Docstoc

Trans National Legal Outline

Document Sample
Trans National Legal Outline Powered By Docstoc
					TRANSNATIONAL OUTLINE RED GREEN DARK BLUE ORANGE CASES Advanced Organizers Principles of International Law Emmanuel’s

1

CHAPTER 1 : THE NATURE OF INTERNATIONAL LAW, The HISTORY of INTERNATIONAL LAW, AN INTERNATIONAL LAW SAMPLER CASES: McCann v. United Kingdom Filartiga v. Pena-Irala ADVANCED ORGANIZERS 1-6 1. What is PUBLIC INTERNATIONAL LAW? a. Historically: Applies between sovereign states i. “the body of rules and principles of action that are binding upon civilized states in their relations with one another” b. Modern Approach: i. “Public international law concerns the conduct of states and international organizations c. Importance: i. Defines the very existence of states ii. Provides framework for diplomatic relations iii. Governs international agreements iv. Sets forth rules for the operation of international commerce v. Governs individual human rights vi. Regulates protection of global environment d. Vs. COMPARATIVE LAW: i. Comparative Law: looking at the law of other sovereign states and their relation to other sovereign states. e. Vs. MUNICIPAL LAW i. = domestic law ii. Formed in the United States through statutes, judge-made law, etc. iii. Interpreted and applied through judicial agencies 1. Executive Branch: Applies Law 2. Legislative Branch: Creates Law 3. Judicial Branch: Enforces law through orders enforced by enforcement agencies iv. Very centralized 1. International law is largely decentralized 2. NO single legislature, judiciary or executive a. Instead, public international law focuses on TREATIES and CUSTOM as ways the law seeks to perform the functions of creation, interpretation, and enforcement of international law. f. Vs. PRIVATE INTERNATIONAL LAW i. Focuses on the conduct of individuals, corporations, and other entities. ii. Concerns law governing foreign transactions of individuals and corporations. 2

g. HOW IS IT CREATED? i. SOURCES (Defined by Article 38 (1) of the Statute of the ICJ) 1. Treaties: a. Evidence of states coming together to bind themselves to an agreement of mutual interest. b. Vienna Convention Definition: “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” c. SEE BELOW 2. International Custom 3. General Principles of Law recognized by civilized nations a. Can mean principles that exists in the national laws of the states worldwide b. Can mean general principles of law derived from the specific nature of the international community c. Can mean principles intrinsic to the idea of law d. Principles arising from notions of natural law or natural justice i. Law understood by humanity through rational reasoning. 4. Judicial Decisions and the teachings of the most highly qualified publicists a. These are SUBSIDIARY SOURCES b. Judges and scholars do not CREATE international law. They engage in a review of the OTHER sources of international law and then reach conclusions as to what the law is. c. These sources do NOT create binding precedents. ii. HIERARCHY OF INTERNATIONAL LAW SOURCES 1. Natural Law/Jus Cogens 2. Treaty/Custom (normally, treaty trumps custom, but old treaties CAN be trumped by new custom) 3. General Principles (used as gap-filler) 4. Equity (used as gap-filler) 5. ****NOTE: IN practice, equity is more clearly relied on than jus cogens and natural law. 6. ****Article 38 of the ICJ does NOT mention jus cogens or natural law, equity (SEE PAGE 28 of TEXT) a. Article 38 only binds judges on the ICJ. But it is persuasive. 3

h. ENFORCEMENT of INTERNATIONAL LAW i. International law lacks certain enforcement mechanisms inherent to municipal systems. So how is international law enforced? 1. Independent Arbitration Panels (other than ICJ) a. Most international disputes are settled through negotiations or arbitration 2. Through the United Nations a. UN Charter: i. Like a constitution, helps implement system of collective security and discourages states from the use of unilateral force. ii. Purposes: Maintain peace and security, develop friendly relations among states, achieve international cooperation, and be a center for states to use to attain certain goals. b. International Court of Justice (ICJ) i. The principal judicial organ of the United Nations. ii. Only STATES may be parties. c. Other international courts i. Regional and specialized tribunals. ii. States have a strong interest in abiding by international law, to be cooperative members of an increasingly globalized world, to avoid isolation by other states, to establish themselves as a reputable and cooperative sovereign state, to maintain a sense of national identity. Also the principle of reciprocity, and also for moral reasons (it is simply the right thing to do).

4

2. CASES a. McCann v. United Kingdom i. 3 Irish terrorists were in Spain. UK authorities were alerted to their presence and they were killed during a confrontation. The estates of the deceased brought an inquest against the soldiers who killed them, and against the UK government, claiming it was a wrongful killing. ii. UK courts given opportunity to right the alleged wrong 1. Rule: You MUST exhaust all domestic legal remedies before appealing to the international court system. a. Avoids conflict between international and municipal systems iii. UK courts say there was no violation, but UK allows for inquest at international court (European Convention of Human Rights) 1. Product of Post-WWII politics (desire to enforce human rights) 2. ECHR like a contract b/c the states agree to it. 3. AO 1: What is the international law rule elaborated by Article 2 of the European Human Rights Convention? a. “Deprivation of life shall not be regarded as inflicting in contravention of this article when it results from the use of force which is no mare than absolutely necessary” b. Even in the contexts of the use of force or lawful arrest. c. The rule establishes a very strict, HIGH STANDARD for wrongful death. d. UK emphasizes Article 2B in its defense that the soldier’s actions constituted a LAWFUL killing “in order to affect a lawful arrest or to prevent the escape of a person lawfully detained” i. ECHR says it was NOT a lawful killing, and the UK accepts this different standard. e. In McCann, although the soldiers were justified in their killing, it was NOT lawful b/c it was NOT absolutely necessary. i. Soldiers were negligent, there was some incompetence.

5

iv. So, this leads to the question: 1. AO 2: Why did the United Kingdom submit to the jurisdiction of the ECHR? a. B/c they signed onto the ECHR! i. BUT WHY? 1. Social pressure (being a good int’l neighbor) 2. Other country’s individuals are held to the same standard b. States relinquish their sovereignty to keep other states honest, to prove to their country and to the world that they honor human rights, to try to prevent another period of terrible human rights abuses in Europe (like in WWII), and to contribute to regional political integration (sharing values with, and trusting in other states within a particular region of the world). 2. AO 3: Why did the UK comply? a. B/c they signed onto the ECHR! b. Same reasons as above c. The economic cost to compensate the families of the deceased was 40,000, but the POLITICAL COST would have been much greater had they not complied. Had they not complied, they would have little support from the international community and even their own citizens. v. Summarizer: States relinquish their own authority to keep other states honest, to prove to their citizens and the world that they honor human rights, and to contribute to regional political integration.

6

b. Filartiga v. Pena-Irala i. Filartiga’s son was tortured and killed by Pena, an official (all parties from Paraguay, and event took place in Paraguay), in retaliation for father’s political beliefs. They could get no justice in Paraguay (lawyer arrested, etc.), local remedies exhausted, so they sue in U.S. district court . Case dismissed for lack of jurisdiction. During appeal, the issue of U.S. jurisdiction: ii. The suit is between two foreign nationals, so how does the US have jurisdiction? 1. Under the Alien Tort Statute (see below), US has jurisdiction to hear tort claims brought by an alien where there has been a tort committed in violation of the law of nations or a treaty of the US a. How does court decide that torture is a violation of the LAW OF NATIONS? i. Stated in the UN Charter; BUT, the UN Charter does NOT specifically prohibit torture. Can be used as EVIDENCE ii. UN Declarations? Can be EVIDENCE, but they are NOT LEGALLY BINDING. iii. SO… 1. Court cites rules/sources to reveal the prohibition of torture as a law of nations through CUSTOMARY INTERNATIONAL LAW

7

iii. AO 4: What is it the court uses to say if there is a rule or not in Filartiga? 1. The Court uses a tremendous range of sources (because there is no treaty that specifically prohibits torture) a. Judicial Decisions of Foreign/Domestic Courts b. Works of Jurists i. Since the work of jurists is EVIDENCE of what the law is and is NOT proof of what it should be, if there is a substantial disagreement among jurists, it is a WEAK source of CIL. c. International Treaties (which reveals the existence of legal NORMS against torture) i. Ex. UN Charter, Universal Declaration, Declaration of Torture 1. None of these, observed ALONE, would be strong enough to prove CIL d. Civilized State Practice e. Opinions of Publicists i. Ex. State Department Reports compiled by reasonably objective authorities f. Municipal Constitutions i. Shows how domestic law treats the subject g. UN Resolutions i. Passed by the General Assembly ii. Evidence of CIL iii. Not legally binding, but states have OBLIGATION to follow 2. NOTE: The court does NOT discuss OPINIO JURIS in this case.

8

iv. The UN Declaration of Human Rights now has been recognized as expressing customary international law because it “created an expectation of adherence” and that expectation was “gradually justified by State Practice” 1. Proves that the resolutions and recommendations of international organizations are frequently used as evidence of customary international law. v. Filartiga case’ treatment of TORTURE an example of rights recognized in Customary International Law: 1. “…we conclude that official torture is now prohibited by the law of nations” 2. “The torturer has become – like the pirate and slavetrader before him – hosti humani generis – an enemy of all mankind. 3. Essentially, FREEDOM FROM TORTURE is a PART OF CIL. vi. Court finds it relevant that the Universal Declaration prohibited torture: 1. “For although there is no universal agreement as to the precise extent of the “human rights and fundamental freedoms” guaranteed to all by the Charter, there is at present no dissent from the view that the guaranties include, at a bare minimum, the right to be free from torture. This prohibition has become part of customary international law, as evidenced and defined by the Universal Declaration of Human rights…which states, in the plainest of terms, “no one shall be subjected to torture” vii. The ALIENT TORT STATUTE of 1789 and Filartiga: 1. ALIEN TORT STATUTE: confers jurisdiction on federal district courts over “any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States” 2. Court finds that torture conducted under “color of law” was a violation of the law of nations, even when conducted by a government against its own nationals. a. The case involves a TORT that occurred abroad by an alien against another alien, shows the nature of the ATS.

9

viii. The courts’ use of so many sources evidences CUSTOMARY INTERNATIONAL LAW 1. In international law, you can add up non-formal sources to show uncontested state practice ix. Should the US be a world police by trying foreign citizens in the US? x. The international rules against torture don’t necessarily rely on state custom, so the international community should be able to agree that torture violates the law of nations. HOW? 1. Certain heinous crimes give any tribunal jurisdiction b/c of the principle of JUS COGENS a. JUS COGENS = a higher norm i. JUS COGENS = those rules of international law of such fundamental importance that derogation from them is prohibited 1. Examples in which Jus Cogens is applicable: a. Use of or threat of force, b. Genocide c. Slave Trade d. Piracy e. Prohibitions on Terrorism and taking of hostages xi. AO 5: What is the difference between a customary norm and a jus cogen (fundamental norm) or natural law? 1. Customary international law depends on state practice a. State practice can change, so CIL can change 2. Jus Cogens does NOT depends on state practice a. Jus Cogens principles cannot be changed, b/c they rely on belief in natural law, or a deep conviction, shared among civilized states, that certain things are simply not permissible. xii. AO 6: Since so many do officially torture their citizens, how can it be said that rules against torture are state practice hardened into custom? 1. No state actually claims the right to torture, but certain states DO IT ANYWAY. 2. Despite torture by states, it has hardened into CIL norm b/c no state claims the right to torture, and even if they do, they pretend they do NOT. 3. “where there is torture, state usually responds by saying it was unauthorized, ‘our hand slipped’, we did not MEAN to, etc”

10

CHAPTER 2: TREATIES: THE SOURCES OF INTERNATIONAL LAW, A TREATY SAMPLER

1. TREATIES: a. Prove that international law is BINDING. Also proves that international law exists regardless of any philosophical debate. b. States can do anything they agree to, so long as it does not violate a peremptory norm. c. AO 7: What are the functions of treaties in the real world? i. To prove that international law exists regardless of any philosophical debate about whether states do what is in their best interest. ii. Treaties help us discuss the efficacy of international law d. Vienna Convention definition of a TREATY: i. “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.” ii. Three Requirements 1. Must be between STATES 2. Must be in WRITING 3. Must be GOVERNED by INTERNATIONAL LAW e. AO 8: Why do states carry on making treaties? i. To establish predictability of behavior (Jews and Romans, Westphalia) ii. To strike a bargain (Treaty of Paris, Alaska, Hull-Lothian) iii. To set up common rules among or within states (Westphalia, Kellogg-Briand) iv. Establishing common goals f. A TREATY SAMPLER i. Treaties can be: 1. Contractual 2. Formal 3. Constitutional 4. Aspirational 5. Statutory

11

ii. The Treaty Between the Jews and Romans (Circa 160 B.C.) 1. Jews and Romans promised each other to aid the other if war was declared against it and promised not to supply enemies with food or supplies. 2. Jews and Romans enter into treaty to establish predictable behavior. a. Adherence to the terms of the treaty was crucial in solidifying Rome’s reputation with the world. Rome wants people to know that if you enter into a treaty with them, you are in ‘good shape’. b. The principle of reciprocity (the Jews wanted the Romans on their side) – Makes the treaty seem CONTRACTUAL 3. This treaty considered CONTRACTUAL and FORMAL a. Contractual: agreement (you help us, we help you) b. Formal: Appeared before the Senate, treaty inscribed in gold, i. Formal Displays of COMMITMENT to the treaty. 4. What sanctions, features made them willing to comply with the treaty’s terms? a. Attractiveness of the bargain: i. Romans get support from Jews if they went to war, one less enemy to conquer (cheap and easy) ii. Jews: If you weren’t with Rome, you were against it. iii. Peace of Westphalia (1648) 1. Treaty between the Holy Roman Empire and Sweden, effectually ending the Thirty Years War. It reestablished the electors, princes and states of the Roman Empire to their ancient rights. It also protected the German states from molestation (preserved sovereignty*) 2. Meant to re-establish peace, religious tolerance (Catholics and Protestants) 3. Also establishes national sovereignty a. Re-establishes the states of the Roman Empire b. The NOTION of sovereignty is a foundational principle of int’l law. States (in theory) are equal, independent, and autonomous.

12

4. This treaty considered STATUTORY, CONSTITUTIONAL, ASPIRATIONAL, a. Statutory: Established an order this is binding on every party. Established a legal regime that was going to govern behavior in certain situations b. Constitutional: Established a principle or set of principles that, although it may evolve over time, the parties commit to. Established a constitutional regime. c. Aspirational: Parties seek perpetual peace. i. Catholics and Protestants try to tolerate each other. They were also setting up common rules among states about how they would treaty each other peacefully. 5. What sanctions, features made them willing to comply with the treaty’s terms? a. The end bloodshed (peace) b. Balance of power c. Religious and moral sanctions d. If they appreciated sovereignty, they would not violate a treaty that granted them that. iv. Treaty of Paris (1783) 1. Treaty that ended the Revolutionary War. 2. UK recognizes US as SOVEREIGN STATE. US must give restitution to UK subjects. 3. Both parties want to strike a bargain for peace, establish territories and rights within territories. 4. Established peace, set boundaries of the US through bargain. 5. This treaty is considered CONTRACTUAL, CONSTITUTIONAL, and FORMAL, ASPIRATIONAL 6. What sanctions, or features made them willing to comply? a. Attractiveness of the Bargain b. Established peace c. Certainty/Predictability d. Reputation of National Leaders e. They wanted to forget the past misunderstandings and differences and resume normal relations and trade.

13

v. The Cession of Alaska (1867) 1. Treaty between US and Russia for land; money in exchange for land. 2. Seward’s Folly – land not perceived as making US more secure, but US wants to get land to expand its scope 3. Striking of a BARGAIN 4. This treaty is considered CONTRACTUAL (land for money), FORMAL 5. What sanctions or features make states willing to comply? a. Reputation b. Continuing attractiveness of bargain c. Great deal of FORMALITY i. *Important element of diplomatic relations and international law b/c it should RESPECT. vi. The Kellogg-Briand Pact (1928) 1. Signed by many nations. 2. Goal of establishing peace, resolving FUTURE conflict 3. Renunciation of war as an international policy a. Before this, war was not illegal unless it was barred by treaty. 4. Characterizations: Is this aspirational or a binding treaty? a. War has never been recognized as a jus cogens violation. It isn’t against natural law, b/c states have fought each other throughout history. b. If it is only aspirational, it is not legally enforceable. 5. This treaty is considered ASPIRATIONAL a. It CAN become incorporated into domestic law by including a provision that states that all parties to the agreement must implement it into their own legislatures. 6. What sanctions/features make states willing to comply? a. Incorporating treaty norms into state statutes b. No sanctions,

14

g. AO 8B: What “sanctions” or features make states willing to comply with its terms? i. Continuing attractiveness of the bargain or rules ii. Religious or Moral Sanctions iii. Ceremony and Formality iv. Personal Reputation of National Leaders v. Incorporation of treaty norms into State statutes vi. Good Faith vii. Inertia of bureaucrats who administer treaty terms h. AO 8C: Characterize the treaties: i. Jews and Romans: Contractual Formal ii. Westphalia: Constitutional, Contractual, Formal, Aspirational iii. Treaty of Paris: Contractual, Formal (but also Aspirational) iv. Cession of Alaska: Primarily Contractual, Formal v. Kellogg-Briand: Aspirational, Formal (as much ceremony as there could be) i. AO 9: How does a treaty operate like a statute? Why is it never exactly like a statute? i. A treaty may operate a statute in that it operates by setting out rules that govern future conduct ii. A treaty is NOT like a statute in that there is no global legislature to amend it, and it cannot bind non-complying states while a municipal statute can bind citizens who do not comply with it.

15

j.

What constitutes a TREATY? What about INFORMALITY? DOMESTIC ILLEGALITY? i. Cordell Hull, The Memoirs of Cordell Hull ii. The Hull-Lothian Agreement (1940) 1. **Important Case (Stark Loves this) 2. Evidences the efficacy of treaties (how treaties actually DO work) and provides an introduction to monism and dualism 3. U.S. Secretary of State Cordell Hull and the UK broker a deal to trade ships in exchange for military bases. a. UK needed war supplies during WWII and did not have ships. Hull is sympathetic, but he could not just GIVE the UK the ships, b/c the US was not yet IN the war, so it had no business arming the UK. Also, there was no authority by the president to give the ships, US law prohibited it, and US signed a treaty that they would NOT do it (at the Hague Convention) 4. Old-fashioned bilateral treaty coordinated by leaders of each nation. a. BUT, Hull-Lothian Agreement is much more INFORMAL. The agreement was a series of informal notes, so is it a treaty, and if so, is it LEGAL? i. It is an international agreement because of Article 2 of the Vienna Convention. A treaty does not need to explicitly use the terms “treaty” or “international agreement” as long as the language and context of the treaty reveals an intention to be governed by international law.

