
abduction. It has long been the rule that abduction, in and of itself, does not invalidate a


                                                 74
prosecution against a foreign national. The only question, therefore, is whether the abduction
violates any extradition treaty that may be in effect between the United States (P) and the nation
in which the abductee was to be found. Here, the U.S.-Mexican authorities presumably were
aware of the United States' (P) long-standing law regarding abductions and did not insist on
including a prohibition against abdnctions. Alvarez-Machain (D) argued that since international
law prohibits abductions, the drafters of the treaty had no reason to consider a prohibition thereof
necessary. However, this body of law only applies to situations where no extradition treaty
exists, so it is irrelevant here. Consequently, since the extradition treaty does not prohibit an
abduction such as occurred here, it was not illegal. Reversed.
              DISSENT: (Stevens, ).) The majority opinion fails to distinguish between acts of
private citizens, which do not violate any treaty obligations, and conduct expressly authorized by
the executive branch, which undoubtedly constitutes a fragrant violation of international law and
a breach of the U.S. (P) treaty obligations.

Wilson v. Girard
       Page:
       Procedural History:
              Appeal from an injunction against extradition.
       Overview:
              Girard (D), a Specialist Third Class in the United States Army, wounded a Japanese
woman during a military exercise in Japan. Japan indicted Girard (D) for causing death by
wounding, but Girard (D) was granted an injunction against his delivery to the Japanese
authorities. Girard (D), a Specialist Third Class in the United States Army, wounded a Japanese
woman during a military exercise in Japan. A security treaty between Japan and the United
States authorized the making of administrative agreements between the two governments con
cerning the conditions that would govern the disposition of the United States Armed Forces in
Japan. Such an agreement provided that the United States might waive its jurisdiction over
offenses committed in Japan by members of its armed forces. Subsequently, another protocol
agreement was signed by the two governments, pursuant to the NATO agreement. It authorized
that in criminal cases where the right to jurisdiction is concurrent, the military authorities of the
United States would have the primary right to exercise jurisdiction over members of the armed
forces for offenses arising out of any act or omission done in the performance of official duty.
The United States claimed the right to try Girard (D) on the ground that his act was done in the
performance of official duty giving the United States primary jurisdiction. Japan insisted that
Girard's (D) action was not within the scope of his official duty and therefore it had the primary
right of jurisdiction. The United States ultimately waived whatever jurisdiction it might have.
Girard (D) sought a writ of habeas corpus that was denied, but he was granted an injunction
against delivery to the Japanese authorities. Wilson (P), Secretary of Defense, appealed.
       Issue:
              Does a sovereign nation have exclusive jurisdiction to punish offenses against its
laws committed within its borders, unless it expressly or impliedly consents to surrender its
jurisdiction?
       Rule:
             a sovereign nation has exclusive jurisdiction to punish offenses against its laws
committed within its borders, unless it expressly or impliedly consents to surrender its
jurisdiction


                                                 75
       Analysis:
             The trend toward granting limited immunities in cases relating to official acts and
archives appears to be on the increase. This is to be distinguished from the normal diplomatic
immunities that are part of customary international law. The agreements between the United
States and Japan are good examples of the willingness of one nation to grant a special position to
foreign government employees.
       Outcome:
             (Per curiam) Yes. A sovereign nation has exclusive jurisdiction to punish offenses
against it committed within its borders, unless it expressly or impliedly consents to surrender its
jurisdiction. Japan's cession to the United States of jurisdiction to try American military
personnel for conduct constituting an offense against the laws of both countries was conditioned
by the protocol agreement, which provided that "the authorities of the state having the primary
right shall give sympathetic consideration to a request from the authorities of the other state for a
waiver of its right in cases where that other state considers such a waiver to be of particular
importance." Furthermore, there has been no prohibition against this under the Constitution or
legislation subsequent to the security treaty. In the absence of such statutory or constitutional
barriers, the wisdom of the arrangement is exclusively for the determination of the executive and
legislative branches. These branches have decided to waive jurisdiction and deliver Girard (D) to
the Japanese authorities. Therefore, the judgment of the district court is reversed.


2. Sovereign Immunity

Basics
- In the US, sovereign immunity is codified in the Foreign Sovereign Immunities Act of 1976
   (FSIA)
- Sovereign immunity is rooted in customary international law
- General Concept:
   o States don’t like to be sued in the courts of other states
           It would mean giving up some of the state’s sovereignty
           Presumably, if one state can be sued in another state’s courts, the second state’s
             courts would be judging the conduct of the first state, which violates sovereignty
           There is a lot of rhetoric about the sovereign equality of states – it is an affront to
             this equality if one state can judge the conduct of another state
           “Reciprocal independence of states” – states should be independent from
             regulation by other countries, as well as judgment

US foreign sovereign immunity law:
- Started with “absolute immunity” approach
   o Even under this approach, there were always a few exceptions, such as
            Actions relating to real property in the foreign state’s territory
            Waiver of immunity
- Moved to “restricted immunity” approach
   o States are generally immune, except for the broad category of private action (basically,
       the commerce exception)
   o Rationale


                                                 76
              States sometimes act like private actors
              More state entities were engaged in commerce, partly because Communist
               countries were nationalizing what had been private commercial activity
            Also, there is a benefit to states of having their commercial transactions enforced
               in foreign courts
    o US made a shift to restricted immunity approach in 1952, with the Tate Letter
            What were the principal reasons for the shift?
                    Everyone else is following the principle of restricted immunity, and, out of
                        fairness, we should too (if they can sue us and we can’t sue them, that
                        sucks)
                    Communism – all communist enterprises that would be private in
                        capitalist countries would be free from liability if we do not follow
                        restricted immunity
    o Once the US moved to the restricted approach, who actually made the determination as to
       who got sovereign immunity?
            Often, it was the state department, and the decisions were binding on courts
                    The state department didn’t like this responsibility
                            o It became too political a decision
            Other times, it was the courts
-   Foreign Sovereign Immunities Act (“FSIA”), 1976
    o It was intended to set forth the exclusive basis in US law for determining whether a
       foreign state is immune from jurisdiction in US courts
    o Establishes that when service is made on the foreign state AND it is determined that the
       foreign state is not entitled to immunity, courts get personal jurisdiction and subject
       matter jurisdiction over the foreign state
    o Section 1604: foreign states are immune from jurisdiction in US court unless one of the
       general exceptions to immunity is applicable
            Default rule: foreign sovereigns are immune
            Exceptions include:
                    waiver exception: the foreign state waives its own immunity
                    counterclaim exception: if a foreign state brings a lawsuit in a US court, it
                        is denied immunity for any claim that arises out of the same transaction or
                        occurrence as the sovereign’s claim or any claim up to the amount of the
                        foreign state’s claim
                    commercial activity exception (see below)
    o Framework for determining whether state can be sued under FSIA:
            1) Is the defendant a foreign state? If yes,
            2) Do any of the exceptions to immunity apply?
    o How do you determine whether the defendant is a foreign state?
            Section 1603 (for details, see supplement) p. 331: things considered to be foreign
               states includes:
                    Foreign states proper
                    Political subdivisions of that state
                    Agencies or instrumentalities of foreign states
                            o Includes companies in which the state is a majority owner



                                                77
                     What about foreign officials? Can they say that they are immune under
                      the FSIA?
                          o The text doesn’t seem to contemplate individuals – it seems to be
                             concerned with nonhuman entities (“it”); Orentlicher thinks that
                             Congress didn’t intend or foresee such an application
                          o However, courts have interpreted the FSIA to apply to government
                             officials in certain circumstances
                                  If the suit is really against the state in substance but the
                                     plaintiffs picked an individual as a figurehead, that’s ok,
                                     but the official is treated as being a foreign state only if
                                     they are being sued in the scope of their authority as a
                                     foreign official

Verlinden B.V. v. Central Bank of Nigeria, 461 US 480 (1983) p. 557
- Dutch company entered into a contract with Nigeria for cement; the Nigerian government
   established, through the Central Bank of Nigeria, a letter of credit through a bank in NYC;
   Central Bank then failed to pay
- Dutch company brought suit in US court for breach of contract under the FISA
- (note: It is moot whether the US has prescriptive jurisdiction here because the US was not
   bringing the suit)
- Issue 1: Can foreign plaintiffs sue foreign states under the FSIA?
   o This case says YES
   o Why might this be a question?
            If anyone, anywhere can bring a suit in US courts against a foreign state, there is a
               concern that the US will become a sort of universal claims court
            However, the FISA has a way of preventing the US from becoming a universal
               claims court: each exception requires some kind of nexus to the United States
               (except the waiver exception)
                    The nexus to the US here is the credit that the US bank extended to
                      Nigeria
- Issue 2: Must a federal court apply the FSIA in a suit against a foreign state, even if the
   foreign state doesn’t raise the issue of immunity?
   o This case says YES…
   o Footnote 20, page 561 – even if the foreign state doesn’t plead immunity under the FSIA,
       the court must make a determination whether one of the exception to immunity applies in
       order to have jurisdiction over the foreign state (a state can’t waive immunity by not
       pleading it)
- In the instant case, the court found that the entity being sued was indeed a state: the Bank
   was an instrumentality of Nigeria
- Take-away point:
   o Under the FSIA, the court lacks subject matter jurisdiction unless one of the
       exceptions to immunity applies

Argentine Republic v. Amerada Hess Shipping Corp., 488 US 428 (1989) p. 565
- Here, two Liberian corporations sued the Argentine Republic in a US district court to recover
   damages for a tort committed by its armies on the high seas in violation of international law


                                               78
-   The plaintiff did not bring suit under the FSIA, but under the Alien Tort Claims Act (28 USC
    1350) (ATCA)
    o On its face, does the ATCA give jurisdiction?
-   The Court determines that suit against a foreign sovereign can only be brought under the
    FSIA, and not under the ATCA – the FSIA is the sole basis for obtaining jurisdiction over a
    foreign state in US courts
-   The court then determines that even if the plaintiffs had brought suit under the FSIA, they
    still cannot establish jurisdiction over Argentina
    o The court looks at whether any of the exceptions in the FSIA apply, and if there is a
         sufficient nexus with the US, and found that there was none
              Tort exception does not apply because the injury did not occur in the US (this is
                 not referring to the ATCA)
              Commercial activity exception does not apply

Commercial Activities Exception p. 332 of the supplement
- The act in question must involve commercial activity…what does this mean? (Congress
  wasn’t very specific)
- Every word of this exception matters – read it very carefully
- Section 1603(d) of FSIA
  o A suit can satisfy this exception in any one of three different ways: the suit must be based
       on
            1) a commercial activity carried on in the US by the foreign state
            2) an act performed in the US in connection with the commercial activity of the
              foreign state elsewhere, or
            3) an act outside the territory of the foreign state elsewhere and that act causes a
              direct effect in the US
  o Commercial character of a transaction is to be determined with reference to the nature of
       the course of conduct rather than by reference to its purpose
            Basically, it’s an activity that a private party could engage in for profit
                   Republic of Argentina v. Weltover, Inc. (p. 573) – the government act
                      doesn’t necessarily have to be for profit – it has to be something a private
                      party would do in trade or commerce
            Example: foreign army purchases food from a US company and the company
              wants to bring a suit for breach of contract against the foreign sovereign – this suit
              will be based on a commercial transaction, and would fall under the FSIA
                   According to the FSIA, the fact that the purpose was to use the food for a
                      political purpose (to feed an army) doesn’t matter – the nature of the act
                      (contract) was commercial
  o Commercial activity can be a course of commercial conduct or a particular transaction
- Note: in these cases, conduct is never always inherently commercial or inherently sovereign;
  it’s not always a straightforward case, and the waters are muddy

Saudi Arabia v. Nelson, 507 US 349 (1993) p. 574
- Facts: American employee of a Saudi hospital brought action against the Kingdom of Saudi
   Arabia, the hospital, and the hospital's purchasing agent in United States, based on injuries
   arising from his alleged detention and torture by the Saudi government


                                                79
-   Were the defendants foreign states?
    o The court finds that the hospital is an agency or instrumentality of the state
    o Because the defendants are foreign states, we presume that they cannot be sued unless an
       exception to the FSIA applies
-   The Plaintiff relies on the first commercial exception, alleging that the suit was based on a
    commercial activity carried on in the US by a foreign state
    o Plaintiff signed a contract with the hospital while he was in the US
    o Plaintiff relied on the ground that there was a negligent failure to inform him while he
       was in the United States that there was a high risk of being tortured in Saudi Arabia
-   Here, the court says that the conduct was not commercial:
    o The powers allegedly abused were those of police and penal officers, which are powers
       that no private person has, and are not commercial in nature
    o The nature of the conduct of the suit is torture, and that is not something for which people
       engage in trade or commerce
-   How can one argue that this is a commercial transaction?
    o It related to his job, and employment is certainly a commercial activity...
    o Concurrence says
             Running a hospital is a commercial enterprise…
             Retaliating against whistleblowers is not a purely sovereign act
             However, the commercial act on which the suit is based did not take place in the
               United States…
-   Take-away point – when you are applying the FSIA’s exceptions, you have to apply it
    very, very carefully – look at the language closely, and make sure to complete the
    analysis (read the WHOLE exception through and apply ALL of it)

Noncommercial Tort exception (“tortious activity” exception)

Section 1605(a)(5) (p. 582):
- there shall not be immunity in an action, not otherwise encompassed within the commercial
   activity exception, “in which money damages are sought against a foreign state for personal
   injury or death, or damage to or loss of property, occurring in the United States and caused
   by the tortious act or omission of that foreign state or of any official or employee of that
   foreign state while acting within the scope of his office or employment.”
- Exceptions: this exception does not apply to
   o “(A) any claim based upon the exercise or performance or the failure to exercise or
       perform a discretionary function regardless of whether the discretion is abused, or
   o “(B) any claim arising out of malicious prosecution, abuse of process, libel, slander,
       misrepresentation, deceit, or interference with contract rights.”
- Example of a crime that falls under the noncommercial tort exception: murder

Letelier v. Republic of Chile, 488 F. Supp.
665 (D.D.C. 1980)
- Letelier, a former Chilean official, was killed by a car bomb planted by Cubans hired by
    Pinochet’s government in Sheridan Circle, in Washington
- defendants: Republic of Chile, Intelligence Agency, individual officials
    o Do the defendants constitute “governments”?



                                               80
             Chile – yes
             Intelligence agency – agency
             Individual officials…yes
-   Default rule: defendants are immune unless exception applies
-   Exception applied: noncommercial tort exception
-   Chilean government argues that this is an inherently sovereign act (see exception (A) above),
    a public act
    o Court responds that there is no distinction in the noncommercial tort exception between
        illegal private and illegal public activities
-   Court also says that political assassination is such a heinous crime that the court must have
    jurisdiction
    o The court will not read into the legislation a permit for states to exercise their discretion
        in such a way that they can assassinate individuals – this is clearly contrary to the
        precepts of humanity
-   After they won, the plaintiffs tried to attach a Chilean airline to recover damages; the court
    said no because the airline was considered to have a separate identity from the state
    o So the plaintiffs got an award, but they couldn’t enforce it in the United States
    o However, the US and Chile went into intense negotiations…a commission was
        established which concluded that Chile had to pay the Letelier and Moffit families the
        money that they were awarded

Newest Addition to the FSIA: Terrorist Acts Exception (see p. 588 in the book)
- Applies only to suits brought by Americans
- applies only to those states which have been designated a state sponsor of terror (list on p.
  588)

Alejandre v. Republic of Cuba, 996 F Supp 1239 (S.D. Fla. 1997) p. 589
- defendant is the Cuban government and air force
- the US has jurisdiction under the FSIA because the terrorist exception to the FSIA applies –
    Cuba is on the list of state sponsor of terror




FSIA and property of foreign sovereigns (she won’t test on this)
- the default rule is that property is immune, unless there is an exception to immunity
- Statutes:
   o 28 USC 1609: the property in the US of a foreign state is immune from attachment arrest
      and execution except as provided in sections1610 and 1611
   o 28 USC 1610: exceptions to immunity from attachment or execution
   o 28 USC 1611: certain types of property immune from execution
- FSIA in effect reversed the approach that the US previously took to the immunity of foreign
   sovereign’s property from attachment
   o previously, it had been possible to attach the property of the foreign sovereign in order to
      gain jurisdiction over a foreign sovereign, but the property could not be attached to
      execute a judgment



                                                81
   o Under the FSIA – you can’t get jurisdiction over foreign sovereigns by attaching their
     property, but once you have a judgment against a foreign sovereign you can attach their
     property to execute the judgment

The Schooner Exchange v. Mcfaddon
       Page:
       Procedural History:
              Appeal from reversal of dismissal of claim of ownership.
       Overview:
              Two Americans (Pl claimed that they owned and were entitled to possession of the
schooner Exchange. Two Americans (P) claimed they had seized the schooner Exchange on the
high seas and that they now owned it and were entitled to possession of the ship. The United
States Attorney (D) claimed that the United States and France were at peace and that a public
ship of the Emperor of France had been compelled by bad weather to enter the port of
Philadelphia and was prevented by leaving by process of the court. The district court granted the
United States' (D) request to dismiss the claims of ownership and ordered that the ship be
released. The cir· cuit court reversed, and the United States (D) appealed to the U.S. Supreme
Court.
       Issue:
              Are national ships of war entering the port of a friendly powe• to be considered as
exempted by the consent of that power from its jurisdiction?
       Rule:
             national ships of war entering the port of a friendly power are to be considered as
exempted by the consent of that power from its jurisdiction.
       Analysis:
             This case implicated the absolute form of sovereign immunity from judicial
jurisdiction. The Court highlighted three principles: the exemption of the person of the sovereign
from arrest or detention within a foreign country; the immunity that all civilized nations allow to
foreign ministers; that a sovereign is understood to cede a portion of his territorial jurisdiction
when he allows troops of a foreign prince to pass through his dominions .
       Outcome:
             (Marshall, C.J.l Yes. National ships of war entering the port of a friendly power are
to be considered as exempted by the consent of that power from its jurisdiction. The jurisdiction
of the nation within its own territory is exclusive and absolute. The Exchange, a public armed
ship, in the service of a foreign sovereign, with whom the United States is at peace, and having
entered an American port open for her reception, must be considered to have come into the
American territory, under an implied promise, that while necessarily within it, and demeaning
herself in a friendly manner, she should be exempt from the jurisdiction of the country.
Reversed.

