INTERNATIONAL LAW The Beginning a. In 1994, Justice Blackmun of the U.S. Supreme Court observed with regard to international law: i. International law is now pervasive and central to what happens internationally, nationally and even locally. The barrier between international and national law is crumbling. 1. The challenge before us is to make clear that transnational law has become central to the concerns of the community b. Trend Towards Transnationalism i. The disintegration of the Soviet Union in the early 1990s ii. The end of the Cold War coupled with an accelerating movement toward global economic integration and political cooperation iii. States have increasingly moved to embrace both democratic forms of government and privatized free market economies iv. The coming of the computerized information age v. The increasing need for global responses to major problems vi. Countless state and non-state actors involved in global issues vii. The increase in migration of individuals and business c. The Nature of Transnational Law i. Transnational law represents the intersection of numerous doctrine: 1. Public International Law Law governing interactions between states and international organizations. Finds its source from treaties and custom. 2. Private International Law Law governing foreign transactions of individuals and corporations. Increasingly, individuals seek to bring claims to state created international courts (i.e., McCann). Often poses the question of which country s domestic law governs. 3. Comparative Law Examining law of other nations when approaching issues of domestic law. It is not binding, however it is persuasive. The U.S. Supreme Court has engaged comparative law when assessing three distinct controversial issues: affirmative action, the death penalty, and same-sex marriage. d. Challenges of Transnational Law i. Supreme Court Justice Gray in 1899 in the Paquette Habana Case observed: 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 their determination. For this purpose, where there is no treaty and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations. [175 U.S. 677,700] ii. The Controversy 1. The justices of the U.S. Supreme Court are divided on the importance of transnational law: a. Roper v. Simmons i. Majority Justice Kennedy, for the majority, held that while un-adopted international law was not controlling, it was instructive for the Supreme Court s interpretation of the Constitution. ii. Dissent Justice Scalia held that the Court should cease putting forth foreigners views as part of the reasoned basis of its decisions. Furthermore, Justice Scalia felt that it was out of hand. e. Fundamental Concerns of International Law i. The primary concern of international law is nation-to-nation relations; however, there are several implications slowing improvement of these relations. 1. The difficulty of establishing mutually agreed upon rules; 2. Political overtones 3. Trade consequences 4. The difficulty of enforcement or rules, norms and customs


Legal Relations of States Public Law II. INTERNATIONAL LAW SAMPLER Political Interactions a. McCann v. United Kingdom International Law ( 95 ECHR) i. Significance: Applied Intl. Treaty (adj. by International Court enforced Private Law by regional international legal system) 1. Facts: As early as beginning of 1988 UK and Spain knew of IRA plans for a terrorist attack on Gibraltar during the changing of the guard ceremony by detonating a car bomb brought over the border. Suspects McCann, Farrell and Savage were witnessed by Detective Constable Viagas in a car park on March 6, 1988, they has been identified by the Security Services at that time. McCann and Farrell crossed the border March 6, but were not arrested. McCann and Farrell were killed by British soldiers on March 6, 1988. They were shot in the back, possibly after being warned to stop. The killing was a result of the soldiers thinking the suspects were about to detonate bombs [intention to kill to stop threat of detonating bombs]. The British military did find an explosive device hidden in a car rented by Farrell. 2. Procedure: The Gibraltar Inquest jury returned a verdict that the killings were lawful. The families of decedents commenced an action in the High Court, Northern Ireland. The UK govt. issued certificates stating that the proceedings were excluded b/c Crown was not liable for actions taken outside of UK and N. Ireland. Judicial review turned down no reasonable prospects of success. Decedents families submitted complaints to European Commission of Human Rights the Commission reported that there was no violation of Article 2. Families move to the ECHR. 3. Issue: (1) Whether the anti-terrorist op. as a whole was controlled and organized in respect to the requirements of Article 2 of the European Convention of Human Rights; and (2) whether the information and instructions given to the soldiers which, in effect, rendered inevitable the use of lethal force, took adequately into consideration the right to life of the three suspects. 4. Holding: there was a breach of the convention; the force used was not absolutely necessary. 5. Reasoning: Because the authorities decided not to prevent the suspects from travelling into Gibraltar, failed to make sufficient allowances for the possibility that their intelligence assessments might be erroneous, and because of the authorities automatic recourse to lethal force, the Court was not persuaded that the killing of the three terrorists constituted the use of force which was no more than absolutely necessary in defense of persons from unlawful violence within the meaning of Article 2(2)(a) of the Convention. 6. DISSENT: The inquest jury listened to 79 witnesses, and so their opinion of a lawful killing should be highly valued. The use of force did not exceed what was absolutely necessary. Don t forget the benefits of hindsight. 7. Notes: European Convention of Human Rights is a result of post WWII politics. Countries get together to support human rights. This is a court of last resort. Only hears a case once domestic courts have rejected. ii. European Human Rights Convention. Article 2 1. (1) Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.



(2) Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary: a. (a) In defense of any person from unlawful violence; b. (b) In order to effect a lawful arrest or to prevent escape of a person lawfully detained; c. (c) In action lawfully taken for the purpose of quelling a riot or insurrection. Filartiga v. Pena-Irala i. Significance: Municipal adjudication of customary law (enforced by domestic legal system) 1. Facts: Dr. Filartiga is an outspoken political activist who vocally opposes the Paraguay govt. His son was taken by Inspector General Pena-Irala with the help of the police. The inspector is a govt. official, thus, the state can be held liable for his actions through agency. In Paraguay, Dr. commenced an action and had gotten nowhere for four years; his attorney was arrested, beaten, and disbarred. Another man eventually came forward and admitted to killing his son in the heat of passion. The Dr. s daughter was in the U.S. on political asylum and heard that Pena-Irala was in New York. She lodged a civil complaint in U.S. courts, brought forth by the Center for Constitutional Rights, for her brother's wrongful death by torture, asking for damages in the amount of $10 million. After an initial district court dismissal citing precedents that limited the function of international law to relations between states, on appeal, the circuit ruled that freedom from torture was guaranteed under customary international law. The appellants argued that Peña's actions had violated wrongful death statutes, the United Nations Charter, the Universal Declaration of Human Rights, the American Declaration of the Rights and Duties of Man, and other customary international law. Petitioner claimed the U.S. courts had jurisdiction to hear the case under the Alien Tort Statute. a. The Alien Tort Act The district court shall have original jurisdiction over any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the US. 2. Issue: Whether the conduct alleged violated the Law of Nations. 3. Holding: deliberate torture perpetrated under color of official authority violates universally accepted norms of international law. 4. Reasoning: It is clear and unambiguous that international law confers fundamental rights upon all people vis-à-vis their own government. These fundamental rights include the right to be free from torture. a. Ascertaining the Law of Nations i. Jurists; ii. Usage; iii. Judicial Opinions iv. Opinions of publicists 5. UN Charter Aspirational, non-binding, aspirational document. It represents what we spire for the world and can still be used to evidence custom. a. Jus Cogens - natural, fundamental, universal law. Differs from customary law. Would say things like torture, piracy, slavery are fundamental wrongs 6. Should the U.S. be a World Police, Trying Foreign Citizens in the U.S.? a. The international rules against torture don t necessarily rely on state custom, so the intl. community should be able to agree that torture violates the law of nations. i. Certain heinous crimes give any tribunal jurisdiction because of the principle of jus cogens 1. Jus Cogens a higher norm. Those rules of international law of such fundamental importance that derogation from them is prohibited. Applies to: a. Use/threat of force b. Genocide




c. Slave trade d. Piracy e. Terrorism and taking of hostages ii. Customary International Law v. Jus Cogens 1. Customary international law depends on state practice. Since state practice can change, the customary law can change. 2. Jus Cogens does NOT depend on state practice. It cannot be changed, because it relies on a belief in natural law, or a deep conviction, shared among civilized states, that certain things are simply not permissible. Comparison of The McCann and Filartiga Cases a. Both Show that international law is not exclusively the domain of nation-to-nation relations; also used by individuals seeking to push nation states to do something. i. McCann Is a case in which the families are compensated, even though they are using international hard law in an international court. In terms of effectiveness, they use Article 2 in a foreign court to get paid back home. ii. Filartiga Is a case in which a municipal court applying American law to deal with an alien, but foreigner doesn't get paid. Some have questioned the Alien Tort Statute's effectiveness, but the response is that the statute is about more than just compensation.


THE EUROPEAN UNION a. Nature of the EU i. 27 Member States ii. Economic Union iii. Aims at creating an internal market in which goods and services can be traded easily b. Internal Market i. Prohibition Of Customs Duties 1. i.e., if there is a German company shipping to a French company, there cannot be any custom duties ii. Prohibition Of Quantitative Restrictions 1. i.e., Belgium could not say that there is a maximum of 50,000 BMWs that can be imported from Germany every year iii. Prohibition Of Measures Having An Equivalent Effect 1. Rules that are equally applicable to domestic and foreign producers/sellers but put a higher burden on the importer due to additional work it has to complete to make the product marketable (e.g., packaging, presentation, composition of products) 2. Up to the Euro. Ct. of Justice to determine what measures of equivalent effect are a. i.e., in Belgium there is Dutch (in northern part) and French (in southern part) spoken in the country. Things labeled should be in the language in the part of the country where they are brought in the market. So if you want to sell a beer in the northern part of the country, it should be in Dutch. If someone wants to import a German beer, it must also be in that language. So there is a cost on the distributor to create a marketable product in Belgium. This is a measure having an equivalent effect. iv. General Good Exception 1. Restrictions of free trade can be justified a. i.e., certain things must be in Dutch or French; creates a restriction to free trade because of the higher cost in marketing. These costs are justified if they meet the 4 standards here. i. General good (e.g., for the benefit of public health)







ii. Non discriminatory: must apply to domestic producers and other member producers in the same way iii. Necessary: must be necessary to reach the goal (e.g., if you want to prescribe a certain warning on the label, that might be necessary to ensure that person won't become a victim of the product) iv. Proportionate: it may not be possible to reach the same goal with a measure that restricts free trade less. Internal Market And Differences In The Law i. Another restriction of free trade: differences in the law (27 different legal systems) ii. Consumer Law 1. Restrictions of the internal market result from differences between the legislation of the Member States a. Consumers are afraid not to be able to invoke their own law b. Professionals are afraid to be confronted with the law of another state iii. How to solve the problem: 1. Harmonize/unify the rules, one of the major tasks of the Euro. Union Harmonization i. Regulations 1. Something that is directly applicable into the member state 2. If a regulation is enacted in the union it will automatically apply in all member states a. i.e., regulation with regard to protection of airline passengers ii. Directives 1. Require implementation 2. Binding after implementation 3. Member states must ensure that those goals are met. So it's binding, but must be transposed. a. i.e., French and German laws are similar because they transposed the same Euro. directive 4. A directive does not have direct effect. It must be implemented by legislation. Recommendations i. Do not have to be transposed ii. Not binding; guidelines given by the Euro. Commission European Court of Justice i. Role of the Euro Court of Justice 1. Interpreting Euro Legislation a. National judges can ask questions to the Court b. So a national judge before deciding a case, can ask the Court what a provision in a directive precisely means i. i.e., Unfair contract terms state that contractual terms which create a significant imbalance between obligations from consumer to professional and null and void. At a certain point a national judge asked the Court whether he had the possibility to invoke the nullity of a term on his own motion, which the Court affirmed. 2. Solving issues with regard to implementation of the Directives a. A member state might not correctly implement a directive b. In such a situation the Commission can launch a procedure against that member state in the Court of Justice and litigate whether the member state correctly or incorrectly implemented the directive Harmonization Techniques i. Maximum harmonization 1. No possibility to incorporate more stringent provisions