16

5. AO 10: Is the Hull-Lothian Agreement legal at international law? a. YES. i. Treaty means an international agreement concluded between 2 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” (Vienna Convention) ii. It doe NOT matter that it doesn’t say TREATY in the language. iii. Even thought the US was NOT a member of the Vienna Convention, it was a codification of customary international law that existed in 1940 as it does now. 6. AO 11: Even if Hull-Lothian is legal at international law, it is legal at US law? a. Arguably NO. But NOBODY went against it! b. US Code forbade the departure of vessels from American waters outfitted for cruising against other nations. c. National Defense Act forbade the sale of naval equipment without the approval of the Chief of Naval Operation, and military equipment without the approval of the Chief of Staff of the army. d. Constitutional Problem: President was exceeding his powers, needed the CONSENT of the SENATE. i. Counter-Argument: We have done this, so it is OK

17

7. Assuming the ILLEGALITY of the treaty under U.S. law… a. DUALISM v. MONISM i. DUALISM 1. The US can be in violation of international law and be in compliance with municipal law and vice versa. 2. International law and municipal law are entirely separate legal systems. In practice, the dualist approach appears to predominate. 3. Conflict with municipal law does not excuse a state from its international legal obligations. 4. Article 46, Convention of the Law of Treaties: “A State may invoke the fact that its consent to be bound by a treaty has been expressed in violation of a provision of its internal law regarding competence to conclude treaties as invalidating its consent UNLESS that violation was manifest and concerned a rule of its internal law of fundamental importance”” 5. If existing national law does not support adherence to international commitments, then implementing legislation or regulations may be necessary and, if so, are usually adopted prior to the entry into of the international obligation. ii. Monism 1. International law inspires the creation of municipal law. 2. Municipal and international law belong to a single “universal legal order.” The diminished role of the state as a legal personality results in a dominant role for international law over municipal law. 3. If existing national law does not support adherence, then some states have a national legal system that automatically receives the international legal norm.

18

8. AO 12: What difference would illegality at US law (in terms of either the substance of the transaction of the treaty approval process) make in international law? a. US can be party to a treaty and recognize its validity under international law, but it may still be a violation of domestic law. STATE IS STILL BOUND UNDER INTERNATIONAL LAW, so if complying with domestic law causes it to go against international law, there is a PROBLEM. b. See Article 46 of the Vienna Convention ABOVE. i. “A violation is manifest if it would be objectively evident to any State conducting itself in matter in accordance with normal practice and good faith.” 9. Is the US bound since it was illegal under US law? a. YES. b/c under the dualist approach, the illegality of domestic law does not relieve a state of its obligations to international law. 2. The LAW of TREATIES a. Multilateral Treaties: RESERVATIONS i. When a state consents to be bound to a multilateral treaty, it is sometimes possible for it to file a reservation to the treaty. VCLT (Vienna Convention on the Law of Treaties) Article 2(1)(d) defines a reservation as: 1. “A unilateral statement, however phrased or named, made by state, when signing, ratifying, accepting, approving or acceding to a treaty, whereby purports to exclude or modify legal effect of certain provisions of treaty in their application to that State” ii. Normally reservations are NOT made in bilateral treaties, since the two states can simply change the treaty in the course of the negotiations to suit their desires. iii. W/ multilateral treaties, states are diverse worldwide in their political needs/interests, it’s often difficult to achieve consensus on detailed provisions in treaty. Create 2 scenarios: 1. Adopt a treaty that allows NO reservations (and thus preserved the uniformity of obligations), a. States sometimes desire to achieve a uniformity of obligation. They do NOT want states opting out after long periods of negotiation. b. Sometimes the subject matter seems to preclude OPTING OUT (Genocide Convention) i. Ex. Law of the Sea Convention 2. Adopt a very substantive treaty that allows reservations (and thus sacrifices uniformity), allowing states to join b/c they can make adjustments. 19

b. Reservations to the Genocide Convention Case i. First ICJ case. ii. UN General Assembly adopted this resolution in regards to disputes of the reservations to the Genocide Convention. Everyone agrees that they will not commit genocide. iii. SOME STATES have a reservation. 1. Why have a reservation to a genocide convention? a. Example of US: Extent that the treaty is INCOMPATIBLE with the U.S. Constitution. i. US Constitution =supreme law of the land. US doesn’t recognize anything as trumping it. b. Also, state interest in submitting domestic individuals to international courts. iv. What if a treaty is silent on the validity of reservations: 1. In general, the approach of the Genocide Convention and the approach of the ICJ are pretty much the same 2. SILENCE CONSTRUED AS ACCEPTANCE v. Note: Every sovereign state is entitled to appraise the validity of any reservation. The validity of a reservation MAY be determined by an international tribunal ONLY IF the states agree to it. vi. Permissible Reservations: 1. Article 19 of the Vienna Convention permits reservations to general multi-lateral treaties, unless the treaty expressly or impliedly prohibits reservations, or the reservations sought are simply incompatible with the object and purpose the treaty. The treaty may prohibit reservations either as a general matter or it may prohibit specific types of reservations. a. OBJECT AND PURPOSE requires CONSENT i. “When it appears from the limited number of negotiating States and the object and purpose the a treaty that the application of the treaty in its entirety between all the parties is an essential condition of the consent of each one to be bound by the treaty, a reservation requires ACCEPTANCE BY ALL PARTIES. ii. The states themselves decide if the reservation is compatible with the object and purpose of the treaty.

20

b. States may either ACCEPT or OBJECT to reservations: i. If a state accepts the reservation, the treaty will enter into force between the accepting and reserving state ii. A state may object to a reservation, yet still be willing to enter a treaty relation with the reserving state. In that case, the treaty is in force between the objecting and accepting state, but the ‘provisions to which the reservation relates do not apply as between the two States to the extend to the reservation’” iii. If the objecting party not only objects, but also expresses its intention that the entire treaty be of not effect between it and the reserving state, the reserving state and objecting state are not parties to the treaty vis-à-vis each other iv. SILENCE CONSTRUED AS ACCEPTANCE. v. SEE BELOW FOR ILLUSTRATION. 2. AO 13: State Y accepts it State Z Objects State W says reservation incompatible There is no treaty relationship as between states W and X. No meeting of the minds between X and W. NO TREATY. This does NOT change the relationship btw/ Y and X (CONTRARY TO INTENTION – words of Vienna Convention.

State X Treaty between X and Makes a Y…everything included Reservation EXCEPT the reservation. (SAME TREATY as X AND Z)

Unless the objecting state says otherwise, the Treaty enters into force as between it and the reserving state, except for the provisions to which the reservation relates (those provisions fall out of the treaty). (Article 20, AND 21, 3 of the Vienna Convention). Same treaty between X and Y as between X and Z.

21

3. Is the complexity of a multilateral treaty WORTH all of the trouble? a. TWO Approaches: i. Majority View (ICJ/Vienna Convention): Viewing law of treaties as contractual. 1. Sovereign State bound to treaty only if it consents to be bound ii. Minority View (Dissent): Legislative Community Value 1. Desire to establish international norms a. Treaty on Genocide intended to be UNIVERSAL, intended to create a norm that EVERYONE would respect. 4. SUMMARIZER: Vienna Convention on the Law of Treaties, like the ICJ Majority Opinion in the Genocide case, says that state consent matters most. Sovereign states are the deciphers of international law. TREATY INTERPRETATION There are three basic approaches to treaty interpretation: 1. Textual Approach a. Looks only to the text and the ‘plain and natural meanings of the words.’ Adherents of the textual approach do not attempt to ascertain the intent of the parties, except to the extent that the intent is clearly expressed in the words of the text. The presumption is that the four corners of the document contain all that the parties wished to express. 2. Limited Contextual Approach (SEE EASTERN AIRLINES) a. Followed by the International Law Commission and incorporated into articles 31 and 32 of the Vienna Convention, regards the text as the starting point for interpretation. Interpretation, however is not necessarily limited to the four corners of the document. Intent of the parties may be ascertained from the “travaux preparatoires” (legislative history), subsequent agreements regarding interpretation of the treaty, subsequent actions or practices of the parties that reflect the parties’ understanding, and other relevant rules of international law. 3. Policy-Oriented and Configurative Approach a. The most liberal and conceptual of the three approaches. b. Intent is defined as the ‘genuine shared expectations’ of the parties and may be gleaned from the treaty text and all pre- and post-treaty communications. No one source predominates over another and intent is considered in the very broad framework of ‘giving effect to the goals of a public order of human dignity’

22

EASTERN AIRLINES v. FLOYD 1. Plaintiffs flying from Miami to Bahamas when the engine falters, and the pilot tells the plaintiffs they are going to land in the ocean. Plane lands safely. Very traumatic flight. Plaintiffs claim mental distress and sue the airline. Court looks to Article 17 of the Warsaw Convention to determine whether mental distress was meant by the term “lesion corporelle”. Issue of whether what kind of injury is protected under the Warsaw Convention. Does Article 17 include purely MENTAL injuries? a. An issue of treaty interpretation: US Court looks to: i. The text itself ii. Dictionary iii. Other Court’s interpretations (only one court interpreted it to mean mental distress alone) iv. Context (see below) – Intent of the drafters and negotiating history of the Warsaw Convention. 1. Purpose for drafting? v. Other treaties and scholarly writings vi. Subsequent Behavior (see below) b. US Court wants to make a powerful case (“crossing the t’s and dotting the I’s”) 2. Vienna Convention Treaty Interpretation: The approach to treaty interpretation advocated by VCLT Articles 31-32 and widely used by states and international tribunals is as follows. a. 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. b. The CONTEXT of the terms of treaty includes not just the entire text (including its preamble and annexes), but also any agreement relating to the treaty that was made by all parties in connection with its conclusion (or made by one party and accepted by the others). c. Account should also be taken of any SUBSEQUENT AGREEMENT reached by the parties regarding interpretation of the treat, any SUBSEQUENT PRACTICE of the parties regarding its interpretation, and any relevant rules of international law applicable to the relations between the parties. 3. Should municipal courts consider themselves BOUND by the Vienna Convention when interpreting treaties?

23

4. AO 14: In Eastern Airlines, how close is the US approach to treaty interpretation to that set forth in the Vienna Convention on the Law of Treaties (see above) a. Similar: Sometimes cts look to legislative history. “traveux” (legislative history in intern law) can be compared to US history. b. Different: B/c you have a barrier to get to “traveux” in treaty that you do NOT always have in domestic. You wouldn’t have to show AMBIGUITY to get to legislative history. i. The Vienna Convention will look to supplementary means of interpretation (Article 32) to confirm the plain meaning of words of it there is an ambiguity. ii. Under US law, you look to legislative history as a matter of course, in international law you have to justify looking to the “traveux” (the legislative history) c. Therefore…Both the US approach and the Vienna Convention’s approach allow recourse to post-treaty practice, and at least when treaty text is ambiguous, to the “traveux” d. **This is very important, b/c DIFFERENT TREATY INTERPRETATIONS CAN YIELD VERY DIFFERENT RESULTS 5. AO 15: How can treaty regimes change? i. New Treaty (takes too long so it is not a complete answer) ii. Bar organizations can lobby for negotiations iii. Subsequent Practice of Different States (how they have responded) 1. Treaties can be changed by CIL (Law of the Sea treaty example) a. Also, in the Continental Shelf case, customary international law trumped a pre-existing treaty. iv. Formal Modification (difficult to achieve) v. Renegotiating Treaties (Hard b/c there is no international legislature) 1. Protocols a. Where you want to amend a treaty but are not sure everyone else wants to 2. Reservations a. Get filed with treaty and show state objections 3. Understandings a. Attached to treaty, show how parties to treaty interpret specific language within treaty itself. i. Ex. “When we say ‘bodily injury’, this is what WE (the US) mean , and this is how we will interpret it…” 4. Declarations a. More aggressive b. Ex. “We declare that this treaty is NOT self-executing” c. Refers to legal authority / legal status under domestic law 6. SUMMARIZER: Given such variations among the approaches of municipal courts, techniques of treaty negotiators to try to encourage uniform interpretation cannot be completely successful. 24

TERMINATION OF A TREATY 1. In the absence of treaty provisions governing termination of a treaty, the ICJ and the Vienna Convention state ways that states can get out of treaties. 2. AO 16: How can treaties legally terminate? a. Provided for in the agreement (See Article 54 of VCLT) i. “The termination of a treaty or the withdrawal of a party may take place: a) in conformity with the provisions of the treaty b. Parties can mutually assent to terminate (See Article 54 of VCLT) i. “The termination of a treaty or the withdrawal of a party may take place: b) at any time by consent of all parties after consultation with the other contracting States” ii. As a practical matter, it is hard to achieve termination this way, even if states are legally entitled to it. c. Termination by Conclusion of a Later Treaty (See Article 59) i. “A treaty shall be considered as terminated if all the parties to it conclude a later treaty relating to the same subject-matter and: a. it appears from the later treaty or is otherwise established that the parties intended that the matter should be governed by the treaty; or b. the provisions of the later treaty are so far incompatible with those of the earlier one that the two treaties are not capable of being applied at the same time. d. Impossibility (See Article 61 of VCLT) i. “A party may invoke the impossibility of performing a treaty as a ground for terminating or withdrawing from it if the impossibility results from the permanent disappearance or destruction of an object indispensable for the execution of the treaty…” e. Fundamentally Changed Circumstances (See Article 62) i. SEE BELOW CASE

25

Case Concerning Gebcikovo-Nagymaros Project: (VCLT: Vien conv law of treat) 1. Regarded a treaty entered into by Hungary and Czechoslovakia in 1977 that dealt with damning/diversion of Danube River. Parties agreed to resolution of conflict with ICJ. Hungary renounces treaty, argues fundamentally changed circumstances. WHAT CHANGES? a. Fall of Communism (POLITICAL) b. Abandonment of efforts to integrate i. Czechoslovakia  Czech Republic AND Slovakia c. Environmental Changes d. Estimate Changes 2. AO 17: BUT THE COURT SAYS THAT THE TEST FOR FUNDAMENTALLY CHANGED CIRCUMSTANCES (even given these changes in Eastern Europe) WAS NOT MET. WHY? a. The Ct has never found a fundamental change of circumstances under Article 62 of VCLT. BC court likes to uphold the validation of treaties. b. The test is ALMOST IMPOSSIBLE to meet. i. PACTA SUNT SERVANDA 1. Article 26 of VCLT: Every treaty in force is binding upon parties to it and must be performed by them in GF. c. Why is the test SO rigid? Value of stability in international law. d. NOTE: Reveals tension between POSITIVISM and NATURAL LAW i. Positivism: States bound only to law they consent to. 1. A strict positivist prefers NO escape from treaty obligations based on changed circumstances b/c the only source of law is the law that these states originally agreed to and if you give states the opportunity to opt out, there’s a huge void. 2. Positivists argue that states should go back to the negotiating table before moving to opt out of the treaty. 3. Less rigid positivists give limited scope to changed circumstances on the assumption that parties built it into the treaty during its creation 3. Termination of or withdrawal from a treaty is permitted if there has been a fundamental change of circumstances. a. Changed Circumstances occurs when fundamental change, unforeseen by parties at time of treaty’s conclusion, arise w/ respect to circumstances that were an essential basis of the consent of the parties to the treaty, thus radically transforming the obligations to be performed under the treaty. 4. States have sometimes invoked this doctrine, but international tribunals have resisted applying it, since doing so frequently would undermine the foundation of binding treaty relations. a. In case, The International Court reject argument that a treaty concluded during Cold War between two communist governments (Hungary and Czechoslovakia) for building of hydroelectric projects along Danube River had been radically transformed by fall of communism in Eastern Europe, rise of environmentalism, and diminishing economic viability of venture. 26

GENERAL PRINCIPLES: UNWRITTEN TREATIES THE EASTERN GREENLAND CASE 1. UNWRITTEN TREATIES: discussed in Article 3 of VCLT: Fact that VCLT doesn’t apply to intl agreements in written form, shall not affect: a) legal force of such agreements, b) application to them of any rules set forth in present Convention to which they’d be subject under intl law independently of convention, c) application of Convention to relations of States as between themselves under intnl agremnts where other subject of intl law also parties. 2. VCLT says treaties must be writing. What about oral treaties b4 convention? 3. FACTS: Denmark v. Norway over possession of land in Greenland - brought in the Permanent Court of International Justice (the predecessor to the ICJ) a. IHLEN DECLARATION: Norwegian Minister orally said Norway wouldn’t make any difficulties in settlement of question, when Denmark asked if they would object to Denmark extending land interests to Greenland. 4. COURT: The Ihlen Declaration is BINDING to country which Minister belongs. a. PCIJ seems to be saying its a UNWRITTEN TREATY (b/c it seemed CONTRACTUAL IN NATURE) OR action based on the principle of estoppel. 5. From general principles, you cannot necessarily say that verbal agreements cannot be enforced. But from an evidentiary perspective, this type of agreement cannot be so easily enforced. 6. B/c parties showed intent to be bound through dialogue, Norway VIOLATED valid/ enforceable agreement by starting to occupy Eastern Greenland. a. Norway’s failure to follow municipal law on treaty-making does NOT affect court’s decision that Norway is still bound by international law. i. VCLT (Vienna convention law of treaties) ARTICLE 46 : 1. The Convention codified this idea: 2. A State may not invoke the fact that its consent to be bound by a treaty has been expressed in violation of a provision of its internal law regarding competence to conclude treaties as invalidating its consent unless that violation was MANIFEST and concerned a RULE of its internal law of FUNDAMENTAL IMPORTANCE. ADVANTAGES OF TREATIES 1) The rules in treaties are ordinarily set out much more clearly than in any other form of international law. It is negotiated, every word counts, reveals CLARITY. 2) CONSENT is MUCH EASIER TO FIND. You know exactly who is bound. DISADVANTAGES OF TREATIES 1) They will never contain all the rules needed in an international legal system. 2) All states never consent to ALL treaties. This proves that treaties will always need to be SUPPLEMENTED with other sources of international law. Treaty provisions will always need to be interpreted in light of other sources of international law….

27

CHAPTER 3: CUSTOM AND NON-CONSENSUAL SOURCES OF INTERNATIONAL LAW CUSTOMARY INTERNATIONAL LAW “where there is no treaty and no controlling executive or legislative act or judicial decision, resort MUST be had to 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 which they treat” = has TWO ELEMENTS: State Practice (Objective Element) and Opinio Juris (Subjective Element) 1. Treaties are the most certain source of international law. a. BUT, there are many general topics of international law for which treaties have not been developed (such as on the rules of state responsibility or on head-of-state immunity). b. Moreover, even if there exists a treaty addressing a particular topic, certain states might not be a party to the treaty and therefore not bound by it. c. Even if states are bound, treaties typically have certain gaps or ambiguities that require reference to rules outside the treaty for its application and interpretation…. 2. Consequently, the second source of international law is CUSTOMARY INTERNATIONAL LAW. 3. CIL exists when two key requirements are met: a. a relatively uniform and consistent STATE PRACTICE regarding a particular matter; and b. a belief among states that such practice is legally compelled (OPINIO JURIS – see below) 4. STATE PRACTICE a. Can take many forms i. Acts taken by states in diplomatic relations with one another ii. Acts taken internally by states through legislatures or courts iii. Acts taken by states before international organizations iv. Even inaction by states when they are confronted by a particular matter. b. May be ascertained from a wide variety of sources: ect. i. Treaties ii. Executive Agreements iii. Legislation iv. Regulations v. Court decisions vi. Speeches/Testimony before national/international bodies. vii. Proclamations viii. International Law books. 28

c. MUST be UNIFORM and CONSISTENT i. But it need not be PERFECT. ii. Ideally, it should be evident over some extended period of time, rather than a very short period of time. 1. The practice must have been followed for an appreciable period of time. 2. Paquete Habana shows how long-term state practice is important a. The court looked at the practices of England, France, Germany, and the Netherlands from 1403 to 1898 to conclude that fishing vessels are recognized as exempt from capture as prizes of war. iii. Overturning an existing rule may require a higher level of evidence of state practice than creation of a new rule where none existed before 1. PAQUETE HABANA is an example of this as well. 5. Customary International CAN BE PROBLEMATIC a. Harder to figure out what the rule is (in treaties, it is stated with clarity) – Problem with Rule Definition b. Hard to ascertain party consent. The PAQUETE HABANA 1. FACTS: Cuban fishing vessels captured by US navy and claimed as prizes of war. Nothing that showed they had anything to do with war. International custom/tradition that exempted fishing vessels from being captured as prizes of war, dating back to Henry VI. 2. Court looks to STATE PRACTICE a. Issue: Whether coastal fishing vessels of an enemy state could be seized by the US as prizes of war. i. There was no domestic law or treaty on the matter that bound the US, yet since the Court regarded customary international law as part of US law (seems like a MONIST approach), it embarked on an analysis of STATE PRACTICE from the 1400’s through the 1800’s. The court reached the following conclusion: 1. AO 18: What is the actual CIL rule in the Paquete Habana? a. “By an ancient usage among civilized nations, beginning centuries ago, and gradually ripening into a rule of international law, 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 prize of war”

29

2. AO 19: What is STATE PRACTICE? a. What states actually do i. Consistent treaties ii. Executive Proclamations iii. Publicists iv. Historical Reports v. Records of the Navy Department vi. Court Decisions b. What did the court in Paquete Habana use? i. 15th Century Bilateral Treaty (English and French) ii. Domestic Law (Jones and Underhill) iii. Navy Records showing state practice iv. French Statutes v. Wehaton’s International Law vi. Kent vii. Jurists’ Writings on Enemy Ships viii. Historical Accounts c. Consequently, the Court found that the US should not have seized the coastal fishing vessel. i. 3. AO 20: WHAT IS OPINIO JURIS? a. OPINION JURIS = the sense of legal obligation compelling states to follow a certain practice. i. =the idea that states practice with the conviction that they are legally obligated to do it. 1. Opinio juris is very hard to find, but it can be inferred from regular and longstanding practice a. Opinio juris is a subjective element 1. State engaging in their practice out of a belief that it is compelled or permitted by international law. b. The principal idea in the OPINIO JURIS requirement, is to distinguish CIL from everyday customs of states followed out of courtesy or habit. i. EXAMPLE: When a head of state of Mexico visits White House, the Mexican flag is placed alongside the US flag at public events. This is a worldwide and consistent practice, but it is done out of courtesy, not out of a legal compulsion to do so. c. States often engage in a practice without publicly stating they believe the practice to be legally compelled. i. Consequently, whether opinio juris exists is often surmised from the context in which the practice took place.