Argentine Republic v. Amerada Hess Shipping Corp.
     Page:
     Procedural History:
          Reviewofreversalofdismissal of action seeking damages for property destruction.
     Overview:
          A pair of Liberian corporations (P) sought to sue the Argentine Republic (D) in U.S.


                                                82
courts under the Alien Tort Statute. United Carriers, Inc. (P), a Liberian corporation, chartered a
vessel called the Hercules to Amerada Hess Shipping Corporation (P), another Liberian
corporation. The ship was to be used to transport fuel. While off the South American coast
during the 1983 Falkland Islands War, it was irreparably damaged and had to be scuttled. United
(P) and Amerada (P) sued Argentina (D) in U.S. district court. The court dismissed, holding
jurisdiction to be absent. The Second Circuit reversed, holding that jurisdiction existed under the
Alien Tort Statute of 1789. The U.S. Supreme Court granted review.
      Issue:
              Does the Alien Tort Statute confer jurisdiction over foreign states?
      Rule:
             the alien tort statute does not confer jurisdiction over foreign states.
      Analysis:
             The main focus of the FSIA appears to be commercial. There are a variety of
commercial activities that occur outside the United States that can lead to a foreign state's being
sued in a U.S. court The same is not true in the tort arena.
      Outcome:
             (Rehnquist, C.J.) No. The Alien Tort Statute does not confer jurisdiction over foreign
states. The statute confers jurisdiction in district courts over suits brought by aliens in tort for
violations of international law or U.S. treaties. The law, as an initial matter, is silent as to
whether it applies to suits against foreign states. More importantly, in 1976, Congress enacted
the Foreign Sovereign Immunities Act (FSIA), which dealt in a comprehensive manner with the
issue of jurisdiction over foreign states. The law provides that, except as provided in the Act,
foreign states shall be immune from U.S. courts' jurisdiction. While the FSIA does not explicitly
repeal the Alien Tort Statute to the extent that it may confer jurisdiction over a foreign state, it is
dear that this was an intent behind the FSIA. This being so, the FSIA can be the only source of
jurisdiction over a foreign state. Reversed.

Austria v. Altmann
      Page:
      Procedural History:
             Appeal from affinnance of denial of motion to dismiss action to determine rightful
ownership of art.
      Overview:
             Austria (D) contended that the United States federal courts did not have jurisdiction
to hear an action brought by Altmann (P) claiming that valuable art displayed in an Austrian
museum was obtained through wrongful conduct by the Nazis during and after World War II and
rightfully belonged to her. Upon learning of evidence that certain of her uncle's valuable art
works had either been seized by the Nazis or expropriated by Austria (D) after World War II,
Altmann (P) filed an action in federal district court to recover six paintings by Gustav Klimt
from Austria (D) and its instrumentality, the Austrian Gallery (Gallery) (D). Altmann (P)
claimed that her uncle had bequeathed the paintings to her in his will after he fled Austria (D).
Austria (D) and the Gallery (D) moved to dismiss, claiming sovereign immunity. Altmann (P)
claimed that the FSIA applied to deny sovereign immunity through an exception for cases in
which rights in property have been taken in violation of international law. The district court
denied Austria's (D) motion and the court of appeals affirmed. The U.S. Supreme Court granted
certiorari.


                                                  83
       Issue:
              Does the FSIA apply to claims that are based on conduct that occurred before the
FSIA's enactment and before the United States adopted a "restrictive theory" of sovereign
immunity in 1952?
       Rule:
             the FSIA of 1976 applies to claims that are based on conduct that occurred before
FSIA’s enactment and before the US adopted a “restrictive theory” of sovereign immunity in
1952
       Analysis:
             Under the "restrictive theory," immunity is recognized with regard to a foreign state's
sovereign or public acts (jure imperil), but not its private acts (jure gestionis). This theory
"restricts" the classical or absolute theory of sovereign immunity, under which a sovereign
cannot without his consent be made a respondent in the courts of another sovereign .
       Outcome:
             (Stevens, J.) Yes. The FSIA applies to claims that are based on conduct that occurred
before the FSIA's enactment and before the United States adopted a "restrictive theory" of
sovereign immunity in 1952. Foreign sovereign immunity is a matter of grace and comity, rather
than a constitutional requirement. Accordingly, the Court has long deferred to Executive Branch
sovereign immunity decisions, and until 1952, Executive policy was to request immunity in all
actions against friendly sovereigns. In that year, the State Department began to apply the
"restrictive theory" of sovereign immunity. Although this change had little impact on federal
courts, which con-, tinued to abide by the Department's immunity suggestions, the change threw
immunity decisions into some disarray. ~. Foreign nations' diplomatic pressure sometimes
prompted the Department to file suggestions of immuniry in cases in which immunity would not
have been available under the restrictive theory, and when foreign nations failed to ask the
Department for immunity, the courts had to determine whether immunity existed, so
responsibility for such determinations lay with two different branches. To remedy these
problems, Congress enacted the FSIA to codify the restrictive principle and transferred primary
responsibility for immunity determinations to the judicial Branch. The FSIA grants federal courts
jurisdiction over civil actions against foreign states and carves out the expropriation and other
exceptions to its general grant of immunity. In any such action, the district court's subject matter
jurisdiction depends on the applicability of oue of those exceptions. Evidence that Congress
intended the FSIA to apply to preenactment conduct lies in its preamble's statement that foreign
states' immunity " [ c ]!aims ... should henceforth be decided by [United States] courts ... in
conformity with the principles set forth in this chapter," § 1602. This language is unambiguous
and means that immunity "claims" -not actions protected by immunity, but assertions of
immunity to suits arising from those actions-are the relevant conduct regulated by the FSIA and
are "henceforth" to be decided by the courts. Thus, Congress intended courts to resolve all such
claims in conformity with the FSIA's principles regardless of when the underlying conduct
occurred. The FSIA' s overall structure strongly supports this conclusion, since many of its
provisions unquestionably apply to cases arising out of conduct that occurred before 1976, and
its procedural provisions undoubtedly apply to all pending cases. In this context, it would be
anomalous to presume that an isolated provision (such as the expropriation exception on which
respondent relies) is of purely prospective application absent any statutory language to that
effect. Finally, applying the FSIA to all pending cases regardless of when the underlying conduct
occurred is most consistent with two of the FSIA's principal purposes: clarifying the rules judges



                                                84
should apply in resolving sovereign immunity claims and eliminating political participation in
the resolution of such claims. This holding does not prevent the State Department from filing
statements of interest suggesting that courts decline to exer, cise jurisdiction in particular cases
implicating foreign sovereign immunity. Nor does the holding express an opinion on whether
deference should be granted such filings in cases covered by the FSIA. Instead, the issue
resolved by the holding here concerns only the interpretation of the FSIA's reach-a "pure
question of statutory construction ... well within the province of the judiciary." Affirmed.

Republic of Argentina v. Weltover, Inc
       Page:
       Procedural History:
              Review of denial of dismissal of action for breach of contract.
       Overview:
              Argentina (D) contended that it could not be sued in a U.S. court for defaulting on
bonds it had issued. Due to currency instability, Argentin,e businesses often had trouble
participating in foreign transactions. The Argentine government (D), to ameliorate this problem,
instituted a program wherein it agreed to sell to domestic borrowers U.S. dollars in exchange for
Argentine currency. The dollars could be used to pay foreign creditors of Argentine businesses.
Argentina (D) issued bonds, called "Bonods," to reflect its obligations. In 1986, Argentina (D),
facing a shortage of reserves of U.S. dollars, defaulted on bond payments. Several bond holders
(P), who collectively owned $1.3 million worth of bonds payable in New York, sued for breach
of contract in federal court in New York. Argentina (D) moved to dismiss, asserting sovereign
immunity. The district court denied the motion, and the Second Circuit affirmed. The U.S.
Supreme Court granted review.
       Issue:
              May a foreign government be amenable to suit in a U.S. court for defaulting on its
bonds?
       Rule:
             a foreign government may be amenable to suit in US court for defaulting on its bonds
       Analysis:
             The key to determining if the commercial activity exception applies in any given case
is whether the government has entered the marketplace. If it has, it is to be treated, under the
FSIA, as a private player. If it undertakes an activity peculiar to a sovereign, the exception does
not apply.
       Outcome:
             (Scalia, J.) Yes. A foreign government may be amenable to suit in a U.S. court for
defaulting on its bonds. The Foreign Sovereign Immunities Act of 1976 creates an exception to
foreign sovereign immunity "commercial" activities. For purposes of the FSIA, an activity falls
within the exception if (1) it occurs outside the United States, (2) is in connection with
commerce, and (3) causes a direct effect in the United States. Here, the first element without
question has been satisfied. Whether a government's activity is "commercial" must be
determined with reference to the nature of the act. The issuing of a bond is a commercial rather
than a sovereign act-private concerns can and often do issue bonds; it is not an activity given
only to sovereigns. Finally, an effect is "direct" if an effect is the natural and immediate
consequence of the activity in question. Here, the effect in the United States was direct because
the bonds were payable in New York, so the breach occurred there. In sum, the activities of


                                                  85
Argentina (D) with respect to the bonds were commercial in nature, so the commercial activity
exception to the FSIA applies. Affirmed.

Saudi Arabia v. Nelson
       Page:
       Procedural History:
              Appeal from a judgment for the plaintiff in a personal injury action against a
sovereign government.
       Overview:
              Saudi Arabia (D) claimed foreign sovereign inununity from the subject-matter
jurisdiction of the federal courts after Nelson (P) filed suit against it, alleging wrongful arrest,
imprisonment, and torture. Nelson (P) was recruited in the United States for employment as a
monitoring systems engineer at a hospital in Riyadh, Saudi Arabia (D). When Nelson (P)
discovered safety defects in the hospital's oxygen and nitrous oxide lines, he repeatedly advised
hospital officials of the defects and reported them to a Saudi government (D) commission as
well. Hospital officials instructed Nelson (P) to ignore the problems. Several months later, he
was called in to the hospital's security office, arrested, and transported to a jail cell, where he was
shackled, tortured, beaten, and kept without food for four days. After thirty-nine days, the Saudi
government (D) released Nelson (P), allowing him to leave the country. Nelson (P) and his wife
(P) filed this action in the United States, seeking damages for personal injury. They also claimed
a basis for recovery in Saudi Arabia's (D) failure to warn Nelson (P) of the hidden dangers
associated with his employment. The Saudi government (D) appealed the judgment of the court
of appeals.
       Issue:
              Are foreign states entitled to immunity from the jurisdiction of courts in the United
States, unless the action is based upon a commercial activity in the manner of a private player
within the market?
       Rule:
             foreign states are entitled to immunity from the jurisdiction of the courts in the US,
unless the action is based on upon a commercial activity in the manner of a private player within
the market.
       Analysis:
             Under the "restrictive," as opposed to the "absolute," theory of foreign sovereign
immunity. a state is immune from the jurisdiction of foreign courts as to its sovereign or public
acts but not as to those that are private or commercial in character. A state engages in
commercial activity under the restrictive theory where it exercises only those powers that can
also be exercised by private citizens, as distinct from those powers peculiar to sovereigns.
Whether a state acts in the manner of a private party is a question of behavior, not motivation.
While it is difficult to distinguish the purpose of conduct from its nature, the Court recognized
that the Act unmistakably commands it to observe the distinction.
       Outcome:
             (Souter, J.) Yes. Foreign states are entitled to immunity from the jurisdiction of
courts in the United States, unless the action is based upon a commercial activity in the manner
of a private player within the ml\fkel. Saudi Arabia's (D) tortious conduct in this case fails to
qualify as "commercial activity" within the meaning of the Foreign Sovereign Immunities Act of
1976. Its conduct boils down to abuse of the power of its police by the Saudi government (D). A


                                                  86
foreign state's exercise of the power of its police is peculiarly sovereign in nature and is not the
sort of activity engaged in by private parties. Furthermore, Nelson's (P) failure to warn claim
must also fail; sovereign nations have no duty to warn of their propensity for tortious conduct.
The Nelsons' (P) action is not based upon a commercial activity within the meaning of the Act
and therefore is outside the subject-matter jurisdiction of the federal courts. Motion to dismiss is
granted. Reversed. CONCURRENCE: (White, J.) Neither the hospital's employment practices
nor its disciplinary procedures have any apparent connection to this country. Absent a nexus to
the United States, the Act does not grant the Nelsons (P) access to our courts. DISSENT:
(Stevens, ).) If the same activities had been performed by a private business, jurisdiction would
be upheld.

Gates v. Syrian Arab Republic
       Page:
       Procedural History:
              Claims brought under state law and the Foreign Sovereign Immunities Act (FSIA)
against a sovereign and its principals for money damages for terrorist acts committed by an
organization supported by the sovereign.
       Overview:
              Families (P) of u.s. civilian contractors, Armstrong and Hensley, who were
beheaded by al-Qaeda in Iraq, claimed that the Syrian Arab Republic (Syria) (D), its president
(D), and its intelligence minister (D) were liable under the FSIA for money damages for the
beheadings because Syria (D) actively and knowingly supported al-Qaeda in Iraq. Al-Tawhid
wal-)ihad ("ai-Qaeda in Iraq") beheaded U.S. civilian contractors Armstrong and Hensley, and
their families (P) brought suit against the Syrian Arab Republic (Syria) (D), its president (D), and
its intelligence minister (D), seeking damages under the FSIA and asserting state-law claims for
battery, assault, false imprisonment, intentional infliction of emotional distress, wrongful death;
survival damages, conspiracy, and aiding and abetting. The plaintiffs alleged that Syria (D),
acting through· the principals named as defendants, provided material support and resources to
al-Qaeda in Iraq and its leader, Zarqawi. Because none of the defendants filed an answer or
otherwise appeared, the court proceeded to a default setting, which under the FSIA requires the
entry of a default judgment against a non-responding foreign state where the claimant proves its
case to the court's satisfaction. The court, after reviewing the evidence presented, concluded that
support for Zarqawi and his al-Qaeda network from Syrian territory or ~yrian government actors
could not have been accom plished without the authorization of the Syrian government and its
military intelligence. The court then addressed the issue of whether Syria (D) could be held liable
for money damages under the FSIA for the beheadings of Armstrong and Hensley.
       Issue:
             (I) Must state-law claims be dismissed where plaintiffs assert that they are victims
of state-sponsored terrorism? (2) May a sovereign be held liable under the FSIA's
statesponsored terrorism exception where it is shown that terrorist acts against U.S. citizens were
committed by terrorists knowingly supported by the sovereign to advance the sovereign's
policy objectives? (3) May money damages for economic damages, solatium, pain and
suffering, and punitive damages be awarded under the FSIA against a state sponsor of terrorism
for outrageous acts of terrorism against U.S. citizens committed by terrorists supported by the
state sponsor?
       Rule:


                                                 87
             (1)state law claims must be dismissed where plaintiffs assert that they are victims of
state sponsored terrorism
             (2) a sovereign may be held liable under the FISA’s state sponsored terrorism
exception where it is shown that terrorists acts against US citizens were committed by terrorists
knowingly supported by the sovereign to advance the sovereign’s policy objectives
             (3) money damages for economic damages, solatium, pain and suffering, and
punitive damages may be awarded under the FSIA against a state sponsor of terrorism for
outrageous acts of terrorism against US citizens committed by terrorists supported by the state
sponsor
       Analysis:
             The damages provision used by the court to award various money damages in this
case, § 1605A(c), was enacted in 2008 in an effort by Congress to assist victims in satisfying
their judgments against state sponsors of terrorism as well as to clarify that the cause of action
provided in the terroriststate exception applies not only to agents, employees, or officials of the
state sponsor, but also applies to the state itself.
       Outcome:
             [Judge not stated in casebook excerpt.] (I) Yes. State-law claims must be
dismissed where plaintiffs assert that they are victims of state-sponsored terrorism. Under
FSIA § 1605A(c), U.S. citizens who are victims of state-sponsored terrorism can sue a
responsible foreign state directly. Thus, Congress has provided the "specific source of law"
for recovery and has thereby eliminated the inconsistencies arising under state law in such cases.
Here, the families (P) effectively brought suit only against Syria (D) because they claimed
that all the named defendants should be treated as the foreign state itself. The only cause of
action permissible against Syria (D) is a federal cause of action under the FSIA, and the
state-law claims must be dismissed. (2) 'Yes. A sovereign may be held liable under the
FSIA's state-sponsored terrorism exception where it is shown that terrorist acts against U.S.
citizens were committed by terrorists knowingly supported by the sovereign to advance the
sovereign's policy objectives. Here, it has been shown to the court's satisfaction that it was
Syria's (D) foreign policy to support al-Qaeda in Iraq in order to topple the nascent Iraqi
democratic government and thwart the U.S. invasion of Iraq. Syria's (D) aid to Zarqawi for at
least three years was not unknowing, and, given prior acts of terrorism against civilians by al-
Qaeda in Iraq, it was foreseeable that Zarqawi and his terrorist organization would again engage
in such acts. Thus, the murders of Armstrong and Hensley were a foreseeable consequence
of Syria's (D) aid and support to Zarqawi and al-Qaeda in Iraq, and there is jurisdiction over
Syria (D) to support damages under the FSIA. (3) Yes. Money damages for economic damages,
solatium, pain and suffering, and punitive damages may be awarded under the FSIA against a
state sponsor of terrorism for outrageous acts of terrorism against U.S. citizens committed by
terrorists supported by the state sponsor. Damages for a private action for proven acts of
terrorism by foreign states under the FS!A § 1605A(c) may include economic damages,
solatium, pain and suffering, and punitive damages. The amount of punitive damages awarded
for personal injury or death resulting from an act of state-sponsored terrorism depends on the
nature of the injury, the character of the terrorist act, the need for deterrence, and the wealth of
the state sponsor. As with other punitive damages, the goal is to punish those who engage in
outrageous conduct and to deter others from engaging in similar conduct. Additionally, if several
large punitive damages awards issue against a foreign state sponsor of terrorism, the state's
financial capacity to provide funding will be curtailed. Therefore, default judgment is entered



                                                88
against Syria (D) in the following amounts: For the Armstrong family: economic damages of
$1,051,377; pain and suffering of $50,000,000; punitive damages of $150,000,000; and solatium
of $4,500,000. For the Hensley family: economic damages of $1,358,210; pain and suffering of
$50,000,000; punitive damages of $150,000,000; and solatium of $6,000,000.