General rules on private international law Techniques used in consumer protection laws i. Seller employs his activity within the consumers states ii. (Objectivist View) i.if you look at Euro directives. thus. it is up to the member states to determine which sanction applies. Minimum harmonization 1. Protection from unfair terms iii. Proposal of a Directive on consumer rights Protections afforded to European Consumers i. Unfair commercial Practices Directive 2. i.. If there is no choice of law. Directive on sales outside the seller's premises 3. 19th and Early 20th Century individuals were viewed as objects of international law. Right to withdraw from the contract iv. IV.. Specific rule on consumer transactions i. Rome 1 Regulation (contracts after December 17.. This rule only applies if the seller has either employed his activity within the consumer state or directed such activity to the consumer state b. Such a choice of law cannot deprive the consumer of the protection offered to him by his own legal system 2. Consumer sale Directive ii. It remains necessary to employ rules of private international law e. Distance selling Directive 4. More recently: maximum harmonization 1.h. Information requirements ii. nor duties. d.g. member states can offer more protection) 2. INDIVIDUALS AND INTERNATIONAL LAW a. Concept of a consumer: physical person acting for purposes falling outside his trade 2. 6 . Harmonization can lead to less protection for consumers of certain member states ii. Difficulties and drawbacks: a. Unfair contract terms Directive 2. Seller directs his activity towards the territory of the consumer's state iii. the law of the seller/professional's country applies 1. Possibility to incorporate more stringent provisions 3. Consumer Credit Directive: the creditor must warn the consumer 4. the minimum level of protection consumers should get in every member state of the union. Objectivists View there was State protection and responsibility for Individuals. Compatible with the Internal Market 4. the professional doesn't meet his obligations imposed by the directive). Use of open norms c. The law is the same in all member states a. Lack of sanctions . Distance selling of financial services Directive 3. Not possible to harmonize completely b. the seller no longer fears he will be confronted with additional consumer protection laws because the laws are all the same 3. they had no international legal rights.e. The directive sets the minimum (e. you can see that they do not contain real sanctions. 2009) a. so if something goes wrong (e.g. i. Past: mainly minimum harmonization 1.

and nonjusticiability of plaintiffs claims. defendant may have been liable because he was the leader of a de facto government and was acting under color of law when the atrocities occurred. Procedure: Both actions had dismissed by the Fed Dist. which expressly requires that an individual defendant act "under actual or apparent authority. Karadzic. because "acts committed by non-state actors do not violate the law of nations" and "[t]he current Bosnian-Serb warring military faction does not constitute a recognized state. of any foreign nation. It was also found that the apparent absence of state action barred plaintiffs' claim under the Torture Victim Act. on three separate occasions as an invitee of the UN and had been served with process during two of these three visits.. it had the trappings of a state.e. which was committed in violation of the law of nations. war crimes. of the Southern Dist. a. As a result. or color of law. and summary execution were against intl.b. law and defendant could have been liable as a private individual. Without notice or a hearing. The law of nations does not confine itself to state action. 1. Issue since individuals cannot bring claims to international courts on their own behalf. 1995) i." Torture Victim Act õ 2(a). defendant was not immune from service of process. Although defendant's foreign territory was not recognized as a formal state. thus. and that. This consideration was not dispositive but it "militates against this Court exercising jurisdiction. Karadzic was admitted to the U. the District Court by-passed the issues briefed by the parties and dismissed both actions for lack of subject-matter jurisdiction. Of NY for lack of subject matter jurisdiction. Karadzic may be found liable for genocide. Even though defendant was a United Nations invitee in the United States. § 2(a) of the Torture Victim Protection Act of 1991 provided for subject matter jurisdiction through the Alien Tort Claim Act. and their citizens are objects of which the states make agreements regarding. the Court concluded that they do not have SMJ. 70 F. With respect to plaintiffs' further claim that the Law of Nations. ii. personally planned and ordered a campaign of murder. including sovereignty over people and land.Y. iv. in any event. war crimes. it can. such an implied right of action would not lie in the absence of state action. lack of personal jurisdiction. gives rise to an implied cause of action over which the Court would have jurisdiction pursuant to section 1331. the Judge found that the law of nations does not give rise to implied rights of action absent specific Congressional authorization. acts of piracy). Karadzic moved for dismissal of both actions on the grounds of insufficient service of process. In 1993. iii. and other forms of torture designed to destroy the religious and ethnic groups of Bosnian Muslims and Bosnian Croats. Positivist Theory states make the law. because it is impractical to conceive of a state protecting its own nationals against itself in international law. while physically present in Manhattan." The Court did not consider the alternative claim that Karadzic acted under color of law by acting in concert with the Serbian Republic of the former Yugoslavia. Plaintiffs' claims were not a non-justiciable political question because of the nature of the claim.S. one of the three presidents of the Bosnian-Serb republic. it extends to certain offenses that everyone in the world is offended by. as incorporated into federal common law. Ct.3d 232 (2d Cir. and crimes against humanity in his private capacity and he can also be held liable for other violations in his capacity as a state actor. Holding: Yes. 7 . they have international legal rights and duties. torture. a recognized nation. forced impregnation. courts when an alien sues. for a tort. N. ii. In the District Court. Kadic v. Genocide." Regarding the issue of SMJ under the Alien Tort Act. Reasoning: The alien tort claim act confers jurisdiction to U. Hostis humani offenses that are the enemy to all mankind (i. Individuals have the ability to bring claims to international courts. rape. Issue: Whether the Alien Tort Claim Act can be applied to non-state actors. Facts: Croat and Muslim citizens of Bosnia-Herzegovina alleged that Karadzic. v.S. lack of subject-matter jurisdiction. The District Courts reasoning: the court might be deprived of jurisdiction if the executive branch were to recognize Karadzic as the head of state of a friendly nation. Subjectivist View Individuals are responsible for themselves. it leaves nationals open to abuse by their own states.

(e) Forcibly transferring children of the group to another group. (c) Outrages upon personal dignity. sex. or any other similar criteria. or any other cause. (1) Persons taking no active part in the hostilities. shall in all circumstances be treated humanely. A State has a defined territory and a permanent population. in particular humiliating and degrading treatment. (a) Violence to life and person. Liechtenstein offered Nottebohm protection against the government of Guatemala and sued Guatemala in the International Court of Justice. The result Convention on the Prevention and Punishment of the Crime of Genocide. iii. 2. iv. genocide means any of the following acts committed with intent to destroy. detention. as such: 1. torture & degrading treatment Torture and summary execution. a national. ii. When he tried to reenter Guatemala in 1943. 3. (b) Causing serious bodily or mental harm to members of the group. colour. as a minimum. He returned to Guatemala on his Liechtenstein passport and informed the local government of his change of nationality. The application was approved even though a requirement was that he be a resident there for at least 3 years. 3. the following provisions: a. racial or religious group. mutilation. birth or wealth. 5. (a) Killing members of the group. wounds. Individuals As Objects Of International Law i. The Nottebohm Case 1. under the control of its own government. yet he never became a citizen. Genocide After WWII there was a broad consensus that genocide is a crime under international law. Convention on the Prevention and Punishment of the Crime of Genocide i. cruel treatment and torture. War Crimes. relevance of Geneva Conventions In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties. ethnical. in whole or in part. each Party to the conflict shall be bound to apply.c. Facts: Nottebohm was born in Germany. formal relations with other such entities. without any adverse distinction founded on race. a. Inflicting Death. including members of armed forces who have laid down their arms and those placed 'hors de combat' by sickness. 3rd. vi. when not perpetrated in the course of genocide or war crimes are proscribed by international law only when committed by state officials or under color of law. a. in particular murder of all kinds. and was a German citizen. he was refused entry as an enemy alien since Guatemalan authorities did not recognize his naturalization and regarded him as a German (enemy alien because of WWII). However. b. and that engaged in or has the capacity to engage in. the government of Guatemala 8 . Rest. The approval was granted due to exceptional circumstances. 2. (d) Imposing measures intended to prevent births within the group. the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons: i. (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part. He lived in Guatemala for almost 40 years and conducted a prosperous business there. he applied to become a citizen of Liechtenstein. religion or faith. In 1939. Article 2 . To this end. (b) Taking of hostages. Three Claims Made 1. 4. (d) The passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.

Plaintiff cannot extend protection to Nottebohm and its claim is inadmissible. 4. there are special circumstances where this general rule doesn't apply. 2. and held that claims by Lichtenstein were inadmissible. c. attachment shown towards country. a State must establish its right to do so. Genuine link test a legal bond having as its basis a social fact of attachment. The Belgian Government contended that after the WWI Barcelona Traction share capital came to be very largely held by alleged Belgian nationals. The connection is gauged on: habitual residency. participation in public life. which was not the case here. Reasoning: Although the Court stated that it is the sovereign right of all states to determine its own citizens and criteria for becoming one in municipal law. and if Lichtenstein's claim on behalf of Nottebohm is admissible in court. such as if the company ceased to exist or if the State protecting the company lacked the capacity to take 9 . Holding: No. However. In order to bring a claim in respect of the breach of an obligation. Relations with Germany Nottebohm always retained connections with family in Germany and there was nothing to indicate a desire to sever ties with the German Govt. Facts: Barcelona Traction was a corporation that controlled light and power utilities in Spain and was incorporated in Toronto. 5. Plaintiff is doing this not for Nottebohm. such a process would have to be scrutinized on the international community in questions of diplomatic protection. b. 3. Issue: Whether the conferment of the Lichtenstein citizenship is contrary to int'l law. The Court upheld the principle of effective nationality. This principle was previously applied only in cases of dual nationality to determine which nationality should be used in a given case. Naturalization was not asked for to become a member of Lichtenstein's population. v. (Canada). no prolonged residency.C. no allegation of economic interests or activities. A wrong done to a company might cause prejudice to its shareholders. Holding: The court held that Nottebohm did not gain Lichtenstein citizenship for the purposes of intl. The Barcelona Traction Case (Barcelona Traction. nor an intention of settling there.argued that Nottebohm did not gain Liechtenstein citizenship for the purposes of international law. lacked capacity to submit any claim in respect of wrongs done to the Canadian Company. Its object was to seek reparation for damage alleged by Belgium to have been sustained by Belgian nationals. Light & Power Co. Belgium s claim is rejected. shareholders in the company. where the national must prove a meaningful connection to the state in question. 2. a genuine connection of existence. there was adjudication in bankruptcy in Spain of Barcelona Traction. Family members have asserted Nottebohm's desire to make Guatemala his indefinite residence. 3) 1. law. but rather transfer citizenship from Germany (an enemy of the State) to a neutral State without any actual ties to Lichtenstein. In 1948. and other links to the state. 1970 I. Issue: Whether the Belgian Government has the right to protect the corporation against Spain in the ICJ. Conclusion Guatemala is therefore under no obligation to recognize a nationality granted under such circumstances. family ties. a.J. i. but the Spanish Government maintained that the Belgian nationality of the shareholders was not proven and that the Belgian govt. a. but for themselves to make sure that they have weight in the international community (Objectivist approach) ii. Spain. Relations with Lichtenstein He had no settled abode. Relations with Guatemala He lived in Guatemala for 34 years and maintained a prosperous business there. 4. 3. Reasoning: The act complained of must be aimed at the direct rights of the shareholder or from a treaty or special agreement between Spain and Belgium. but does not mean that the shareholders have a valid claim. interests and sentiments.