30

THE SCOPE OF CUSTOMARY INTERNATIONAL LAW: REGIONAL CUSTOM/OBLIGATORY BASIS OF CIL (POSITIVISM) THE ASYLUM CASE 1. Rules of CIL are often global in nature, but they can be regional. (This concerns the SCOPE of CIL) 2. A state can opt out and not be bound if it is a persistent objector. 3. Customary law may also be limited to a particular region and therefore not be practice of such a wide variety of states. A state may rely on regionally custom but must shows its existence by proving both quantitative and qualitative factors. 4. In the Asylum case, the ICJ accepted that ere could exist a customary rule of international law special to the states of Latin America regarding the right of a state to issue a unilateral and definitive grant of political asylum a. In this case, however, the Court found that Columbia had failed to prove the existence of such a regional customary rule. 5. FACTS: Peruvian military rebellion leader tries to stage a revolt and fails. Seeks asylum in Columbian Embassy in Lima. Peru refused to allow him to leave. Dispute goes to ICJ, and since there is no treaty, court looks to CIL. a. COURT: Takes a very positivist approach, says that custom is an implicit form of a treaty/agreement. b. Columbia could not prove that Peru had accepted regional CIL i. Peru was a persistent objector: 1. An individual state is not bound by a norm of CIL if the state persistently objected to the norm as it emerged. 2. POSITIVIST STANCE: If a state refuses to CONSENT to the new norm of CIL< then the state will not be bound by it. 6. AO 21: What is REGIONAL CIL in The Asylum Case? a. The Asylum Case, decided by the ICJ in 1950, involved the application of a local standard of custom. In the case, the issue whether or not Columbia properly invoked a practice of unilaterally characterizing an offense for the purpose of determining eligibility for asylum. b. The Court recognized local (Latin American) custom where the state invoking it could PROVE it was binding on the states that were parties to the dispute. This is necessary with all questions of CIL. 7. AO 21B: Is the regional CIL approach more consistent with positivist or natural law approach to CIL? a. Positivist: A persistent objector state should not be bound by a CIL norm it objects to, b/c international law requires state CONSENT. Positivists think that if treaties bind parties through consent, then why can’t custom? i. Vs. Natural Law Approach: States bound regardless of consent b/c it is natural law.

31

THE LOTUS CASE a. A ship was flying a French flag and collided w/ Turkish ship. Criminal proceedings brought in Turkey against French captain of French ship. Permanent Court of International Justice (PCIJ, predecessor to ICJ) held that there was no rule of intl law at time limiting criminal proceedings in collision on the high seas to the exclusive jurisdiction of the state whose flag is flown on the offending ship. While the court found that states in Turkey’s position had often abstained from asserting criminal jurisdiction, there was no evidence that the abstentions were based on a sense of LEGAL OBLIGATION. a. There are quantitative (state practice) and qualitative (opinio juris) elements to CIL. Customary law follows basic principle of intl law that acts are permitted unless expressly forbidden. Therefore, prohibitions as well as affirmative practices must be proven by state relying upon them. b. PCIJ followed by ICJ: court only hears disputes between states or can render advisory opinions at the request of international organizations. a. In ICJ, state parties in contentious case specify issues ct is authorized to decide, especially in the case of special agreements (LOTUS) b. Court hears both contentious and advisory cases c. Lotus and DUALISM: a. Under French law, French has flag state and nationality jurisdiction b. Under Turkish law, Turkey has jurisdiction b/c what the French ship did has an EFFECT on Turkish nationals. c. SO, in terms of their respective legal systems, each national assertion of jurisdiction is valid. i. Example of CONCURRENT MUNICIPAL JURISDICTION d. AO 22: What, if anything, does the international legal system say about Turkey’s assertion of jurisdiction in the Lotus case? a. Customary international law cannot solve the problem, because there are so many inconsistent sources of custom on the topic. No CIL rule on jurisdiction solves this case. b. Therefore, whoever has the burden of proof is going to lose this case, b/c they cannot show enough custom to prove that CIL exists on this matter, entitling them to jurisdiction. c. The international legal system does not say much about Turkey’s assertion of jurisdiction: i. “failing existence of a permissive rule to contrary, a state may exercise its power in any form in territory of another state” 1. IN other words, Turkey can do whatever it wants UNLESS France can show that there is a rule preventing it. So absent an international rule to the contrary, Turkey can assert jurisdiction. 2. The burden of proof is on France to show an affirmative international law.

32

e. AO 23: Why does the burden of proof make such a difference? a. Burden of proof matters b/c whoever has the burden of proof loses because they cannot show enough customary international law (that is uniform and consistent). i. In Lotus, a special agreement says that Turkey, contrary to Article 15 of the Convention of Lausanne, acted in conflict with the principles of international law, by asserting jurisdiction. Under the special agreement France had to show how Turkey violated CIL, so France had the burden of proving it. ii. In Lotus, there is CIL, but it is not consistent in saying whether or not Turkey can legally assert criminal jurisidiction. And because France couldn’t point to CIL saying that Turkey could not have jurisdiction, they lose. f. Why will the rule in Article 15 of the Convention of Lausanna (p. 108) NOT solve the problem? a. The treaty says that the issue will be decided consistently with principles of international law. The convention doesn’t solve the problem b/c it refers to international law that is not CLEAR and is not dispositive. There is NOT ENOUGH consistent CIL to show Turkey cannot assert jurisdiction. g. RULE OF LAW THE EMERGES FROM LOTUS: a. Absent international law to the contrary, a sovereign state can do what a sovereign state is going to do. b. A state can exercise jurisdiction whenever it does not violate a principle of international law. i. Positivist Concept: Court basically saying that all power resides in the sovereign states and the rules and only the rules if sovereign states agree to it. Unless there is CLEAR international law, the court is NOT going to limit what Turkey is going to do. ii. Treaty doesn’t help b/c it just sends you back to principles of international law.

33

JUDICIAL DECISIONS AND PUBLICISTS as SUBSIDIARY SOURCES OF INTERNATIONAL LAW: The IMPACT OF THE GENERAL ASSEMBLY TEXACO v. LIBYA a. Rule: General Assembly resolutions may be evidence of custom if accepted by a majority of member states (rather than unanimously), the composition of which represents a variety of political, geographic, and economic interests. a. Giving General Assembly resolutions weight is more controversial when resolution not adopted by large majority representing various groups of states worldwide, and even more when it purports to aggressively develop (as opposed to simply codify) intl law. Requirement of a strong MAJORITY is very important to the weight of the resolution. i. Therefore, when dispute between Texaco and Libya was taken to international arbitration, it was determined that the 1962 General Assembly Resolution reflected “the state of CIL existing in this field” and that later General Assembly resolutions did NOT 1. 1962 GA Resolution: asserted that when a state nationalizes or expropriates property of alien, such expropriation must be done in accordance w/ intl law, which would entail payment of full compensation. Resolution says nationalization governed by CIL. 2. 1962 GA Resolution passed w/ STRONG majority, so arbitrator in Texaco v. Libya determined greater weight as source of CIL than subsequent resolution dealing w/ arbitration. a. Even if it is evidence of CIL, b. FACTS: Two oil companies doing business in Libya. Contract between the corporations and Libya. Libyan government passes a nationalization law and nationalized Texaco properties/assets. The contract between Libya and the oil companies had an arbitration clause. a. Why include an arbitration clause? i. B/c parties were private party v. state (MIX ARBITRATION). b. Libya uses NIEO (New International Economic Order), which states that state domestic law governs, and no consensus is needed c. Texaco uses the 1962 General Assembly Resolution (which requires consensus), which states that INTERNATIONAL LAW WILL APPLY. d. Ct used 1962 General Assembly Resolution (Specifically, Resolution 1803), says that domestic law can apply if complies w/ intnl law. e. LOWEST COMMON DENOMINATOR: 1962 General Assembly Resolution (the last source showing CONSENSUS, MAJORITY) f. So Libya is bound to agreement. Once intl law becomes involved b/c the arbitrator uses 1962 GA resolution, Libya must pay compensation (whereas under the NIEO they would not have had to pay.

34

g. Arbitrator agrees with 1st Resolution b/c there was a CONSENSUS. Even if the resolution is in opposition to Libya’s case. c. AO 25: Why might the two sides in Texaco vs. Libya dispute agree to arbitration? Why agree to arbitration in preference to adjudication in a national court? a. Libya would have had jurisdiction probably since the contracts were performed there. So Texaco probably wanted to avoid Libyan courts. Arbitration provided for a neutral setting to resolve claims. b. Arbitration clauses avoid local laws and courts. c. Parties agree to arbitration in preference to adjudication in a national court b/c with arbitration, parties get to choose parameters, it is cheaper and more efficient, it avoids local courts and laws. i. Also, the principle of reciprocity: You want to show good faith, avoid deterring future foreign investments. d. AO 26: Why at the end of the day might Libya be willing to comply with the arbitrator’s ruling? a. Libya wanted to be accepted in the international community. b. To protect future foreign investments c. Reciprocity d. Good faith (like McCann) – wanted to be an international player, good global neighbor. e. AO 27: Where do General Assembly resolutions fit in the listing of the sources of international law? a. General Assembly resolutions are not necessarily international law. b. They are subsidiary sources of international law. Give weight to evidence of CIL. i. Counter-Argument: They are not good evidence of customary international law b/c General Assembly members may vote a certain way for political reasons, just to show international solidarity,. c. General Assembly does not have law-making authority i. Members represent their states, but they are not ELECTED to the posts. 1. Counter-Argument: If enough members vote and create a strong majority for a resolution, it can become an ‘instant custom’. But this depends on how unanimous the vote is. 2. Solution: If you really want to bind yourself, MAKE A TREATY!

35

GENERAL PRINCIPLES OF INTERNATIONAL LAW (NON-CONSENSUAL SOURCE): General Principle = so fundamental that its basic in every major legal system. Examples: Rules concerning liability for damages, unjust enrichment, right of passage over territory, doctrine of res judicata, some basic humanitarian rights, prohibition against being a judge in one’s own cause, applying GF. -Limited Application of General Principles: General Principles apply as GAPFILLER when treaty and CIL are silent. -Decreasing Importance of General Principles: B/c many norms recognized as general principles now incorporated into treaties or are recognized by CIL. -PROCEDURAL MATTERS: General principles continue to be applied in procedural matters and problems of international judicial administration. General Principles often relied on are the doctrines of res judicata and laches, as well as the rule that judges are to act with impartiality and independence. THE AM&S CASE a. Case deals w/ anti-trust defense. UK member of European Community (EEC Commission). AM&S, a UK company, being investigated for possible violation of regional European intnl law. Case in European Court of Justice. Applicant asked to produce documents, and some not produced. Applicant argues legal confidentiality, documents protected by attorney-client privilege. Since there is no treaty on the subject, look to general principles of international law. b. AO 28: Why is it that AM&S wants to find an international rule providing for lawyer-client confidentiality? a. Want to shield sensitive corresponded dealing w/ competition law w/ their lawyers. Don’t want to turn over papers, want to protect substantive info! c. EEC treaty could have set out rules for confidentiality, but it isn’t mentioned. d. CIL could establish lawyer-client privilege also, but there is NOT consistent and uniform CIL on the topic. e. Ct looks to the domestic law of states to determine general principle of intl law, and concludes that there is a limitation on attorney-client privilege. a. Specifically, in-house counsel excluded in attorney-client privilege. f. Looking to domestic law is appropriate b/c the European system deals with the same problems as municipal systems. g. AO 29: In a case before the ICJ, should the court look to the municipal legal system of all its members? a. Showing something across the board i. The more you show, the more compelling your case is b. Ct needs to know when to turn common municipal practice into intl law. c. Just bc consent domestically does NOT mean you consent internationally. h. AO 30***What role should non-consensual sources play in modern international law? (SEE ORANGE ABOVE ALSO) a. GAP-FILLERS! There are lots of gaps in international law.

36

i. Non-consensual sources are useful when there is no positivist or consensual expression of the law ii. See Orange description of General Principles above. NATURAL LAW AND JUS COGENS ERGA OMNES OBLIGATIONS a. In terms of an authoritative hierarchy of international law, natural law comes AFTER equity. Equity is more clearly accepted and used than either jus cogens or natural law. a. Ex aequo et bono: Article 38 of the ICJ Statute states that it “shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties agree thereto.” This provision has been interpreted to authorize a decision in which equity is not merely applied but is allowed to override all other legal principles. b. Natural Law: oldest source of international law. a. Based on the notion that each state, just as each individual, is endowed with certain natural rights. The natural rights of states are basic principles of universal justice with a universal validity. c. United States v. Smith a. The case show how international law on the prohibition of piracy is directly incorporated into a US statue. b. FACTS: Sailors take over Smith’s ship. c. Piracy is jus cogens, but ct needs to find out if sailors’ actions constituted piracy. d. Natural law is everyone recognizes robbery on high sees is wrong. e. Ct looks to define piracy: Looks at work of jurists, judicial decisions, general usage. i. JUS COGENS (Peremptory Norms) 1. AO: 33: What is JUS COGENS? a. Peremptory Norm from which no derogation is permitted. b. Example: TORTURE (in Filartiga) c. General norms that can assert against world d. no one has right to torture, genocide, etc. 2. Those rules of international law of such fundamental importance that derogation from them is prohibited. 3. SUBJECT TO MUCH CONTROVERSY a. Centers on division w/ natural law and positivism. b. Some argue that jus cogens gives judges too much power to ‘create law’ since consent is not necessary. 4. Identifying rules of jus cogens (WHICH ARE GENERALLY ACCEPTED AS SUCH) a. Rules that generate least amount of controversy are

37

i. observed) ii. iii.

Pacta Sunt Servanda (agreements parties

Prohibitions on use of or threat or force Prohibitions on genocide, slave trading, piracy, and prohibitions on terrorism and taking of hostages. 5. Unlike CIL, which requires consent and can be altered by agreement, jus cogens norms are binding even w/o consent. f. AO 31: Did the courts in Smith, Filartiga, and Beanal all look to find some non-treaty international rule universal enough to bind non-consenting states? i. The Beanal Court, like the Courts in Smith and Filartiga, did not make it clear whether it was looking for a rule of CIL, general principles of law, natural law, or Jus Cogens, buts its language, like that of Smith of Filartiga, looked for some sort of universality. d. Alfred Von Verdross: “Forbidden Treaties in International Law” a. Written at the time of fascism. b. Verdross asks whether some basic norms may trump sources like treaty and custom. i. He argues YES: But how would you know if a certain treaty violates natural law? He gives guidelines. 1. Grounded in ETHICS. a. Ethical Minimums: maintenance of law/social order w/in state, defense against external attacks, care for bodily and spiritual welfare of citizens, protect citizens abroad. i. This is VERY broad. b. Verdross try to find basis beyond consent of states. ii. He questions what we do if bad states and good states themselves are the sole source of international law. e. Prosecutor v. Furundzya a. Established three important precedents in international criminal law i. Prohibition against torture was JUS COGENS VIOLATION; ii. Rape committed during interrogation amounted to torture iii. Distinguished accomplice liability w/ liability for aid and abetting. b. FACTS: The International Criminal Tribunal for the Former Yugoslavia indicted 8 Serbs, who were members of the military, paramilitary, and police, charging them w/ the rape of 14 Muslim women. f. AO 32: What is ERGA OMNES: a. Obligations of a state toward intl community as a whole AND b. (Regarding enforcement) obligation any state can prosecute/ enforce. c. “DUTY TOWARD ALL” d. Example: International legal prescriptions against interstate aggression, genocide, slavery, racial discrimination. e. VS. JUS COGENS: All jus cogens are ergo omnes obligations. Jus Cogens is ergo omnes, but some ergo omnes are not jus cogens. 38

g. AO 34: Is jus cogens norm an ergo omnes obligation? Is reverse true? a. All just cogens ergo omnes, all ergo omnes obligations NOT jus cogens. b. It seems to go that violations of jus cogens norms can be prosecuted and enforced anywhere too, and are a duty owed to all. c. Example: Keeping the Maritime Straits Open i. Any ship can go through, nothing precluding its an obligation. ii. BUT this different than jus cogens norm where under Vienna Convention, state cannot agree to violate a jus cogen norm! h. THE MICHAEL DOMINGUES CASE a. Juvenile Death Penalty Case b. FACTS: Domingues convicted and sentenced to death in US for two murders committed when he was 16. Domingues brings case to InterAmerican Commission of Human Rights which delivered a NONBINDING report. c. Issue: Does juvenile death penalty violate a JUS COGENS norm? i. NO! d. US positions itself as a persistent objector to this particular CIL rule. i. But the IACHR says that juvenile death party is a jus cogens violation. ii. AND, since it is a jus cogens norm, the US persistent objector defense is NO GOOD. e. Roeper v. Simmons : outlaws juvenile death penalty, but NOT AS A JUS COGENS violation. (though the court does cite it) i. **DEBATE QUESTIONS a. How much authority shoud the international community and international or domestic judges in particular have to evalute the international legality of an act of a sovereign state when the sovereign states chooses to declare itself NOT BOUND by international law? i. Verdross: States cannot just do what they want. ii. Nuremberg: Germany and other axis states found themselves held to a de facto standard, one that they denied ever agreeing to. b. Should stronger sovereign states have more freedom to disregard international legal rules than weaker states? i. NO: The premise of international law is EQUALITY OF SOVEREIGN STATES. ii. YES: Who is going to stop the stronger states? If international law ignores the reality of international politics, it becomes a laughing stock. c. Should all sovereign states be allowed equally to simply opt out of an international legal rule when it no longer suits them? i. How can a state change CIL? By BREAKING THE LAW. If other states go along with it, there is NEW CIL. States can take that chance, but it probably is not in their best interest.