Dole Food Company v. Patrickson
       Page:
       Procedural History:
             Appealfromjudgmentdenying removal to federal district court to foreign corporations
impleaded in a state-court tort action.
       Overview:
             Dead Sea Bromine Co. and Bromine Compounds, Ltd. (collectively, the Dead Sea
Companies (D)), which were impleaded by Dole Food Company and others (Dole petitioners)
(D) in a statecourt tort action, contended that as subsidiaries of an instrumentality of Israel they
were entitled to remove the case to federal district court under the Foreign Sovereign Immunities
Act of 1976 (FSIA).Farm workers (P) filed a state-court action against Dole Food Company and
others (Dole petitioners) (D), alleging injury from chemical exposure. The Dole petitioners (D)
impleaded Dead Sea Bromine Co. and Bromine Compounds, Ltd. (collectively, the Dead Sea
Companies (D)). As to the Dead Sea Companies (D), the court of appeals rejected their claim
that they were instrumentalities of a foreign state (Israel) as defined by the FSIA, and that they
were therefore entitled to removal to federal district court. The court instead ruled that a
subsidiary of an instrumentality is not itself entitled to instrumentality status. The U.S. Supreme
Court granted certiorari.
       Issue:
             (l) Under the FSIA, must a state own a majority of the shares of a corporation if the
corporation is to be deemed an instrumentality of the state? (2) Is instrumentality status under the
FSIA determined at the time the complaint is filed?
       Rule:
             (1) under the FSIA, a state must own a majority of shares of a corporation if the
corporation is to be deemed an instrumentality of the state
             (2) instrumentality status of the FSIA is determined at the time the complaint is filed.
       Analysis:
             Under corporate law principles, which the Court looked to in this case, the fact that
Israel might have exercised considerable control over the Dead Sea Companies (D) would not
have changed the outcome of the Court's decision, since control and ownership are distinct
concepts, and it is majority ownership by a foreign" state, not control, that is the benchmark of
instrumentality status.
       Outcome:
             (Kennedy, J.) (I) Yes. Under the FSIA, a state must own a majority of the shares of a
corporation if the corporation is to be deemed an instrumentality of the state. Removal of actions
against foreign states is governed by 28 U.S.C. § 144l(d). Section 1603(a) of the FSIA defines
"foreign state" to include its "instrumentality," which in turn is defined, in part, as any entity
«which is a ... corporat[ ion]'" whose shares are majority-owned by the foreign state, and that is
not a U.S. citizen or created under the laws of a third country. Thus, the issue is whether the
Dead Sea Companies (D) were an instrumentality of Israel. Israel did not have any direct
ownership of shares in these companies, which were separated from Israel by one or more


                                                 89
intermediate corporate tiers. Therefore, the Dead Sea Companies (D) were only indirect
subsidiaries of Israel. They do not satisfy the FSIA requirement that the state own a «majority"
of the shares of the corporation to qualify for instrumentality status. Only direct ownership
satisfies the statutory requirement. In issues of corporate law structure often matters. The
statutory reference to ownership of "shares" shows that Congress intended coverage to turn on
formal corporate ownership. As a corporation and its shareholders are distinct entities, a
corporate parent that owns a subsidiary's shares does not, for that reason alone, own or have legal
title to the subsidiary's assets; and, it follows with even greater force, the parent does not own or
have legal title to the subsidiary's subsidiaries. The veil separating corporations and their
shareholders may be pierced in certain exceptional circumstances, but the Dead Sea Companies
(D) refer to no authority for extending the doctrine so far that, as a categorical matter, all
subsidiaries are deemed to be the same as the parent corporation. Affirmed as to this issue. (2)
Yes. Instrumentality status underthe FSIA is determined at the time the complaint is filed. The
plain language ofFSIA § 1603{b)(2), which requires that a corporation show that it is an entity
«a majority of whose shares ... is owned by a foreign state," and is expressed in the present tense,
requires that instrumentality status be determined at the time the action is filed. Here, any
relationship recognized under the FSIA between the Dead Sea Companies (D) and Israel had
been severed before suit was commenced, so the companies would not be entitled to
instrumentality status even if their theory that such status could be conferred on a subsidiary
were accepted. Affirmed as to this issue. Affirmed.



2. Sovereign Immunity Continued: Diplomatic and Head-of-State Immunities

Legal Status of Embassies and Consulates

1) Basic rule: Inviolability
- Vienna Convention on Diplomatic Relations, Article 22 (supplement p. 347): premise of the
    mission is inviolable (see supplement); more specifically:
    o The local police cannot exercise enforcement powers on the premise of an embassy
       unless they have the consent of the embassy’s ambassador
    o In an emergency (a bomb goes off in an embassy), can the local police rush in?
            NO: Vienna Convention on Diplomatic Relations drafting history suggests that
                they cannot
                     It was proposed that there would be an exception for emergency situations,
                       but that proposal was defeated, because states feared that emergency
                       situations would be used as a pretext to invade the privacy of embassies –
    o States can waive their inviolability
            This waiver has to be express
    o Theory behind inviolability of embassies and consulates: “functional necessity”

2) Law that applies to embassies: substantive local law
- The diplomatic mission is not an extension of the sending state’s territory
- If a person (not a diplomat) commits a crime within the premises of an embassy, local police
    can arrest that suspect on the premises of the embassy (with the permission of the embassy)


                                                 90
-   Because of the United States’ war on terrorism, there has been pressure to allow greater
    incursions onto the premises of embassies to help fight of terrorism

3) Duties of the receiving state
- Article 22 sets out the positive obligations of the receiving state
- Receiving states are under a duty to protect the premises of the mission against intrusion or
    damage, and to preserve the peace of the mission (Paragraph 2 of Art. 22)
    o Article 30 extends this to the ambassador’s residence
- Hypothetical: if there is a demonstration outside an embassy, the host state has an obligation
    to protect the embassy from demonstrations that might cause problems
    o Example: in this effort, the US does not allow protestors within 500 feet of embassies;
        however, the signs the protestors carry and what they say is not restricted by the US
        government due to the first amendment

Diplomatic immunity

Basics:
- Diplomats have personal inviolability
- The rational for diplomatic immunity has changed over time:
   o formerly, it was justified in terms of the sovereignty of the state and the respect due to the
        state
   o now, the rationale is for functional necessity – we give diplomats the protection they need
        to discharge their duties, and we want other states to treat our diplomats similarly

Vienna Convention on Diplomatic Relations (p. 342)
- Article 29: diplomatic agents are not liable to any form of arrest or detention, subject to
   wavier by the sending state
- Article 31: diplomatic agents are immune from civil and administrative jurisdiction, 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

Diplomatic immunity can be waived by the sending state:
- Case, p. 610: Georgian diplomat Makharadze killed an American teenager in a car accident
   in Washington; the diplomat was drunk and driving at a high rate of speed on a city street
   o The government of Georgia waived his immunity as to criminal liability, but not as to
      civil liability (the US did a fair amount of arm twisting; it would not have been easy for
      the Georgian government to say no)
- The US government could also have declared the diplomat persona non grata
   o Article 9 of the VCDR – the receiving state notifies the sending state that the mission or
      any member of the mission is persona non grata, and thus that the mission or person is
      not welcome
   o Most commonly articulated reasons for declaring something persona non grata:
      espionage

Two categories of diplomatic immunity:
- Immunity ratione personae – procedural



                                                91
    o Immunity that attaches to the person of the diplomat while he is a diplomat
    o This is irrelevant for former diplomats
-   Immunity ratione materiae – substantive
    o This is normally irrelevant while a person is a diplomat; we look at it for former officials
       (it is applied retrospectively)
    o When a person ceases to be a diplomat, or his government waives his immunity, the
       person retains substantive immunity for actions he performs in his civil function
             The definition of “official acts” is not always clear

Head-of-State Immunity

Example: Pinochet case
- the Pinochet case raised some issues that US cases haven’t raised because he was a former
   head of state
   o The law lords who determined that Pinochet could be extradited from Britain to Spain
      said that if he were still a head of state he would be immune from prosecution, even for
      torture
   o Rationale for immunity: you want heads of state to be able to represent their countries
      and not have to fight off suits while traveling abroad
   o Pinochet had immunity ratione materiae, but not immunity ratione personae

What is the scope of substantive immunity for former heads of state?

United States v. Noriega, 117 F.3d 1206 (11th Cir. 1997) p. 611
- Noriega was abducted to the United States and bought to trial
- the executive branch did not consider Noriega to be the head of state of Panama, so he did
   not receive head of state immunity

Belgium v. Congo, International Court of Justice case from 2002
- Facts: an international arrest warrant was issued for the arrest of a foreign minister of the
   Congo for crimes under international law
- Issue: Do head of state immunities apply for international crimes?
- Holding: the ICJ said that immunity for current foreign ministers is absolute, even for
   international crimes – there is no exception to head of state immunity for all violations of
   international law (including jus cogens, customary international law, etc.)
   o So procedural immunity (Immunity ratione personae; see above) applies to all acts
       performed by heads of state while they are in office
- Result: the arrest warrant had to be cancelled, even though the man was no longer a foreign
   minister (since he was no longer a foreign minister, they could simply have re-issued the
   arrest warrant, and it should have been ok)

How do you get around head of state immunity and hold the head of state accountable?
- International Criminal Court and other international criminal tribunals (this is different from
  a state trying to exercise jurisdiction)
- Waiver
- Prosecute the head of state in their own state



                                                92
-   Wait until the official is out of office
    o Note: when a head of state commits a jus cogens violation while in office, substantive
      head of state immunities do not apply to the head of state once he has left office, and thus
      charges can be brought against him (example: Milosevic at ICTY)

Indictment of head of state of Liberia by the Special Court for Sierra Leone
- The Special Court was created pursuant to an international treaty between Sierra Leone and
    the UN (it was authorized by the Security Council); it indicted Charles Taylor while he was
    the head of state of Liberia for crimes he committed in Sierra Leone
- Can the court try Taylor, since the tribunal was created by the UN, at the behest of the
    Security Council?
- If he was indicted while he was a head of state and this is found to be illegal, can they
    withdraw the earlier indictment and re-indict him now as a former head of state?
- This is the thing that Orentlicher argued in Sierra Leone; no ruling has yet been made

Chuidian v. Philippine National Bank
      Page:
      Procedural History:
              Action to determine sovereign immunity.
      Overview:
              Chuidian (P) sued Daza (D), an official of the Philippine government, after Daza (D)
instructed a Philippine bank not to honor a letter of credit issued by the Republic of the
Philippines to Chuidian (P). Daza (D) was a member of an executive agency created by the
Philippine government after the overthrow offormer President Marcos. When Daza (D)
instructed the Bank not to make payment on a letter of credit issued to Chuidian (P) during
Marcos's regime, Chuidian (P) sued. Daza (D) claimed sovereign immunity under the FSIA.
      Issue:
              Can foreign officials acting in an official capacity claim sovereign immunity under
the Foreign Sovereign Immunities Act of 1976?
      Rule:
             foreign officials acting in an official capacity can claim sovereign immunity under
the FSIA
      Analysis:
             Most courts have agreed with this decision. Some courts have denied immunity under
the Alien Tort Act if human rights abuses are involved. Before the FSIA was enacted, the State
Department decided such issues.
      Outcome:
             [Judge not stated in casebook excerpt.] Yes. Foreign officials acting in an official
capacity can claim sovereign immunity under the FSIA. No authority supports the continued
validity of the pre-1976 common law in light of the FSIA. It is generally recognized that a suit
against an individual acting in his official capacity is the practical equivalent of a suit against the
sovereign directly.

Yousuf v. Samantar
      Page:
      Procedural History:


                                                  93
              Appeal from dismissal of action for damages for acts of torture and human rights
violations under the Torture Victim Protection Act of 1991.
       Overview:
              Natives of Somalia {P) brought suit under the Torture Victim Protection Act of 1991
against Samantar (D), claiming that they were victims of acts of torture and human rights
violations committed against them by Somali government agents commanded by Samantar (D),
who claimed immunity under the Foreign Sovereign Immuuities Act (FSIA).Natives of Somalia
(P) brought suit under the Torture Victim Protection Act of 1991 against Samantar (D), claiming
that they were victims of acts of torture and human rights violations committed against them by
Somali government agents commanded by Samantar (D), who claimed immunity under the
Foreign Sovereign Immunities Act (FSIA). The district court, following the majority view that
individuals acting within the scope of their official duties qualifies them as an "agency or
instrumentality of a foreign state" under the FSIA, and finding that Samantar (D) had acted in his
official capacity, held that Samantar (D) had immunity from suit, and dismissed the case. The
court of appeals granted review.
       Issue:
              Does the FSIA apply to individual officials of a foreign state?
       Rule:
              the FSIA does not apply to individual officials of a foreign state.
       Analysis:
              One ·criticism of the approach taken by the court in this case is that since there is
little practical difference between a suit against a state and a suit against an individual acting in
hi~ official capacity, plaintiffs will be able to circumvent state immunity by suing government
officials in their individual capacities, thus undermining one of the FSIA's primary goals.
       Outcome:
              (Traxler, J.) No. The FSIA does not apply to individual officials of a foreign state. A
majority of the courts considering the scope of the meaning of "agency or instrumentality" under
the FSIA have concluded that an individual foreign official acting within the scope of his official
duties qualifies as an "agency or instrumentality of a foreign state." However, the language and
overall structure and purpose of the statute must also be considered. The FSIA defines an
"agency or instrumentality" as an ''entity" that is a "separate legal person .... " The phrase
"separate legal person" seems to be drawn from corporate law, which holds that a corporation
and its shareholders are distinct entities. If Congress had intended to cover individuals, it could
have said so, without using a corporate concept. Thus, the FSIA's use of the phrase suggests
that natural persons are not covered the~eby. Moreover, in ensuring that an "agency or
instrumentality" seeking the benefits of sovereign immunity is actually connected to a "foreign
state," the FSIA requires that the "entity" be "neither a citizen of a State of the United States as
defined in § 1332(c) and (e) ... nor created under the laws of any third country." Sections 1332(c)
and (e) govern the citizenship of corporations and legal representatives of estates, and are
inapplicable to individuals. Also, it is nonsensical to speak of an individual, rather than a
corporate entity, being "created" under the laws of a country. Therefore, these references support
the interpretation that natural persons are not covered by the FSIA. Such an interpretation is also
consistent with the FSIA's overall statutory scheme. For example, the rules for service of process
under the FSIA are strikingly similar to the general procedural rules for service on a corporation
or other business entity, and do not contain the rules for service of process on an individual.
Finally, the legislative history also supports the interpretation that "an agency or instrumentality



                                                 94
of foreign state" cannot be an individual. The House Committee Report on the FSIA explained
that "separate legal person" was "intended to include a corporation, association, foundation, or
any other entity that, under the law of the foreign state where it was created, can sue or be sued
in its own name, contract in its own name or hold property in its own name." Because the FSIA
does not apply to individual foreign government agents like Samantar (D), the district court erred
that he had immunity. Reversed.

Regina v. Bartle and Commissioner of Police, Ex parte Pinochet
       Page:
       Procedural History:
              Appeal from extradition proceedings.
       Overview:
              Pinochet (D) claimed that he was immune from prosecution as a former head of
state. The House of Lords (P) considered charges that Pinochet (D), the former head of state of
Chile, had violated the Torture Convention. Chile, Spain, and the United Kingdom were all
parties to the Torture Convention, which became law on December 8, 1988. Pinochet (D)
claimed he was immune as a former head of state under principle of international law.
       Issue:
              Is the notion of continued immunity for former heads of state inconsistent with the
provisions of the Torture Convention?
       Rule:
             the notion of a continued immunity for former head of states is inconsistent with the
provisions of the torture conventions.
       Analysis:
             The court discussed the common law as well. Under common law, a former head of
state enjoys immunity for official acts done while in office. The purpose of the Torture
Convention was to provide that there is no safe haven for torturers.
       Outcome:
             (Lord BrowneWilkinson) Yes. The notion of continued immunity for former heads of
state is inconsistent with the provisions of the Torture Convention. If, as alleged, Pinochet (D)
organized and authorized torture after December 8, 1988, he was not acting in any capacity that
gives rise to immunity because such conduct was contrary to international law. The torture
proceedings should proceed on the allegation that torture in pursuance of a conspiracy to commit
torture was being committed by Pinochet (D) after December 1988 when he lost his immunity.

Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v.
Belgium)
      Page:
      Procedural History:
            Application claiming violations of international law and seeking order of provisional
measures of protection relating to an arrest warrant for a sovereign,s foreign minister.
      Overview:
            The Democratic Republic of the Congo (D.R.C.) (P) contended that an international
arrest warrant for its foreign minister, issued by Belgium (D), violated international law by
purporting to exercise jurisdiction over another state's foreign minister, and the D.R.C. (P)
sought an order of provisional measures of protection on the ground that the warrant effectively


                                               95
prevented the foreign minister from leaving the D.RC. (P). Under Belgian law, which provided
for universal jurisdiction in the case of grave breaches of the Geneva Conventions, crimes
against humanity, and other serious offenses, a Belgian judge issued an international arrest
warrant for the foreign minister of the D.R.C. (P), seeking his extradition on allegations of grave
violations of humanitarian law. Belgian law also provided that any immunity conferred by an
individual's official capacity did not prevent application of universal jurisdiction. The Belgian
warrant was transmitted to the International Criminal Po lice Organization (Interpol) and was
circulated internationally. The D.RC. (P) brought an application against Belgium (D) in the
International Court of justice (!.C.).), asserting that the warrant violated international law by
purporting to exercise jurisdiction over another state's for eign minister, and that the minister
should enjoy immunity equivalent to that enjoyed by diplomats and heads of state. The D.R.C.
(P) also sought an order of provisional measures of protection on the ground that the warrant
effectively prevented the foreign minister from leaving the D.RC. (P). The I. C.). issued its
judgment.
      Issue:
              Does a state's foreign minister enjoy full immunity from criminal jurisdiction in
another state's courts, even where the minister is suspected of humanitarian vio lations?
      Rule:
             A state’s foreign minister enjoys full immunity from criminal jurisdiction in another
state’s court, even where the minister is suspected of humanitarian violations.
      Analysis:
             This case did not decide the tenability of the claim of universal jurisdiction by
domestic courts. However, some of the Court's judges, in a separate opinion, expressed the belief
that universal jurisdiction is permitted in the case of those crimes considered the most heinous by
the international community, so that the warrant for the arrest of the D.R.C.'s foreign minister did
not as such violate international law. It thus appears that the judges of the I.C.J. are split on the
issue of universal jurisdiction as exercised by local or domestic courts. In any event. a domestic
court's exercise of universal jurisdiction is not without precedent: in 1961, Israel claimed
universal jurisdiction when it kidnapped the former Nazi Adolf Eichmann from Argentina, tried
him in an Israeli court and executed him.
      Outcome:
             [Judge not identified in casebook excerpt.] Yes. A state's foreign minister enjoys full
immunity from criminal jurisdiction in another state's courts, even where the minister is
suspected of war crimes or crimes against humanity. A foreign minister's duties involve
overseeing the state's diplomatic activities, acting as the state's representative in international
negotiations and meetings, and traveling internationally. The minister may bind the state, and
must be able to be in constant communication with the state and its diplomatic missions around
the world, as well as with representatives of other states. Such a minister is recognized under
international law as a representative of the state solely by virtue of his or her office. Based on
these functions, an acting Minister of Foreign Affairs enjoys full immunity from criminal
jurisdiction and inviolability so that he or she may not be hindered in the performance of his or
her duties. Such immunity inheres regardless of whether the alleged criminal acts were
performed in the minister's "official" capacity or "private" capacity, and regardless of when the
conduct occurred. Otherwise, even the mere risk that by traveling to or transiting another state
the minister might be exposed to legal proceedings could deter the minister from traveling
internationally and fulfilling his or her official functions. Belgium's (D) argument that



                                                 96
immunities cannot protect foreign ministers when they are accused of having committed war
crimes or crimes against humanity is rejected. Belgium (D) points to instruments creating
international criminal tribunals and decisions of national courts that state expressly that an
individual's official capacity is not a bar to the exercise by such tribunals or courts of their
jurisdiction. As support, it points to a judge's statement that "[i]nternational law cannot be
supposed to have established a crime having the character of a jus cogens and at the same time to
have provided an immunity that is coextensive with the obligation it seeks to impose." It also
points to another judge's statement that "no established rule of international law requires state
immunity ratione materiae to be accorded in respect of prosecution for an international crime."
The D.C.R. (P), by contrast, points to statements by judges in the cases cited by Belgium (D) that
support its assertion that, under international law as it currently stands, there is no exception to
absolute immunity from criminal prosecution of an incumbent foreign minister accused of crimes
under international law. The D.C.R. (P) also would limit the instruments creating war crimes
tribunals to those tribunals and not extend them to other proceedings before ' national courts.
Based on current practice and court decisions of some nations, there is no exception to the rule
according immunity from criminal jurisdiction and inviolability to incumbent foreign ministers
suspected of having committed war crimes or crimes against humanity. Also, the rules regarding
immunity for officials in the instruments creating war crimes tribunals are limited to those
tribunals and do not create an exception to customary international law in regard to national
courts. Decisions issued by those tribunals have not addressed the issue at bar and therefore do
not affect this conclusion. Another consideration is that even if a national court has jurisdiction
to prosecute an individual who is acting in an official capacity, such jurisdiction does not negate
the individual's immunity under customary international law. Nevertheless, it must be
emphasized that immunity from jurisdiction enjoyed by an incumbent foreign minister does not
mean that he or she enjoys impunity for crimes he or she may have committed. jurisdictional
immunity is procedural, whereas criminal responsibility is a matter of substantive law, so that
jurisdictional immunity does not operate to exonerate the minister, who may, under certain
circumstances, be prosecuted for his or her crimes. The minister may be tried in the'domestic
courts of his or her state, and may cease to enjoy immunity if the state that the minister
represents waives it. After the minister ceases to hold office, the minister will no longer enjoy all
the immunities he or she previously enjoyed, and may be prosecuted for acts committed prior to
or subsequent to the time the minister was in office, as well as in respect of acts committed
during that period of office in a private capacity. Finally, the minister may be tried by
international criminal courts where they have jurisdiction.


VII. Individuals and Corporations in the International System

1. State responsibility for Injury to Aliens

Note: It is a challenge in the international system to regulate individuals and corporations
because traditionally, states were the exclusive subjects of international law, and regulation of
individuals and corporations challenges this tradition

Distinction not made in the book:



                                                 97
-   We are dealing with the law of state responsibility for injury to aliens, as distinct from the
    law of state responsibility, generally
-   Distinction:
    o The law of state responsibility is a broad framework of second-order rules that gives
       structure to claims (what remedies are available, what constitutes an injured state, etc.)
    o State responsibility for injury to aliens is a substantive part of international law,
       providing norms

Traditional remedy for mistreatment by a state of a person who is not their citizen
- the state brought the claim on behalf of its harmed national against the harming state
- this was because, as a matter of international law, the claim belonged to the state, so once the
   reparations were paid to the state of nationality of the victim, international law did not
   require that those reparations be paid to the individual

What standard of treatment should be applied to foreign nationals?
- Majority view: states must adhere to an objective minimum standard of treatment for foreign
  nationals
  o Restatement Section 711 (p. 747): states are responsible for the following injuries to
       foreign nationals
            1) human rights violations
            2) personal rights violations
            3) right of property or economic interest violations
  o This is an obligation of both results and of best efforts
            States have an affirmative duty to protect noncitizens to the best of their efforts
  o Developing countries generally may lack the resources to carry through with the
       minimum standard of treatment
  o People are not entitled to equality of treatment in all respects with the citizens of the state
       (no political rights, etc.)
- Latin American view: equality of treatment should be sufficient
  o Reason: many Latin American countries have a low standard of treatment for their own
       citizens; they don’t want to have to apply a higher standard of treatment to noncitizens

Two things that must be shown before suit can be brought against a state for injury done to a
noncitizen under international law:
   1) exhaustion of remedies
            don’t need to attempt to exhaust remedies when
                     there are no remedies, or
                     it would be futile to try
   2) Bond of nationality: before a state can bring suit for injury of its nationals against another
       state, that state must show that those harmed are in fact its nationals
            How do you determine what someone’s nationality is?
                     Liechtenstein v. Guatemala (“The Nottebohm Case”) (ICJ 1955, p. 764)–
                        there has to be a “genuine link” to the state of which the person claims to
                        be a national
                     examples of universally accepted genuine links
                             birth of parents or own birth within the state


                                                 98
                      examples that can be challenged:
                           residency

Three Principles of Attribution of Conduct to the State (p. 751) (how to hold a state accountable
under international law for acts which look private in nature)
   1) Attributable: a state acts through people exercising the state’s machinery of power and
       authority
   2) Not attributable: international law does not attribute conduct of a nonstate character, such
       as acts or omissions of private persons, mobs, associations, corporations, trade unions or
       unsuccessful insurgent, to a state as such
            unsuccessful insurgents retain nonstate status
            successful insurgents attain state status, and become liable for their actions during
               their insurgency
   3) Attributable: a state may act through its own independent failure of duty or inaction when
       an international obligation requires state action in relation to nonstate conduct

International Law Commission (ILC) Draft on the Responsibility of States for Internationally
Wrongful Acts (not binding, but considered evidence of customary international law)
- Article 7
    o Even if people who are authorized to act on behalf of the government exceed their legal
        authority or contravene their instructions, the state is held responsible for their actions so
        long as they were acting their official capacity
- Article 8:
    o the conduct of a person or persons acting under the direction and control of a state is
        attributable to the state
- Article 11:
    o Conduct which is not attributable to a State shall be considered an act of that State under
        international law if and to the extent that the State acknowledges and adopts the conduct
        in question as its own.
    o Example: Iran (see below)
- For more, see pp. 752-754

Examples

Iran Hostages Case (p. 754, note 2)
- Facts:
    o students took over the American embassy in Iran
    o the new Islamic government of Iran did not have any connection to the takeover, but it
       ratified the takeover after it occurred
- Issue before the ICJ: Could the conduct of be attributed to Iran?
    o Was the prior encouragement of the students (before they took over the embassy)
       sufficient to attribute conduct to the state?
             ICJ said no – international law requires a much higher standard
    o What about the affirmative duty of the state of Iran to protect the embassy as a matter of
       treaty law?




                                                  99
           This is not a matter of attribution – this duty pertains specifically to state conduct,
            (indeed, the ICJ found that Iran had this duty, and breached it in violation of
            international law)
         we want to know whether the conduct of the nonstate actors can be attributed to
   o Did Iran subsequently ratify the conduct after it occurred? If so, would that allow for the
     conduct to be attributed to Iran?
         The ICJ found that the Iranian government subsequently ratified the conduct and
            encouraged it to continue
         Because of the subsequent ratification and encouragement, the ICJ attributed the
            conduct to Iran: “The militants, authors of the invasion and jailers of the hostages,
            had now become agents of the Iranian State for whose acts the State itself was
            internationally responsible.”
         Thus, attribution falls under Article 11 of the ILC Draft Articles (above)

Nicaragua v. US (p. 754)
- ICJ case where Nicaragua brought suit against US for funding of Contras in Nicaragua
- Was contra conduct attributable to the United States?
- Standard applied? Article 11 of ILC Draft Articles
   o The ICJ found that there was not enough direction or control from the US to the contras
       to make the acts of the contras attributable to the US
   o For there to be enough direction, the US would have had to have effective control of the
       military or paramilitary operations in the course of which the alleged violations were
       committed
- However, the US violate international law on other grounds: its support of the contras was a
   use of force against Nicaragua
   o US was held responsible for its own conduct, but not for the conduct of the contras

Prosecutor v. Tadic (case before the International Criminal Tribunal for the former Yugoslavia
(ICTY), 1999)
- ICTY creates a lower standard for state attribution than the standard used by the ICJ in
   Nicaragua: “The requirement of international law for the attribution to States if acts
   performed by private individuals is that the State exercises control over the individuals. The
   degree of control may, however, vary according to the factual circumstances of each case.”
- Note: When you talk about the conduct of an individual, you have to show that the individual
   was instructed to do X; when you talk about the conduct of a group, then it is sufficient to
   show overall control of the group as a whole (rather than control over every individual within
   the group)

9-11 attacks and State attribution
- Issues about attribution: could the attack by Al Qaeda be attributed to Afghanistan, the state
   that harbored Al Qaeda?
- The US said that if you harbor a terrorist, the conduct of the terrorists will be attributable to
   the state that harbors them
   o Did the US set a new standard of attribution?
   o How does this square with Nicaragua? Is there enough direction or control for the
        conduct to be attributable to Afghanistan?



                                                100
Property Rights

Takings of land by governments:
- Traditional test for takings: Restatement Section 712, p. 757
   o A state is responsible under international law for injury resulting from:
            (1) a taking by the state of the property of a national of another state that
                   (a) is not a taking for public purpose, or
                   (b) is discriminatory, or
                   (c) is not accompanies by provision for just compensation;
            compensation is just if it is an amount equivalent to the value of the property and
              is paid at the time of the taking (or within a reasonable time after the taking)

Two different statutes concerning Takings: UN General Assembly Resolution 1803 (1962) and
Charter of Economic Rights and Duties of States (1974)
- General Assembly resolution:
   o This treaty follows traditional law about takings, and it says that states must follow
       existing international law when taking property
   o “Just” compensation “must” be paid to the person from whom the land is taken
   o US likes this one better
- Charter:
   o compensation controversies will be settled using the “domestic law of the nationalizing
       State and by its tribunals” – not international law
   o “appropriate” compensation “should” be paid to the person from whom the land is taken
   o US does not like this one

Note: There is an increasing reliance on dealing with takings through bilateral treaties, since
international law has become less forceful

2. Human Rights and International Criminal Law

Background

Historical Antecedents include:
- Abolition of slavery
- Laws of war

How is human rights law today different from these antecedents?
- With the antecedents, we were speaking about treatment of people by states; today, we are
  speaking about the rights of individuals (focus has changed from the states to individuals)
- Today, human rights law is concerned with how states treats those who are subject to their
  jurisdiction
  o states are obliged to respect the rights contained in human rights treaties irrespective of
       whether the individual is their national
- today, the state of nationality of the victim does not need to assert the claim – the individual
  can assert it (individuals do not have to rely on the doctrine of protection)


                                                101
Departure from the principle of nonintervention
- international human rights law now ignores the principle of nonintervention, and now
   regulates what states can do within their territory to their own nationals
- World War II and the Nuremberg Tribunal led to this departure from nonintervention
   o Nuremberg precedent
            Nazi committed crimes against their own citizens
            Among the crimes adjudicated at Nuremberg were:
                   Crimes Against Humanity – could be committed against any civilian
                      population, including one’s own citizens
                   War Crimes, Crimes against Peace – international crimes

Relevant Human Rights Documents

United Nations Charter
- Chapter I, Article 1(3): one of the purposes of the UN is to promote human rights
- Article 55 of the Charter provides for specific promotion of human rights by the UN (see
   book p. 770)
- The only concrete human rights norm expressly articulated in the Charter is
   nondiscrimination; the rest of the rights are not defined (which is why we get the following
   declaration, the UDHR)

Universal Declaration of Human Rights (UDHR) (1948)
- This is a UN General Assembly resolution
- Status of the UDHR in international law:
   o Most say that it is not binding, but is aspirational
            Because it wasn’t binding, it took only a few years to write
            set forth a “common standard of achievement for all peoples and all nations”
   o some view it as an elaboration of the human rights provisions of the UN Charter, and thus
       claim that it is binding through the Charter
   o it is also believed that large portions of the UDHR have evolved into customary
       international law
- US is not a party

Treaties: (took 18 years to draft because they are binding) – these were aimed at converting the
nonbinding provisions of the UDHR into binding treaty obligations
- International Covenant of Civil and Political Rights (ICCPR) (came into effect in 1976;
   ratified by the US)
   o Includes a wide range of civil and political rights, including a right to life, prohibitions on
        torture and slavery, etc. (for more, see p. 744)
   o States parties undertake to respect and insure the rights listed in the ICCPR
             “Respect” means: that they agree not to violate the rights in the ICCPR
             “Insure” means: they agree to protect the right from other states’ violation
- International Covenant on Economic, Social and Cultural Rights (ICESCR) (took effect in
   1977; not ratified by the US)
   o Includes the right to work, to join trade unions, etc. (for more, see p. 774)


                                                102
    o States parties agree to “progressive realization” – there is a concrete obligation to take
      steps “to the maximum of its available resources” toward the progressive realization of
      these rights, and backsliding is not permitted
-   Why are there two treaties defining human rights?
    o USSR and US couldn’t agree as to the rights that should be enumerated: US says
      economic and social rights do not exist, while USSR wanted to codify them

“Derogation”: respecting a right to a lesser extent in times of emergency that endanger the nation
   o There are certain rights that are nonderogable (examples: life, freedom, freedom from
      torture)

Human Rights Treaty Bodies
- CEDAW, Genocide, Slavery, and Torture Conventions, Convention on the Rights of the
  Child, CERD, Migrant Workers Convention all have treaty bodies
- most prominent: ICCPR’s Human Rights Committee
  o powers:
          elaborate on the norms in the ICCPR
          hear complaints from individuals
                 the ICCPR is a treaty, so it is binding on states parties, but there is no
                    specified enforcement mechanism; because of the lack of enforcement
                    mechanism, states drafted the optional protocol, which allows for
                    complaints to be brought before the Human Rights Committee against
                    violating states
                 the state that is the alleged violator must have become a party to the
                    optional protocol before a complaint can be heard against it
                 their decisions are not binding: their decisions are referred to as the
                    “views” of the committee
- one mechanism they almost all have:
  o periodic reporting – states periodically have to submit reports to treaty bodies to explain
     how they are working to fulfill the treaty
  o after the submission, the treaty bodies give “concluding observations” on the reports
  o these concluding observations are not binding, so no state has to act on them