Facts: Before the Nuremberg Trial. even if the Government decided not to represent plaintiff. The Court is not of the opinion that just standi (recognized rights) is conferred on the Belgian Government. If the decision of the Court will be too much of interference. a. however. Hermann Wilhelm Goering. representatives from the nine occupied countries met in London to draft the Inter-Allied Resolution on German War Crimes. the French Republic.D. Act of State 1.R. especially for international organizations where shares often change hands. 2. At the meetings 10 . this was only provided they were effectively protected by their own state. Justiciability asks the question of what the judiciary's proper role is in these types of matters. The Barcelona Court employed the genuine connection test rather than the genuine link test. Positivists view 1. iii. Individuals as Subjects of International Law i. The genuine link test if Nottebohm is a citizen of Germany. After WWII. action. Should the natural or legal persons on whose behalf it is acting consider that their rights are not adequately protected. It was clear that the plaintiff company had not ceased to exist and the right of diplomatic protection of a corporate entity is to the State under the laws of which it is incorporated and whose territory it has its registered offices. It is nationality which triggers the flow of rights and diplomatic protection at international law. Is there a political question implicating the Political Questions Doctrine? 1. Both cases employ the doctrine of state protection and state responsibility to determine nationality (objectivist view). See Nottebohm. ii. and the Union of Soviet Social Republics v. Courts should not hide just because it might touch on the other two prongs (Executive and the other one). and France engaged in negotiations regarding how to punish the Nazi leadership. 69 (1946) 1. Joachim von Ribbentrop.d. Rudolf Hess. These doctrines did not assist individuals being abused by their own governments. The Role Of The Court i. [Mark W. International law as a set of rules with the states as its subjects. they have no remedy in international law. the United Kingdom of Great Britain and Northern Ireland. a. not subjects. Barcelona Court Objectivist Regarding Nationality A state may exercise diplomatic protection by whatever means and to whatever extent it thinks fit for it is its own right that the State is asserting.S. and municipal law is a state s set of rules with individuals as its subjects. The Nuremberg Judgment. then Barcelona Traction should be a citizen of Belgium. Plaintiff was incorporated in Canada and was protected by Canadian Government. Parties: U. Eventually. afforded individuals partial protection under international law. The Belgian Government's argument seems to infer that holding a single share versus 90% of the shares would allow the same protection. Individuals as Subjects of Intl. it still had the capacity to do so and therefore another State could not take over. This case provides another example of the traditional theory that individuals are objects. as examined in Nottebohm and Barcelona Traction. the US.. Barcelona Traction 1. of international law. Britain. Just because foreign relations are implicated by judicial decision making. because the connection test is slightly more flexible. 5. i. the doctrine of state responsibility. they should not accept or pursue the case. the Soviet Union. 1. Janis. 6 F. ii. Law ] ii. does not render a matter non-justiciable. Political questions are often implicated by legal cases 2. Nottebohm v. [and 24 Other Named Defendants] 2. Such a rule would create chaos.

i. or any of them. The precedent used for this is the Treaty of Versailles. Criminals cannot hide behind their official positions in order to be sheltered from punishment. for in such circumstances the attacker must know that he is doing wrong. (b) War Crimes: namely. and 1. 4. deportation. The true test is whether moral choice was in fact possible. Yalta (1945) and Potsdam (1945). 1939. International law must apply to individuals for it to be enforced. agreed on the format of punishment for those responsible for war crimes during World War II. and sa far from it being unjust to punish him. (c) Crimes against Humanity: namely. Such violations shall include. the three major wartime powers. issued on August 8. are crimes coming within the jurisdiction of the Tribunal for which there shall be individual responsibility: i.600 others were tried under the traditional channels of military justice. enslavement. The legal basis for the trial was established by the Nuremberg Charter. i. Article 6 The Tribunal established by the Agreement referred to in Article 1 hereof for the trial and punishment of the major war criminals of the European Axis countries shall have the power to try and punish persons who. Defendants Argue it is uncivilized to apply these laws to them because it is ex post facto. whether as individuals or as members of organizations. The legal basis for the jurisdiction of the court was that defined by the Instrument of Surrender of Germany. Classic Subjectivist View a. 5. 11 . acting in the interests of the European Axis countries. since crimes against international law are committed by men. The Tribunal was invested with power to try and punish persons who had committed crimes against peace. and crimes against humanity as defined in the Charter. International Law Imposes duties and obligations on individuals as well as on States. which having sovereign power over Germany could choose to punish violations of international law and the laws of war. "Just following orders" defense does not bar people from punishment. war crimes. 6. murder. the United States. violations of the laws or customs of war." Some 200 German war crimes defendants were tried at Nuremberg. the Soviet Union and the United Kingdom. or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal. Because the court was limited to violations of the laws of war. before or during the war. which restricted the trial to "punishment of the major war criminals of the European Axis countries. The Court tells us that there can not only be enemy states. The Courts Response To assert that it is unjust to punish those who in defiance of treaties and assurances have attached neighboring states without warning is obviously untrue. "The fact that the defendant acted pursuant to orders of his Government or of a superior shall not free him from responsibility " b. it did not have jurisdiction over crimes that took place before the outbreak of war on September 3.14 or persecutions on political. whether or not in violation of domestic law of the country where perpetrated. but not iii. but can be used to mitigate punishment ii. political authority for Germany had been transferred to the Allied Control Council. The following acts.3. committed any of the following crimes. (a) Crimes against Peace ii. but enemy individuals. extermination. Nuremberg Charter Provisions a. in Tehran (1943). racial. 1945. and other inhumane acts committed against any civilian population. it would be unjust if his wrong were allowed to go unpunished.

. 12 . General Assembly b." V. The creation of the UN in 1945 signaled.S. Jamaica is obliged to provide an effective remedy pursuant to Article 2. The 1948 Universal Declaration of Human Rights a. (3) Take future-oriented corrective actions.g. ¶ 3(a) of the Covenant: (1) Remove him to a juvenile correctional facility. shall never be sought except by pacific means. Because Jamaica had signed on to the optional protocol. but by continual adaptation follows the needs of a changing world. Akin to French Declaration of the Rights of Man and Citizen. he was systematically beaten by wardens. ii. The UN Human Rights Committee requested for Jamaica to give them info within 90 days on what measures they took to correct this matter. but never gave any feedback to UN Committee. Kellogg-Briand Pact (Pact of Paris) Germany. Kellogg pact). Article I The High Contracting Parties solemnly declare in the names of their respective peoples that they condemn recourse to war for the solution of international controversies. he contacted the UN Human Rights Committee regarding his situation. He was in a jail among adults. Thomas later alleged that. according to covenant. Evidencing the roots of International Human Rights: 1.S. Transforms substantive norms of HR Law from National to International. Damian Thomas v. however. ii. (2) Compensation. Human Rights and the United Nations i. which is against the International Covenant on Civil and Political Rights. See appendix e. Jeffersonian origins c. the state had a duty to investigate. but in the customs and practices of states which gradually obtained universal recognition and from the general principles of justice applied by jurists and practiced by military courts. c. Jamaica is under an obligation to Thomas to put him in a juvenile institution. Article II The High Contracting Parties agree that the settlement or solution of all disputes or conflicts of whatever nature or of whatever origin they may be. Facts: Damian Thomas was 15 when he was arrested for 2 murders. and renounce it. The State of Jamaica was informed of the brutalization of Thomas and did not refute the allegations. Reasoning: Although Jamaica had denounced the optional protocol. Since Jamaica had signed on to the optional protocol. they recognized that the Committee was competent to determine whether there was a violation of the covenant. promised to investigate. Thomas claim for being imprisoned among adults remained admissible. Italy. which may arise among them.b. when Thomas was 16. Document of the UN. and compensating him for placing him with adults while still a minor. Holding: Jamaica has failed to discharge its obligations under the Covenant (ICCPR). As such. INTERNATIONAL HUMAN RIGHTS LAW a. Jamaica (UN Human Rights Committee) i. In 1996. and was not represented by counsel. Living Tree Approach The law of war is to be found not only in treaties (e. iii. but refused to cooperate. while in detention. and Japan were signatories i. rendering the claims of brutalization inadmissible. this case was submitted to UN before Jamaica's revocation. Therefore. & U. This law is not static. Jamaica s failure to act was in violation of Article 25 of the ICCPR (protection as required by his status as a minor) ii. Jamaica never refuted the allegations. Bill of Rights d. the allegations were communicated to UN after Jamaica denounced the protocol. the internationalization of human rights and the humanization of international law b. Bill of Rights i. U. Jamaica. as an instrument of national policy in their relations with one another.

the House of Lords reinstated the injunction finding that freedom of speech shouldn t be infringed. Lord Reid says the publication should be postponed for the time being in light of 13 . religion. EUROPEAN HUMAN RIGHTS LAW a. notwithstanding that the violation has been committed by persons acting in an official capacity. the case was not dormant. Juvenile offenders shall be segregated from adults and be accorded treatment appropriate to their age and legal status. which would strongly indicate Distiller's negligence. The Sunday Times Case. 2. iii. ii. on another appeal. a sedative given to pregnant women. Facts: Distillers marketed a drug. There was a suit against Distillers by 389 plaintiffs. on the reasoning that "it might prevent the due and impartial administration of justice by affecting and prejudicing the mind of the tribunal itself. (1) All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person. Denunciation shall take effect three months after the date of receipt of the notification by the Secretary-General. national or social origin. 26 APRIL 1979 (European Court of Human Rights) i. (3) Each State Party to the present Covenant undertakes: 1. but it could not be allowed where there could be real prejudice to the administration of justice. The Sunday Times then decided to publish information on Distiller's actions prior to the public discovery of how harmful the drug was. (2) Denunciation shall be without prejudice to the continued application of the provisions of the present Protocol to any communication submitted under article 2 before the effective date of denunciation. (3) The penitentiary system shall comprise treatment of prisoners the essential aim of which shall be their reformation and social rehabilitation. b. ii. and in that article. and also importantly. (a)To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy. (1) Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant. promised another article the next week detailing facts. colour. without distinction of any kind. by affecting witnesses who were to be called or by prejudicing the free choice and conduct of a party to the litigation. save in exceptional circumstances. language. and they were in the midst of settling. Distiller filed a formal complaint to the attorney general seeking an injunction against publishing of the article. The Queen s Bench District court granted the injunction." The Times appealed. and was subsequently taken off the market. 2 EHRR 245. Article 12 a. (1) Any State Party may denounce the present Protocol at any time by written notification addressed to the Secretary-General of the United Nations. VI. be segregated from convicted persons and shall be subject to separate treatment appropriate to their status as unconvicted persons. (2)(a) Accused persons shall. It was discovered that it led to deformities in the fetus. and the Court of Appeals discharged the injunction. but still active. Court said that public interest outweighed the potential prejudice to the party. iv. Article 2 i. such as race. [sic] sex. property. Then. b. Article 10 i. (2)(b) Accused juvenile persons shall be separated from adults and brought as speedily as possible for adjudication. Optional Protocol to the ICCPR. International Covenant on Civil and Political Rights a.1. political or other opinion. birth or other status. and the law did not prevent comment when litigation was dormant.