39

EQUITY: Notes: Where do courts find authority to use equity? CONTROVERSIAL a. The Cayuga Indians Case (1926) a. FACTS: UK brings action on behalf of Indians against the US, arguing breach of a treaty to pay annuity to them. Some Indians in Canada, some in US after split of the tribe. US pays Indians in US only. b. Treaties between NY state and Cayuga in 1789, 1790, and 1795 agreed to annuities between the Cayuga and NY. c. Court looks to justice and equity and looked past the treaty and looked at equity. There were no general principles of international law, so the court dealt with what was fair to the Indians. d. The idea here were principles of justice and fair play. e. AO 35: What legal systems could plausibly be relied upon to define “Cayuga Nation”? Does it matter? i. US Law (Federal law) ii. International Law (Treaty of Ghent) iii. Cayuga Law iv. NY Law v. Ontario Law vi. Matters, b/c whatever system law support case should be one applied! vii. LAW YOU CHOOSE IS GOING TO BE OUTCOME-DETERMINATIVE f. AO 36: What law does the tribunal apply? How does it justify? i. International law is applied with EQUITY. 1. General considerations of justice, equity and right dealing guided by legal analogies and by spirit as received principles of intl law (Sec 303 French Treaty, p. 157 2. Ct uses EQUITY b/c tribunal treaty provision tells them to. 3. The court does not tell us what equity IS, but rather tells us where the tribunal gets the authority to use it. a. An arbitral tribunal is justified in reaching a decision on universally recognized principles of justice where the terms of submission are silent as to the grounds of decisions and even when the grounds of decisions are expressed to be “the principles of international law”.

40

g. AO 37: Why should the US and Canada prefer to send the Cayuga Indians to international arbitrator rather than the ICJ? i. It is less complicated ii. Parties get to define it iii. Less Costly iv. Better control of the case v. To avoid having 13 or 14 judges getting involved and have them analyze the case and worry about their own obligations regarding diverse people. vi. PUBLIC ARBITRATION is the halfway house between the privacy of diplomacy vs. the publicity of international adjudication. b. THE MEUSE CASE a. FACTS: Belgium and Netherlands using water. Conflict over water use from Meuse River. Netherlands asks for relief from Belgium. b. APPLICATION OF EQUITY THROUGH GENERAL PRINCIPLES OF LAW i. Article 38 of ICJ Statute lists general principles of law as a source of international law. There are substantive concepts of equity common to all modern legal systems that are, therefore, general principles of international law. 1. Examples are concepts of ESTOPPEL, UNJUST ENRICHMENT, and ABUSE OF RIGHTS. ii. Furthermore, many legal scholars argue that the less tangible notion of equity as ‘reasonableness’, ‘fairness’ or ‘natural justice’ is also incoporated in all modern legal systems. c. Court relies on both equity and general principles, but it doesn’t work. d. Judge Hudson relies on general principles, but he cannot rely on Article 38 of the ICJ statute fro the general equitable principle. e. Judge uses flimsy sources,(English law, roman Law, Anglo-American Law) relies on only a few examples of equity in safe places. It would have been more persuasive if he surveyed more places in the world. f. Vs. Cayuga i. HERE, the court sees equity as general principles. ii. In Cayuga, equity based on custom (LOOK THIS UP)

41

c. NORTH SEA CONTINENTAL SHELF CASES (1969, ICJ) a. Great Examination of the Hierarchy of International Law Sources: i. Jus Cogens (If you believe in the principle) ii. Treaties/Custom (Old treaties can be superseded by new Custom; Otherwise, Treaties Prevail) 1. Later custom may trump an old treaty, but you may deduce what trumps from the context and the intention of the state parties) iii. General Principles (gap-filler) iv. Equity (gap-filler) b. North Sea and State Practice: “passage of only a short period of time is not necessarily, or of itself, a bar to the formation of a new rule of customary international law” c. North Sea and Opinio Juris: “the States concerned must therefore feel they are conforming to what amounts to a legal obligation. The frequency, or even habitual character of the acts is not in itself enough. There are many international act…which are motivated only by considerations of courtesy, convenience or tradition, and not by any sense of legal duty.” d. North Sea and “”Treaties as evidence of custom”: Provisions of a multilateral convention that comes widely adopted may be applicable as customary law, and therefore binding on non-party states, if the practice is uniform and widely recognized as a legal obligation. e. North Sea and Equity: North Sea is an example in which the ICJ applied equity without the parties conferring on the court the power of EX AEQUO ET BONO. Equity was applied as a rule of construction to prevent similarly situated states from unjustifiable differences in treatment. Using equity as an instrument of interpretation is INTRA LEGEM (part of the law) as opposed to EX AEQUO ET BONO (notwithstanding the law). f. North Sea and the Law of the Sea: In 1969, the ICJ refused to find that the “equidistant/special circumstances” rule had become custom n continental delimitation between adjacent states absent agreement.

42

g. FACTS: Germany v. Denmark. Geography seems unfair b/c Germany had a concave coastline. Question of how to DELIMIT the continental shelf.

h. AO 38: What is the legal problem set for the court in North Sea? i. How to DELIMIT the Continental Shelf. i. AO 38B: Is there an international legal rule telling Germany, Netherlands and Denmark how to delimit the continental shelf? i. No, there is no international legal rule. ii. Ct COULD HAVE argued there was no such norm and let sovereign states handle it themselves (do what you will ---like LOTUS CASE) 1. But diminish prestige of ICJ and let other state in treaty down. 2. SO ICJ takes case to show how useful ICJ is to intl community. j. AO 39: WHAT ABOUT CUSTOM? What was it before, at the time of, and after negotiation of the equidistant rule of Treaty of 1958? i. Court looks to treaties, then to CUSTOM. 1. Custom pre-dating the Geneva Convention (Equidistant Rule – Treaty of 1958) needed to be seen to determine whether or not the convention simply CODIFIED pre-existing custom. 2. Denmark and Netherlands cannot show custom arose before convention b/c didn’t contend it was custom. Since Denmark and Norway conceded there’s no custom on the issue that pre-dates the Geneva Convention, the Court disregards this investigation. 3. Court THEN looks to EMERGING CUSTOM (custom at the time the Geneva Convention took effect) 4. Ct says Convention did NOT crystallize emerging custom at time. 5. Also, existence of RESERVATIONS proved cannot be CIL a. B/c even after opted out, under CIL still be bound 6. Ct THEN asks whether it turned into CIL AFTER Convention? NO. k. THEREFORE, CUSTOM WAS COMPLETELY EXHAUSTED….THERE WAS NO CIL ON THE ISSUE. l. SO, the Court moves to EQUITY. i. Where does the Court get the authority to use EQUITY? 1. See Paragraph 85, Page 173 of Text. a. Court: We are not applying it as a matter of abstract justice, but we are applying a rule of law 43

which itself requires the application of equitable principles. 2. Compared w/ Equity as General Principle (Meuse Case) a. General Principles seek principles that are COMMON to many domestic legal systems. b. IN North Sea, the court does NOT examine/compare domestic systems. 3. The Court could not get if from Article 38 of the ICJ Statute EITHER b/c there was NO CUSTOM (like in Cayuga) m. NOTE: The source NOT DISCUSSED in JUS COGENS. CHAPTER 4: INTERNATIONAL LAW AND MUNICIPAL LAW (EMPHASIS ON PROCESS): One forum in which international law may apply is domestic court. TREATIES AND CONSTITUTIONS a. FOSTER & ELAM v. NEILSON a. Treaties different than U.S. Statutes: Since Foster case, US courts have developed a doctrine that treaties may be either “self-executing” or “nonself-executing” i. A self-executing treaty becomes internal law in the US immediately upon entry into force of the agreement; courts will look to it for the rule of decision in cases affected by its terms 1. The doctrine of self-executing treaties is not explicit in the US Constitution. It is judge-made doctrine. Whether or not a treaty is self-executing depends on the intent of the government and is an issue to the courts to decide when the treaty is invoked as law. 2. The doctrine of Self-Executing Treaties emerged in the 1829 case of Foster & Elam v. Neilson, when the Supreme Court made a distinction between treaties directly applicable by the courts as US law and treaties aimed at the legislature and requiring implementation before taking effect under the municipal legal order (non-self-executing) ii. Non-self-executing treaties require legislation implement them in US. 1. For non-self-executing, it is the implementing legislation, not the agreement itself, that becomes rule of decision in US cts. b. FACTS: Treaty between Spain and France in which Spain ceded territory (Louisiana) to France and the French later ceded it to the US.  claims the land was granted by the Spanish governor (in the Treaty between Spain and US) after the treaties had already taken place. This is why the  (current possessor of land) claims the land grant is invalid. ISSUE OF WHETHER SPAIN HAD GOOD TITLE TO PASS LAND.

44

c. AO 40: Why did the ’s lawyers want to get the treaty rule in FOSTER ‘into’ US law? i. If the treaty rule was incorporated into US law, their client would WIN! (Under Article 8 of the US-Spain Treaty) ii. Treaty would have given Spain title to land as if they still owned it. d. Judge Marshall introduces doctrine of self-executing treaties i. Court: Because a treaty is an agreement (K), a treaty must be EXECUTED by the legislature into municipal law. ii. SUPREMACY CLAUSE: 1. Treaties are the supreme law of the land and judges of every state should be bound thereby. 2. Treaties equated w/ federal law so TRUMP state law. e. AO 41: How may a treaty be incorporated into US law? i. The legislature enacts a law (Self-Execution) b. ASAKURA v. SEATLLE a. THE SUPREMACY CLAUSE – Treaties and Conflicting State Law – Effect of the Supremacy Clause b. Regard treaties like statues passed by Congress and sign by President. Certainly, in terms SUPREMACY over state law, treaties like statutes. c. FACTS: Seattle passes law that denied licenses to pawnbrokers who weren’t US citizens. Asakura denied a license and argues that Seattle Law violated a treaty between the US and Japan stating that each party’s subjects could enter, travel, and reside in each other’s territories and that they would be protected and could carry on trade like native citizens. He claims it also violates 14 th Amendment and that he was being discriminated against. d. Court looks to LANGUAGE/INTENTION OF THE TREATY ITSELF to determine if it is self-executing. i. You could read it and apply it immediately ii. Congress doesn’t need pass law to show how to implement treaty iii. Rules of the treaty were intended to be directly effective in US law iv. =Self-executing. c. SEI FUJII v. CALIFORNIA a. Treaties and Conflicting State Law – Effect of Supremacy Clause b. A treaty lacking required legislative implementation does not prevail over conflicting state laws. i. In Fuji v. California, a California state law barring certain aliens from owning land was upheld against conflicting provisions of the UN Charter. The court held that the cited provisions of the UN Charter were not ‘intended to become rules of law for the courts of this country upon ratification of the charter’ 1. “The provisions in charter pledging cooperation in promoting observance of fundamental freedoms lack the mandatory quality and definiteness which indicate an intent to create justifiable rights in private persons upon ratification Instead, framed as a promise of future action by the member nations.” 45

c. FACTS: P sues CA b/c his land was taken b/c ineligible for citizenship (Alien Land Law).  relies on UN Charter stating that human rights and fundamental freedoms observed w/out discrimination to race. d. Ct: UN Charter non-self-executing – require implement by Congress. e. Ct looks to INTENTION of parties to determine if it is self-executing i. Find intention as manifested by the treaty language ii. IF NOT, then find intention as manifested by circumstances surrounding the execution of the charter. f. Court decides it is non-self-executing, b/c the Charter contemplated future legislative/implementation action. i. Charter is ASPIRATIONAL – not binding, but hope is that it merits state compliance. g. Court finds for  b/c of arguments based on the 14th Amendment . d. REVIEW OF DIFFERENCE BETWEEN SELF-EXECUTING TREATIES AND NON-SELF-EXECUTING TREATIES a. Difference in the LANGUAGE i. Language in the Declaration of the Senate or the Transmittal Letter of the President b. Difference in the KIND of Treaty it is: i. FCN Treaty = Self-Executing ii. TAX Treaty = Non-Self-Executing iii. Criminal Treaty = Generally Non-self-executing iv. Human Rights Treaty = almost invariably Non-self-executing c. Depends on the NATURE of the OBLIGATION. e. MISSOURI v. HOLLAND a. TREATIES AND OTHER CONSTITUTIONAL CONSTRAINTS b. In Missouri v. Holland, the Supreme Court found that the federal government could regulate migratory birds pursuant to a treaty, even though a similar statute had been struck down previously by lower courts as unconstitutional. The state of Missouri asserted that the regulation of birds was a matter ‘reserved’ to the states under the Tenth Amendment of the US Constitution. Justice Holmes, in upholding the treaty, found that the scope of legislative powers granted to Congress did not govern the scope of treaty power. c. TREATY BETTER SUITED TO TASK i. The Supreme Court states; “We do not mean to imply that there are no qualifications to treaty-making power; but they must be ascertained in a different way. It is obvious that there may be matters of the sharpest exigency for the national wellbeing that an act of Congress could not deal with but that a treaty followed by such an act could…” d. Facts: Migratory Bird Act (1918) had a statute to enforce it. State of Missouri complains that statute is unconstitutional b/c of the rights reserved to the states in the 10 th Amendment.

46

e. Court says that if the treaty is valid, then under the necessary and proper clause, the statute must be constitutional. f. Court says there is a huge national interest involved. Should be protected by Federal action. Since it is not sufficient to rely on the states, the treaty and statute are upheld. g. Missouri case stands for proposition that the power of treaties trump the power of the states. i. Federal government must be able to negotiate agreements binding on all 50 states (uniting US as sovereign state) ii. But treaties CANNOT trump specific Constitutional rights. h. Central ISSUE: States cannot interfere with US conduct on foreign policy. US government can act more broadly by employing treaties than by simple statutes, because they rely on the foreign affairs power of the Constitution. i. AO 42: Can the US government legislate more broadly employing treaties than by simple statutes? i. Short answer is YES 1. BUT, does this mean that treaties trump the US Constitution? a. Look to Article 6 : b. Constitution TRUMPS (Supreme Law of Land) j. AO 43: How much foreign policy power left or given to states? i. No foreign policy should be left to the states, EXCEPT in the following situations: (Crosby- after this not much) 1. Geographic Discretion (ex. Cayuga) 2. Sister Cities (Gift Basket) 3. Non-State Actors (ex. Red Cross, Multinationals) k. CROSBY v. NATIONAL FOREIGN TRADE COUNCIL i. Bases for Striking Down State Laws ii. US Courts have readily recognized federal authority over the several states on matters concerning foreign affairs. In doing so, different bases have emerged for striking down state laws. If the fed. Gov’t has issued a foreign relations law that directly conflicts with a state law or policy, then under the SUPREMACY CLAUSE, the state law or policy will be struck down b/c it has been preempted by federal law. 1. IN Crosby, to protest human rights violations, Massachusetts enacted 1996 law prohibiting its govt from purchasing goods or services from individuals or companies connected with or in Myanmar (Burma). Supreme ct found law unconstitutional under Supremacy Clause b/c there already existed a federal sanctions program against Myanmar. iii. Corporation argues that MA law is invalid b/c it conflicts with Federal law, and Federal law trumps state law. 1. Congress has the power to PREEMPT state law, either by an express or implied provision of preemption 47

a. EXPRESS – where provision expressly states that it preempts state law b. IMPLIED – State must still yield to federal law in two circumstances: i. When Congress intends to occupy/monopolize the entire field ii. State law is naturally preempted to the extent of any conflict with a federal statute. iv. Massachusetts Burma Law v. Federal Statute –passed to oppress oppressive regime vii. –Sanctions limited to US persons vi. –has general prohibition and new investments viii. –Gave president the power to waive it if necessary ix. x. f. WHITNEY v. ROBINSON a. LAST IN TIME RULE – Treaties and Conflicting Federal Statutes b. When both treaty and federal statute address the same issue, courts attempt to interpret the terms of each in such a manner so as to avoid conflict. When reconciliation is not possible, the general rule is that the last in time prevails. i. This rule only applies to article II treaties, that is, those made with the advice and consent of the US Senate. ii. The last-in time rule applies only in US law. US not excused from international legal obligations. c. AO 44: Whitney v. Robinson can be approached in a practical lawyerly manner. What is it that the  wants to do? i. FACTS: Plaintiffs don’t want to pay tax in custom duties. They argue they have a Most Favored Nation Treaty, and they should get the same treatment. (“you cannot treaty any state different than any other state”) 1. Basically, the Most Favored Nation Treaty between the US and Dominican Republic says that Dominicans would be treated as well as or better than others in similar situations (ex. Hawaiians) ii. Plaintiffs want to reuly on Article 9 of the Treaty of 1867. d. COURT: Supreme Court avoids the issue by using the LAST IN TIME RULE. i. AO 45: What is the Last In Time Rule and is it good news for treaties? 1. If there is any conflict between the stipulations of the treaty and the requirements of the law, the latter (the one that comes later) must control. 2. Yes, it is good for treaties b/c if we followed the Whitney ‘Normative Order’ of the Supremacy Clause, US laws would have come before treaties.

48

3. Had the US said that the Supremacy Clause trumps, then treaties would be DONE FOR!

g. UNITED STATES v. BELMONT a. EXECUTIVE AGREEMENTS b. President may conclude an executive agreement when it is based on one of his constitutional powers. When President Roosevelt recognized Soviet Government in 1933, also concluded an agreement by which there was an assignment (the Litvinov Assignment) from Soviet government of all its rights in properties located in the US, rights which Soviets had previously claimed pursuant to expropriation decrees issued after Russian Revolution. The Assignment was part of a larger process for settling claims between the two governments. When the US gov’t appeared in state courts to exercise its newly acquired rights in the properties, state courts refused to accept that the Soviets had ever acquired rights in the properties (and thus could not assign rights in them) b/c state law denied extraterritorial effect to the Soviet expropriation decrees. The US Supreme court, however, held that accepting the Assignment was an essential component of the normalization of relations between the US and the Soviet Union, and that the agreement was properly concluded based solely on the president’s constitutional powers. Therefore, US property rights under the Assignment could not be questioned under state law. c. FACTS: Russian Corp. deposits money in NY bank after Soviet Revolution and Soviet gov’t established that all businesses belonged to state. Soviet Union had claim against money in NY bank. US citizens had interest in companies in Russia that were nationalized. Even Russians are saying that the nationalization by the Soviet Union is illegal. d. Executive Agreement entered into, whereby they offset claims of one party against those of the other party. e. Belmont’s Public Policy Argument: This is confiscation. f. This case shows that some intnl agreements made by US (executive agreements), and NOT SUBMITTED TO SENATE, can STILL count as treaties and can still benefit from treaty aspect of Supremacy Clause.