Sources of International Human Rights Law

Basics:
- human rights law is primarily treaty-based
   o thus, states that are not parties are not bound
- it is also found in customary law, and possibly in general principles of law
   o customary law
            Universal Declaration of Human Rights has evolved, at least to some extent, into
               customary international law
            Advantage – all states are bound by customary international law
   o Article on p. 788 – good article about customary international law’s development




                                               103
Specific US statutes pertaining to human rights

Alien Tort Claims Act (ATCA), 28 USC 1350 (1789): “The district courts shall have original
jurisdiction of any civil action by an alien for a tort only, committed in violation of the laws of
nations or a treaty of the United States.” (this has been read to include the idea that the criminal
was acting pursuant to the direction of a state)
    o There is no state action requirement per se, but because most violations of the laws of
        nations require a nexus with state action, courts have grafted on a state action component
        to ATCA analysis
    o we see this used more and more for violations of international law
    o leading case interpreting the ATCA: Filartiga v. Pena Irala, 630 F.2d 876 (2d Cir. 1980)
- in the 1990s, the ATCA has been used for suits against corporations
    o Examples:
             Doe v. Unocal (Unocal hired Burmese military to help relocate the Burmese
                population as Unocal built a pipeline; in the process, the military committed
                torture, crimes against humanity, cruel, inhuman and degrading treatment, etc.)
             Aguinda v. Texaco, Inc.
             Wiwa v. Royal Dutch Petroleum Co.
    o The major obstacle to ATCA suits against corporations (or any private actor) is proving
        the state action requirement of the ATCA
             This is a matter of attribution (for more on attribution, see above)

International Criminal Law

Nuremberg
- Crimes adjudicated at Nuremberg:
   o 1) Crimes against the Peace (Aggression)
          Jus ad bellum – law that regulates recourse to the use of armed force
   o 2) War Crimes
          Jus in bello – laws that regulate the conduct of war
          Regulation of the conduct of war is also referred to as international humanitarian
            law
          For the specifics of these crimes, the Allies drew upon the Hague Conventions
            and the customary laws of war
          At the time, this only governed international armed conflict
   o 3) Crimes against Humanity
          definition: certain enumerated inhuman acts committed as part of an attack
            against any civilian population
- Genocide was not prosecuted because it had not yet been defined
   o The Genocide Convention was adopted in 1948 and came into force in 1951

Geneva Conventions (1949) (nearly universally ratified)
- codifies international and non-international armed conflict
   o this was the first express codification of laws for non-international armed conflict
      (Common Article 3 pertains to non-international armed conflict)



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    o these give rise to individual liability rather than state liability
-   Protocols to the Geneva Conventions (1977)
    o The protocols that concern international armed conflict are long
    o The protocols that concern non-international armed conflict are short
-   “Grave Breaches of the Geneva Convention”
    o If these are perpetrated against protected persons, all states have an obligation to hunt
       down the perpetrators and bring them to justice – this is mandatory universal jurisdiction

War Crimes generally:
  o War crimes are criminal violations of the law of war (“international humanitarian law”)
          only those violations that give rise to criminal liability are war crimes

International Criminal Tribunal for the former Yugoslavia (ICTY)
- established in 1993 by the Security Council acting pursuant to its Chapter VII (enforcement)
    powers
    o Chapter VII resolutions are binding on all UN members
    o Why was ICTY created by Security Council resolution and not by treaty?
            Chapter VII powers enabled them to move quickly in order to end the violence in
               the Balkans
            Because Chapter VII resolutions are binding on all UN members, no members can
               make reservations or refuse to sign on
- ICTY Statute gives jurisdiction over:
    o Genocide
            Evolved as a form of crimes against humanity, but now has its own very distinct
               definition
    o War crimes; including:
            Grave Breaches of the Geneva Conventions
            Other Violations of the Laws and Customs of War
                    Interpreted by the Tribunal very expansively, as including all of the law of
                       war, either customary or treaty based
    o Crimes against humanity
- Temporal and territorial limitations:
    o ICTY has jurisdiction over crimes that occurred in the territory of the former Yugoslavia
    o ICTY has jurisdiction over crimes from 1991 to the present

International Criminal Tribunal for Rwanda (ICTR)
- Major difference between ICTY and ICTR: Rwandan conflict was domestic, whereas the
    Yugoslavian conflict was international (it became international when Yugoslavia dissolved
    into several independent states)
- again, the Security Council acted pursuant to its Chapter VII powers to create ICTR
- ICTR has jurisdiction over:
    o Genocide
    o War Crimes
             We see only Common Article 3 and Protocol 2 of the Geneva Conventions,
                because this conflict is internal
    o Crimes against Humanity



                                               105
-   Temporal and territorial limitations:
    o Jurisdiction is limited to the territory of Rwanda
    o Jurisdiction is limited to calendar year 1994 (which is entirely inadequate)

Although the Crime of Aggression was adjudicated a Nuremberg, it was not within the
jurisdiction of ICTY or ICTR; this is because the classification of aggression has become very
politically sensitive

International Criminal Court (ICC)
- The ICC is the first permanent international criminal court, with jurisdiction over
    o War Crimes
    o Genocide
    o Crimes against Humanity
    o Aggression
            Aggression is in the Statute of the ICC (the “Rome Statute”), but it has not been
               defined, and the ICC cannot prosecute aggression until there is a definition
- differences between the ICC and ICTY and ICTR (the ad hoc tribunals)
    o ICC is permanent, ad hocs are temporary
    o ICC is not limited to a particular time and place
    o ICC was created by a multilateral treaty, not by the Security Council
            As a treaty, it binds only those states that are parties to it
            However, the treaty gives the ICC jurisdiction over states that are not parties to
               the court (if a citizen of a state that is not a party to the treaty commits a crime in
               the territory of a state party, that citizen can be tried by the ICC)

LaGrand Case (Germany v. United States)
       Page: 453
       Procedural History:
              Multiple plaintiff action against a state for violation of the Vienna Convention.
       Overview:
              Germany (P) filed suit in the International Court of justice against the United States
(D), claiming that U.S. law enforcement personnel failed to advise aliens upon their arrests of
their rights under the Vienna Convention. Article 36(l)(b) of the Vienna Convention on
Consular Relations provides that a state trying an alien in a death sentence case must inform the
alien of his rights to have his consular authorities informed of the arrest. Paraguay (P), Germany
(P), and Mexico (P) filed suit in the International Court of justice against the United States (D),
claiming that U.S. law enforcement personnel failed to advise aliens upon their arrest of their
rights, and that as a remedy for violation of the Vienna Convention, state courts should review
and reconsider the death sentences to determine if the lack of consular access prejudiced the
aliens. Germany's (P) case involved LaGrand and his brother, who was executed before the
matter came to the I.C.j. The !.C.). found that the United States (D) breached its obligations to
Germany (P) under the Convention by not immediately informing La Grand and his brother of
the right of consular notification, and by failing to provide judicial review of the conviction and
sentence.
       Issue:
              Does a state that breaches its obligations to another under the Vienna Convention on


                                                 106
Consular Rela tions by failing to inform an arrested alien of the right to consular notification and
to provide judicial review of the alien's conviction and sentence also violate individual rights
held by the alien under international law?
       Rule:
            a state that breaches its obligations to another under the vienna convention on
consular relations by failing to inform an arrested alien of the right to consular notification and to
provide judicial review of the alien’s conviction sentence also violates individual rights held by
the alien under international law.
       Analysis:
            Diplomatic efforts by the German ambassador and German Members of Parliament
and the recommendation of Arizona's clemency board, failed to change the mind of Arizona
Governor Jane Dee Hull, who insisted that the executions of the LaGrand brothers be carried out.
Karl LaGrand was executed on February 24, 1999, by lethal injection, and Walter LaGrand was
executed March 3, 1999, by gas chamber. Compare this case to a ruling by the I.C.J. involving
Mexican nationals, Avena and other Mexican Nationals (Mexico v. United States), 2004 I.C.J.
12, and the U.S. Supreme Court's refusal to give effect to the I.C.J.'s Avena decision in Medellin
v. Texas, 128 S. Ct 1346 (2008).
       Outcome:
             Yes. A state that breaches its obligations to another under the Vienna Convention on
Consular Relations by failing to inform an arrested alien of the right to consular notification and
to provide judicial review of the alien's conviction and sentence also violates individual rights
held by the alien under international law. The ordinary meaning of the clause "said authorities
shall inform the person concerned without delay of his rights under this subparagraph" of Article
36 suggests that the right to be informed of the rights under the Convention is an individual right
of every national of a state that is party to the Convention.

Nottebohm Case (Liechtenstein v. Guatemala)
      Page: 463
      Procedural History:
             Appeal by a state from the refusal of another state to admit one of its nationals.
      Overview:
             Nottebohm (P), a German citizen, lived in Guatemala (D) for 34 years and applied
for Liechtenstein (P) citizenship one month after the start of World War II. Nottebohm {P) was
a German by birth. Nottebohm {P) lived in Guatemala (D) for 34 years, retaining his German
citizenship and family and business ties with it. One month after the outbreak of World War II,
Nottebohm {P) applied for citizenship with Liechtenstein {P), a neutral country. Nottebohm (P)
had no ties with Liechtenstein {P) and intended to remain in Guatemala (D). Liechtenstein (P)
approved the naturalization application and impliedly waived its three-year residency
requirement. Nottebohm (P) briefly visited Liechtenstein {P) and, on his return to Guatemala
(D), was refused admittance, being deemed a German national. Nottebohm's (P) Liechtenstein
{P) citizenship was not honored. Liechtenstein {P) brought an action before the International
Court to compel Guatemala (D) to recognize Nottebohm (P) as one of its nationals. Guatemala
(D) challenged the validity of Nottebohm's (P) citizenship, the right of Liechtenstein (P) to bring
the action and alleged its belief that Nottebohm (P) remained a German national.
      Issue:
             Must a nation automatically recognize the citizenship conferred on a party by


                                                 107
another nation?
            Outcome:
                       No. As a general rule, matters concerning citizenship are solely the concern of the granting
nation. It alone will normally bear the burdens or attain the benefits from the conferral of citizenship on a party.
However, the conferring state may not require other states to automatically accept its designation unless it has acted
in conformity with the general aim of forging a genuine bond between it and its national. Here, no relationship exists
between Liechtenstein {P) and Nottebohm (P). There was never an intent to reside in Liechtenstein (P), no business
or family connections, no acceptance of traditions and the severing of old ties, etc. The change in nationality was a
mere convenience/subterfuge mandated by the war. Under such circumstances, Guatemala (D) was not forced to
recognize it. Dismissed.
      Rule:
            while nationality conferred on a party is normally only the concern of that nation,
such nationality may be disregarded by other states where it is clear that it was a mere
device/subterfuge.
      Analysis:
            A state putting forth a claim must establish a locus standi for that purpose. This is
almost exclusively a showing of nationality of the claimant The real claimant must have
continuously and without interruption from the time of the injury to the making of an award been
a national of the state making the claim and must not have been a national of the state against
whom the claim has been filed. International Law 347 (8th Ed. 1955) Vol. 1.

Iran-United States Claims Tribunal, Case No. A/18 Dual citizens (P) v.
Iran (D)
      Page: 469
      Procedural History:
              Jurisdictional consideration by arbitral tribunal.
      Overview:
              People witb dual Iranian-u.s. citizenship (P) filed claims against Iran (D) in an
arbitral tribunal in The Hague under a Claims Settlement Declaration, which was part of tbe
Algiers Accords reached in the aftermath of tbe 1979 Iranian seizure of U.S. diplomatic and
consular personnel in Iran (D) as hostages. Iran (D) challenged tbe jurisdiction of tbe tribunal.
Iranian militants seized U.S. diplomatic and consular personnel in Iran (D) as hostages after the
1979 Iranian revolution. The United States seized Iranian assets in the United States, and people
and companies with claims against Iran (D) filed suit in U.S. courts, levying attachments against
blocked Iranian assets. Algeria mediated a solution in January 1981, and the Algiers Accords
was adopted by both states. The Algiers Accords included a Claims Settlement Declaration, and
created an arbitral tribunal in The Hague to hear claims by the nationals of either state against the
government of the other state. Certain people with dual Iranian-U.S. citizenship (P) filed claims
against Iran (D) in the tribunal, and Iran (D) challenged its jurisdiction .
      Issue:
              Does the Claims Settlement Declaration arbitral tribunal have jurisdiction over
claims against Iran (D) by dual Iran-United States nationals (P) if the dominant and effective
nationality of the claimant is that of the United States?
             Outcome:
                      Yes. The Claims Settlement Declaration arbitral tribunal has jurisdiction over claims against
Iran (D) by dual Iran-United States nationals (P) if the dominant and effective nationality of the claimant is that of
the United States. The text of tbe Claims Settlement Declaration is not completely unambiguous on the issue, but the
1930 Hague Convention as modified by recent developments in international law, precedent, and legal literature



                                                        108
suggest a person's dominant and effective nationality is determined by the stronger factual ties between the person
concerned and one of the states whose nationality is involved. Factors to consider when determining the stronger
factual ties include residence, center of interests, family ties, and participation in public life. Use of the word
"national" or "nationals" in the Algiers Accords must be understood in a way that is consistent with this rule of
international law, and jurisdiction under the Claims Settlement Agreement in these cases involving persons with
dual citizenship against Iran (D) when the dominant and effective nationality of the person during the relevant
period was that of tbe United States.
      Rule:
            the claims settlement decleration arbitral tribunal has jurisdiction over claims against
Iran by dual Iran United States if the dominant and effective nationality of the claimant is that of
the U.S.
      Analysis:
            In 1982, the tribunal closed to new claims by private individuals. In total. it received
approximately 4,700 private U.S. claims. ordered payments by Iran [OJ to U.S. nationals totaling
over $2.5 billion.

Eritrea Ethiopia Claims Commission, Partial Award, Civilian Claims,
Eritrea's Claims 15, 16, 23 & 27-32 Eritrea (P) v. Ethiopia (D)
       Page: 474
       Procedural History:
             Review of denationalization procedures.
       Overview:
             Ethiopia (D) denationalized nationals that voted for the creation of an independent
state of Eritrea (P). Eritrea (P) challenged the action. A new state of Eritrea (P) was admitted to
the United Nations in May 1993 after persons ofEritrean origin voted overwhelmingly in favor of
establishing the new state from a portion of Ethiopia (D). Persons who obtained an Eritrean
"national identity card" were allowed to vote. After the 1998-2000 border war between Eritrea
(P) and Ethiopia (D), approximately 66,000 people who voted were still living in Ethiopia (D).
Ethiopia (D) claimed that because they voted, they were Eritrean nationals, and could therefore
be expelled to Eritrea (P) under international law as enemy nationals. Eritrea (P) argued that they
never relinquished their Ethiopian nationality and were being unlawfully denationalized and
expelled. A bilateral claims commission that was established by Eritrea (P) and Ethiopia (D)
concluded that persons still living in Ethiopia (D), who also voted to create Eritrea (P), were dual
nationals-they acquired Eritrean nationality by voting in the referendum, and retained Ethiopian
nationality by continuing to live in Ethiopia (D) and receive the benefits of Ethiopian nationality.
       Issue:
             In time of war, may a state denationalize persons whose second nationality is that of
an enemy state, provided denationalization is not arbitrary?
       Outcome:
             Yes. In time of war, a state may denationalize persons whose second nationality is
that of an enemy state, provided denationalization is not arbitrary. International law does not
prohibit states from permitting nationals to possess another nationality, but also does not
prohibit states from prohibiting the possession of another nationality. Ethiopia (D) allowed
Ethiopians who had also acquired Eritrean nationality to continue to exercise their Ethiopian
nationality, while agreeing with Eritrea (P) that these people would have to choose one
nationality or the other at some future time. The war then came, and Ethiopia (D) denationalized
dual nationals falling in six groups: (I) those who Ethiopia believed posed a security risk; (2)


                                                        109
those who chose to leave Ethiopia (D) during the war and go to Eritrea (P); (3) those who
remained in Ethiopia (D); (4) those who were in third countries or who left Ethiopia (D) to go to
third countries; (5) those who were in Eritrea (P); and (6) those who were expelled for other
reasons. International law limits states' power to deprive persons of their nationality through the
Universal Declaration of Human Rights, Article 15 of which states that "no one shall be
arbitrarily deprived of his nationality." Because deprivation of nationality is serious, with lasting
consequences to those affected, those affected must be given adequate notice of the proceedings,
the opportunity to present a case against denationalization before an objective decision maker,
and the opportunity for outside review. With respect to the first group, Ethiopia's (D) complex
process of identifying and denationalizing security risks fell short of this standard. But given the
wartime circumstances, the loss of Ethiopian nationality after being identified through the
security process was not arbitrary or contrary to international law. As to the second group, their
decision to leave one country for another while the two are at war is a serious act that could not
be without consequences. The termination of the Ethiopian nationality of these persons was not
arbitrary and not in violation of international law. There was no evidence that members of the
third group threatened Ethiopian security, and there was no process for identifying individuals
warranting special consideration, and no possibility of review or appeal. Such a wide-scale
deprivation of Ethiopian nationality of persons remaining in Ethiopia (D) is arbitrary and
contrary to international law. the same is true for members of the fourth group: There is no
evidence that they, by their "mere presence" in third countries could be presumed to be security
threats, or that Ethiopia (D) employed an individualized assessment process to determine their
potential threat. They were allowed to contest their treatment only through Ethiopian diplomatic
or consular establishments abroad. Members of this group were arbitrarily deprived of their
Ethiopian citizenship in violation of international law . Ethiopia's (D) denationalization of
members of the fifth group was not arbitrary or otherwise unlawful, even though their mere
presence in Eritrea (P) was not proof of security risk, because there are evident risks and wartime
impediments to communication to provide notice of denationalization .Finally, the termination of
the Ethiopian nationality of all persons in the sixth group was arbitrary and unlawful, since in
many cases, most or all dual nationals were sometimes rounded up by local authorities and
forced into Eritrea (P) for reasons that cannot be established.
      Rule:
             in time of war, a state may denationalize persons whose second nationality is that of
an enemy state, provided denationalization is not arbitrary.
      Analysis:
             As the commission stated, the consequences of denationalization are high to the
persons affected, and yet the standard applied to determine its legality under international law
seems low: The Universal Declaration of Human Rights only requires that denationalization not
be "arbitrary." The commission's focus was therefore on the procedures followed by Ethiopia (D)
in the denationalization process, the circumstances in which it occurred, and the actions of, and
consequences to, the persons affected. Its decision may have been different had the process not
taken place during and in the aftermath of war.