] that the death penalty will not be carried out. The US requested extradition. While the mass media must not overstep its bounds in the interests of the administration of justice. This article shall not prevent States from requiring the licensing of broadcasting. ii. Ct. and he was committed to await the Home Secretary's order to extradite him to the United States. for the protection of health or morals. No. for preventing the disclosure of information received in confidence. Times then applied to the European Commission on Human Rights to discharge the injunction.b. 1. for the prevention of disorder or crime. 11 Eur. H. (ser." There was interference by public authorities (the injunction) ii. television or cinema enterprises. c. since it carries with it duties and responsibilities. Article 10 Freedom of expression 1. may be subject to such formalities. committed a double murder in the US and fled to Europe in October of 1985. (2) The exercise of these freedoms. (1) Everyone has the right to freedom of expression. for legitimate aims. territorial integrity or public safety. or for maintaining the authority and impartiality of the judiciary. iii. stating that as the Home Secretary had not yet 14 . Facts: German national. 1." An assurance had indeed been provided in this case by the Commonwealth Attorney of Bedford County. In this case. Thus the European Court of Human Rights finds a violation of Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms. Lord Justice Lloyd in the Divisional Court admitted that the assurance "leaves something to be desired". claiming in constituted a breach of Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms.R. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.. The article might have served as a brake on speculative and unenlightened decision by bringing certain facts to light. living in the US. but Soering contended that this was worthless. Soering was arrested in England on 30 April 1986 on charges of check fraud. A warrant was issued under Section 8 of the Extradition Act 1870 for the arrest of Soering. based on the 1972 Extradition Treaty. 11) i. for the protection of the reputation or rights of others. in the interests of national security. He also cited Article IV of the US-UK Extradition Treaty. The injunction would have been valid only if it appeared to be absolutely certain its restraint would have prevented a threat to the authority of the judiciary. and necessary in a democratic society. for maintaining the authority and impartiality of the judiciary. conditions. it is important for them to impart information concerning matters that come before the courts for public interest. A) (1989) i. Six weeks later a grand jury of the Circuit Court of Bedford County indicted Soering with the capital murder. The Soering Case. The case was settled in the European Court of Human Rights. The media has the right to give such information and the public has the right to receive it. He then petitioned the Home Secretary who also denied the request. Also says it's subject to "such formalities. Soering filed a petition for habeas corpus with the Divisional Court. Issue: Whether the interference was prescribed by law. the circumstances. but refused the request for judicial review. restrictions or penalties as are prescribed by law and are necessary in a democratic society . as well as the separate non-capital murders. arguing that the Extradition Act 1870 did not authorize extradition for a capital charge. who subsequently denied his request.Freedom of Expression. the families of the victims had a large interest in knowing all of the underlying facts and possible solutions. 2.. Convention for the Protection of Human Rights and Fundamental Freedom (amended by Proto. and requested permission for judicial review of the decision to commit him. restrictions or penalties as are prescribed by law and are necessary in a democratic society. Holding: The interference complained of did not correspond to a sufficiently pressing social need. The defendant then filed a claim with the European Commission of Human Rights who found against him. He filed a Petition for Habeas Corpus with the Divisional Court. Article 10 . conditions. Procedure: Defendant was indicted by Circuit Court of Bedford County. which provides that an extradition request for an offence carrying the death penalty can be refused if the requesting country has not given "assurances [.

and to the personal circumstances of the applicant. iv. In approaching this question. The decision makes it difficult. the Court had to determine whether there was a "real risk" of Soering being executed. United Kingdom is important in four respects: a. 15 . It enlarges the scope of a state's responsibility for breaches of the Convention. Soering appealed to the House of Lords who rejected his claim. other factors could violate Article 3. The Court concluded that. and Article 3 had never been interpreted to bring the death penalty. Soering had already filed a claim with the European Commission of Human Rights. asserting that he would face inhuman and degrading treatment contrary to Article 3 of the European Convention on Human Rights (ECHR) were he to be extradited to the US. Expanded the obligation to all States. The Court did not give much weight to US authorities assurance that the death penalty would not be used. within the prohibition of "inhuman or degrading treatment or punishment. The Home Secretary later authorized extradition. Result: the UK government sought further assurances from the US regarding the use of the death penalty before extraditing Soering to Virginia. A further consideration of relevance is that in the particular instance the legitimate purpose of extradition could be achieved by another means [extradition or deportation to Germany]. iii. Soering's arguments that the use by a non-Convention State of the death penalty would engage the right to life were novel. it being likely that the death penalty would be applied in his case. especially his age and mental state at the time of the offense. c. The Court's approach to the death penalty may reduce its use by non-signatory States that seek to extradite suspects from signatory States. which would not involve suffering of such exceptional intensity or duration. having regard to the very long period of time spent on death row in such extreme conditions. 1. The Convention also overrides agreements concluded with such States. where other articles of the Convention may apply. A signatory State must now consider consequences of returning an individual to a third country where he might face treatment that breaches the Convention. per se. but this jurisdiction implicitly extends to actions in non-signatory States. b. Holding: The European Court of Human Rights handed down a unanimous opinion in which it affirmed the Commission's conclusion that Article 3 could be engaged by the extradition process. Anticipating this outcome. the applicant's extradition to the United States would expose him to a real risk of treatment going beyond the threshold set by Article 3. with the ever present and mounting anguish of awaiting execution of the death penalty." The ECHR requested that no extradition take place pending the deliverance of its judgment. However. Issue: Whether Article 3 of the ECHR is applicable when the adverse consequences of extradition are suffered outside the jurisdiction of the extraditing state as a result of treatment or punishment administered in the receiving state. and the extraditing state could be responsible for the breach where it is aware of a real risk that the person may be subject to inhuman or degrading treatment. The Court concluded that the "death row phenomenon" did breach Article 3. for the US and other capital punishment countries to extradite suspects on capital charges from signatory States. v. He is serving his sentence at the Brunswick Correctional Center. even if the actual extradition itself would not breach Article 3. The rationale of the Court's judgment applies equally to deportation cases. the Court concluded that the Convention does allow for the death penalty s use in certain circumstances and that Article 3 could not stand in the way of the extradition of a suspect simply because they might be subject to the death penalty. in that Article 2(1) of the Convention expressly permits the use of the death penalty. d. where he was tried and convicted for the first degree murder of the Haysoms. Not only are signatories liable for consequences of extradition suffered outside their jurisdiction. However. Significance Soering v. Regardless of illtreatment being beyond its control or giving of assurance.accepted the assurance and Soering's request was therefore premature. The court sentenced him to two consecutive life terms. such as Article 6 (right to a fair trial). if not impossible. He then petitioned the Home Secretary without success.

iv. the existence in the State concerned of a consistent pattern of gross. e. In countries which have not abolished the death penalty. The European Convention On Human Rights i. (a) In defense of any person from unlawful violence. ii. (b) In order to effect a lawful arrest or to prevent escape of a person lawfully detained. where applicable. Article 1 The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention.d. Article 6 Every human being has the inherent right to life. 2. Article 3 No one shall be subjected to torture or to inhuman or degrading treatment or punishment. 3. sentence of death may be imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the crime and not contrary to the provisions of the present Covenant and to the Convention on the Prevention and Punishment of the Crime of Genocide. This penalty can only be carried out pursuant to a final judgment rendered by a competent court iii. Article 3 (1) No State Party shall expel. return or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture. This right shall be protected by law. flagrant or mass violations of human rights. f. ii. iii. VII. INTERNATIONAL CRIMINAL LAW a. Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary: 1. (2) For the purpose of determining whether there are such grounds. (c) In action lawfully taken for the purpose of quelling a riot or insurrection. Convention Against Torture And Other Cruel. (5) Sentence of death shall not be imposed for crimes committed by persons below eighteen years of age and shall not be carried out on pregnant women. International Covenant on Civil and Political Rights i. No one shall be arbitrarily deprived of his life. the competent authorities shall take into account all relevant considerations including. International Criminal Prosecutions Structure of the Court System Domestic Courts Military Tribunals Civilian National Courts Special Civilian Courts 16 . No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. Inhuman. Article 2 Everyone's right to life shall be protected by law. or Degrading Treatment Or Punishment i. ii.

Pinochet was also accused of embezzlement of government funds. Internationalism States policing nationals of other states for crimes that did not occur within their territory v. however. the State still needs legislation allowing its courts to reach outside of its territories b. and probably did not take its national(s) as a victim or offender. Nationalism v. Issues Regarding the Exercise of Universal Jurisdiction 1. iv. The UN High Commissioner of Human Rights and Amnesty International demanded Pinochet s extradition to Spain. Bad because that same proximity could bring bias. Good because of physical proximity. The Chilean government opposed Pinochet s arrest. extradition to Spain. Territorial Jurisdiction and National Jurisdiction Nation-state exercises its own territorial jurisdiction over matters that occur within its borders 1. the date during which the UK implemented legislation for the UN Convention against Torture in the Criminal Justice Act 1988. a number of which committed as part of Operation Condor. Despite the protests of legal and medical experts from several countries. Prerequisites: a. There are crimes that are so universally abhorrent. The trial commenced in the House of Lords. was responsible for numerous human rights violations. the illegal drug trade and illegal arms trade. National Courts Domestic Courts i. the highest court of the UK. however. would not be protected by former head-of-state immunity. despite local amnesty laws. There had been a series of cases brought against Pinochet which resulted in house arrest. declaring themselves competent to judge crimes committed by former heads of state. Pinochet argued that he had immunity as a former head of state under the State Immunity Act of 1978. We need legislation for a State court to criminalize and international wrong. Universal Jurisdiction in the US there is a Constitutional foundation for the prosecution of international crimes. those within the region will be more likely than not to be subjective rather than objective in deliberation ii. The Lords. the International Courts policing. While in London for medical treatment and alleged arms trading. Shortly thereafter. Facts: General Augusto Pinochet. Pinochet was arrested under an international arrest warrant issued by Judge Baltasar Garzón of Spain. and trial. access to evidence. such as torture. Before a nation-state can exercise universal jurisdiction. this offense did not take place within its territory.b. iii. 17 . Universal Jurisdiction Jurisdiction over what we (as a community of nations) feel are universal wrongs 1. criticism that such power is unchecked 3. that any jurisdiction can exercise jurisdiction because that crime is so offensive that the reach of one nation into another should be allowed 2. 2. The Pinochet Case Movement Towards Universal Jurisdiction 1. the investigation. an avenue for the healing of the offenses 2. Concerns over Pinochet s health led to medical tests conducted by the Home Secretary Jack Straw. the Lords rejected this argument holding that some international crimes. Significance: This case marks the first time that several European judges applied the principle of universal jurisdiction. Pinochet died in Chile. decided that Pinochet could only be prosecuted for crimes committed after 1988. Straw finally ruled to set Pinochet free and authorize his free return to Chile. rather than extradite Pinochet to Spain. the head of the military dictatorship that ruled Chile from 1973 to 1990. an illegal effort to suppress political opponents in Chile and abroad in coordination with foreign intelligence agencies. There must be a prosecutor or judge (some cases a victim) that decided to initiate this case. Article I of the US Constitution grants Congress the power to define and punish offenses against the Law of Nations. The former UK Prime Minister and the US President Bush called upon the British government to release Pinochet and allowed for his return to Chile.