49

AO 46: How does Belmont try to avoid paying over the deposit of the Petrograd Metal Works to the US government? Plaintiffs say that: 1. Having to pay the deposit violates the public policy of NY against uncompensated expropriation a. The Supremacy Clause dismisses this by saying that “no state policy can prevail against the international compact involved here involved “(p. 205 of Text). 2. Possibility that the US executive agreement was not backed by the proper legislative branch and is thus invalid. a. The executive agreement not only assigns claims, but it validates them. They CAN be valid under the 6 th Amendment and function as treaties for purposes of the Supremacy Clause. h. EFFECT: Gives president more flexibility to act in foreign affairs. Also gives the president and courts more power to make municipal law via treaties. Even if the court rejected the Roosevelt executive agreement, the federal government would still have been BOUND by it. h. US. V. CURTISS-WRIGHT a. EXECUTIVE POWER: Supports extensive presidential powers in the field of foreign affairs. i. This case elaborates on the theme of presidential power to bring international agreements to domestic law. ii. This case is NOT about treaty-making. iii. The case speaks of intl affairs power of the federal government b. In Curtiss-Wright, the Supreme Court commented upon the executive’s institutional advantages. In that case, Congress had adopted a statute authorizing the president to prohibit certain arms sales if the president believed doing so would help resolve an armed conflict in South America. The president then issued a proclamation prohibiting such sales. When the D was thereafter indicted for violating the prohibition, the D challenged the ability of Congress to delegate such power to the President. c. In Curtiss-Wright, Supreme Ct took a very broad view of inherent powers of the president to enter into international agreements. d. AO 47: How does Curtiss-Wright attempt to explain away its violations of the arms embargo in the Chaco War? i. P argues there was no legally valid embargo, President and Congress broke law, not us! President did not have legal capacity to make the resolution, so it was a completely invalid embargo. e. AO 48: Justice Sutherland’s opinion charts two historical strands of authority: One domestic, going from the King to the states to, in part, the federal government; the other international, going from the King to the US Congress to the new federal government. What’s the important distinction for Sutherland?

g.

50

i. The important distinction is that all the federal government’s domestic powers come from the states! In international sphere, federal government has much more power. 1. In dealing domestically, federal govt limited by states. 2. But in dealing internationally, federal government has LOTS of power. a. Consistent with very definition of SOVEREIGNTY. b. In order to function as a sovereign state, there has to be a quantum of power. That power lies with the Executive. f. The President’s Proclamation is therefore upheld. WHY? i. Functional Factors (VERY PRACTICAL REASONS) 1. Country needs to speak with one voice 2. Secrecy 3. Expertise 4. Need for Speed a. This is much more efficient, you cannot have EVERYTHING go through Congress. g. Counter-Argument: Youngstown Opinion i. DAMES & MOORE v. REGAN a. More recently, the Supreme Court upheld executive order to effectuate the settlement agreement between the US and Iran concerning the US hostages seized from the American Embassy in Tehran in 1979. IN upholding the President’s authority, the Court emphasized that Congress had acquiesced in the President’s action and that there had been a long-standing practice of settling claims of US nationals against foreign countries by executive agreement without the advice and consent of the Senate. b. In 1981, the Algiers Accords concluded by President Carter terminated claims that had been filed by US nationals in US courts against the government of Iran, in exchange for the release by Iran of US nationals being held hostage. The Algiers Accords also provided for the establishment of a claims tribunal in The Hague, to resolve among other things, claims by US nationals against the US government in Iran. c. Claimants against the Iranian government sought a declaration that the executive action, which nullified their claims in US courts, was unconstitutional. Relying heavily on the YOUNGSTOWN OPINION, the Court found the president’s action valid. While there was no statutory authority in support, the court found significant certain statutes that provided the president with broad authority in times of national emergency. The Court also noted Congress’ longstanding acquiescence to presidential settlement of international claims by executive agreement.

51

d. AO 49: Why did President Carter choose to expose Iran to extensive private litigation in the US i. REPRISAL 1. Carter chose to expose Iran to extensive private litigation b/c acting pursuant to International Emergency Economic Powers Act, he declared a national emergency and blocked the removal or transfer of all proerty and interest of Iranian gov’t in US’ possession a. First he freezes assets under the IEEPA (so Iran cannot do business anymore) b. Second he issues a general license authorizing judicial proceedings (“you may have a claim”) 2. Carter uses the machinery of the courts to freeze Iranian Assets (to put political pressure and reserve money for damages down the line).

j. How does Dames & Moore argue release of frozen funds to Iran and dismissal of their U.S. suit against Iran are illegal? In much same way as Curtiss-Wright argued against arms embargo. In Dames & Moore, domestic “legislative acts” are formulated to implement intl agreement rather than joint resolution of Congress as in Curtiss-Wright. Both cases involve Pres and Congress exercising foreign policy powers that apparently stretch limits of Constitution. a. AO 50: Set out the tripartite analysis of Justice Jackson in Youngstown. Apply the analysis to the two parts in Dames & Moore. (Top of p. 219) i. President acting pursuant to express or implied authorization for Congress, he exercises not only his own powers but those delegated by Congress. Executive action is supported by the strongest of presumptions and widest latitude of judicial interpretation and burden of persuasion rests heavily on anyone that might attack it. 1. If his act is held unconstitutional under these circumstances, it usually means federal govt as an undivided whole lacks power… 2. BASICALLY, there is a strong presumption that the president’s actions are constitutional. ii. President acts in absence of Congressional authorization 1. He enters a ZONE OF TWILIGHT in which he and congress may have concurrent authority or in which its distribution is uncertain. In this case analysis becomes more complicated and the validity of the President’s actions, as so far as a separation of powers principles are concerned, hinged on a consideration of all circumstances which might shed light on the views of the legislative

52

k. l.

m. n.

branch toward such action, including congressional intertie, indifference, or acquiescence. a. Basically, the court may look to practice. iii. Pres acts in contravention of will of Congress, his power is at lowest ebb. Ct sustain action ONLY by disabling congress from acting upon subject. 1. Pres may overstep authority, so HE has burden prove otherwise. CT holds the executive agreement VALID under first section of Youngstown a. (President and Congress in agreement) IEEPA authorized president to nullify rights to Iranian assets and to transfer Iranian assets. Since IEEPA does NOT speak about the suspension of claims, Court must apply Youngstown again a. Congress is SILENT (second section of Youngstown) i. Court looks to PRACTICE ii. Since not a persistent objector, implied consent by Congress SO DAMES AND MOORE ARE OUT OF LUCK! AO 51: If the Supreme Ct had decided against US government in Dames & Moore, would US have been off the international legal hook? a. CLEARLY NOT! i. An intnl agreement made for the US jointly by the Carter and Reagan administrations appears binding at international law. ii. Principle of DUALISM – even if you don’t violate domestic law, you are still on the hook internationally.

MEDELLIN V. TEXAS ISSUES:

1. Does the U.S. President's authority over foreign affairs permit him to compel a state court to comply with the International Court of Justice's decision that the United States must reconsider the criminal cases of certain foreign nationals who were not notified of their right to contact their nation's consulate when they were accused of a crime? 2. Does the U.S. Constitution compel state courts to comply with the International Court of Justice's decision that the United States must reconsider the criminal cases of certain foreign nationals who were not notified of their right to contact their nation's consulate when they were accused of a crime?
FACTS: Mexico sues US in ICJ on behalf of nationals on death row in US. ICJ says US MUST give inmates advisement of their rights. The Mexican inmate on death row in Texas challenged his conviction on the basis that he was not afforded his right to consular notification under the Vienna Convention on Consular Relations. 1. Supreme Court holds that decisions of the ICJ were not directly enforceable as federal law in state courts and that neither the relevant provisions of the 53

UN Charter, the ICJ Charter, nor the Optional Protocol to the Vienna Convention on Consular Relations was self-executing. a. The Court assumed without deciding that provisions of the Vienna Convention on Consular Relations itself were self-executing. 2. President Bush’s memo, stating that the US would discharge international obligation under an ICJ decision by having state courts give effect to the decision, is limited to practice of settling civil claims between US nationals and foreign governments or foreign nationals. 3. The only modern guidance on distinguishing between self-executing and non-self-executing treaties came in a sharply divided opinion in MEDELLIN. Chief Justice Roberts and Justices Alito, Thomas, Scalia and Kennedy concluded that neither the ICJ statute, the UN Charter, the Optional Protocol to the Vienna Convention on Consular Relations, nor the ICJ decision in Avena were directly enforceable as federal law in state courts. IN so concluding, these justices, according to Justice Steven’s separate and brief concurring opinion, incorrectly applied a presumption against self-execution. Dissenting Justices Beyer, Ginsburg, and Souter found the relevant provisions of both the UN Charter and the Optional Protocol, and thus Avena as well, as BINDING.

ADVANCED ORGANIZERS FROM STARK‟S NOTES 1. What reasons does the Court give for concluding that the ICJ's judgment in Avena has no legal effect in U.S. courts? Do you agree with the Court that the phrase "undertakes to comply" in Article 94(1) of the UN Charter suggests non-self-execution?" a. The Court found that the obligation to comply with the ICJ decision derives not from the Original Protocol, but from Article 94 of the UN Charter, which provides that „each Member State UNDERTAKES TO COMPLY with the decision of the [ICJ] in any case to which it is a party.” The Court agreed with the amicus brief filed by the executive branch in Medellin I, which argued “that the phrase „undertakes to comply‟ is no „an acknowledgement that the ICJ decision will have immediate legal effect in the courts of UN members‟ but rather a „commitment on the part of UN Members to take future action through their political branches to comply with an ICJ decision” The Court noted that when the Senate ratified the UN Charter it did not do so intending to „vest ICJ decisions with immediate legal effect in domestic courts”. 2. .As the dissent notes, even though the United States has withdrawn from the Optional Protocol to the VCCR, it is still a party to approximately 70 treaties that allow the ICJ to exercise jurisdiction over disputes arising under the treaties. Is the dissent correct in asserting that the Court's decision will

54

render ICJ decisions under all of these treaties non-self-executing in the United States? How often will this come up? a. (This question is not directly keyed to the text. It is more open-ended, requiring a review of the cases we have read in this chapter. Why is this the first case since Foster to deny a claim on the ground that a treaty is non-self-executing? Sei Fuji, you‟ll recall, in fact was granted relief. Most treaties do not so directly conflict with long-recognized state law (like the state criminal law here.) On the other hand, it can be argued that this decision will encourage more challenges to treaties where some plausible conflict can be identified.

3. Why does the Court decline to give legal effect to President Bush's memorandum? How is the framework set forth by Justice Jackson in his concurrence in the Youngstown steel seizure case relevant here? Is the Court in Medellin correct in concluding that, when issuing the memorandum, President Bush was operating within the lowest category of the Jackson framework? Or do you agree with the dissent that Bush was operating in the middle category? a. The Court further concluded that the President does not have inherent authority to enforce ICJ opinions against U.S. states. The Executive Branch had argued before the Court that while, on its own, the Avena judgment does not require domestic courts to set aside rules of procedural default, "that judgment became the law of the land with precisely that effect pursuant to the President's Memorandum and his power 'to establish binding rules of decisions that preempt contrary state law.'"[20] The Court disagreed, noting that, while the President plays a unique role in resolving foreign policy disputes that might bear on compliance with an ICJ decision, he can only act in accordance with an act of Congress and the Constitution. The Court rejected the Solicitor General's argument that the President derives his authority to create binding rules of decision that preempt contrary state law in this case from two sources: (1) the treaties in which Congress has acquiesced through Senatorial advice and consent -

55

- give the President the authority to implement Avena, and (2) the President's independent power to resolve international disputes. b. The Court applied the tripartite analysis of Justice Jackson's concurrence in Youngstown Sheet and Tube Co. v. Sawyer,[21] (1) "where the President acts pursuant to an express or implied authorization of Congress, his power is at its maximum;" (2) "[w]hen the President acts in absence of either a congressional grant or denial of authority, he can only rely on his own independent powers, but there is a zone of twilight in which in which he and Congress may have concurrent authority, or in which its distribution is uncertain."; (3) when "[w]hen the President takes measures incompatible with the express or implied will of Congress, his power is at its lowest ebb."[22] Because the Court already concluded that the treaties at issue were non-self-executing, it disagreed that the President was acting with implicit congressional approval under Youngstown category one. The text of the Constitution requires that only Congress, through its power to make necessary law, can convert a non-self-executing treaty into binding domestic law.[23] The Court noted that the failure to ratify the treaties as self-executing, can be read as a implicit prohibition against presidential acts to the contrary, thus falling within Jackson's third category.

4. Does the Court's decision place the United States in breach of international law? In light of the Court's decision, how can the United States comply with the Avena judgment? Do you think that the United States is likely to comply? a. Justice Breyer, joined by Justices Ginsburg and Souter, dissented on the ground that the Optional Protocol represents a treaty obligation that is selfexecuting, thus requiring no further legislative action in order for it to create binding federal law that preempts state law. After surveying the early history of the doctrine of self-execution in the U.S., and the myriad approaches to implementation of treaty obligations in foreign states, Breyer concluded that the majority's insistence on the "absence or presence of language in a treaty about a provision's self-execution proves nothing at all," warning that such a requirement may "threaten the application of provisions in many existing commercial and other treaties and make it more difficult to negotiate new ones."[30] b. On the effect of the Presidential Memorandum, Breyer opined that the President's action, seeking as it was to enforce a binding treaty obligation, represented an exercise of the "middle range" (category two) of Youngstown: Congress has neither specifically authorized nor specifically

56

prohibited the action in question. He further concluded that, while it is not necessary to answer the executive authority question in order to reach his determination on self-execution and judicial enforcement, there may be times when the President should be permitted to assert foreign affairs powers within state proceedings. He warned that the majority's opinion may "unnecessarily complicate the President's foreign affairs tasks' and "increase the likelihood of Security Council Avena enforcement proceedings, or worsening relations with our neighbor Mexico, of precipitating actions by other nations putting at risk American citizens who have the misfortune to be arrested while traveling abroad, or of diminishing our Nation's reputation abroad as a result of our failure to follow the 'rule of law' principles that we preach."[32]

THE LAW OF NATIONS AND AMERICAN LAW 1. Law of Nations = every international law source EXCEPT TREATY LAW. a. =CIL +Jus Cogens+General Principle 2. RESPUBLICA v. DE LONGCHAMPS a. FACTS: French national charged with violating international law protecting diplomats by insulting and assaulting the French consulgeneral in his residence. Court says we need to look at the LAW OF NATIONS concerning the law of diplomats: Foreign diplomats have immunity and certain rights. i. Protection of diplomats is an ERGO OMNES OBLIGATION under CIL. (“he is guilty of a crime against the whole world” - See Top p. 230) ii. Protection of the French minister is very important. b. French Government asks US for Longchamps to be brought to France for trial and the PA court, looking to law of nations, says NO. i. Punishment has to be inflicted in the same country he is tried in. 1. BUT, the US says they will not imprison him unless France says OK. 57

c. The oldest case confirming the traditional common law rule that the law of nations is part of our law. d. First case where the law of nations was considered to be part of the law of the US. i. Also stated in Paquete Habana: 1. International law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction, as often as questions of right depending upon it are duly presented for determination. For this purpose, where there is no treaty, and no controlling executive or legislative act or judicial decision, resort must had to the CUSTOMS and USAGES of civilized nations” ii. AO 52: What utility does that rule (law of nations is part of US law) have in the fact pattern of De Longchamps? 1. It allows us to try this case under a universal rule that US hopes will placate the French. We didn’t want to try him under our domestic law. a. Didn’t want to annoy the French, but the Pennsylvania court wanted to try him and not have to extradite him to France. iii. AO 53: Why would the US be eager in 1784 to apply international law? 1. US wants to be recognized internationally (even though US did not have a Constitution yet, Us wanted to play with the big players of the world) 3. AMERADA HESS v. ARGENTINE REPUBLIC a. Law of Nations in Municipal Law b. US Oil Tanker attacked by Argentina during the Faulklands War.  sues in US Court. US jurisdiction over the case relies on the alien tort statute (for tort civil action in violation of law of nations) Neutral ships have right of free passage (Freedom of the High Seas is probably the oldest principle of international law.) c. Where is custom here? i. Geneva Convention of the High Seas (1958) 1. Considered CIL b/c it just codified what was already accepted by nations, the PRACTICE of nations already ii. Declaration of Paris iii. Various other conventions d. Why is there not more evidence of custom? i. Because it is uncontested. e. How much proof of custom is needed? i. Hard to quantify. Ambiguity of proving CIL 1. This proves that CIL not as heavily relied upon as TREATY law. ii. The more custom you can prove, more persuasive it is CIL. 58

4. UNITED STATES v. ALVAREZ-MACHAIN a. National Jurisdiction b. In US v. Alvarez-Machain, there also existed a US-Mexico extradition treaty. The abduction from Mexico was conducted with US government involvement (it was sponsored by the DEA) and was objected to by Mexico. Even so, the Supreme Court found that the rextradition treaty did not expressly prohibit such abduction and relevant norms of international law did not support inferring such prohibition. c. The Court left open whether the abduction might constitute a violation of ‘general international law principles’ and, if so, whether such violation should result in the executive branch returning the individual to Mexico as a matter separate to the treaty. AlvarezMachian was then tried in the US fro alleged participation in torture and murder of a US drug enforcement agent, but the district court directed a verdict of acquittal based on a lack of evidence. AlvarezMachian then sued one of his kidnappers (former Mexican police officer named Francisco Sosa ---covered below) under the Alien Tort Statute, but the Supreme Court found that a norm against arbitrary arrest did not exist as a matter of either treaty or CIL.

d. FACTS: US abducts (from Mexico) Alvarez-Machain, who was involved in murder of US DEA agent. Machain claims kidnapping violated USMexico Treaty i. COURT SAYS IT DID NOT VIOLATE THE TREATY. 1. Treaty is silent on the issue of parties’ obligations to refrain from abducting people. ii. COURT IGNORES CIL 1. CIL says it is an illegal extradition a. Like Lotus case: A state cannot exercise its authority in another state’s territory. b. Court ignores b/c treaty trumps CIL in this matter. 2. Why not use CIL as a gap-filler where this particular treaty is SILENT??? 3. THIS LEADS TO INTERNATIONAL BACKLASH – many objected. e. AO 54: If one views Alvarez-Machain as a result-driven decision, could the Supreme Court have done a better job of supporting its outcome? 59

i. They could have tried to DUCK under the Political Question Doctrine. 1. US courts sometimes evoke the PQD to abstain from deciding sensitive policy questions. 2. PQD involves 3-Part Inquiry a. Does the issue involve resolution of questions committed by the text of the Constitution to a coordinate branch of government? b. Would resolution of the question demand that a Court move beyond areas of judicial expertise? c. Do prudential consideration counsel against judicial intervention? 3. But it would have been very hard, b/c it was a criminal/drug case. Wouldn’t meet factors of political question doctrine. ii. They could have been forthright and honest and said US was violating international law. f. PROBLEM WITH US IN THIS CASE: RECIPROCITY (what if Mexico evoked a doctrine and did the same to US?) g. AO 55: How did our treaty partners enforce intnl law here? i. They insist on re-negotiation and denounced decision by US Ct. ii. Other states involved with extradition treaties with the US vehemently objected also and demanded reassurance that kidnapping not exempt from their treaties with US. iii. Pres Clinton apologizes to Mex, promises wont happen again. iv. But Mexico always does this! US cant afford breach obligation. 5. SOSA v. ALVAREZ-MACHAIN a. FACTS: See blue text in US v. Alvarez-Machain b. Court: “the domestic law of the US recognizes the law of nations” c. In the landmark Sosa case, the US Supreme Court was confronted with the Bush administration’s position that the Alien Tort Statute provided NO cause of action for human rights violations beyond those explicitly provided elsewhere in US legislation, and the position of human rights advocates that it provided a cause of action for any violation of human rights law. The Court rejected both positions. i. Court: Alien Tort Statute does not itself provide a cause of action, but that a cause of action for which the act provides jurisdiction may be found in treaties or customary international law in addition to US legislation. 1. For cause of action in ATCA: a. “it must rest on a norm of international character accepted by the civilized world and defined with a specificity comparable to the features of the 18th century paradigms we have recognized” ii. Thus, to succeed on an Alien Tort Statue claim, 3 elements must exist: 60