Barcelona Traction, Light and Power Company, Ltd. (Belgium v. Spain)
      Page: 482
      Procedural History:
           Action for damages for the expropriation of a corporation.


                                                110
       Overview:
              Belgium (P) brought an action for damages against Spain (D) on the ground that its
nationals as shareholders of the Barcelona Traction Co., incorporated and registered in Canada,
had been seriously harmed by actions of Spain (D) resulting in expropriation. The Barcelona
Traction, Light, and Power Co. was incorporated and registered in Canada for the purpose of
developing and operating electrical power in Spain (D). After the Spanish Civil War, the
company was declared bankrupt by a Spanish court and its assets were seized. After the
Canadian interposition ceased, Belgium (P) brought an action for damages against Spain (D) for
what it termed expropriation of the assets of the Traction Co. on the ground that a large majority
of the stock of the company was owned by Belgian (P) nationals. Spain (D) raised the
preliminary objection that Belgium (P) lacked standing to bring suit for damages to a Canadian
company.
       Issue:
              Does the state of the shareholders of a company have a right of diplomatic protection
if the state whose responsibility is invoked is not the national state of the company?
       Outcome:
              No. In order for a state to bring a claim in respect of the breach of an obligation
owed to it, it must first establish its right to do so. This right is predicated on a showing that the
defendant state has broken an obligation toward the national state in respect of its nationals. In
the present case it is therefore essential to establish whether the losses allegedly suffered by
Belgian (P) shareholders in Barcelona Traction were the consequence of the violation of
obligations of which they are beneficiaries. In the present state of the law, the protection of
shareholders requires that recourse be had to treaty stipulations or special agreements directly
concluded between the private investor and the state in which the investment is placed. Barring
such agreements, the obligation owed is to the corporation, and only the state of incorporation
has standing to bring an action for violations of such an obligation. Nonetheless, for reasons of
equity a theory has been developed to the effect that the state of the shareholders has a right of
diplomatic protection when the state whose responsibility is invoked is the national state of the
company. This theory, however, is not applicable to the present case, since Spain (D) is not the
national state of Barcelona Traction. Barcelona Traction could have approached its national state,
Canada, to ask for its diplomatic protection. For the above reasons, the Court is of the opinion
that Belgium (P) lacks standing to bring this action.
       Rule:
             the state of a shareholders corporation has a right of diplomatic protection only when
the state whose responsibility is invoked is the national state of the company.
       Analysis:
             The Restatement of the Foreign Relations Law of the United States. § 185, states that
failure of a state to pay just compensation for the taking of the property of an alien is wrongful
under international law, regardless of whether the taking itself is conceived as wrongful. Such a
wrongful taking is characterized either as tortious conduct or as unjust enrichment




VIII. The Act of State Doctrine



                                                 111
Basic rule: US courts generally will not pass judgment on the validity of the public and official
acts of a foreign government within its own territory, unless there is an unambiguous controlling
rule of international law that permits the US to pass judgment
    o By “not passing judgment,” the doctrine does not mean that the case will necessarily be
        dismissed – it simply means that the court will presume the act of a foreign state in its
        own territory is valid, and then decide the case with that in mind
    o “generally” means that there are exceptions to the rule
    o There are exceptions to the Act of State Doctrine:
             Bernstein exception?
                     If the state department tells the court in a particular case that the state
                        department has no problem with the court passing judgment on the acts of
                        a foreign state in its own territory, then the court has to pass judgment on
                        that case because the act of state doctrine simply does not apply
                     It is not clear whether this exception exists
                            o Currently, courts are not bound by but are highly deferential to the
                                wishes of the executive branch
                     2d Cir. application of City Bank Bernstein exception confusion: the act of
                        state doctrine does not apply in an action where a foreign state brings a
                        suit and the defendant counterclaims for a sum that is no more than the
                        claim and there is executive authorization allowing the court to look at the
                        issue
             When the foreign state has violated a treaty or an unambiguous rule in
                international law, the act of state doctrine does not apply
                     Other than a challenge brought under a treaty, the next easiest case would
                        be a violation of a jus cogens norm…supposedly…
             There is a potential commercial activities exception, but it has not been
                recognized in its own right by other courts besides the Dunhill case (see below)
             Two statutory exceptions
                     note 6, p. 630: Sabbatino (Second Hinkenlooper) amendment: “no court in
                        the US shall decline on the grounds of the federal act of state doctrine to
                        make a determination on the merits giving effect to the principles of
                        international law in a case in which a claim of title or other right to
                        property is asserted by any party including a foreign state…based upon…a
                        confiscation or other taking after January 1, 1959, by an act of sate in
                        violation of the principles of international law….”
                            o Basically, this means that the act of state doctrine shouldn’t be
                                applied in cases involving disputes over property expropriated in
                                violation of international law
                            o this has been narrowly interpreted by other courts
                     Helms-Burton Act, p. 630: Congress authorized lawsuits against
                        individuals or companies trafficking in property confiscated by Cuba from
                        US citizens, and expressly prohibited application of the act of state
                        doctrine to these lawsuits

The Act of State Doctrine may apply even if none of the parties are a foreign state, but are all
purely private


                                                112
-   In such cases, the court focuses on the case itself – does the outcome of the case give legal
    effect to the act of a foreign state, regardless of who the parties are?

Rationales for the Act of State Doctrine:
- respect for sovereignty of foreign states
   o Underhill v. Hernandez, 168 US 250 (1897) p. 619: “Every sovereign State is bound to
       respect the independence of every other sovereign State, and the courts of one country
       will not sit in judgment on the acts of the government of another done within its own
       territory. Redress of grievances by reason of such acts must be obtained through the
       means open to be availed of by sovereign powers as between themselves.”

Format for determining whether suit can be brought against a foreign state:
   1) Apply the Foreign Sovereign Immunities Act:
           a. Is the defendant a foreign state?
           b. Do any of the FSIA exceptions apply in the case at bar?
   2) Apply the Act of State Doctrine:
           a. Ask: Does the outcome of the case turn on whether the court gives validity to the
               public act of a foreign state?
           b. If the outcome of a case turns on the validity of the public act of a foreign state in
               its own territory, the court has to presume the act of state to be valid

The Act of State Doctrine is like a Choice of Law principle:
- It is like a choice of law principle because the court is exercising jurisdiction over the foreign
   state but it is applying the law of the foreign state rather than domestic law

Letelier v. Republic of Chile, 488 F. Supp. 665 (D.D.C. 1980)
- Act of State doctrine does not here apply because this case does not ask the court to pass
    judgment on an act that occurred in Chile – it asks the court to pass judgment on an act that
    occurred in the US

Banco Nacional de Cuba v. Sabbatino, 376 US 398 (1964) p. 620
- Facts:
   o Cuban company owned by US residents (CAV); the Cuban government too over CAV in
       accordance with domestic Cuban law
   o Sabbatino was a representative of the US owners
   o the Cuban government renamed the company BNC
   o CAV had a contract to deliver sugar to Whitlock (a private actor)
   o BNC goes through with the contract that CAV had made, but Whitlock paid Sabbatino
       instead of BNC
   o BNC sued to recover the proceeds
   o US has jurisdiction because the payment was made to Sabbatino through a bank in NYC
- FSIA would not apply here because no foreign state was sued – the foreign state brought suit
- Does the Act of State Doctrine arise under these facts? In other words, does the outcome of
   this case turn on whether the court gives legal effect to the act of a foreign state within its
   own territory?




                                                113
    o Here, the answer is yes: the outcome of the case turns on whether the court gives legal
        effect to an act of expropriation of the Cuban government in its own territory –
              if the court does give legal effect, BNC wins
              if the court does not give legal effect, Sabbatino wins
-   Because the Act of State Doctrine applies, the court must give legal effect to the foreign
    government’s act of state; thus, the court has to presume that the Cuban expropriation is
    valid, and BNC wins
-   However, Sabbatino argues that exceptions apply to this case:
              1) that the doctrine does not apply to acts of state which violate international law,
                 and Cuba did not justly compensate CAV for the expropriation (if the foreign
                 government’s act violates international law, the court would be allowed to pass
                 judgment on the validity under international law of an act of a foreign government
                 in its own territory)
                       the Supreme Court finds that there is no international law violation
                         exception to the act of state doctrine here because the international legal
                         community was divided as to whether just compensation is required by
                         international law (communists recognize no obligation on the part of the
                         taking country, whereas capitalist countries do) – there is no clear
                         consensus under international law, so it is not customary international law
              2) that the doctrine is inapplicable unless the Executive specifically interposes it
                 in a particular case
              3) that the doctrine may not be invoked by a foreign government plaintiff in US
                 courts
-   Why does the court believe we apply the Act of State Doctrine?
    o It is NOT compelled by international law or required by the Constitution (see p. 624)
    o However, there are Constitutional underpinnings of the act of state doctrine: Separation
        of powers: the courts have to act in such a way that they to not muddle with the
        executive’s foreign relations powers
              This seems to be a flexible test, on a case by case basis
              What factors might guide the court in determining when to apply the Act of
                 State Doctrine? (624)
                       “…the greater the degree of codification or consensus concerning a
                         particular area of international law, the more appropriate it is for the
                         judiciary to render decisions regarding it…”
                       the implications of the issue for our foreign relations
                             o if it is a hot button area, leave it for the executive, don’t have the
                                  judiciary meddle in it
                       whether the government that perpetrated the act is still in existence
-   The court finds that it cannot pass judgment on the expropriation
    o there is no unambiguous controlling rule of international law in this case, because there is
        little agreement about expropriation in international law:
              “There are few if any issues in international law today on which opinion seems to
                 be so divided as the limitation on a state’s power to expropriate the property of
                 aliens.”
              difference between communist and capitalist systems is discussed
-   One other possible exception to the act of state doctrine: Bernstein exception:


                                                114
   o If the state department tells the court in a particular case that the state department has no
     problem with the court passing judgment on the acts of a foreign state in its own territory,
     then the court should feel no inhibition in doing so
   o In this case, the court did not rule on whether there was a Bernstein exception, and found
     that it’s extension was not warranted for the case at bar because the State department was
     neutral

First National City Bank v. Banco Nacional de Cuba, 406 759 (1972) p. 631
- Facts (need help): City Bank had some branches in Cuba that were expropriated by the
    Cuban government; City Bank had $1.8 million of Cuban assets, so it seized that money;
    BNC sues City Bank to get the collateral back; City Bank counter-sues to receive damages
    from the expropriation
- Principle question: does this case establish any exceptions to the general rule in the Act of
    State Doctrine?
- Act of State Doctrine analysis
    o 1) The Act of State Doctrine arises under these facts because the outcome of the case
        turns on whether the United States recognizes the act (expropriation of a bank) of a
        foreign state (Cuba) within its own territory
             If the court does give legal effect, Cuba wins
             If the court does not give legal effect, City Bank wins
    o 2) Are there any exceptions to the Act of State Doctrine that might apply?
             a) Bernstein exception – if the executive tells the court that it’s ok for the court to
                assess the validity of the act, then the court can go ahead and do it
                     Tere, the state department advised the courts: “the act of state doctrine
                        should not be applied to bar consideration of a defendant’s counterclaim
                        or set-off against the Government of Cuba in this or like cases.”
                     Does the Bernstein exception exist?
                     The Sabbatino court chose not to decide, but did say that it did not accept
                        the reverse argument that, if the executive branch doesn’t say anything one
                        way or the other, then courts don’t have to apply the act of state doctrine
- Rehnquist opinion (joined by two others; this is the opinion of the court)
    o This opinion adopts and approves of the Bernstein exception: “where the Executive
        Branch…expressly represents to the Court that application of the act of state doctrine
        would not advance the interests of American foreign policy, that doctrine should not be
        applied to the courts.”
    o Rationale for the act of state doctrine: Sabbatino says that if the courts pass judgment on
        the acts of foreign states, the courts will make problems for and embarrass the executive;
        but when the executive says the act of state doctrine need not apply, then there will be no
        risk of embarrassment
- Douglas opinion
    o He recognizes a narrow exception to the act of state doctrine: In the context of a
        counterclaim, where the Cuban government has come into our courts seeking relief, fair
        play requires that Cuba allow a counterclaim against it for the amount of the original
        claim (see last paragraph on p. 634)
    o He cites a decision involving sovereign immunity, not the act of state doctrine; he says
        that the same principle applies here as well


                                                115
    o He does not like the Bernstein exception
             He says that the Bernstein exception makes the court a mere errand boy for the
                executive branch which can come in sometimes and not others
-   Powell opinion
    o He does not like the Bernstein exception either
    o As to the Sabbatino decision, he says that he is applying the basic rule of the case – that
        the act of state doctrine is rooted in separation of powers, and this is what we need to be
        concerned about
             However, he believes that the Sabbatino court applied that concept wrong because
                federal courts have an obligation to hear cases unless it appears that an exercise of
                jurisdiction would interfere with foreign relations conducted by the political
                branches – the tilt should be towards hearing cases, rather than refusing cases
             The court should play its role and not let the state department push it around
-   Brennan, Stewart, Marshall, Blackmun dissent
    o They don’t like the Bernstein exception, and unequivocally take the step of rejecting it
    o These judges also think that the act of state doctrine should apply here: the validity of a
        foreign act of state in certain circumstances is a political question that is not cognizable in
        US courts…
    o These justices found that Act of State Doctrine is explainable in Political Question terms
        (separation of powers)
-   So what is the holding here?
    o There is no clear rule on whether there is a Bernstein exception
             Here, 6 of 9 justices do not like it
    o Holding: the views of the executive branch, when it says that the act of state doctrine
        does or does not apply, are something that will be taken into account by the courts;
        but the opinion of the executive branch does not bind the courts
-   This case reflects the fact that the Court was badly divided about what to do with the act of
    state doctrine
    o This case has been narrowly interpreted by the 3d Cir., which found that every fact that
        happened to be present in this case has to be present for there to be an exception to the act
        of state doctrine

W.S. Kirkpatrick & Co. v. Environmental Tectonics Corp., 493 US 400 (1990), p. 636
- Kirkpatrick won a bid on a contract by paying a bribe to the Nigerian government; Tectonics
   was a losing bidder
- Act of State Doctrine analysis
   o Does the act of state doctrine arise in this case? In other words, does the outcome of the
       case turn on whether the court gives legal effect to the act of the foreign government in
       its own territory?
             The lower court says that it does – for Tectonics to win, it would have to prove
               that the Nigerian government took a bribe, and, because of that bribe, awarded the
               job to Kirkpatrick
                    Remember: it does not matter that the Nigerian government is not a party
                       to the suit, because the act of state doctrine may come into play where
                       none of the parties is a state so long as the outcome of the case depends on
                       whether a court gives legal effect to the act of a state



                                                 116
               But the Supreme Court says that the act of state doctrine does NOT apply here
                     “Act of state issues only arise when a court must decide – that is, when
                        the outcome of the case turns upon – the effect of official action by a
                        foreign sovereign. When that question is not in the case, neither is the act
                        of state doctrine. That is the situation here. Regardless if what the court’s
                        factual findings may suggest as to the legality of the Nigerian contract, its
                        legality is simply not a question to be decided in the present suit….”
                     The determination as to whether the bribe took place and influenced the
                        outcome of the contract does not require the court to decide whether or not
                        to give legal effect to an official act of Nigeria in is own territory.
-   Another point:
    o Kirkpatrick argues that the court is being too rigid and technical; the whole point of
        Sabbatino is that the courts don’t want to embarrass foreign governments, and in this case
        the court might have to decide that the Nigerian government took a bribe – this is a very
        embarrassing decision!
    o The court says that “The act of state doctrine does not establish an exception for cases
        and controversies that may embarrass foreign governments, but merely requires that, in
        the process of deciding, the acts of foreign sovereigns taken within their own jurisdiction
        shall be deemed valid.”
             In Sabbatino, the court discussed embarrassment in cases where the act of state
                doctrine applies anyway
-   The decisions since Sabbatino have tended to limit the act of state doctrine, and courts do not
    seem eager to expand it
-   The rule of this case is straightforward – the Court says that the act of state doctrine
    applies only when the case turns on whether the court gives legal effect to the act of a
    foreign state in its own territory