Military Tribunals ii. Special Civilian Courts b.S. Political and Diplomatic universal jurisdiction justifies a unilateral act of wanton disregard of the sovereignty of a nation or the freedom of an individual connected to the pursuit of a vendetta or other ulterior motives. Special Civilian Courts a. Foreigner harms a national outside of territory iv. Military Tribunals a. does not have evidence or witnesses within its territory.e. or 2. with the obvious assumption that the person or state thus disenfranchised is not in a position to bring swift (possibly violent and massive) retaliation to the state applying universal jurisdiction. Akin to the Subsidiary Doctrine 2. 3. a. Jurisdiction If: i. National commits a crime against humanity in foreign state (extraterritorial jurisdiction) iii. Impeding Foreign Relations this form of prosecutory meddling provides a significant risk of tarnishing state-to-state relations. even if none of those jurisdictional principles applies. racial. torture. ethnic.C. Domestic Courts Include: i. Crimes against humanity 2. Subsidiarity Doctrine a limit on the exercise of universal jurisdiction.C. thus rending the investigation much more difficult and perhaps any judgment less legitimate. Justified by the special nature of the crime (i. Jurisdiction over its own people b. or an international court.. Incorporates international war crimes c. Genocide a. (5) Imposes measures intended to prevent births within the group.Legitimacy and Proximity The exercising state. Comprehensive war justice system for military personnel 3. 18 . Role of Domestic Courts 1. 18 U. Regular court of justice for citizens within the territory b. Jurisdiction over offenders found in their territory. in a whole or in a substantial part. § 1091. Basically ad-hoc courts established specifically to try international crimes b. vi. (2) Causes Serious Bodily injury to members of that group (3) Causes the permanent impairment of the mental faculties of members of the group through drugs. a national. or religious group as such (1) Kills members of that group. in a circumstance described in subsection (d) and with specific intent to destroy. (a) Basic Offense Whoever. is not ensured or cannot be ensured. Civilian National Courts a. The concern in cases of this nature is justiciability (the ability of the subject matter to be evaluated by the court) v. Uninvolved third-party countries should exercise jurisdiction over crimes subject to universal jurisdiction only if criminal prosecution by primarily competent states. Civilian National Courts iii. or similar techniques. Jurisdiction over ordinary domestic offenses 4. whether in time of peace or in time of war. §1091) 5.S. Territorial ii. v. Treaty: Try-or-Expedite 1. Genocide 18 U. (4) Subjects the group to conditions of life that are intended to cause the physical destruction of the group in whole or in part.

Establishment 1993. 2. Criticisms The criticisms of the tribunals include: (1) the high cost of operation. (4) have not deterred similar behavior. War crimes (as defined by Common Art. 1. due to the urgent need to control the violent political conflict in Yugoslavia the UN Security Council expedited the process. International Tribunals i.The tribunal has jurisdiction over: i. The chronology of the wars in the former Yugoslavia was completed with armed conflicts in Kosovo and the Former Yugoslav Republic of Macedonia. Bosnia. Genocide. and Herzegovina. ii. These tribunals also: (1) provide legitimacy. applying the domestic laws (consistent with international law) of the country in which the crimes have occurred. (5) effectively remove criminals. and precedential value led to establishment of ICC and hybrid tribunals. Designed partly in response to criticisms of the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR). Contributions of the ICTY and ICTR these tribunals allow for the possibility of holding individuals accountable for horrendous acts against mankind. ii. Subject Matter Jurisdiction . c. 3 and Additional Protocol II of the Geneva Conventions dealing with war crimes committed during internal conflicts) b. and iv. Resolution 808 (according to Nelson) or 827 (according to the ICTY website) of the United Nations Security Council.(6) Transfers by force children of the group to another group. Hybrid/Mixed Tribunals i. Often developed in post-conflict situations. c. a. only deliberating on a few issues. a. The hybrid tribunal is one of the latest attempts to seek justice for crimes of mass atrocity. shall be punished as provided in subsection (b). Nuremberg Tribunals 1. Or attempts to do so. there is a treaty process for the creation of tribunals of this nature. the hybrid model is a system that shares judicial accountability jointly between the state in which it functions and the United Nations. Kosovo. Croatia. 19 . The tribunal is an ad hoc court of the UN which is located in The Hague. and iii. a. Grave breaches of the Geneva Conventions. there had been violent flair ups in Slovenia. (2) the length of the trials. Violations of the laws or customs of war iii. Subject Matter Jurisdiction The court has authority over: i. Genocide. (4) provide accountability. but. (6) provide fairness/due process. (2) aid in the healing of social wounds. and the Extraordinary Chambers in the Courts of Cambodia. and to try their perpetrators. Crimes against humanity. (3) maintain records of the past occurrences. Special Panel for Serious Crimes. such as: Special Court for Sierra Leone. (3) the inefficiency (only so many indictments). Netherlands. (5) stringent limitations on jurisdictional reach. In response. Joint cooperation between domestic and international judges. These tribunals set the stage for the ICC d. Crime against humanity 2. Generally. the United Nations established the ICTY to prosecute the serious crimes committed during these wars. East Timor. International Criminal Tribunal for Rwanda (ICTR) established in 1994 by the United Nations Security Council under Resolution 955 in order to judge people responsible for the Rwandan Genocide and other serious violations of the international law in Rwanda. due to missed educative opportunity within territories in which atrocities took place. foreign judges sat with Kosovo Courts. b. International Tribunal for the Former Yugoslavia (ICTY) In the early 1990s.

Bashir has since visited Egypt and Qatar. Sudan claims that it does not have to execute the warrant because it does not recognize the ICC and is not a state party to the Rome Statute. issued on 3/4/09. you can t have the US police the world and be subject to the ICC 5. Membership As of March 2010. Luis Ocampo. and a further 38 countries have signed but not ratified the Rome Statute. Jurisdiction The ICC is designed to complement existing national judicial systems. including China. A number of states. Netherlands. even though out democratically-elected representatives have not agreed to be bound by the treaty. Russia and the United States. The warrant indicted him on five counts of crimes against humanity (murder. However. The ICC can generally exercise jurisdiction only in cases where: a. Community of Nations b. Masalit and Zaghawa. the Genocide Intervention Network. with a campaign of murder. the Arab League and the African Union condemned the warrant. the Rome treaty. Since the ICC was created with a self-initiating prosecutor. Despite a UN Security Council resolution which states that Sudan must cooperate with the ICC. torture and rape) and two counts of war crimes (pillaging and intentionally directing attacks against civilians). a. and the crime of aggression (currently ICC lacks jurisdiction over crimes of aggression). Bashir was also accused of having masterminded and implemented a plan to destroy the three main ethnic groups. Establishment The court came into being on 1 July 2002 the date its founding treaty.e. extermination. The official seat of the court is in The Hague. forcible transfer. crimes against humanity and war crimes committed since 2003 in Darfur. had been accused by the Chief Prosecutor of the International Criminal Court. Sudan announced that the presidential plane would always be escorted by fighter jets of the Sudanese Air Force to prevent his arrest. answerable to no state or institution other than the court itself. it ran contrary to American ideals. b. f. A situation is referred to the court by the United Nations Security Council. 2. Ocampo and Amnesty International claimed that al-Bashir's plane could be intercepted in International Airspace. the Fur. but its proceedings may take place anywhere. 20 . Furthermore. was supported by NATO. 1. because. It can exercise its jurisdiction only when national courts are unwilling or unable to investigate or prosecute such crimes. the President of Sudan. both countries refused to arrest him and surrender him to the ICC upon arrival. 111 states are members of the Court. The accused is a national of a state party. The arrest warrant. Exceptionalism Pursuant to US Exceptionalism. establishing the ICC. b. The court ruled that there was insufficient evidence to prosecute him for genocide. or c. are critical of the court and have not joined. crimes against humanity. A permanent tribunal to prosecute individuals for genocide. Concerns a. 1. rape and deportation. Al-Bashir is the first sitting head of state ever indicted by the ICC. American Foreign Policy and the International Criminal Court). Legitimacy Sovereignty foreign judges dictating trials of serious concern to states that they have no concept of the socio-political context of. Facts: Omar al-Bashir. 4. The court claims the authority to detain and try American citizens. The International Criminal Court i. Interesting Note The United States un-signed the Rome Treaty. the US system of government is based on the principle that power must never be without a check (ironic). as President Bush stated. Benefits a. entered into force and it can only prosecute crimes committed on or after that date. of genocide. and Amnesty International. Foreign relations strategic interest convergence The Bashir Case i. India. the Rome Statute of the International Criminal Court. 3. threatens American sovereignty. (Marc Grossman. however. war crimes. The alleged crime took place on the territory of a state party.

unless the State is unwilling or unable genuinely to carry out the investigation or prosecution. (c) The person concerned has already been tried for conduct which is the subject of the complaint. paragraph 3. Article 12. b. the Court shall determine that a case is inadmissible where: i. and iii. Preconditions To The Exercise Of Jurisdiction a. (a) A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by a State Party in accordance with article 14. Issues of Admissibility a. (2) In the case of article 13. (a) The case is being investigated or prosecuted by a State which has jurisdiction over it. (b) The case has been investigated by a State which has jurisdiction over it and the State has decided not to prosecute the person concerned. (a) The information available to the Prosecutor provides a reasonable basis to believe that a crime within the jurisdiction of the Court has been or is being committed. (b) A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by the Security Council acting under Chapter VII of the Charter of the United Nations. (c) Taking into account the gravity of the crime and the interests of victims. Exercise of Jurisdiction a. (b) The case is or would be admissible under article 17. (c) The Prosecutor has initiated an investigation in respect of such a crime in accordance with article 15. if the crime was committed on board a vessel or aircraft. Rome Statute of the International Criminal Court 1. the State of registration of that vessel or aircraft.ii. ii. paragraph (a) or (c). 4. 21 . ii. the Prosecutor shall consider whether: i. ii. Article 17. In deciding whether to initiate an investigation. (1) The Court may exercise its jurisdiction with respect to a crime referred to in article 5 in accordance with the provisions of this Statute if: i. (b) The State of which the person accused of the crime is a national. unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute. (1) A State which becomes a Party to this Statute thereby accepts the jurisdiction of the Court with respect to the crimes referred to in article 5. there are nonetheless substantial reasons to believe that an investigation would not serve the interests of justice. If the Prosecutor determines that there is no reasonable basis to proceed and his or her determination is based solely on subparagraph (c) above. (1) The Prosecutor shall. or iii. (a) The State on the territory of which the conduct in question occurred or. Initiation of an Investigation a. Article 53. 3. iii. and a trial by the Court is not permitted under article 20. (1) Having regard to paragraph 10 of the Preamble and article 1. b. ii. the Court may exercise its jurisdiction if one or more of the following States are Parties to this Statute or have accepted the jurisdiction of the Court in accordance with paragraph 3: i. Article 13. he or she shall inform the PreTrial Chamber. initiate an investigation unless he or she determines that there is no reasonable basis to proceed under this Statute. having evaluated the information made available to him or her. 2.