1. The claim must be filed by an ALIEN 2. The claim must be for a tort 3. The action in controversy must have violated either a US treaty or a “specific, universal, and obligatory” norm of international law. iii. In Sosa, the Court found that the third element had not been met; the P had failed to establish that there existed in either treaty binding on the U or CIL a prohibition on arbitrary arrest,

d. AO 56: What was the expectation of the Founders in enacting the Alien Tort Statute? (EXAM MODEL ANSWER) i. The Founders recognized that there were two elements of the law of nations: 1. relations between states (public international law), and 2. the law merchant, regulating private parties and drawn from customary international law. Examples of the first include assault against ambassadors (Longchamps) and piracy (Smith). The Continental Congress could not enforce the law of nations. Nor, in general, could the states (page 210). This was embarrassing to the new country, as implied in the Longchamps decision. Thus, in enacting the ATS, the Framers were aware of the importance to the new country of constructively addressing the law of nations and becoming part of the international community of nation states ii. The Framers, accordingly, vested the Supreme Court with original jurisdiction over “all cases affecting ambassadors” in article three of the Constitution and enacted the ATS. It is clear that the ATS was jurisdictional because its text refers to ‘cognizance’, which was used to refer to jurisdiction in The Federalist No. 81, and because of its context; i.e., the ATS was placed in the judiciary act. The ATS did not create a new cause of action. * Once the jurisdictional act was on the 61

books, however, the courts could exercise jurisdiction without an express statute authorizing a new cause of action because torts in violation of the law of nations would have been recognized under the common law at the time. (p.248) Thus, the Court rejects Sosa’s argument that the statute was ‘stillborn’, explaining that “the statute was meant to have a practical effect” (p. 250). * The first Congress expressly recognized violations of the law of nations as criminal (piracy, violation of safe conduct). Sosa argues that it was only criminal. No, says the Court, citing the availability of a civil remedy (p. 252). ATS jurisdiction, therefore, is neither ‘stillborn’ nor completely open-ended. Rather, the ATS created jurisdiction for ‘a relatively modest set of actions’ (p. 251), i.e., 1. offenses against ambassadors, 2. violations of safe conduct, and 3. piracy. iii. The standard adopted by the Court, accordingly, is that the ATS provides jurisdiction for “any claim based on the present day law of nations [which] rest[s] on a norm of international character accepted by the civilized world and defined with specificity” comparable to that of the ‘relatively modest set of actions’ recognized at the time. (p.253) * This is justified by intellectual history, which shows the emerging understanding, or conceptual development, that law is not found; it is made. In addition, foreign policy considerations mandate this result. That is, the court does not want to offend foreign states, especially when congress has indicated that the court should not rule on certain issues, such as cases arising under the ICCPR (p. 255).

e. AO 57: How much of Filartiga is left after Sosa? i. Probably less than Filartiga fans would like, but more than its enemies. Sosa’s standard is more demanding than Filartiga’s. In place of Filartiga’s open-ended grant of jurisdiction, Sosa provides a workable framework for lawyers and judges in future ATS litigation, in much the same manner as Dames & Moore has provided a useful analytic framework for evaluating executive powers. * The torture at issue in Filartiga probably meets the standard set out in Sosa of a ‘norm of international character accepted by civilized world and defined with specificity’ comparable to the ‘relatively modest set of actions’ contemplated by the Framers. While there might be controversy about what actually constitutes torture, the allegations in Filartiga, deemed to be true, would satisfy even the most stringent definition. f. AO 58: Will evidence of Filartiga measure up to Souter’s standards? i. YES

62

ii. The torture at issue in Filartiga probably meets the standard set out in Sosa of a ‘norm of international character accepted by civilized world and defined with specificity’ comparable to the ‘relatively modest set of actions’ contemplated by the Framers. While there might be controversy about what actually constitutes torture, the allegations in Filartiga, deemed to be true, would satisfy even the most stringent definition.

CHAPTER 5: INTERNATIONAL COURTS AND TRIBUNALS 1. Public Arbitration: a. Advantages: i. More conclusive than other forms dispute resolution settlement b/c decisions are binding ii. Parties retain greater control b/c they appoint arbitrators iii. Parties may designate the procedures and laws to be applied. iv. Arbitration is less formal and contentious than adjudication. v. Both the proceedings and decisions can be kept confidential. b. Disadvantages: i. If parties don’t specify procedures, the process becomes timeconsuming and cumbersome ii. No authority to conduct discovery or subpoena witnesses iii. The parties themselves pay the cost of the arbitration. c. Formal process for obtaining a binding decision without the greater costs, time and formalities of judicial dispute resolution d. Arbitration among or between states as well as the ICJ

63

e. Arbitration process is de-nationalized i. No recourse to domestic courts f. Set up and controlled by the parties themselves g. A nation’s decision to comply with rulings depends on OTHER FACTORS h. Why do states use public arbitration? Arbitral Tribunals? i. Provides neutral forum j. Vs. Private Arbitration: i. Private: 1. Two companies enter into K (“if there is a dispute, resolved by arbitrator” 2. Court of state where arbitration is held can oversee the tribunal to make sure it carries out its functions with procedural fairness. 3. Rulings are generally enforceable through municipal courts.

2. “The ALABAMA ARBITRATION” (US v. UK) a. British did not use due diligence in preventing warships from being sold to confederacy in order to remain neutral. Britain violates law of state neutrality. Also ignored warnings to stop the delivery of the warships and allowed the “Alabama” (a ship) to freely enter its ports. b. Goes to ARBITRATION c. AO 59: What did both the US and the UK stand to gain or lose in the Alabama Arbitration? i. LOOK THIS UP d. AO 59B: Why was it that the UK was willing to abide by the adverse ruling of the international arbiters? i. B/c of GOOD WILL ii. Also, b/c they honored the idea that the US and the UK shared a common heritage and legal system. e. This arbitration led to the establishment of public international arbitration. 3. THE DOGGER BANK CASE 64

a. FACTS: Russia shoots UK fishing boats and claims it thought they were torpedo boats. b. They choose admirals over lawyers for the arbitration b/c of the TECHNICAL NATURE of the case. c. AO 60: WHY did Russia and Britain take the Dogger Bank dispute to arbitration? One way to approach this question is to think about why other alternatives were less favorable than arbitration. What about diplomatic negotiations? The imposition of unilateral economic counter-measures by Britain? The use of force? Resort to an international court? i. Economic Sanctions/Embargo? Would have hurt international economy and NOT helped to resolve the conflict at hand. ii. Use of Force? Costly, makes UK into bullies, war is a ‘messy, cruel and expensive exercise’ iii. National Inquiries? Could have appointed a team of experts to look into the problem. BUT Different experts can give two conflicting results iv. International Court? There was none. v. Diplomacy? Too secretive and ‘closed-door’ 1. UK wants something public to placate the many British who were pissed and calling for war.

d. AO 61: Can you articulate the probable reasons each state would have had for resorting to this arbitration? i. UK: 1. Compensation 2. Airing a public grievance 3. A way to diffuse public opinion/anger ii. Russia: 1. Avoid War (they would have been crushed by UK’s naval fleet) 2. Wanted to focus on the crisis with Japan 3. Reciprocity 4. Looking like a cooperative international citizen. a. Complying with an adverse result in an international dispute permits a state to abide by its international obligations and, at the same time, protest its innocence and say it was an honest mistake to the rest of the world. 65

e. AO 62: Which state would have preferred to have the dispute heard by admirals rather than lawyers? i. UK 1. UK is fond of admiralty law. This looks like a BLATANT violation of that on the part of Russia. 2. Admirals would probably have emphasized the importance of maritime behavior and customs 3. UK world-renowned in admiralty law. f. AO 63: How vital was the role of the French? i. B/c France was Russia’s ally at the time, they had a strong interest in preventing a war between TWO allies (UK and Russia) ii. France URGED arbitration to smooth things over. iii. French minister acted as a translator. g. AO 64: What might be done to make it more likely that states will use international arbitration in times of crisis? i. (LOOK THIS UP) Ability to invent rules of procedure, jockey for procedural advantage, set out basic rules and sign onto treaty in advance to submit to arbitration h. AO: 65: Why is it likely that Russia will comply with the adverse ruling of the Permanent Court of Arbitration? i. Reciprocity ii. Can continue to claim innocence to the world and its citizens iii. Pay judgment to show that they were good international players.

4. THE RAINBOW WARRIOR CASE a. French agents sink the Rainbow Warrior (which belonged to Green Peace) i. The agents are arrested in New Zealand and sentenced to time in jail. ii. France argues for the release of the agents. New Zealand asks for compensation. Also does not want trade disturbed. iii. Goes to arbitration b. AO 66: What did each side hope to achieve via arbitration in 1986? i. 1986 Arbitration 1. Highly technical, legalistic, involving obtuse points of law 2. Reveals state responsibility and remedies. 3. Concerned controversial political matters that they want to frame legalistically to diffuse tension.

66

ii. Both parties wanted arbitration. iii. France: Wanted their agents back, iv. New Zealand: 1. Wanted public recognition of a wrong committed by French 2. Also wanted compensation for what was clearly an encroachment of sovereign territory 3. Wants public forum, c. AO 67: Why did New Zealand not seek money damages in the 1990 arbitration, especially given the Secretary General’s 1986 determination that dollars might be awarded for non-material harm? i. New Zealand is more concerned with issues of national honor and international respect. ii. The legal advisor to NZ legal affairs said it was NOT about money, it was about PRINCIPLE. They didn’t want to ‘buy them out’ 1. New Zealand is a SOVEREIGN state and therefore CANNOT just be ignored b/c they are not members of the Security Council. iii. Secretary General orders France to pay 2 million out of respect.

THE INTERNATIONAL COURT OF JUSTICE (ICJ): Successor to Permanent Court of International Justice (PCIJ) 1. The PRINCIPAL JUDICIAL ORGAN OF THE UN 2. All members of UN are parties to the ICJ statute. a. Being a party to the statute DOES NOT MEAN that the state has submitted itself to the court’s jurisdiction. States MUST CONSENT to jurisdiction. 3. AO 69: When is the ICJ available, to whom? a. ICJ only available to STATES, in CONTENTIOUS cases. i. Individuals cannot sue before the ICJ b. Advisory Opinions (not between states, but are specifically limited at Article 64 of the ICJ Statute to international organizations comprised of member states of the UN or General Assembly

67

i. ICJ cases are generally well-publicized; Most advisory opinions involve situations where some state wants publicity for some reason. c. The ICJ has two types of jurisdiction: contentious and advisory jurisdiction. Contentious jurisdiction is based on either the express or implied consent of the parties, and only states party to the ICJ statute may be parties in a contentious case. Decisions in these cases are binding on the parties. The court may also issue non-binding, advisory opinions at the request of bodies so authorized by the UN Charter 4. AO 69: How can the Court obtain jurisdiction over a case? a. See Article 36(2) (A)-(D) i. Interpretation of a treaty ii. Any question of international law iii. Existence of any fact which, if established, would constitute a breach of an international obligation iv. The nature or extent of the reparation to be made for the breach of an international obligation v. States are parties to the ICJ statute may at any time declare that they recognize as compulsory ipso facto and without special agreement, in relation to any other state accepting the same obligation, the jurisdiction of the court in all legal disputes concerning: the interpretation of a treaty; any question of international law; the existence of any fact which, if established, would constitute a breach of an international obligation; and the nature or extent of the reparation to be made for the breach of an international obligation. vi. In 1986, in response to Nicaragua v. US, the US withdrew its acceptance of the court’s compulsory jurisdiction under article 36(2), but remains a party to many treaties conferring jurisdiction to the court under 36(1). 5. AO 70: What are the different ways consent can be granted? a. States specifically consent via special agreements b. Article 36(2) jurisdiction (Declaration that the parties file with the ICJ or it can be continuing declarations from filings with the ICJ c. A treaty ( a compromisory clause, a provision, or an article) 6. AO 71: Who are the judges? Where do they come from, and how are they selected? More broadly, what was the impetus for the creation of an international court? a. The court is composed of 15 judges elected by both the Security Council and the General Assembly. b. Election is a complicated process and is set out in Article 4 (p. 907) c. The terms are staggered so that elections for FIVE of the 15 judges take place every 3 years.

68

d. Members of the Security Council almost always have a judge on the court. e. Judges are elected with regard for DISTRIBUTION. i. They distribute according to region (ex. Western Europe, Eastern Europe, Africa, Asia, Latin America, US, etc.) f. No more than one national of a state may sit as a judge at any one time. g. If a state appearing before the court does not have one of its own nationals as a judge, it may appoint an ad hoc judge to ensure that its views are fully considered. h. THE IMPETUS for the creation of the ICJ was VERY BROAD i. WWI led to creation of a permanent court of international law. ii. The league of nations needed a judicial arm and after WW II and the establishment of the UN, the judicial arm was the ICJ. iii. The human rights and justice mission of the UN inspired the creation of the court. iv. More importantly, the court was established to ensure WORLD PEACE.

7. MINQUIERS AND ECREHOS (FRANCE/UK) a. SPECIAL AGREEMENT to Consent to ICJ. b. FACTS: ICJ case in which UK and France requested that the ICJ detemine which country held sovereignty over the islets and rocks in the Minquiers and Ecrhos groups; France claims sovereignty b/c they fished in the waters, while the UK claimed that Jersey had historically exercised legal and administrative jurisdiction over them. i. AO 72: Why did France and Britain submit a dispute over what traditionally is viewed as a matter of sovereign interest (what territory is included within each state) to a third party for decision? 1. UK was confident that the territory was theirs 2. France wanted an efficient resolution

69

3. “Face-Saving Device” - States pleasing their citizens by showing they fought for the territory. ii. AO 73: Are there advantages to obtaining the ICJ’s jurisdiction via special agreement as opposed to via a 36(2) declaration? 1. It gives the parties more CONTROL 2. Parties can control the parameters of the dispute. 3. Consent to be bound carries more weight with each party involved, shows they were BOTH willing to proceed to adjudication and carry out the court’s decision (See Note 3, Page 293) iii. AO 74: Why did the two states choose the ICJ rather than public international arbitration? 1. Reputation, Credibility, Prestige and Expertise of the ICJ 2. ICJ tied to UN Charter, so decisions are more palatable to the losing party. 3. In 1953, the ICJ was in its fledgling stages (also, ICJ paid for by member states vs. public arbitration, where parties paid for everything!)

8. THE DIPLOMATIC AND CONSULAR STAFF CASE (1980) a. FACTS: US brings Iran to ICJ in response to seizure of US diplomatic offices and personnel by militant revolutionaries. Iran violated intl law b/c it wouldn’t return hostages from embassy unless US sent Shah back to Iran. b. An authoritative statement of the international law on diplomatic immunity can be found in this case. The US had accused the Iranian government of seizing its embassy and consulates in Iran and of unlawfully detaining US diplomats and consular officers as hostages. In its opinion, the Court repeatedly stressed that Iran had clearly breached its obligations to the US, under both treaties and customary international law. c. Did ct really have jurisdiction, or just trying to ingratiate itself with the US?

70

Yes- US invoke jurisdiction Article 1 of Optional Protocols concerning Compulsory Settlement of Disputes which accompany conventions. This means that not as part of original Convention, but says anyone who signs this, if any disputes arise under convention can go to the ICJ. ii. They drafted this optional protocol, and both the US and Iran signed it 1. Where did we hear this before? a. Medellin- relied upon by Mexico to get jurisdiction over US. After case, Bush ripped it up, said ‘enough w. that protocol’ d. Note: whenever asked about ICJ jurisdiction, must be able to point to something where State affirm consents. Why? Bc Article 53 says so e. AO 75: Did US really believe recourse to ICJ was going to solve hostage crisis? NO! i. ICJ accepts jurisdiction (under OPTIONAL PROTOCOL – argument that Iran consented via Vienna Convention and a 1955 treaty) even though it knew Iran wouldn’t show up or abide by any decision ---brought to make a POLITICAL POINT. ii. US brought this action to ICJ to have a public forum to turn public opinion against Iran. US had to do something, idea that it would control worldwide opinion- much of world already outraged. US was trying to show anybody, especially own citizens, acting to end crisis iii. ICJ provided US with forum to serve its own interest of airing public grievances in a public forum. iv. They wanted to impress other nations as well as the US. v. MAYBE: US was turning Iran’s dispute wi/ US into one with world vi. US won the case but got nothing! f. AO 76: Should the ICJ employ jurisdictional or admissibility excuses to refuse to decide controversial cases where compliance is unlikely? i. YES: Setting out the law, an opportunity to clarify, and a public forum to air their public grievances (?) ii. NO: Undermines authority and respect/prestige of ICJ if states refuse to comply. The legitimacy of ct would be undermined. ICJ should not ‘DUCK’ certain cases and become a tool for a sov. iii. Counter-Argument: Nicaragua cited often as a persuasive example on intnl law concerning the use of force, even though the US did NOT comply with the ICJ’s decision in the case. 9. DECLARATION OF MALAWI RECOGNIZING THE COMPULSORY JURISDICTION OF THE ICJ a. Example of a declaration that declares compulsory jurisdiction of ICJ b. In Malawi declaration, Malawi declares that it won’t accept jurisdiction of ICJ where another form of dispute resolution like arbitration, mediation, negotiation is available and specified. (the Connally Reservation) Court won’t exercise jurisdiction unless states

i.