A couple of wrinkles in the doctrine (from notes following cases, page 641-642)
- Alfred Dunhill of London, Inc. v. Republic of Cuba, 425 US 682 (1976), p. 641-642, notes 7
   and 9
      o This decision underscored a point that had been implicit in previous cases: the act of
          state doctrine applies to public and official acts of a foreign government in its on
          territory
               Dictum suggests that for acts to qualify as an act of state, they must be formal
                  (embodied in a statute, official decree, etc.), but this is merely dictum
      o Also, 4 justices recognized a commercial exception to the act of state doctrine
               in the same way that there is a commercial exception in the FSIA, there
                  should be a parallel exception for the act of state doctrine
               because only 4 judges recognized the exception, it is not clear whether it is
                  law; this exception has generally not been recognized by other courts



IX. Recognition of States and Governments

Difference between a “state” and a “government”


                                                117
-   For the purposes of international law, there is a difference between states and the
    governments that represent them
-   States, not governments, are the bearers of rights and obligations under international law
        o Thus, the general rule is that a change in government does not affect the international
            obligations of the state
        o Example of a right held by a state: in the US, states have the right to bring suit in
            American courts
-   However, how a state governs internally may be relevant to statehood and recognition of
    governments
        o Example: in the US, recognized governments of states are entitled to the state’s assets
            in the US

In the past 50 years, there has been a rapid increase in the number of states that exist
- Example: when the United Nations was formed in 1945, it had only 51 states members; now
    the United nations has 191 states members
- What lead to the increase in members?
        o 1) Decolonization
        o 2) Break up of various states, such as the USSR, Yugoslavia, Ethiopia (Eritrea broke
            away), Czechoslovakia

Break-ups of states occur in two ways: 1) Dissolution, or 2) Secession
- 1) Dissolution – an existing state implodes and becomes two or more new states; all resulting
   states are new
       o Example – Yugoslavia and Czechoslovakia
       o Political and legal results of dissolution:
                If there is a state that maintains the entity of the original state, the maintaining
                   state can no longer deploy troops to the new independent state
- 2) Secession – a part of an existing state breaks away to become its own state
       o example: Eritrea broke away from Ethiopia
       o Political and legal results:
                The new state does not have to recognize the government of the state from
                   which it broke
                The new state has the right to govern its own citizens
                The new state can independently enter into treaties
                The new state can have membership in organizations that were previously
                   closed to it, as some international orgs are open only to states
                The new state can be a party to an ICJ case


Criteria for statehood:
    1) Permanent Population
            a. Size doesn’t matter
            b. The people can’t simply be passing through, be seasonal inhabitants, etc.
            c. It is sometimes said that this implies an organized community
    2) Defined Territory




                                                118
         a. Having nearly exclusive authority over what happens in your territory requires
             that you know what your territory is
         b. “Defined” doesn’t mean there are no border disputes (example: the border dispute
             over Kashmir between India and Pakistan)
         c. Again, size does not appear to matter
   3) Government
         a. This means an effective government – it has effective control over the territory
         b. There are situations where states are recognized even though there is a civil war
             and no single entity that is in effective control of the whole territory
   4) Capacity to Enter Into Relations with Other States

Recognition of States by Other States
- “Recognition”: formal acknowledgement by other states that the entity is a state
- two theories about the legal relevance of recognition (this distinction has narrowed recently)
      o 1) declaratory – a entity is recognized as a state when it satisfies the criteria for
          statehood (this is objective)
               generally, this is the prevailing theory (if it quacks like a duck it’s a duck)
               however, it can get messy
                       example:
                              o Srpka does not really have all the characteristics of a state, but
                                  the 2d Circuit recognized it as such in Kadic v. Karadzic (see
                                  below)
                              o Taiwan as all the characteristics of a state yet is not recognized
                                  as one
               There are always policy decisions that change our adherence to the rule
      o 2) constitutive – an entity is not a state unless other states recognize it as a state
               the term “constitutive” is used because the idea is that an entity does not
                  constitute a state until other states recognize it as such (recognizes that the
                  idea of statehood is really a legal construct)

Situations where states recognize an entity as a state even though there is no government in
effective control of the whole territory:
- Afghanistan and Somalia
        o Both have long been established states in international law
        o Why might states be hesitant to revoke recognition of a state that is longstanding?
                Revocation of recognition would create international legal instability, such as
                    with treaties and treaty obligations
                It would be an interference in the core sovereign rights for other states to say
                    that the state is no longer a state
                International law privileges existing states
- Bosnia
        o Bosnia has not long been established as a state in international law
        o Easier to withhold recognition of statehood that to revoke recognition of statehood

Kadic v. Karadzic, 70 F.3d 232 (2d Cir. 1995) (handout)
- How did the issue of statehood come up here?



                                               119
        o Suit was against Karadzic, who was the leader of Srpska
                 Srpska was a large part of Bosnia that was under Serbian control – it was a
                    self-proclaimed entity
        o For some of the claims brought by the plaintiffs, it was relevant whether Srpska was a
            state
                 For the purpose of genocide, war crimes, and maybe crimes against humanity
                    claims, which do not require an element of state action, it was irrelevant
                    whether Karadzic was a state official or not
                 However, Claims for torture an summary execution require a nexus with state
                    action
                         so, for the purpose of these claims, it was relevant whether Srpska was
                            a state and whether Karadizc was a Srpska official
                         Other possibility: Karadzic was acting under orders from Yugoslavia
                            (thus, there is a nexus to Yugoslavian state action)
-   Issue: is Srpska a state?
        o Factors the court looks to:
                 Srpska has a president, a legislature, and its own currency
                 Srpska controls of a defined territory
                 Srpska controls a population within its power
                 Srpska has entered into agreements with other governments
        o The court makes clear that a determination of whether Srpska is a state is not
            dependent on recognition from other states
        o the court may have been adopting declaratory recognition of Srpska
-   the court was arguably result oriented – they wanted Karadzic to be held responsible, so they
    found a way to argue the state action nexus
        o The court noted that “It would be anomalous indeed if non-recognition by the US,
            which typically reflects disfavor with a foreign regime – sometimes due to human
            rights abuses – had the perverse effect of shielding officials of the unrecognized
            regime from liability for those violations of international law norms that apply only to
            state actors.”

Three different approaches to recognition of governments by other states (these three doctrines
are not mandated; recognition is largely a political call) (government is the legal representative
of the state)
- I) Traditional approach: states consider four factors in deciding whether to recognize a state:
             1) effectiveness of control
             2) stability and permanence
             3) popular support
                    this does not mean that the government has to be democratic – it means
                      something more like acquiescence
                    purpose of this factor: states don’t really want to have relations with a
                      state that is internally unstable
             4) ability and willingness to fulfill obligations
- II) Estrada doctrine: when a new government comes to power either through constitutional
    means or otherwise, its relations with other states remain unchanged



                                                120
               This was created by the Mexican government, which found that it would be
                insulting to make determinations about recognition of governments because it
                would involve passing judgment on the internal affairs of other states
             Mexico no longer follows this doctrine
-   III) Tobar doctrine: states will not recognize governments which come into power as a
    consequence of a coup or of a revolution against the government, so long as the freely
    elected representatives of the people thereof have not constitutionally reorganized the
    country
             In the past 12 years, the US and other countries have spent a lot of resources
                writing about the importance of democratic governance new trend
                     The OAS has adopted significant resolutions to further this objective
             in some cases, the UN will not allow a government to take a seat at the UN when
                the government was not democratically installed

Significance of US government recognition: Restatement 205 (p. 443)
- the government has access to US courts
- the government has access to the property of their state held in the US

Republic of Liberia v. Bickford, 787 F. Supp. 397 (S.D.N.Y. 1992) (handout)
- Facts:
   o A former government of Liberia gave money to Bickford to hold for Liberia
   o In late 1989, rebel forces led by Charles Taylor invaded Liberia, and peace keeping force
       was sent into Liberia to stop the fighting; Taylor’s forces killed the then-president of
       Liberia
   o At a peace conference, an interim government was created, and Amos Sawyer was named
       president; he was reelected at a second conference
   o The interim government sued Bickford the Liberian assets that he held
- In this case, there is no question that the assets belonged to the state of Liberia. The question
   was about what government would be entitled to the assets – Taylor’s rebels (who controlled
   about 90% of the territory of Liberia and about 50% of the population), the Sawyer
   government (operating out of a hotel, and controlling the capital), someone else?
- Holding: The court found that the Sawyer government should get the money
   o The court ruled this way because
            The money certainly belonged to Liberia
            Because the US executive branch recognized the Sawyer government, the court
               found that the Sawyer government was entitled to the assets held by Bickford (the
               court chose to leave the question of government recognition up to the executive
               branch)



-   US executive branch’s recognition of Sawyer government
    o US was reluctant to choose a side in Liberia’s civil war because it was not yet clear who
       would win; however, the court pushed for an answer as to state recognition, and the US
       decided to recognize the Sawyer government for the purposes of the case




                                               121
   o The US did not formally recognize the interim government, but conferred on it the same
     rights that a government would have

Reference Re Secession of Quebec
       Page:
       Procedural History:
              Advisory opinion regarding self-determination in relation to separatist movements.
       Overview:
              Quebec attempted to secede from Canada.
       Issue:
              Is there a right to self-determination under international law that would give the
National Assembly, legislature, or government of Quebec the right to effect Quebec's unilateral
secession from Canada?
       Rule:
             a people’s right to self-determination cannot be said to ground a right to unilateral
secession.
       Analysis:
             The Reference Re Secession of Quebec leaves open the possibility that the
international law right of self-detennination could entail secession as a "last resort" in cases of
especially severe oppression in which other channels for exercising internal self-determination
had been "totally frustrated."
       Outcome:
              The international law principle of self-determination has evolved within a
framework of respect for the territorial integrity of existing states. The right to external self-
determination has only been granted to peoples under colonial rule or foreign occupation, based
on the assumption that both are entities inherently distinct from the colonialist power and the
occupant power. External self-determination has also been bestowed upon peoples totally
frustrated in their efforts to exercise internally their rights to self-determinism. In this case,
Quebec is neither a colony nor a foreign-occupied land. Further, the people of Quebec have not
been victims of attacks on their physical existence or integrity or of massive human rights
violations. Quebecers are equitably represented in legislative, executive, and judicial institutions;
occupy prominent positions within the government of Canada; and enjoy the freedom to pursue
their political, economic, social, and cultural development.

Tinoco Claims Arbitration (Great Britain v. Costa Rica) Contracting party
(P) v. Restored regime (D)
     Page:
     Procedural History:
            Arbitration of contract repudiation.
     Overview:
            Great Britain (P) claimed that the former government of Costa Rica (D), the Tinoco
regime, had granted oil concessions to a British company that had to be honored by the present
regime. The Tinoco regime had seized power in Costa Rica by coup. Great Britain (P) and the
United States never recognized the Tinoco regime. When the Tinoco regime fell, the restored
government nullified all Tinoco contracts, including an oil concession to a British company.
Great Britain (P) claimed that the Tinoco government was the only government in existence at


                                                122
the time the contract was signed and its acts could not be repudiated. Costa Rica (D) claimed
that Great Britain (P) was estopped from enforcing the contract by its nonrecognition of the
Tinoco regime. The matter was sent for arbitration.
      Issue:
              Does nonrecognition of a new government by other governments destroy the de
facto status of the government?
      Rule:
             a govt. that establishes itself and maintains a peaceful de facto administration need
not to conform to previous constitution and nonrecognition of the govt. by other govt.’s does not
destroy the de facto status of the govt.
      Analysis:
             The arbitrator found there was no estoppel. The evidence of nonrecognition did not
outweigh the evidence of the de facto status of the Tinoco regime. Unrecognized governments
thus may have the power to form valid contracts.
      Outcome:
              No. A government that establishes itself and maintains a peaceful de facto
administration need not conform to a previous constitution and nonrecognition of the govern
ment by other governments does not destroy the de facto status of the government. Great
Britain's (P) nonrecognition of the Tinoco regime did not dispute the de facto existence of that
regime. There was no estoppel since the successor government had not been led by British
nonrecognition to change its position.

Salimoff & Co. v. Standard Oil Former owner (P) v. Purchaser (D)
      Page:
      Procedural History:
            Appeal from dismissal of action for an accounting.
      Overview:
            Salimoff (P) claimed that the Soviet gov~rnment did not have good title to pass
when it sold oil property confiscated from Russian nationals. Salimoff (P) was the equitable
owner of oil property that had been seized by a nationalization decree and confiscated by the
Soviet government in Russia. When the Soviet government sold oil extracted from that property
to Standard Oil (D), Salimoff (P) sought an accounting, alleging that the confiscatory decrees by
the unrecognized Soviet government had no legal effect. The complaint was dismissed and
Salimoff (P) appealed.
      Issue:
            When no right of action is created at the place of the wrong, can recovery in tort be
had in another state?
      Rule:
            when no right of action is created at the place of the wrong, no recovery in tort can be
had in any state.
      Analysis:
            Salimoff (P) claimed the Soviet government was nothing more than a band of robbers
and had no legitimacy. The court asked the rhetorical question whether Soviet Russia was a band
of robbers or a government. Everyone knows it is a government, according to this court .
      Outcome:
            No. When no right of action is created at the place of the wrong, no recovery in tort


                                                123
can be had in any other state. The United States government recognizes that the Soviet
government has functioned as a de facto government since 1917, ruling within its borders. The
courts cannot refuse to recognize a de facto government merely because the State Department
has not recognized the Soviet government as a de jure government. Affirmed.

National Petrochemical Co. of Iran v. MIT Stolt Sheaf Iranian corporation
(P) v. Unidentified party (D)
       Page:
       Procedural History:
              Appeal offederal district court dismissaL [An Iranian corporation (P) brought suit as
a plaintiff in a U.S. federal court. The district court dismissed the claim because the United
States had never extended recognition to the government of the Islamic Republic of Iran.]
       Overview:
             [An Iranian corporation (P) brought suit as a plaintiff in a U.S. federal court. The
district court dismissed the claim because the United States had never extended recognition to
the government of the Islamic Republic of Iran. The U.S. government entered the case as amicus
curiae, and argued that the Iranian corporation (P) ought to be granted access.]
       Issue:
              Is a foreign government necessarily barred from access to U.S. courts if it has not
been formally recognized by the United States?
       Rule:
             a foreign govt. is not necessarily barred from access to U.S. courts if it has not been
formally recognized by the U.S.
       Analysis:
             The case as excerpted does not illustrate the point as clearly as one might hope. But
the thrust is that the intervention of the United States as amicus and its arguments in favor of
allowing the case to proceed in the U.S. court system were exercises of the power of the
executive branch over matters offoreign relations, to which the court deferred.
       Outcome:
              No. A foreign government is not necessarily barred from access to U.S. courts if it
has not been formally recognized by the United States. Recognition can occur even where the
U.S. government has withheld formal recognition, which it sometimes does where recognition
can be misinterpreted as approval. In addition, the Executive Branch has the power to deal with
foreign nations outside formal recognition. In this case, relations between the United States and
Iran have been tumultuous. The Executive Branch must therefore have broad discretion
involving matters of foreign relations.

Island of Palmas Case (United States v. The Netherlands) Discovering
country (P) v. Occupier (D)
      Page:
      Procedural History:
             Arbitration of territorial dispute.
      Overview:
             The United States (P) claimed that the Island of Palmas was part of the Philippines
but the Netherlands (D) claimed title as well. The United States (P) claimed the Island of Palmas
was part of the Philippines and had been ceded by Spain by the Treaty of Paris in 1898. The


                                                124
United States {P), as successor to the rights of Spain over the Philippines, based its claim of title
in the first place on discovery. The Netherlands (D) claimed that it had possessed and exercised
rights of sovereignty over the island from 1677 or earlier to the present.
       Issue:
               Can an inchoate title prevail over a definite title founded on continuous and peaceful
display of sovereignty?
       Rule:
              an inchoate title cannot prevail over a definite title found on continuous and peaceful
display of sovereignty.
       Analysis:
              The arbitrator examined evidence of contracts made by the East India Company and
the Netherlands (D). The Netherlands (D) also based its claims on conventions it had with the
princes and native chieftains of the islands. Spain was found not to have had dominion over the
island at the time of the Treaty of Paris in 1898 .
       Outcome:
               No. An inchoate title cannot prevail over a definite title founded on continuous and
peaceful display of sovereignty. The continuous and peaceful display of territorial sovereignty is
as good as title. Discovery alone, without any subsequent act, cannot suffice to prove sovereignty
over the island. There is no positive rule of international law that islands situated outside
territorial waters should belong to a state whose territory forms the nearest continent or large
island. No one contested the exercise of territorial rights by the Netherlands (D) from 1700 to
1906. The title of discovery, at best an inchoate title, does not prevail over the Netherlands, (D)
claim of sovereignty.

Frontier Dispute Case (Burkina Faso/Mali)
       Page:
       Procedural History:
              Petition to resolve a border dispute.
       Overview:
              Burkina Faso and Mali submitted a question to the International Court of Justice
regarding a border dispute.
       Issue:
              Does there exist an obligation to respect preexisting international frontiers in the
event of a state succession?
       Rule:
             there exists an obligation to respect pre-existing international frontiers in the event of
a succession.
       Analysis:
             The principle of uti possidetis developed with respect to the Spanish American
colonies. In a similar dispute between El Salvador and Honduras, the Court described the
principle as follows: "The general principle offered the advantage of establishing an absolute rule
that there was not in law in the old Spanish America any terra nullius; while there might exist
many regions that had never been occupied by the Spaniards ... the regions were reputed to
belonging in law to whichever of the republics succeeded to the Spanish province to which these
territories attached by virtue of the old Royal ordinances of the Spanish mother country."
       Outcome:


                                                 125
             Yes. There exists an obligation to respect pre-existing international frontiers in the
event of a state succession, whether or not the rule is expressed in the form of uti possidetis.
Thus, the numerous declarations of the intangibility of the frontiers at the time of the declaration
of independence of the African states are declaratory. The fact that the principle did not exist
when the states declared such independence in 1960 does not foreclose its present application.