this phenomenon has increased over the years because of: (1) bi-cultural relationships. The applicant was actually exercising those rights at the time of the wrongful removal/retention. or would have been so exercised but for the removal or retention. The primary intention of the Convention is to preserve whatever status quo child custody arrangement existed immediately before an alleged wrongful removal or retention thereby deterring a parent from crossing international boundaries in search of a more sympathetic court. The Goldman Matter 1. and (3) the ease of international travel ii. International Child Abduction i. an institution or any other body. and whether returning the child would be harmful to their wellbeing. This is unlikely. (a) It is in breach of rights of custody attributed to a person. However. Justification to Keep Sean in Brazil i. The Convention applies only to children under the age of 16.g. 3. Requirements to be Met by an Applicant for Return Order: i. (d) The case is not of sufficient gravity to justify further action by the Court. It may be possible to view the biological father s driving the mother and son to the airport as consent to removal [Article 13(1)(a)] 1. b. either jointly or alone. Sean Goldman was born in the year 2000 in the United States. The Convention was drafted to insure the prompt return of children who have been abducted from their country of habitual residence or wrongfully retained in a contracting state not their country of habitual residence. under the law of the State in which the child was habitually resident immediately before the removal or retention. 2010. The Hague Convention on the Civil Aspects of International Child Abduction 1. ii. four year old Sean went to Brazil with his mother for a 2-week vacation. The child was habitually residing in the other State. 2. h. The father David Goldman vowed to have his son back and lawsuits and counter-lawsuits ensued both in the United States and in Brazil. in 2007. A multilateral treaty developed by the Hague Conference on Private International Law. and died while giving birth to her new husband s child in 2008. Sean was handed over to his biological father on December 24. he fought it as soon as he realized. whether the parent consented to removal/retention. to an American father and Brazilian mother. In 2004. 2009. As of January. either jointly or alone. his Brazilian family was hoping to regain custody. whether the child objects to being returned. a. his mother refused to return to the United States. She eventually filed for and was granted divorce by a Brazilian court. Is he settled there? [Article 12(2)] 2. the convention examines the length of time the child has been in their new environment. iv. (2) increased divorce rates. Based on a decision of Brazil's Supreme Court. Sean has spent more time in Brazil than the US 1. (b) At the time of removal or retention those rights were actually exercised. and iii. Focus of Convention when assessing the reasonableness of returning a child. Sean's grandmother Silvana Bianchi has vowed to continue the battle through the Brazilian courts. a. Article 5 For the purposes of this Convention 22 . Unfortunately. Pursuant to the Hague Convention. She then got remarried to a Brazilian lawyer. The Brazilian husband obtained legal custody for the child from the Brazilian courts and insisted on not returning the boy to his biological father. The removal/retention of the child constituted a breach of custody rights. Article 3 The removal or the retention of a child is to be considered wrongful where a. and b. Would removing him be debilitating? [Article 13(1)(b)] ii. The child custody case evolved around application of Hague Convention on the Civil Aspects of International Child Abduction. João Paulo Lins e Silva. The Realities of Child Abduction i.

' since this uproots the child from his/her existing bonds and relationships. while some family court proceedings were still pending. or had consented to or subsequently acquiesced in the removal or retention. Thereafter. Article 12 Time a. in particular. an order prohibiting either parent from removing their son from Chile without their mutual consent. 2008) i. To secure the voluntary return of the child or to bring about an amicable resolution of the issues. e. Where a child has been wrongfully removed or retained in terms of Article 3 and. at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is. a period of less than one year has elapsed from the date of the wrongful removal or retention. He then sought an order for his son s return in the United States District Court for the Western District of Texas. in England. A Chilean family court granted Mrs. but that the child is transposed to a different culture. shall also order the return of the child. the authority concerned shall order the return of the child forthwith. Abbott located his son in Texas. c. (c) The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views. b. To provide information of a general character as to the law of their State in connection with the application of the Convention. Timothy Abbott. Abbott removed her son from Chile without Mr. Mr. Facts: In 1992. and Mrs. a British citizen. (a) "Rights of custody" shall include rights relating to the care of the person of the child and. In August 2005. 6.i. Note on Harm Concept includes not just physical and psychological harm. In considering the circumstances referred to in this Article. th Abbott v. 7.3d 1081 (5 Cir. b. the right to determine the child s place of residence. the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child s habitual residence. To prevent further harm to the child or prejudice to interested parties by taking or causing to be taken provisional measures. 23 . To exchange. At Mrs. To discover the whereabouts of a child who has been wrongfully removed or retained. the court issued a ne exeat order. Abbott s request. b. unless it is demonstrated that the child is now settled in its new environment. The judicial or administrative authority. 5. Mrs. information relating to the social background of the child. He argued that the Chilean Court s ne exeat order and Chile s statutory ne exeat provision granted him a right of custody under the a. Abbott custody rights and Mr. language. Abbott s consent. even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph. Mr. Article 7 Civil Aspects of International Child Abduction a. c. institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention. d. 542 F. social system. or b. where desirable. an American citizen. Abbott separated. Article 13 The Court is not bound to order the return of the child if a. Their son was born in the United States in 1995. Abbott visitation rights. and the family moved to Chile in 2002. i. Abbott. (b) There is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. 4. In 2003. (a) The person. married Jacquelyn Abbott. which all go into the meaning of 'harm. (b)"Rights of access" shall include the right to take a child for a limited period of time to a place other than the child s habitual residence.

and a ne exeat is not an affirmative right. Issue: Whether a ne exeat order confers a right of custody to the non-custodial parent under the Hague Convention on International Child Abduction. Country rights of custody should be construed according to the laws of the particular country. VIII. it constitutes a right to determine the child s place of residence and would be a custody right under the Convention. 2. Rights of Custody Policy Arguments Apply of Country Law or Universal Definition a. and as such. it falls within the definition of rights of custody as defined under the Hague Convention. 2009. 24 . Abbott. Custody rights are affirmative rights in determining a child s place of residence. On the other hand. Jus Cogens Modern form of natural law. as implemented in the United States by the International Child Abduction Remedies Act. Chilean Minors Law does not give the father affirmative authority to decide where the child shall live. Hierarchy of the Sources in Transnational Law i. Conversely. the definition of rights of custody in Article 5 is more expansive than rights in any particular contracting country. Under Article 1 of the Convention. A new jus cogens voids and terminates previously existing treaties that conflict with it. the drafters intended to give different remedies to violations of custody rights and violations of access rights. THE SOURCES OF INTERNATIONAL LAW a. The delegates stated that the drafters did not intend for ne exeat orders to convert rights of access into rights of custody. The US held it as an affirmative ability to impose conditions on the relocation of a child. and. See id. Universal Rights of custody should be interpreted in light of the substance of the rights conferred by the country of habitual residence. Rights of Custody Policy Arguments Ne exeat an Affirmative Right a. Stotter and Matti Savolainen. On The Drafting And Negotiating of The Hague Convention on The Civil Aspects of International Child Abduction in Support of Respondent at 3. Thus. since a ne exeat order includes the authority to deny consent to a child moving abroad or place conditions on such a move. she denied that the Hague Convention granted Mr. not a right of custody. Mrs. The term rights of custody in Article 9 is simply a way for the Hague Convention to refer to a country s body of rights. Two delegates who attended the process of drafting the Hague Convention stated that. one of the objectives is to make sure the rights of custody and of access under the law of one Contracting State are effectively respected in other Contracting States. The US agreed that the Hague Convention intends to include all possible ways rights of custody can arise. The Fifth Circuit Court of Appeals affirmed. Although she admitted to violating the ne exeat order and statute. Intent in Regard to Custody Rights a. the Permanent Bureau of the Hague Conference on Private International Law ( Permanent Bureau ) noted there is a preponderance of case law among contracting states that the combination of access rights with a ne exeat order confers a custody right under the Convention. b. 1. under the Hague Convention. Thus. Mrs. b.Hague Convention. ii. not by how the country technically defined the right. the district court found in favor of Mrs. A preemptory norm so fundamental that it can invalidate rules drawn by treaty or custom. Abbott a right of return. The Supreme Court granted certiorari on June 29. he does not have custody rights under the Hague Convention. Abbott argues that the ne exeat order merely confers a right of access. Abbott must return their son to Chile. Furthermore. After a bench trial. See Brief of Amici Curiae Delegates Lawrence H. Thus. 3. See Brief of Permanent Bureau at 18. the drafters intentionally excluded ne exeat orders from the definition of rights of custody. See id. thus. A ne exeat order gives the holder decision-making power over in which country the child lives.

Under it.b. fundamental norms. Duties and obligations are established in both parties. ex aequo et bono. Congress had no say 2. Help monitor/discuss the efficacy of international law i. Alaska) ii. i. Establishes predictability of behavior 2. Purpose a. and thus are arguably lower in rank. 2. Aspirational (Westphalia. Benefits to States: 1. iii. Kellogg-Briand) iii. from equity and conscience. ii. Reasons for Complicity of States a. Legality under Int l law: The Hull-Lothian Agreement was a legal agreement. In the context of arbitration. States can agree to anything they want to agree to. 1. States can form treaties concerning agreements over anything that is not contrary to preemptory norms. Formation: informal agreement without internal deliberation. Not conventional int l law or customary int l law. Treaty of Paris. Often open to any state. Kellogg-Briand) i. the process of treaty making may have a municipal component ii. Ties into reputation and image. *ex aequo et bono Latin for according to the right and good. Custom has force from its reputation. Contractual (Jews and Romans. the UK will give the US forts in different islands for naval and air force bases. Article 38 of the Statute of the International Court of Justice is a touchstone for international lawyering. but only with consent of all parties involved. Continuing attractiveness of the bargain b. 25 . the court will apply this concept. Offer: US would give the UK 50 battleships to fend of Nazi invasion 3. Personal reputation of national leaders e. jus cogens. b. Dualism how domestic law interacts with international law. Treaty of Paris) iv. Statutory (Westphalia. Informal (Hull-Lothian) b. Formal (Alaska. Strike bargains 3. Consideration: To get them. Bilateral agreement here. the opinions of judges and publicists. Set up common rules among or with states 4. Types of Treaties. d. or. The Hull-Lothian Agreement (Contractual Treaty) 1.* natural law. a. equity. and the resolutions of international organizations like the United Nations also form a part of international law. 1. Constitutional (Westphalia. it includes: general principles of law. Formation a. Treaty International agreements are governed by the Vienna Convention on Treaty Law. unless it violates a preemptory norm. Incorporate treaty norms into State statutes 5. which is established through the interactions of states. because they are much more precise. Bilateral negotiated between two parties (can be more than two states). Treaties and Customs treaties usually trump customs. Nature of Agreement a. Ceremony and formality ("I gave my word"). Religious or moral sanctions c. Equity general principles of equity are typically used as gap fillers. They prove that international law exists b. Multilateral establishes rights and obligations between each party and every other party. 4. Kellogg-Briand) 3. i.