71

are there voluntarily this puts incentive on states to decide what kind of dispute they want resolved c. Vandenberg Reservation i. If a dispute is based on a multilateral treaty, all parties to treaty must be parties to lawsuit. If not, case dismissed d. ICJ: States won’t submit unless they do it VOLUNTARILY. e. Debate US submitting to ICJ compulsory jurisdiction: i. FOR: 1. No other gateway for dependably enforcing international law 2. Encourage us to think through enforcement when we ratify treaties, think through what other forms of dispute resolution and include it in any treaty, agreement, etc. 3. US is top dog, should set example for world by submitting to jurisdiction b/c it stands for what is right and just. ii. AGAINST 1. US can do what it wants b/c it is so powerful. Why submit to a forum that allows smaller states to sue US on claims. a. Ex. US doesn’t want weak state to tell it what constitutes human rights violations. 2. US legal system is efficient enough to interpret treaties and make rulings without the tool of the international court. f. AO 77: Why have relatively few states joined with Malawi in accepting the ICJ’s compulsory jurisdiction? i. It is a risk, especially if a larger state. There is possibility that smaller states will have MANY claims against you that it can bring to the ICJ. 1. Ex. US doesn’t want other, weaker states telling you what constitutes a human rights violation

10. ADVISORY OPINION ON THE WESTERN SAHARA (1975) a. Advisory Opinions at the International Court i. Very few states appeal to ICJ for advisory opinions, b/c dont want the publicity. ii. FACTS: Western Sahara had been colonized by Spain for many years. Spain withdraws from Western Sahara b/c of Western Sahara’s right

72

to self-determination. Morroco claimed the northern half and Mauritania claimed the southern half. iii. Issues before the Court: 1. Was Western Sahara TERRA NULLIUS ( a territory belonging to no one) NO 2. What were the legal ties of Morocco to Western Sahara, if Western Sahara was NOT TERRA NULLIUS? a. COURT: i. There were relations between nomadic Western Sahara tribes and Mauritania and Morocco, but weren’t strong enough to constitute any sort of SOVEREIGNTY over area. iv. Spain did NOT consent ICJ jurisdiction. 1. Court gets jurisdiction under Article 96 of the UN Charter and Article 65 of the ICJ Statute. v. Spain OBJECTS to the ruling 1. AO 78: Why didn’t the ICJ accept Spain’s argument that this advisory jurisdiction was an improper surrogate for a contentious case in which one of the states involved (Spain) did not consent to the court’s jurisdiction? Why did the court proceed to answer the ‘referendum question’ for which the General Assembly had not asked? a. It may be a contentious question, but ICJ is trying to answer a diff question and assist the General Assembly i. General Assembly asked for advisory opinion not binding. ii. The ICJ is NOT acting in a formalistic legal fashion and is NOT answering questions narrowly. Instead, it is seeking to solve a very difficult political question and provide guidance to the General Assembly on significant problems of concern to the organization. IT IS NOT BINDING. b. ICJ answered question on referendum question which GA had not asked b/c referendum took accountability as an organ of UN. B/c they possibly anticipated that Morocco would invade area, they stressed referendum. i. Principle of SELF-DETERMINATION 1. Western Sahara no longer a colony of Spain. Issue of sovereignty only resolved by a referendum to people. 2. So referendum stressed to emphasize Morocco’s vote as a member of the UN. CHAMBERS OF THE ICJ 11. THE ELSI CASE (1989) a. i. ARTICLE 26 of the ICJ STATUTE: 1. “The court may from time to time form one or more chambers, composed of three or more judges as the

73

ii.

iii.

iv. v.

vi.

court may determine, for dealing with particular categories of cases…Cases shall be heard and determined by the chambers provided for in this Article if the parties so request” ELSI is a company in Italy owned by two US corporations. It is an Italian corporation owned by two US multinationals. Americans want to liquidate assets by laying off workers. They plan for liquidation. Italians are unhappy, want to force requisition (taking over the factory for a period of 6 months) 1. Liquidation would result in huge hit to economy, many Italians would be laid off. Could lead to public disorder. Americans are incredulous. ELSI claims Italian mayor’s order for requisition and his failure to revoke it is illegal. Espousal: 1. US and Italy go to ICJ on behalf of the private parties. Why does US? a. US submits a diplomatic note on behalf of Raytheon Company and Matchlett Laboratories, Inc. b. Why did US espouse these claims? i. Raytheon a military contractor who does integrated defense systems for US US claims Italy’s requisition is in violation of FCN Treaty (Friendship, Commerce and Navigation Treaty)(See Asakura, Iran Claims Tribunal Cases) 1. CHAMBER CASE of ICJ a. US and Italy wanted judges who would be familiar with the subject matter of the claim. b. Chambers Court not persuaded that, but for Italy’s actions, Raytheon could have liquidated the property at less of a loss than it would have incurred had it not liquidated. c. Court: To difficult to show appreciable damage, so Italy did not violate FCN treaty.

d. AO 83: Is availability of chambers more likely to make the ICJ more attractive to states? YES! 1. Chambers provides more expert panel of judges who possess more specialized knowledge. States choose judges in a more specialized setting (would have helped Dogger Bank case) 74

2. Parties can request it, pick their own judges e. AO 83B: To what extent do chambers resemble arbitration? i. LIKE ARBITRATION: 1. States can pick judges who are experts in the claimed matter 2. States can reduce # of judges, making decision QUICKER, less ONEROUS. 3. Parties can select judges based on EXPERTISE ii. NOT LIKE ARBITRATION: 1. You are still on the world stage 2. JUDGES are used. 3. Judge of nationality each state can sit, and if not one, ad hoc judge selected. f. AO 84: Case is an espousal case. US is taking up claims of its corporate citizens Raytheon and Matchlett. Why US pursue claims? SEE ABOVE 1. For broader US interests, like promoting a stable investment environment. 2. A treaty is at stake, US is a party to lost of FCN treaties, so US thinks decisions favorable to the treaties serve US self-interest. g. AO 85: Why should US espouse case b4 ICJ rather than an arbitral tribunal? i. ELSI followed shortly after the NICARAGUA case. US wanted the international publicity, and to show it adheres to the ICJ (wants international forgiveness) ii. US trying to assuage hurt feelings after Nicaragua. US proving still cooperative international citizen despite NOT submitting to compulsory jurisdiction of ICJ. h. AO 86: What other options are available for Raytheon and Matchlett in seeking redress for their claims? (ADR??) i. Regional Courts (ex. European Court of Justice ) ii. MIXED arbitration (private/public) iii. Municipal Cts: Though state courts may be BIASED. iv. NOTE: EXHAUSTION REQUIREMENT OF ICJ (SEE AO 88) 1. ICJ rather have domestic cts resolve disputes before appealing to ICJ. i. AO 87: What about options for the reform of the ICJ? Should private litigants have access to the ICJ? i. It might get too complicated and messy with MULTINATIONAL companies. ii. Company can abuse ICJ’s power b/c OVERBURDEN: Meaningless complexity iii. Intnl Consequences: Implications in decision could impact intnl relations. j. AO 88: NOTE that ICJ requires exhaustion of local remedies before case can be pursued by ICJ. Why? What reasons support exhaustion requirement? i. NOTE: Intnl Law lacks VERTICAL INTEGRATION. CHOOSE to file in local courts as opposed to the ICJ. Actually, the ICJ prefers this! ii. ICJ would rather have domestic cts resolve disputes than have an outside legal instrument litigate it. Shows respect for STATE SOVEREIGNTY. iii. ALSO, for purposes of JUDICIAL ECONOMY. 12. THE NOTTEBOHM CASE (1955) a. EX OF THE OBJECTIVE THEORY OF INDIVIDUALS IN INTL LAW i. Objective v. Subjective Theories show difference of individuals as objects and subjects of international law 75

1. Subjective: When individuals have standing to make claims under intl law. (ex. Nuremberg and International Human Rights Law) 2. Objective: When individuals judged by nationality a. Much more hostile to human rights than subjective theory b. Individuals are objects protected ONLY by their states. b. NOTTEBOHM i. Shows the right of states to regulate the conduct of their nationals everywhere and thus assert nationality as a basis for jurisdiction. But International Law requires that a state must have a GENUINE LINK WITH THE PERSON to assert jurisdiction based on nationality. c. Nottebohm born in Germany, German citizen, although he lived in Guatemala. He applies to become Liechtenstein citizen successfully. He tries to re-enter Guatemala and is refused entry. Liechtenstein offers him protection against Guatemalan government and sued in ICJ. Guatemala argues that Nottebohm did not gain citizenship of Liechtentein for purposes of international law.

d. AO 89: What is it that Nottebohm sougbt to achieve by obtaining Liechtenstein citizenship? i. He wants to avoid ENEMY STATUS under Guatemalan law. 76

1. Under Guatemalan law, a German citizen is deemed an ENEMY, whereas a Liechtenstein citizen is not. e. Guatemala does NOT recognize the citizenship b/c of DUALISM i. He is citizen of Liechtenstein under Liechtenstein law, but doesn’t affect his status in Guatemala under theory of dualism. f. AO 90: Does international law oblige Guatemala to accept the Liechtenstein citizenship? NO 1. Nottebohm unable to establish a GENUINE LINK to Liechtenstein. 2. GENUINE LINK depends on the specific facts. g. AO 91: Why does the ICJ decide that Liechtenstein citizenship in this case is not OPPOSABLE to Guatemala? i. GENUINE LINK TEST (which is fact-specific) h. AO 91B: In the circumstances in 1939, and with perfect foresight, what might an international lawyer advise Nottebohm to do to make a better argument that, at international law, Guatemala must recognize him as a Liechtenstein citizen? i. Look to p. 346 ii. Show a GENUINE LINK 1. Should have remained longer in Liechtenstein, or in some other way establish his intent to remain there. 2. Settled Abode, Wife in Liechtenstein, Prolonged Residence, Family Ties, Participation in Public Life, Attachment to a given country. AO 93: What are the advantages and disadvantages of the OBJECTIVE THEORY? 1. Advantages: a. Gives individuals, at least in theory, some possibility of safe protection via espousal of their claims. i. This avoids muddly claims, b/c in deciding to protecting their citizens, states FILTER CLAIMS. 2. Disadvantages: a. Provides no recourse at all when an individual has a claim against his own state, b/c the state is NOT going to espouse the claim. b. Provides no recourse at all when a state abuses the human rights of its people. c. By letting states filter claims, it doesn’t protect individuals who are harmed by their own state

77

BARCELONA TRACTION CASE OBJECTIVE THEORY and CORPORATIONS/ALSO, violating Ergo Omnes Obligations owed to its own citizens. 1. Court declares Barcelona Traction, a major corporation, bankrupt. Shareholders are upset. Lots of states care, b/c company has shareholders from different states(UK, Canadian and Belgium nationals). 2. Goes to the ICJ. HOW? a. Compromissory clause (parties to treaty agreed to compulsory jurisdiction of ICJ) b. Special Agreement (2 states voluntarily submit to court jurisdiction) i. 1927 Hispano-Belgian Treaty of Conciliation show compulsory jursd) 3. ICJ talks about two kinds of OBLIGATIONS a. ERGO OMNES i. Obligations owed by State to the international community as a whole 1. Bc they are of a universal or quasi-universal character (ex. Genocide, Slavery – Other Basic Rights of a Human Person) 2. State owes EVERY person these rights, not just their own people. SO, states owe it to FOREIGNERS ON THEIR SOIL. b. DIPLOMATIC i. Protection under the law is owed to foreigners, but it can only be asserted by the state of the foreigner’s nationality. 1. This is why Barcelona Traction court must ascertain the nationality of Barcelona Traction. 4. Court says this particular case focuses on a DIPLOMATIC OBLIGATION. Important b/c if it is a violation of an ergo omnes obligation, ANY court has jurisdiction. Here, b/c it is diplomatic, jurisdiction is restricted. a. SHOWS another disadvantage of the OBJECTIVE THEORY i. Once a case is outside the ergo omnes category and is only discussing breach of state responsibility that correlates to diplomatic protection then it is STATE whose nation has been injured who calls shots. Recovery goes to states, and they decide how to compensate injured. ii. So objective theory leaves nationals open to abuse by their own states, since it is impractical to conceive of a state protecting its own nationals against itself in international law. 5. Ct says Canada owns corporation b/c its INCORPORATED, register in Canada. 6. Spain did not concede jurisdiction, so Canada cannot sue in ICJ. 7. AO 92: In Barcelona Traction, if the entity is not itself a subject of international law, of what state is it an object? WHERE INCORPORATED i. A corporation deemed to have nationality of state where incorporate ii. Under the nationality principle, the connection provided by the act of creation is sufficient to permit a state to exercise jurisdiction over a corporation. If NOT INCORPORATED, there must be a GENUINE LINK between the state and the corporation.

78

CHAPTER 12 INTERNATIONAL CONFLICT OF LAWS THE PRINCIPLES OF JURISDICTION THE NATIONALITY PRINCIPLE THE EFFECTS PRINCIPLE OTHER PRINCIPLES OF JURISDICTION JURISDICTION 1. Means POWER, COMPETENCE, and AUTHORITY not only of courts, but of legislatures and executives. 2. International Jurisdictional principles are concerned primarily with a state’s right to prescribe or enforce its laws. It is widely accepted that the exercise of jurisdiction on any basis must be REASONABLE. 3. KINDS OF JURISDICTION: a. Legislative b. Judicial c. Executive THE TERRITORIAL PRINCIPLE 1. AMERICAN BANANA CO. v. UNITED FRUIT CO. (1909) a. P, a US citizen, has a banana plantation in Panama. P built a railroad which would be the only means of expropriation. b. D intended to prevent competition and monopolize the banana trade, made contracts with other and bought out others regulating purchase of the fruit and controlling stock. D instigates dispute btw Panama and Costa Rica. Events led to Costa Rica holding lands which P’s railroad were going through. c. P claims violation of Sherman Anti-trust Act (trying to monopolize the banana market) d. Justice Holmes: The Sherman Act DOES NOT APPLY. i. US doesn’t want to extend its own laws outside its own borders. ii. YOU MUST RESPECT STATE SOVEREIGNTY e. ALL LEGISLATION is prima facie territorial b/c of SOVEREIGNTY. i. “the general universal rule is that the character of an act as lawful or unlawful must be determined wholly by the law of the country where the act is done” f. You do NOT want to interfere with the authority of a sovereign state b/c of the principle of RECIPROCITY – (COULD LEAD TO WAR!) g. Holmes discusses LEGISLATIVE jurisdiction based on territoriality. What about EXECUTIVE JURISDICTION? i. If US government sends troops to foreign country contrary to laws of the country being occupied, it is a violation of executive jurisdiction too.

79

THE NATIONALITY PRINCIPLE 2. BLACKMER v. UNITED STATES a. Blackmer is citizen of US and resident of Paris, France. Found guilty in Supreme Ct of D.C. for refusing to appear as a witness in a US trial. Blackmer challenges under due process clause and Fifth Amendment. b. US CAN order citizen to come home b/c of obligations of citizenship. i. US owns own citizens. Why? B/c citizens receive benefits of citizenship as well. Blackmer protected by US government He is NOT have the protection of US law, but he DOES have protection of the GOVERNMENT 1. US gov’t can intercede on citizen’s behalf and assist them if chooses. c. WHAT KIND OF JURISDICTION IS THIS? i. JUDICIAL: Can be asserted by the court system. ii. LEGISLATIVE: Maybe THE EFFECTS PRINCIPLE 1. UNITED STATES v. ALUMINUM CO. OF AMERICA a. ALCOA is a U.S. corporation who had Swiss corporation as an alliance b. Swiss corp. passes resolutions affecting the exportation of aluminum, negatively affecting ALCO. c. ALCOA wants to bring suit in US> d. ISSUE: Whether or not suit could be brought in US based on the effects an international agreement on a U.S. corp. i. The European companies were explicitly violating the Sherman Act, limiting exports to the US. e. RULE: US has jurisdiction under the EFFECTS PRINCIPLE: i. Any state may impose liabilities, even upon persons not within its allegiance, for conduct outside its borders that has consequences within its borders which the state reprehends. 1. LIMITS to the EFFECTS PRINCIPLE: a. Did it intend to have an effect? b. Did have an effect? c. Whether congress chose to attach liability d. Whether own constitution permitted to do so. f. US court has jurisdiction (legislative and judicial) even though events took place outside US b/c the effects were directly felt (intentionally so) by the US. i. Legislative b/c INTENDED to affect US commerce. Its targeted g. EFFECTS PRINCIPLE: i. Applied to offenses or acts commenced outside the state’s territory, causing serious and harmful consequences to the social and economic order within the state’s territory h. IN case, Second Circuit ruled that Sherman Anti-trust Act applied to a foreign agreement intended to affect US market, even though the agreement was solely between foreign companies and performed entirely on foreign soil. 80

AO 97: How does the court justify its extension of jurisdiction in Banana? In Blackmer? In Aluminum? SEE THE FACTS ABOVE!!! CHUMP CHANGE PEOPLE…FISH IN A BARREL. AO 98: What sort of governmental jurisdiction is at stake in each case? SEE ABOVE AGAIN. AO 99: Hand in Aluminium appears, like Holmes, to mix judicial and legislative jurisdiction, but he comes to an opposite result. What has changed from 1909 to 1945? Why should a U.S. Court be so much bolder in asserting US judicial and legislative jurisdiction? ANSWER: US is playing a greater role in global business. After WW II, the world became more globalized. By 1945, US is pretty comfortable with its growing authority in world affairs without taking into account the claims of other states. Stark other possibilities might have to do with the sophisticated evasive maneuvers by Alcoa in this case May be that Alcoa’s lawyers and officers are seen to be too manipulative in their efforts to evade US antitrust law AO 100: How successfully do the three cases deal with claims that OTHER states have jurisdiction? Holmes in Banana how does he deal with fact that Costa Rica might also have an interest in what’s going on in its territory? How would Costa Rica feel about the Banana decision? They were delighted with this decision Holmes is very deferential to the authority of the territorial state Hughes in Blackmer Does he acknowledge that France has any interest whatsoever? He says that there was no invasion of France’s rights He says that France had jurisdiction over the service of process, while the US maintained jurisdiction over the person He acknowledges that France has an interest in regulating service of process on the territory of France In this case, France didn’t object, so no problem To the extent that France has any right, it was up to them to raise that right Hand in AluminumDoes Hand care about all those other countries’ rights? He didn’t talk much about the rights of the other states, probably because he didn’t care much at all Too bad for them, it doesn’t matter what Switzerland, Canada, germany, etc., has any interest . What’s before his court is the US interest

81

OTHER PRINCIPLES OF JURISDICTION a. PROTECTIVE PRINCIPLE a. Kicks in during questions of defrauding the government b. A state may exercise jurisdiction that threaten its security and integrity or its vital economic interests c. Reasoning: An offense may have grave consequences in one state, but may otherwise go unpunished if the state where the offense was actually committed does not itself consider the conduct to be unlawful. d. OBJECTIONS TO THIS BASIS FOR JURISDICTION i. It is subject to abuse, with each state fee to determine what crimes threaten its security. b. PASSIVE PERSONALITY PRINCIPLE a. An injured person’s state may assert the victim’s nationality as a basis for exercising it. b. “If you target someone b/c of their nationality, we can come after you” c. UNIVERSALITY PRINCIPLE a. International community considers some offenses to be so serious that they are subject to jurisdiction of all states. b. Examples: Piracy, slave trading, war crimes. c. Think FILARTIGA and SMITH.

82

RESOLVING CONFLICTS OF JURISDICTION: RESOLVING CONFLICTS OF LAW a. FOUR MODERN APPROACHES to CONFLICT RESOLUTION: a. Party Choice b. Balancing Test c. International Comity d. Forum Non Conveniens b. PARTY CHOICE a. Parties agree where disputes will be settled and what law applied. b. When available, it seems very reasonable, cost-reducing approach to determining jurisdiction. c. THE BREMEN v. ZAPATA OFF-SHORE CO. (1972) i. German and US parties contract so German company will tow a US drilling rig by tugboat. Bad storm damages the rig. Zapata sues in US. German corp. argues there is a FORUM SELECTION clause that says ENGLAND as forum for potential litigation. ii. Florida Court: Forum selection whose object is to oust the jurisdiction of the courts are contrary to public policy and will not be enforced. iii. Appeals Court: Forum Selection will NOT be enforced unless the selected court would be more convenient. iv. How is Florida more convenient? 1. Location of accident and witnesses, testimony of Bremen crew 2. London seems VERY inconvenient. v. SUPREME COURT REMANDS THE CASE. 1. Forum Selection Clauses are prima facie VALID unless UNREASONABLE under the circumstances. 2. Assuming that the international agreement is freely negotiated (unaffected by fraud, undue influence, etc.) 3. FREEDOM OF K!!!