X. International and Regional Organizations; Individuals

International and Regional Organizations

Although previously the main subject of international law was the state, international law has
evolved in the last century to include other subjects, such as international organizations, in
particular the United Nations (for this section, the UN will be our stand-in for a general
discussion of international organizations)

What is an international organization?
- An international organization is a body created by a treaty with a permanent institutional
  structure whose membership consists either exclusively or in large part of states
  o the treaties are the constituent instrument of the organization

Are international organizations subjects of international law?
- International organizations are subjects of international law because they have both duties
   and rights under international law, and because they can make international law

How does the United Nations make international law?
- Security Council
  o The Security Council has the ability to make decisions that are legally binding on
      member states
  o Art. 25 of the Charter – members agree that decisions of the Security Council will be
      legally binding on them and all other members
           If this power is respected, it is a huge power
  o Art. 103 of the Charter – if there is a conflict between Charter obligations and obligations
      under another treaty, Charter obligations prevail (thus, the Security Council can adopt
      policies that require states to abrogate other treaty obligations)
  o Chapter VII powers: if the Security Council takes action with respect to a threat to peace,
      breach of peace, or act of aggression under Chapter VII, its action is binding on all states
      parties
- General Assembly:
  o Typically, General Assembly resolutions and recommendations are not binding
           Though they are not legally binding per se, states sometimes express their
              opinions about the status of customary international law through declarations and
              recommendations of the General Assembly
           thus, though they do not have inherently binding force, declarations and
              recommendations may constitute opinio juris or become part of state practice
  o There are a few instances where General Assembly resolutions are binding:


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              The allotment and collection of dues is a mandatory function of the General
               Assembly
-   International Court of Justice (ICJ)
    o Art. 94 of UN Charter – UN members are obligated to obey decisions of the ICJ (thus,
        ICJ decisions constitute law)

Reparation for Injuries Suffered in the Service of the United Nations – advisory opinion of the
ICJ, 1949 (handout)
- Facts: a UN official was assassinated while acting in Palestine in his official capacity
   o At the time, Israel was not a member of the UN
- Issue: does the UN have the capacity to bring an international law claim against the de jure
   or de facto government, which is not a member of the UN, responsible for the assassination,
   in order to obtain reparations?
   o Note from previous class – states have obligations not to harm aliens (minimum
       standard); the state whose national was injured “espouses the claim” of its national at the
       international level; the state “asserts diplomatic protection” of its citizens
            In a situation where a person is harmed, the state of which he is a national
               typically has capacity to bring suit against the injuring state for the injury done to
               is national
            So in this case, the question is whether the UN has the capacity to bring suit in the
               manner that a state would bring suit
- ICJ’s analysis
   o The court assumes without deciding that Israel violated an international obligation by
       assassinating the UN official
   o The Court then breaks down its analysis:
            1) Does the UN have standing to bring suit on behalf of its agents when they are
               acting in their official capacity?
                    a) Can the UN bring claims for injuries suffered by the organization itself?
                    b) Does the UN have standing to bring a claim for injuries suffered by an
                       agent of the UN injured in performance of his duties?
                    In respect of both kinds of damage, the ICJ assumes that the injury that
                       gave rise to the claim involved a violation of an obligation that a state
                       owes to the UN
   o Specifics of the ICJ analysis:
            The ICJ first determines that the UN Charter does not specify whether the UN can
               bring this suit
            Next, the ICJ looks at whether the UN Charter gives the UN such a position that
               is possesses rights which it is entitled to ask it members to respect: “In other
               words, does the Organization possess international personality?”
                    First, the ICJ determines whether states have obligations towards the UN?
                           o P. 8-9: UN Charter says UN is more than a meeting place for
                               states; it is a bearer of rights that states must respect, powers that
                               the states gave to the UN when they created it. These rights
                               include:
                                     Member states are required to give the UN assistance in
                                        any act undertaken by the UN


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                           Charter requires states to carry out decisions of the Security
                            Council
                         Legal capacity and privileges and immunities in the
                            territory of each of its members
                         Ability to conclude agreements with its members
                         The charter gives the UN, by necessary implication,
                            those powers it needs to carry out the tasks with which
                            it is entrusted. Thus, the parties gave the UN
                            international personality
        So the ICJ concludes that the UN has international personality, and has the
            capacity to maintain its rights by bringing international claims (near the
            bottom of page 9)
        The ICJ seems to be assuming that if you have international personality, it
            follows that you have the capacity to maintain your rights by bringing
            international claims
   Next issue: can the UN bring an international claim against a member that has
    harmed the UN?
        The ICJ brings into the discussion the notions of implied powers and
            powers necessary to discharge their other powers
        The ICJ assumes that the UN has the capacity to bring a clam to assert its
            rights and doesn’t have to depend on its member states to protect its rights
   Next issue: Can the UN seek reparation to particular kinds of injury?
        1) Can the UN seek reparations for damage to the UN itself? Yes
        2) Can the UN seek reparations for damage done to one of its agents
            caused by a state while the agent is performing his duties for the UN?
                o First, assume that a state party to the UN Charter has caused injury
                    to the UN in violation of the state’s international obligation to the
                    UN
                o Court analyzes this using the idea of functional necessity: the
                    agent, in order to perform her duties, needs to know that she is
                    protected
                         The UN asks lots of people to undertake dangerous
                            missions for it; People are less likely to undertake these
                            missions if they feel they must rely on their state to protect
                            them while they act on behalf of the UN
                         Indeed, there may be a question of undermining the loyalty
                            that UN employees owe to the organization if they have to
                            rely on their countries to protect their rights (p. 12, citing
                            UN Charter Article 100)
                o So the UN can bring a claim for harm done to one of its agents
                    because the UN needs to be able to do so in order to function
   Last issue: Can the UN bring suit against a non-member state for harm done to
    one of its agents?
        The ICJ rules YES
        The reasoning for this is minimal (see p. 13, end of first paragraph): the
            UN was created by most of the states in the world (at the time), and they


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                        intended for it to have international personality. Thus, even non-member
                        states should recognize that it has international legal personality.
                     This ruling seems to place obligations on nonmember states – nonmember
                        states now have a duty not to harm the UN, and they are forced to
                        recognize the UN as having international personality
-   It might be predictable that the ICJ would support the UN and give it international
    personality, as the ICJ is a UN body…

Individuals as subjects of International Law

Human Rights Law

It appears, from what we have studied, that suit can only be brought for violations of human
rights when the human rights obligations are defined by treaty
- Hypothetical from handout (death squad)
    o Has the state violated its obligations under the ICCPR?
             Yes – the state has a clear obligation under Article 2 of the ICCPR
                     “1. Each State Party to the present Covenant undertakes to respect and to
                         ensure to all individuals within its territory and subject to its jurisdiction
                         the rights recognized in the present Covenant….”
                     “3. Each State Party to the present Covenant undertakes: (a) To ensure
                         that any person whose rights or freedoms herein recognized are violated
                         shall have an effective remedy, notwithstanding that the violation has been
                         committed by persons acting in an official capacity….”
                             o This means that the state has a duty to take action against the
                                 violation even if the violators are not state actors, but are private
                                 actors
                             o The word “ensure” is understood to imply an affirmative
                                 obligation that states protect people from torture
                                      The state must conduct honest investigations, punish
                                         perpetrators, etc.
                             o In our hypothetical, the state may have violated Article 2, if there
                                 was never an investigation, prosecution, etc.
    o Notice, here, we are still talking about the rights and duties of states, not individuals
    o So, are individuals subject to this treaty? Do they have any rights or obligations? Are
        individuals subjects of international law?
             YES individuals do have international personality
             But here, individuals are not the subject of international law – the state is the party
                at fault under the ICCPR (the state is held responsible for the act of the
                individual)
- Optional Protocol to the ICCPR
    o Individuals can bring claims for violations of the ICCPR, so long as the state of which
        they are a national is a party to the Optional Protocol (but not all states parties to the
        ICCPR are parties to the Optional Protocol)
International Criminal Law




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-   this is different from humanitarian law because it imposes duties on individuals, whereas
    humanitarian law imposes duties on states

Step 1: criminal responsibility placed on private actor with nexus to state action

Nuremberg Charter for the International Military Tribunal, Nuremberg
- here, there is individual criminal responsibility for war crimes, crime of aggression, and
   crimes against humanity
   o all the defendants have a nexus for state action: all defendants were Nazi officials and
       private industrialists with a nexus to Nazi state action
- at the time, individual criminal responsibility was a pretty novel idea
- Nuremberg decision: “Crimes against international law are committed by men, not by
   abstract entities, and only by punishing individuals who commit such crimes can the
   provisions of international law be enforced….” (p. 1088)

Step 2: criminal responsibility placed on private actors, regardless of existence of a nexus with
state action

Kadic v. Karadzic
- Here, the Second Circuit is looking at the individual criminal responsibility of Karadzic, and
   whether he can be sued civilly under the ATCA
- Under the ATCA, suit can be brought by an alien for a tort committed in violation of the laws
   of nations…
   o Most of the alleged violations of the laws of nations are international crimes
   o The court assumes that if these offenses are crimes under international law, they are also
       the basis of a suit under the ATCA
- The court struggles with the question: can a private (nonstate) actor commit genocide, war
   crimes, and crimes against humanity?
   o Nuremberg did not answer these questions (all defendants were Nazi officials and private
       industrialists with a nexus to Nazi state action)
   o The court here says that genocide, war crimes, crimes against humanity can be
       committed by nonstate actors

Reparation for Injuries Suffered in the SeNice of the United Nations
      Page:
      Procedural History:

      Overview:

     Issue:
           Does the United Nations have the capacity to bring an international claim
against a country that causes an agent of the United Nations to suffer an injury in the
performance of his duties with a view to obtaining the reparation due in respect of the
damage caused to the United Nations or to the victim or persons entitled through him?
     Rule:
           The UN has the capacity to bring an intl. claim against a country that causes


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and agency of the UN to suffer an injury in the performance of his duties with a view to
obtaining the reperation due in respect of the damages caused to the UN or to the
victim or persons entitled through him
       Analysis:
              The Court states that the same conclusion applies whether or not the
defendant state is a member of the United Nations. If competing interests arise between
the defendant's national state and the United Nations, there is no rule assigning priority
to one over the other, so the Court states that goodwill and common sense must apply .
       Outcome:
              Yes. The United Nations has the capacity to bring an international claim
against a country that causes an agent of the United Nations to suffer an injury in the
performance of his duties with a view to obtaining the reparation due in respect of the
damage caused to the United Nations or to the victim or persons entitled through him.
The damage means exclusively damage caused to the interests of the organization
itself, to its administrative machine, to its property and assets and to the interests of
which it is guardian. With respect to damages caused the victim or persons entitled
through him, the Charter does not expressly confer the capacity to include such claim
for reparation. However, in order that its agents may perform their duties satisfactorily,
they must feel that their protection is assured by the Organization. For that purpose it is
necessary when an infringement occurs that the Organization should be able to call
upon the responsible state to remedy its default, and to obtain reparation

Certain Expenses of the United Nations
     Page:
     Procedural History:

     Overview:
             The case involves U.N. peacekeeping efforts in Congo and Egypt.]
     Issue:
             May expenditures made by the United Nations be classified as authorized
under the U.N. Charter if they are made to advance one of the organization's purposes
as set forth in the Charter?
     Rule:
            expenditures made by the UN may be classified as authorized under the UN
charter if they are made to advance one of the org’s purposes as set forth in the charter.
     Analysis:
            This case illustrates the I.CJ.'s process of analyzing whether expenses can
properly be classified as "expenses of the Untted Nations" under the Charter. First, any
expense ... incurred to further the U.N.'s express purposes is presumed ' to be a U.N.
expense. Where the expense is for an action, such as the deployment of peacekeeping
forces, and the action is carried out in a way that does not confonn to " the functions of
the U.N.'s internal structure, such as by the wrong U.N. agency, the expenses incurred
are not automatically considered by the I.C.J. to be unqualified expenses under the
Charter. But in such a case, the l.CJ. will look at the internal structure and operation of
the United Nations and determine whether the organization is responsible, through
agency principles, for the actions of one of its agencies.


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     Outcome:
            Yes. Expenditures made by the United Nations may be classified as
authorized under the U.N. Charter if they are made to advance one of the organization's
purposes as set forth in the Charter. The purposes as set forth in the Charter are to (1)
promote international peace and security, (2) promote friendly relations, (3) achieve
economic, social, cultural, and humanitarian goals and human rights, and ( 4) be a
center for harmonizing the actions of nations in the pursuit of these goals. Where the
United Nations acts in a way that does not conform to the division of functions among
the several organs prescribed by the Charter, a conclusion that the expense incurred in
taking the action was not an expense of the organization within the meaning of the
Charter is not necessarily warranted, because the action of the organ may bind the
United Nations as the act of an agent. [In this case, the peacekeeping efforts were
agreed to by Congo and Egypt, and the measures fell within the scope of the U.N.'s
purposes, and costs associated with the operations could be classified as expenses of
the United Nations.]

Prosecutor v. Tadic
       Page:
       Procedural History:
             Interlocutory appeal from challenge of validity of International Tribunal.
       Overview:
             Tadic (D) claimed that the Security Council was not authorized to establish an
international criminal tribunal. The Charter of the United Nations proVides that the Security
Council shall determine the existence of any threat to the peace and decide what measures shall
be taken to restore international peace and security. When the Security Council established an
International Criminal Tribunal to deal with armed conflict in the former Yugoslavia, Tadic (D)
claimed the Security Council lacked the power to do so.
       Issue:
             Once the Security Council determines that a particular situation poses a threat to the
peace, does it enjoy a wide margin of discretion in choosing the course of action?
       Rule:
             Once the security council determines that a particular situation poses a threat to the
peace, it enjoys a wide margin of discretion in choosing the course of action.
       Analysis:
             Tadic (D) had originally contested the Security Council's power to determine whether
the situation in the former Yugoslavia constituted a threat to the peace. At this stage, Tadic (D)
no longer raised that argument. Here, Tadic [D) was challenging the legality and appropriateness
of the measures chosen by the Security Council.
       Outcome:
             Yes. Once the Security Council determines that a particular situation poses a threat
to the peace, it enjoys a wide margin of discretion in choosing the course of action. Where
internal armed conflicts are determined to pose a threat to the peace, the Security Council may
exercise its exceptional powers under Chapter VI or Chapter VII of the U.N. Charter. These
powers are coercive and mandatory. Although the establishment of an international tribunal is
not explicitly mandated, the measures described in the Charter are merely illustrative and not
exhaustive.


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Legality of Use of Force (Serbia & Montenegro v. United Kingdom)
       Page:
       Procedural History:
              Claim of illegal use of force against various NATO states.
       Overview:
              [The Federal Republic of Yugoslavia (Serbia and Montenegro) (F.R. Y.) (P) brought
a claim in the International Court of Justice against various NATO states (D), including the
United Kingdom (D), in 1999. The I.C.J. first considered the issue of jurisdiction.] [The Federal
Republic of Yugoslavia (Serbia and Montenegro) (F.R.Y.) (P) brought a claim in the
International Court ofJustice against various NATO states (D), including the United Kingdom
(D) in 1999. Before considering the claim, the I.C.J. had to determine if it had jurisdiction to hear
the case, which would only be the case if the F.R.Y. (P) was at the time of the claim a U.N.
member state. Its predecessor state, the Socialist Federal Republic of Yugoslavia, was a member
state at the time.]
       Issue:
              Must the legal position of a state within the United Nations be determined and clearly
defined by the competent organs of the United Nations?
       Rule:
              the legal position of a state within the UN must be determined and clearly defined by
the competent organs of the UN.
       Analysis:
              The I.C.J.'s opinion focused on the F.RY.'s (P) status within the United Nations. But
note that non-U.N. members may also become parties to the LCJ.'s statute under Article 93(2).
Remember also that while a state that is a party to the LC.J.'s statute is entitled to participate in
cases before the LC.J., being a party to the statute does not automatically give the I.C.J.
jurisdiction over disputes involving those parties.
       Outcome:
              Yes. The legal position of a state within the United Nations must be determined and
clearly defined by the competent organs of the United Nations. The legal position of the F.R.Y.
(P) remained ambiguous between 1992 and 2000, the period during which its claim against
certain NATO states (D), including the United Kingdom (D), was filed. The U.N. Security
Council and General Assembly both decided that the F.R.Y. (P) could not automatically continue
the membership of the Socialist Federal Republic of Yugoslavia in the United Nations, and that
the F.R.Y. (P) should reapply for membership. These resolutions were approved by a majority of
member voters, but they cannot be construed as conveying an authoritative determination of the
F.R.Y.'s (P) legal status in the United Nations, because certain events made the F.R.Y.'s (P)
status seem ambiguous-the General Assembly assessed annual contributions to the United
Nations, the F.R.Y. (P) maintained that it continued the legal personality of the S.F.R.Y., and the
Secretariat of the United Nations kept up the practice of the status quo ante that was in place up
to the dissolution of the S.F.R.Y. But the situation cleared when the elected president of the
F.R.Y. (P) in 2000 requested admission to the United Nations from the Secretary-General, which
then recommended the state's admission. F.R.Y. (P) was admitted in late 2000. In hindsight,
then, the F.R.Y. (P) was not a member of the United Nations when it began this action in 1999.
Therefore, there was no jurisdiction to hear its claim.




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