the necessity may allow for the circumventing of the formal rules. While domestically it could be illegal. 15. formulate a reservation unless: a.H. when signing. Rule: A State that has made and maintained a reservation. internationally it is still effective. The universal character both of the condemnation of genocide and cooperation required to end it. Reservations apply to multiple parties/multilateral agreements.R. or acceding to a treaty. A State may. Rule: If a party objects to a reservation it finds to be incompatible with the aims of the Convention. It would be better to lose a party which insists on objections than to permit it against the wish of a State(s) that have unconditionally accepted all the Convention's obligations. The principles underlying the Convention are principles that are recognized by civilized nations as binding on States. The Reservations to the Genocide Convention Case. regardless of minor reservations. Dissenting opinion of Judges Guerrero. 2.C. (Dualism) Reservations to Treaties i. 26 . 1951 WL 3. Hsu Mo: a. (c) in cases not falling under (a) or (b) the reservation is incompatible with the object and purpose of the treaty ii. 3. Read. approving. which has been objected to by one or more of the parties to the Convention but not by others. accepting. Vienna Convention. 1951 I. Fundamental question about reservations to multilateral treaties is whether states should be allowed to "opt out" of one or more treaty provisions. When a common effort is made to promote a great humanitarian object. b. 5. contrary to the aims of the UN. Reservations obviously are not a concern in bilateral treaties. While it is true that the drafters of the Convention desire to include as many States as possible to become parties. (a) the reservation is prohibited by treaty b. every interested State should not seek individual advantage or convenience. a party that accepts the reservation as compatible can consider the reserving State a party to the Convention. Belilos case Belilos v. if they did. The primary importance is the acceptance of common obligations to attain a high objective for all humanity. Legality under Municipal Law: Yes.c. Switzerland. a. Sir Arnold McNair. Thus it is necessary to apply to the Convention the existing rule that requires the consent of all parties to any reservation of a multilateral convention. Still concerns about the circumvention of democratically elected officials. the Genocide Convention is more flexible in the communal acceptance of State reservations. iii. 4.R. it can consider the reserving State a nonparty to the Convention. (Statutory Treaty) 1. Notes: This is an advisory opinion because the UN General Assembly wants the ICJ to give them a ruling so they know how to proceed in the future. 466 (1988): 5. can be regarded as being a party to the Convention if the reservation is compatible with the object and purpose of the Convention. (b) the treaty provides that only specified reservations may be made c. 6.J. a. Two consequences from this: a. but rather carry out measures of common accord. it was not their intention to achieve universality at any price or compromise. and b. regardless of conventional obligations. likewise. there would be no treaty. It was therefore intended to be universal in scope and apply to as many States as possible. rather than acceptance by as many States as possible. ratifying. Article 19 Formulation of Reservations 1. 10 E. The reason for the Convention from the United Nations is to condemn and punish genocide "as a crime under international law" involving a denial of the right to exist for an entire group of persons. While it has been accepted that no reservation of a State was valid unless it was accepted by all the contracting parties without exception.

Vienna Convention. b. Holding and Reasoning: The European Court of Human Rights finds that Switzerland's right to opt out is invalid and that Switzerland needs to give applicant the due process clause it tried to opt out of. Belilos did not have an active role. stating that the phrase "lesion corporelle" allowed for emotional distress. 3. ii. yet still remain a signatory? 3. and therefore the fine was reduced. and in part because it is a task that the Committee cannot avoid in the performance of its functions. Facts: Eastern Airline s plane began losing altitude after engine failure and the passenger's were informed that the plane would be ditched in the Atlantic Ocean. but the Court of Appeals reversed. 1. a Swiss citizen. Because of its special character of a human rights treaty. Respondents. It necessarily falls to the Committee to determine whether a specific reservation is compatible with the subject and purpose of the covenant. took part in a demonstration in the streets of the city of Lausanne. without Belilos presence.S. The District Court agreed. by reference to legal principles. handed down it decision. (1) A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. and the Committee is particularly well placed to perform this task. the compatibility of a reservation with the object and purpose of the Covenant must be established objectively. c. Permission for the demonstration had not been sought in advance and as a result. Any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty. 6 of the European Convention on Human Rights. including its preamble and annexes: a. Inc. together with the context: a. Any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation. (4) A special meaning shall be given to a term if it is established that the parties so intended. Belilos s ex-husband testified that she had been in a café with him at the time of the demonstration and could not have taken part.d. which enshrines the right to a hearing by an independent and impartial tribunal established by law. 499 U. but the crew managed to restart an engine and land the plane safely back at Miami International Airport. Any relevant rules of international law applicable in the relations between the parties. this was not her first offense. but that damages can only be recovered for a physical injury. Mrs. brought separate complaints against petitioner claiming damages solely for mental distress.S. Floyd. Eastern conceded that it was an "accident" under Article 17 of the Warsaw Convention. in addition to the text. Treaty Interpretation treaty interpretation requires the Vienna Convention i. Supreme Court ruling on a treaty written in French (dualism) 2. and that the reservations made when Switzerland acceded to the Convention did not allow an administrative authority. Facts: Belilos. This is in part because it is an inappropriate task for states parties to in relation to human rights treaties. judge its own case. (3) There shall be taken into account. v. 4. The decision disregarded her allegations. where it is an agency of the executive. Issue: Can Switzerland opt out of a section of the treaty. on the grounds that the board s actions where in violation of Art. and held that although Mrs. Significance: The U. 530 (1991). Any instrument which was made by one or more parties in connection with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty. 1. b. the police department has imposed a fine of 200 Swiss francs. Eastern Airlines. Article 31 General rule of interpretation 1. (2) The context for the purpose of the interpretation of a treaty shall comprise. At the trial. 2. Belilos appealed to the Criminal Cassation Division of the Vaud Cantonal Court. 2. The police board. 27 . a group of passengers on the flight. Any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions.

to eliminate flooding. the way American courts interpret treaties is consistent with the Vienna Convention a. b. The treaty included a Gabcikovo-Nagymaros Project. and (3) the accident took place on board the aircraft or in the course of operations. A violation of a provision essential to the accomplishment of the object of the treaty ii. it may suspend the contract. Impossibility Article 61 of Vienna Conv. Eastern (Marshal. Many scholars and judges have seen this case and used it as evidence that although the US is not a signatory to the Vienna Convention. Intermediate US approach c.C. Facts: This case is regarding a treaty entered into by Hungary and Czechoslovakia in 1977. Reversed. 1997 WL 289957. 3. US). or any other bodily injury. (1) A material breach of a bilateral treaty entitles the other to invoke the breach as a ground for termination 2. 3. Slovakia. Vienna Convention. 1997 I. Hungary s Defenses a. Article 60 Termination or suspension of operation 1. How the Court Reach Conclusion that Emotional Distress was Excluded 1. The Court found no evidence or materials that indicate that "lesion corporelle" embraced psychic injury. 4. Ludecke v. because it was convinced that Hungary would abandon the project. (1) A party may invoke the impossibility of performing a treaty to terminate if the impossibility results from the permanent disappearance or destruction of an object indispensable for the execution of a treaty. i. Necessity Court carves this out because this is dealing more with a State system b. and provide electric power.J. because the Hungarian government suspended work due to public protest claiming necessity over environmental consequences. Ct. wounding. (3) A material breach is: a. (2) [not focusing on] 3. or physical manifestation of injury. Narrow Canadian approach Treaty Termination i. 2. Supp. a. Teichner (Israel). Broad Israel approach. The Gabcikovo-Nagymaros Project Hungary v. Hungary later unilaterally denounced the treaty on May 16. c." So to be liable for passenger injury: (1) there must be an accident in which (2) the passenger suffered death. i. used textualism) b. 1. 28 . The English translation of the Warsaw Convention states that "the carrier shall be liable for damage sustained in the event of the death or wounding of a passenger or any other bodily injury suffered by a passenger. Policy Reasons Limit liability of air carriers in order to foster the growth of the fledgling commercial aviation industry. Canadian Pacific Airlines (Can. Signatories Intent Drafters couldn't conceive a mental injury without a physical injury. Czech came up with its own Variant C. A repudiation of the treaty not sanctioned by the Convention b. Holding: The Court held that an air carrier cannot be held liable under Article 17 when an accident has not caused a passenger to suffer death.e. i. 1992. Czech implemented Variant C as a result of Hungary s suspension of work. Comparative Legal Analysis Many jurisdictions didn't recognize such injury. physical injury. **If the impossibility is temporary. Three Ways to Articulate the Interpretation of Treaties a.

(2) Impossibility cannot be used if the impossibility is created by a breach from that party trying to use this as a defense (clean hands doctrine) c. which the Danish Government said were subject to the crown of Denmark. and such a provision showed that the treaty was not final. (a) the existence of those circumstances constituted an essential basis of the consent of the parties to be bound by the treaty. may not be invoked as a ground for termination unless: 1. The need for the treaty continues to exist 4. Treaties can only be terminated through mutual consent. The Eastern Greenland Case 1. and 2. The Court stated that both sides breached their obligation and that the 1977 Budapest Treaty is still valid. 29 . Reasoning: The Court decided that: (1) Hungary's suspension and later abandonment were not justified by necessity. iii. and that Variant C within the limits of the treaty in question. Issue: Which country breached the treaty agreement first? Does Hungary pose any valid excuses for noncompliance? When was the treaty terminated? 4. ii. approached Norway with the question of whether they would object to Denmark's interests in Greenland. Denmark claimed that during WWI. and the treaty was never terminated 5. after Denmark. (b) the effect of the change is radically to transform the extent of obligations still to be performed under the treaty. The Court pointed out that the treaty allowed for renegotiation to incorporate newly developed environmental laws. Facts: In 1931. Policy Behind Courts Decision 1. even though things are always changing 3. This is because the treaty left room for modification and the environmental concerns did not amount to necessity because Hungary could show no grave or imminent peril. (3) The treaty does not contain any provision for termination. (2) Czechoslovakia's implementation of Variant C was an internationally wrongful act. necessity is not a valid excuse. Then Norway started occupying Greenland. Neither party had clean hands 2. but rather available for adaptation to emerging norms of international law. the Royal Norwegian Government declared that it had proceeded to occupy certain Eastern territories in Greenland. 6. There was an "agreement to agree" and their agreement is a huge deal--carving up the land to divert a river 5. Norwegian Minister of Foreign Affairs stated that the Norwegian Government would not make any difficulties in the settlement of that question. basically morphing the deal in such a way that the parties would never have consented ii.f. Should not be easy to avoid obligations by claiming they are hard to fulfill at this time Treaty Validity i. (1) A fundamental change of circumstances which has occurred with regard to those existing at the time of the conclusion of a treaty. and which was not foreseen by the parties. Might incentivize parties to get out of contracts. (2) a fundamental change may not be grounds to terminate (a) if the treaty establishes a boundary. In 1919. Change of Circumstances Article 62 of Vienna Conv. Their implementation requires a mutual willingness to discuss in good faith actual and potential environmental risks. or (b) if the fundamental change is the result of a breach by the party invoking it 3. Don't want to incentivize parties to adhere to these doctrines of impossibility or changed circumstances because it undermines predictability and stability 7. Rule of Pacta Sunt Servanda good faith should carry the day. Holding: Both countries breached the treaty. so even if a state of necessity does exist it is not grounds for termination. US and Denmark entered into a treaty whereby US would not object to Denmark extending their interests to Greenland. i.