83

d. SCHERK v. ALBERTO-CULVER CO. i. D bought toiletries, including their trademarks. Express warranties made. ii. Breach of K iii. There was a forum selection clause which stipulated that any dispute would be brought in an international arbitration panel in Paris, but would apply Illinois law. iv. P brings motion to dismiss in IL, so the proceedings can be brought in Paris. MOTION DENIED 1. Prior domestic case says you cannot arbitrate b/c a securities act barred any stipulation or condition requiring the waiver of compliance 2. Essentially, this is domestic law saying that you CANNOT COP OUT ON DOMESTIC LAW. v. Competing Statute = US Arbitration Act 1. An arbitration agreement such as is here involved “shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” vi. In Wilko, the securities act won, but here Arbitration Act wins 1. Why? a. In Wilko both were US companies- domestic transaction. Here, D’s contract to purchase the business entities belonging to P was a truly international agreement b. ALSO, here in the absence of the arbitration provision considerable uncertainty existed at the time of the agreement, and still exists, concerning the law applicable to the resolution of disputes arising out of the contract vii. Why is American company trying to get out of arbitrating in France (trying to keep case in the US)? 1. It’s a hassle…and hoping to be favored by your domestic court viii. Held: forum-selection clause is valid ix. Similar rationale as in Bremen

84

e. AO 101: Why is it advantageous for the parties in Bremen and Scherk to select law and forum at the outset of the transactions? i. Bremen: 1. To eliminate uncertainty, to promote predictability 2. Too difficult to determine jurisdiction elsewhere ii. Scherk: 1. Same as above 2. ALSO, parties wanted to know the kinds of trademarks and warranties they were dealing with. Choice of law important. They wanted business-friendly forums. f. AO 102: Why should the US Courts interfere with bargains made in international business transactions? i. THEY PROBABLY SHOULDN’T!!! ii. LOOK THIS UP!!!!!! g. AO 103: Why shouldn’t the parties be encouraged to bring more certainty to their deals to their deals by specifying their jurisdictional choices? i. It creates a legal no mans land. If you are anticipating a breach, you want things up in the air so you have more wiggle room to argue out of the K. h. AO 104: Is the Supreme Court more willing to make US businesses keep to their international bargains than the US Government? i. YES 1. The US government wants to be able to regulate their own businesses but does NOT want the international community telling them what to do. 2. *US Courts should NOT interfere with business deals unless public policy is involved.

85

c. THE BARGAINING TEST a. TIMBERLANE LUMBER CO. V. BANK OF AMERICA i. Even if a state has enacted a statute exercising jurisdiction, the exercise of jurisdiction is still unlawful under international law if it is unreasonable. 1. Various factors must be balanced in determining whether the regulation by a state over a person or activity is unreasonable, such as: a. The existence of justified expectations that might be protected or hurt by the regulation b. The extent to which another state may have an interest in regulating the activity c. The likelihood of conflict with regulation by another state. ii. AO 105: Compare the alleged factual scenario in Timberlane to the alleged facts in Banana. Where are the connections to the US stronger? 1. The product in both cases is coming from a foreign nation into the United States 2. Arguable that the connections were even stronger in America Banana iii. AO 106: Compare Justice Holmes’ methodology with the balancing test by Judge Troy. 1. Holmes a. what happens in Panama stays in Panama, what are you doing in my court? b. Methodology = exercising sovereignty c. Most important feature of sovereignty in terms of jurisdiction: Territory defines sovereignty d. VERY CUT AND DRY e. NO LONGER A DECISIVE TEST. 2. Choy a. Something very different, develops a balancing test. i. Banana seems outdated. We recognize that the world is growing more complicated, but NOR are we applying the lenient and easy to abuse approach of ALCOA. b. He cites Aluminum as an example of cases in which this idea is being slowly chipped away i. J. Hand bring it on, we don’t care where it took place; we’ll exercise jurisdiction.

86

iv. Timberlane Balancing Test 1. Requires a tripartite analysis in order to determine whether US anti-trust laws should be applied extraterritorially a. 1) There must be an EFFECT (actual or intended) on American foreign commerce. b. 2) The Court must QUANTIFY THE EFFECT. i. Is it large enough to present a cognizable injury? c. 3) The Court should decide whether the INTEREST of-and links to-the US are sufficiently strong vis a vis those of other nations to justify jurisdiction. 2. More specific elements include: a. The degree of conflict with foreign law or policy b. The nationality of the parties c. The locations of the businesses d. The extent to which enforcement by either state can be expected to achieve compliance e. Potential degree of conflict if US authority is asserted (p. 800) v. Judge Choy gives lawyers and subsequent courts a comprehensive analytical structure with which to evaluate conflicting claims. vi. Timberlane seems a measured response to the problems of conflicting claims of jurisdiction 1. The test leaves considerable room for judicial discretion, but has virtue of making explicit the factors that judges take into account in making their decision. d. INTERNATIONAL COMITY a. HILTON V. GUYOT (1895) – Justice Gray i. US refused to enforce a French judgment on the grounds that France did not enforce US judgments. ii. Justice Gray defined comity in Hilton as “neither a matter of absolute obligation, on the one hand, nor of mere courtesy and good will, on the other…it is the recognition which one national allows within its territory to the legislative, executive, or judicial acts of another. 1. Justice SOUTER in Hartford Fire seems to veer away from the traditional notion of comity expressed in Hilton. iii. Comity is what one nation ALLOWS, not what one nation has hoisted on it by another nation. iv. Exercise of Comity is a VOLUNTARY ACT. 1. Shows respect for other states, promotes justice and produces friendly intercourse between sovereign states. 2. Has close ties to international concept of reciprocity. 87

b. HARTFORD FIRE INSURANCE CO. V. CALIFORNIA i. Another anti-trust allegation, against insurance companies for conspiring to change the terms of CGL (commercial general liability) policies. ii. Justice Souter’s analysis resembles Timberlane. 1. He doesn’t like Banana iii. Souter using terminology of TRUE CONFLICT in a way that we should never use it. iv. For purposes of comity, no conflict exists where a person subject to regulation by both the US and a foreign state can comply with the rules of both. v. The balancing test of Timberlane was called into question by the Supreme Court in Hartford. The Court upheld the application of the Sherman Anti-Trust Act to conduct by insurers located in the UK. In doing so, the Court did not engage in the type of analysis envisaged in Timberlane. Rather, the court simply asked whether there was any direct conflict between US and UK law. Finding that UK law did not expressly prohibit companies in the UK from abiding by US standards of antitrust law, the court concluded that the application of US law was permissible. vi. AO 107: Describe Souter’s analytical method What are the policy implications of Souter’s approach? 1. Souter is unwilling to rule against the applicability of US law if the Ds can comply with both US and UK law. 2. Souter finds “no conflict of British law” b/c London reinsurers “do not argue that British law requires them to act in some fashion prohibited by the US, or claim that their compliance with the laws of both countries is otherwise impossible. 3. In interest analysis, a “true conflict” simply means both states have an interest (ie a national policy applicable to the facts). a. Souter’s approach appears to encourage other states to act more aggressively against US (by enacting blocking statutes, for example) to demonstrate “true conflicts” vii. SCALIA’S DISSENT (REASONABLENESS TEST) 1. He uses a reasonableness test, and concludes there is a conflict of law b/c it is unreasonable a. UK has such strong interests in having a stake in this case, it weighs in favor of the UK b. UK heavy interest in regulating insurance activity c. Comity – if took on jurisdiction, disrespecting UK law. 2. Seems a truer reflection of notion of comity in intl law and in Hilton. But application of the Timberlane or Restatement balancing approach does not necessarily lead to the conclusion that Scalia reaches, namely that Brtish law should apply here. It can still be argued that US is more interested in this transaction. 88

e. FORUM NON CONVENIENS a. The doctrine of forum non conveniens, an exercise of comity, is an often-utilized method for settling problems of concurrent jurisdiction. i. “A state will not exercise jurisdiction if it is a seriously inconvenient forum for the trail of the action provided that a more appropriate forum is available to the P” b. PIPER AIRCRAFT v. REYNO (1981) i. The Supreme Court stated that forum non conveniens determinations should be at “the sound discretion of the trial court” balancing “all relevant PUBLIC and PRIVATE interest factors” ii. FACTS: Plane crashes in Scotland. Scots sue in US b/c law more favorable.  wants forum non conveniens. iii. AO 108: What did plaintiffs in Piper hope to achieve by bringing suit in California, such an unlikely jurisdiction? 1. Because of the greater advantages a. American jury from which to seek large damages b. Availability of cross-examination, broad discovery, no fee-shifting, and availability of contingent fees. c. Also, STRICT LIABILITY in CA. iv. AO 109: What were the responses of the attorneys for the defendants? 1. They removed to CA federal, then transferred to PA, then moved to dismiss for Forum Non Conveniens 2. They incrementally rid themselves of the case! v. Court balanced both PUBLIC and PRIVATE FACTORS 1. PRIVATE: a. Heavy burden on the  b. Foreign ’s choice c. Access to prrof d. Compulsory process for witnesses 2. PUBLIC: a. Overflooding of courts b. Local interest in having localized controversies decided at home c. Avoiding unnecessary conflicts. d. (SEE BOTTOM 816) vi. This is a FLEXIBLE TEST. No circumstance is dispositive.

89

c. MARK W. JANIS, “THE DOCTRINE OF FORUM NON CONVENIENS AND THE BHOPAL CASE” i. FACTS: Bad industrial accident in India. Killed and injured many. Indian gov’t sues on behalf of Indian victims in US Courts. India thinks the US court is more preferable. ii.  argues FORUM NON CONVENIENS, using Piper factors with the added question of the capacity of the Indian courts. iii. COURT: Union Carbide must submit itself to the jurisdiction of Indian courts b/c all relevant events had taken place in India and the public interest of India were must greater than the public interests of the US iv. *Forum Non Conveniens dismissals can be moderated by the practice of attaching conditions. US courts are also concerned with the adequacy of foreign legal systems. Even a government, like the Indian government in Bhopal, may sometimes prefer to litigate away from home. f. AO 110: COMPARE THE FOUR MODERN APPROACHES ---SEE PRACTICE EXAM MODEL ANSWER

90

FOREIGN SOVEREIGN IMMUNITY a. IMMUNITY discusses problems of sovereignty presents different judicial technique. b. THE SCHOONER EXCHANGE (1812) a. FACTS: Two sweet dudes find their ship in Philly, now a French warship, taken VIOLENTLY AND FORCIBLY by Napoleon. The guys file a libel claim to reclaim the ship. b. In the US, the Supreme Court found that a French warship in a US port was immune from the jurisdiction of US courts, even though the plaintiffs charged that the vessel had been illegally seized from them by France. c. Justice Marshall concluded that NO foreign sovereign would subject itself to the absolute and exclusive power of another without an implied understanding that entry into foreign territory included a grant of immunity from the territorial sovereign’s power. i. =ABSOLUTE IMMUNITY (reflected CIL) 1. Are there any grounds in this opinion for Absolute Sovereign Immunity? 2. NOTE: this case is frequently cited for the proposition of Absolute Sovereign Immunity—why? 3. Note: absolute sovereignty basically means absolute power, sovereign can do what it wants, and not be dragged into court 4. Won’t be subject unless it waives the immunity d. A French armed ship is blatantly an expression of SOVEREIGNTY. Not subject to US jurisdiction as a matter of international policy. e. AO 111: Why might a US Court not want to adjudicate a case about the ownership of a French warship in 1812? i. US in good relations with the French ii. French were going to fight British, an enemy at the time. f. AO 111B: What might a court nowadays say about such a matter using a purely jurisdictional technique, for example, balancing (Timberlane) or forum non conveniens (Piper)? i. Applying Timberlane Balancing Test 1. Is there an effect on the US? a. Yes (maybe), b/c it affected two US citizens 2. Is the effect large enough? a. If French weren’t our allies, and maybe there was a pattern of these types of events, then US maybe could argue it was large enough in scope. 3. Do the interests of the US outweigh those the French? a. Probably not. ii. Applying Forum Non Conveniens 1. Weighing public/private interests of US and France a. Ship is located at the time in US b. Court congestion, etc. iii. Argue various jurisdictional techniques to gain jurisdiction!!! 91

c. VICTORY TRANSPORT, INC. v. COMISAIRIA GENERAL (1965) a. FACTS: Spanish govt say no sue in US b/c sovereign state and no consent. i. Ct says reasoning for absolute immunity no longer applicable. There are many more intl transactions. Also, during Cold War, state trading companies owned by state (Soviet Union). If couldn’t sue a foreign sovereign, then Soviet Union would have advantage over companies. ii. As stated in the TATE LETTER, the US state department has made it clear that its policy was to decline immunity to friendly foreign sovereigns in suits arising from PRIVATE or COMMERCIAL activity. 1. Tate Letter a. View of State Department was to not recognize absolute immunity, but limited immunity b. Govts enjoy sovereignty when they were doing things govts do, but not when they are doing private or commercial acts. 2. This is essentially the restrictive theory. 3. Tate letter is a foreign policy decision being carried out by the cts. a. Exemplifies the DEFERENCE US JUDICIARY SHOWS THE STATE DEPARTMENT in matters of International Law. b. Compare to Dames & Moore, Alvarez-Machain, Paquete Habana************ b. Second Circuit holds Spanish Govt’s chartering ship to move surplus grain from US to Spain for distribution to Spaniards was like private commercial act. Consequently, D NOT IMMUNE FROM SUIT to compel arbitration, although it was an arm of Spanish government. c. In conclusion, ct identified 5 categories of acts treated as govt in nature: i. Internal administrative acts, such as expulsion of an alien ii. Legislative Acts, such as nationalization iii. Acts concerning the armed forces iv. Acts concerning diplomatic activity v. Public loans vi. ****It is pretty arbitrary –you cannot really have a solidified test to distinguish public and private acts.*** d. Shows the RESTRICTIVE THEORY OF FOREIGN SOVEREIGN IMMUNITY before the FSIA. e. AO 112. Is the question of what constitutes a “commercial” activity always a matter of factual proof before the court in any case? i. Yes it’s always a matter of factual proof f. AO 112B: Do pre-FSIA cases like Victory Transport therefore still have precedential value after 1976? Yes since answer to above is yes. g. AO 113: After finding that there is no sovereign immunity available in Victory Transport, could lawyers for Spain still argue a Timberlane balancing test, a Hilton/Hartford Fire comity test, or a Piper forum non conveniens test? If so, are same factors simply recycled four times in four analyses? Is this sensible? Yes, it seems the same factors are recycled in the four analyses. If one does not work in a certain scenario, then try another. 92

d. FOREIGN SOVEREIGN IMMUNITIES ACT OF 1976 a. FSIA: gives sole basis to get jurisdtn over foreign state in US courts. i. Essentially codified the RESTRICTIVE THEORY of immunity. 1. Exceptions to IMMUNITY: a. A state is presumptively immune unless an exception applies. Immunity doesn’t apply under the following statutory exceptions: i. Waivers of Immunity, Commercial Activities, Expropriation Claims, Non-Commercial Torts, Maritime Liens, Counter-claims, International Agreements. 2. Party claiming immunity bears burden of no exception applies. b. A foreign sovereignimmune unless  comes forward and shows that the foreign sovereign was acting like any other commercial player. c. AO 114: Read section 1602 on page 839; identify sources of law cts meant to employ in deciding claims of foreign sovereign immunity. i. US case law (previous cases) ii. Customary International Law iii. Statute text itself iv. Indications from the Executive branch v. COMPARATIVE LAW OF FOREIGN JURISDICTIONS** 1. Why care about comparative law? a. B/c US is participating in an international community/society. vi. Federal statute: Interpret w/ Intnl law, US case law, statute itself its legislative history, indications from US exec branch like Tate Letter, how foreign jurisdictions are applying sovereign immunity in cts. d. AO 115: Turning to section 1603(d) and section (a)(2), how much an improvement the statutory language about “commercial activity” is to the case law approach in Victory Transport? Does the statute reverse the burden of proof from the prior case law? i. NOTE: this statute reverses burden of proof from prior case law. No longer will cts deny a sovereign immunity defense unless the state department recognizes and allows it or the (D/the foreign sovereign) shows grounds for it. Now the courts will recognize the immunity of a foreign state from jurisdiction unless you can show list on 865. e. TEXAS TRADING V. FEDERAL REPUBLIC OF NIGERIA (1982) a. POST-FSIA b. Millions of parcels of cement clogging the ports of Nigeria b/c of overcontracting, did not estimate accurately how much they could take in c. Nigeria responds by changing its law to say that they are no longer bound to the Ks. Told the bank not to pay the contracted with parties. d. Nigeria sued in US: ISSUE: If Nigeria Central Bank had foreign sovereign immunity. COURT: If the activity is “governmental instead of commercial” then the foreign state is entitled to immunity. i. Court reiterates that it is the NATURE of the act that matters 1. Here, it seems commercial in nature. 2. PURPOSE DOES NOT MATTER; NATURE DOES MATTER

93

ACT OF STATE DOCTRINE 1. DOES NOT EQUAL JURISDICITONAL IMMUNITY 2. It is a CHOICE OF LAW matter. 3. UNDERHILL v. HERNANDEZ a. Facts: Revolution in Venezuela. Underhill, U.S. citizen lived there, and asks to leave country. Revolutionary leader Hernandez refuses to let him leave b/c Underhill ran an important waterworks system for the city. b. New leader, Hernandez refuses at first, but ultimately lets him. Underhill suing to recover damages for his detention. c. Court will not let case proceed in U.S., per the Act of State Doctrine i. Use the int'l reasoning - we should judge another country's actions if they have justification for it within their own laws. ii. Hernandez acting in official state capacity on behalf of Venezuela. Therefore we should apply their law. iii. “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.” iv. “Redress of grievances by reason of such acts much be obtained through the means open to be availed of by sovereign powers as between themselves” 1. US had recognized Venezuela 2. US Executive Branch has to design some sort of relief a. Treaty between 2 states 3. Each country will resolve claims of its own people (Belmont/Soviet Case) a. Dames & Moore- executive had authority to resolve case d. Even in 1897, were there other ways of reaching the same result (getting Venezuela off the hook)? i. Can we apply the foreign sovereign immunity doctrine? 1. Twist- Venezuela, at the time that P was kept there, was a government in flux a. It was the acts of D held to be acts of gov’t because his side won 2. Move on to whether or not it was for a public purpose a. Maintaining waterworks seems to be public purpose ii. What about the doctrine of territorial jurisdiction? 1. What happens there stays there iii. Timberlane and J. Choy’s “balancing test” iv.

94

4. Banco Nacional de Cuba v Sabbatino i. Is Sabbatino good law? ii. US reduced sugar quota from Cuba because of communist Castro regime; Cuba siding with USSR during Cold War iii. Cuba immediately passed law saying that our reducing was an act of aggression justifying countermeasures 1. Cuba expropriates American-owned sugar 2. Expropriation is legal under international law iv. A number of American companies lost their investments in sugar without compensation v. SC looks to the Act of State Doctrine by assuming the validity of Cuba’s domestic action and therefore rejected the claim of US nationals against Cuban for their lost investments 1. The Court in Banco Nacional de Cuba v. Sabbatino stated that although the Doctrine is not found in the Constitution, explicitly or implicitly, it does have constitutional underpinnings in the concept of separation of powers 2. The Supreme Court reasoned that because the Executive had exclusive authority to conduct foreign affairs with other nations on behalf of the United States, disputes arising from the official actions of foreign sovereign powers should not be settled by the Judiciary because those decisions could interfere with the Executives' conduct of foreign affairs b. Top p 869- all hell broke loose after this decision i. Congress immediately passed the Sabbatino amendment ii. Aka “Second Hickenlooper Amendment 1. RULE = courts are not to apply the Act of State Doctrine as a bar against hearing cases of expropriation by a foreign sovereign a. However, one provision of the Amendment instructs the courts to continue applying the Doctrine wherever the Executive tells them to b. Essentially, under this Amendment, the Executive has the authority to decide on a caseby-case basis whether the Judiciary has the power to hear a case c. The judiciary has interpreted the Amendment narrowly so that it can continue to apply the Act of State Doctrine in many cases d. For instance, the Second Circuit held that the Amendment only applied if the property involved in the foreign act was inside the United States

95

5. Kirkpatrick a. Bribes were solicited and paid by K in Nigeria in bid to be awarded contract to construct a new aeromedical center b. How would act of state apply here? c. Court held that the validity of a foreign act was not at issue here, so the act of state doctrine did not applyi. 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 take within their own jurisdictions shall be deemed valid ii. The doctrine has no application in this case because the validity of no foreign sovereign act is at issue-

96


				
DOCUMENT INFO