During his tenure. 4. b.Tinoco retired. STATES AND INTERNATIONAL LAW a. the court binds Norway s government to the promise via the agency theory. The Tinoco Arbitration 1. The restored government should recognize the concessions given to CCRPC and the validity of Tinoco s currency held by the Royal Bank of Canada. The restored government is a signatory of the treaty of arbitration. then we might have an omission of geopolitical importance. Declaratory Theory Where a State has control of a particular territory they should have sovereignty. c. Instead. Costa 30 . Validity of Oral Treaty Agreements The Vienna convention asks treaty to be in writing.Government of Costa Rica [President Alfredo Gonzales] overthrown by Federico Tinoco. We want to see de facto exercises of power. a. the parties showed an intent to be bound. left the country Government collapsed. does not need recognition by other states. the Minster told Denmark that it was a pleasure for Norway to recognize Danish sovereignty in Greenland. The manner of formation might be a consideration. 3. i. the promise was unconditional and definitive. 1919 . giving the government legitimacy would mean that all of the acts assed were valid and its successor has no right to repudiate [annul] them. Royal Bank of Canada claimed that Banco Internacional of Costa Rica and the Government of Costa Rica were indebted to it. August 22. Old constitution restored and elections were held. Issue: Does the informal oral articulation made by the Norwegian Minister obligate Norway to refrain from contesting Danish sovereignty in Greenland? Holding: Yes Reasoning: the court examined Denmark s reliance. The Law of Nations) 1. the Court examined the surrounding circumstances to determine intent of the parties. Great Britain brought claims on behalf of two British Corporations: Royal Bank of Canada Central Costa Rica Petroleum Company. If we demand a constitutive posture. Great Britain s argued that the new legislation passed is invalid. equality. the Tinoco Government had been a de facto and de jure government. but this was before 1980. Cyprus case. Traditional View of Sovereignty (De Vattel. the notion of sovereignty has changed overtime. a. Central Costa Rica Petroleum Company [CCRPC] claimed that it owns the rights to explore and exploit petroleum reserves in Costa Rica. IX. iii. A few days following the Ministers statement. he: Granted certain concession to search for oil to a British company Passed legislation issuing certain new currencies. The Sovereign State The notion of the modern state is evolving. 5. possessing characteristics of independence. The State as a corporate body and a moral person. The acts invalidated all transactions involved in the previous agreement. the territories were not recognized as sovereign states. Conclusion: Norway is under obligation to refrain from contesting Danish sovereignty over Greenland as a whole. not just overtaking. holding that the reply given by the Minister is binding upon the country to which the Minister belongs. proven by the holding of 998 1000 colones bills. and concluded that a statement of this nature should not reasonably foster reliance. This lack of sovereignty was supported by the fact that the government was not opposed in any significant manner. and British banks [in the course of business] became holders of much of this currency.2. based on the grant issued by Tinoco. just the whole Republic of Cyprus. government was restored and Acts passed nullifying the currency laws it had made. ii. 2. Facts: 1917 . Thus. During the period in question. Tinoco assumed power & established new constitution. and a sovereignty that encompasses the authority to act externally. and a fortiori to refrain from occupying a part of Greenland. 1922. Determining Statehood of Entities 1. therefore. Furthermore. Constitutive theory Requires the relative acceptance by other sovereign states.

Dec. 1. ii. Of course as governments change over. iii. Article I: The state as a person of international law should possess: i. 31 . the Tinoco government had been a de facto government during the period of its existence. The court finds in favor of the Royal Bank of Canada. Because Great Britain did not recognize the Tinoco Government as legitimate. legal right to exercise exclusive control over ones subjects. e. We recognize other states with some level of equality. (a) A permanent population. but actual. British citizens have shares in RBC. 3. 4. De jure Sovereignty the theoretical. b. if we allow that change over in government to nullify everything before it. transferred from those who have legally been vested with them. so the British government steps in on their behalf. have the same rights. as Article III does not require recognition by other states. d. It is unconditional and irrevocable. but finds the petroleum concession to be a violation of the 1917 Constitution (which means Tinoco could have nullified the agreement as well).Rica Objected. c. it cannot then turn around and claim agreements with an illegitimate government as binding. a. ii. We shareholders that are angry because they will lose money over a turnover. Article IV: States are juridically equal. 26. John Basset Moore: Changes in the government or the international policy of a state do not as a rule affect its position in international law. It claimed that any acts carried out by the government were void because the Tinoco regime violated the Costa Rican constitution. No legal. or in terms of its international obligations. a. Convention on Rights and Duties of States . and have equal capacity. the restored government is generally liable for the acts of the usurped i. In fact. Article VI: Recognition means that the recognizing state accepts the recognized state's rights and duties. iv.This is a declaratory approach to state sovereignty. and iv. in that. Issue: whether the contracts entered into with the Tinoco regime remained valid in light of the 1922 Law of Nullities. Tinoco notes: a. 3097. 2. States may change between forms of government without ceasing to be that state in the eyes of international law. There is a politics to state recognition. Article VII: Recognition can be express or tacit. The status of the government had to be determined in the light of all evidence. Held: While the failure on the part of Great Britain to recognize Tinoco government was evidence to be taken into account in deciding on the status of that government. (d) Capacity to enter into relations with other states. De facto Sovereignty a government wherein all the attributes of sovereignty have. The Montevideo Convention. to others. by usurpation. we would never have a continuous notion of statehood. it was not decisive. 49 Stat. Courts argument which is significance to the aspect of International law: Scholarly writing: Dr. b. 1933. Article III: States can work towards their wellbeing even before being officially recognized by other States as independent. (c) Government. The principle of the continuity of states = state is bound by engagements entered into by governments that have ceased to exist. (b) A defined territory. The court then holds that the Tinoco government was an actual sovereign government. This case is similar to Barcelona Traction.

denied. 502 U. Peg Goldberg. note 5) 1. concurring: The 1954 Hague Convention prohibits the destruction or seizure of cultural property during armed conflict. e. later bought the church mosaic for about $1. Churches across the area were looted and destroyed. neither the US government.. a. Government can change within the notion of a state a. At what point does. Through recognition only and exclusively. a museum employee with ties to Cyprus who was familiar with their lost art.S. but it cannot show that she does have a valid title.1 million. The mosaic was still intact. Inc. cert. deeply rooted. The attempt of the government north of the Green Line to divest title from the Church can be considered interference. can at best show that the Church does not have title. who requested their return. If the new government can be recognized and it is successful. But. less temporal 2. Britain. Goldberg's claim. One such decree was for abandoned movable property and stated that all movable property within its borders abandoned by the owner because of the fighting would come into possession of the TFSC.v. As she was trying to sell it. whether international or civil in nature. 32 . recognize its territorial holdings as "sufficiently civilized"? ii. the Kanakaria Church was abandoned. but that is not the case here.. An unrelated art dealer. if proven. 428. The TFSC and the TRNC only acceded to the control of the northern portion of Cyprus. Autocephalous Greek-Orthodox Church of Cyprus v. 1. 1990). and the Kanakaria shared that fate. the rest of the world only recognized Cyprus.e. 917 F. nor any non-Turkish nations. This notion of civilized is the basis upon which we should constitutively recognize other states. vii. then it can be upheld as an independent nation. After the looting of that church. i. a State becomes an International Person and a subject of international law.g. Affirmed. there will be disparities amongst different recognizing State's meanings of "civilized" vi. State is more concrete. with the intent that the congregation would be re-established when it was safe to do so. and asked the court to honor such decrees. Cyprus took immediate steps to recover them. so would not do so now. Difference Between Notion Of State And Notion Of Government 1. The Turks did not completely supplant the Republic or their officers. Goldberg argued that several decrees of the TFSC took title away from the Church for the mosaics. There are two kinds of de facto governments: (1) one that exists after it has expelled the regular authorities and established its own operations as the sovereignty of the nation and (2) another that exists where a portion of the population have separated themselves from the whole State and formed an independent government. Circuit Judge. have ever recognized its legitimacy. America does not cease to exist as a sovereign state because we change presidents ever 4 or 8 years. 941 (1991). which were recognized only by Turkey.2d 278 (7th Cir. Goldberg is claiming the TFSC and the TRNC should be viewed as the de facto government north of the Green Line. Cudahy. 2. In 1976 when invading forces forced Greeks in the north to flee. This is controversial for a few reasons: i. Facts: Cyprus was divided by the Green Line between the Turks in the north and the Greeks in the south. 3. Also. discovered the mosaics and contacted Cyprus. and during periods of belligerent occupation. The judicial branch should attempt to reflect in its decision making the spirit of an international agreement where the US is a party. Lassa Oppenheim (Pg. a. Goldberg & Feldman Fine Arts. The north Turkish controlled forces were renamed the "Turkish Federated State of Cyprus" (TRFS) and later the "Turkish Republic of Northern Cyprus" (TRNC). The other decree stated that all churches north of the Green Line belonged to the TFSC.

or that they must be global in geographic. the government is not even accepted by all its people 3. Concerns about equity vi. in subject matter or in membership scope ii. Political iv. REST -3 . France. Goldberg did not exercise due diligence in this somewhat shady dealing with the mosaics. 5. INTERNATIONAL ORGANIZATIONS. protection of minorities. Cyprus Notes a. ad hoc conferences. External Takeover (Goldberg) ii. we have justiciability here.were slower to develop than specialized IO s 1. and Great Britain did not involve the League in the new world war 33 . League of Nations 1. While dualism is hit on in Tinoco. Justiciability 1. Why do we (the US) in this case see such reluctance to recognize this particular state that took power by force when in Tinoco we did recognize that state? How are the values and principals different? i. Does it matter that we are dealing with religious artifacts? v. Things to Consider a. iii. Just because this entity is occupying the North of Cyprus. and settlement of int l disputes from 1920 1930 4. Second. X. Norms-Ethnicity/Religion vs. Third. iii. the definition does not apply. Constitutionalism The Tinoco government was upholding a constitution that the former leader was not. i. 3. In Tinoco. world health. PEOPLES & NONGOVERNMENTAL ORGANIZATIONS a. ii. the definition does not specify that international organizations must be political or administrative.Foreign Law 1. We are dealing with a domestic. Defined . By 1939 the invasion of Poland by Germany Poland. Versailles Treaty established the League of Nations 2. Based in Geneva US and Soviet Union did not sign on. the government is more legitimate 2. does not mean the US will recognize it. municipal court looking at this international law. Early IO s were often designed to develop and administer common standards for specialized and largely technical matters. Internal struggle (Tinoco) vs. The US Senate refused to consent to the ratification of the treaty. 5. The turning point was in 1931 when the Japanese invaded Manchuria and the League was powerless to stop them. Global IO s League of Nations . In Goldberg. Replevin remedy for goods or items that were wrongfully taken b.4. Designed to address broader issues such as social welfare and the use of force iv. 3. We know that in the US court the law of the unrecognized state is not accepted as a given. International organizations are treaty-based. Two kinds of de facto governments: 1. 2. the membership of an international organization is exclusively states or other statecreated international organizations. Can argue that she was willfully blind concerning their origins. Fourth. 4.international organization means an organization that is created by an international rd agreement and has a membership consisting entirely or principally of states. International Organization i. League made real contributions to int l law.

Articles 108/109 makes it possible to amend UN Charter Personality i. Issue: Whether the UN has the authority to bring an int l claim against the responsible de jure or de facto government with a view of obtaining the reparation due in respect of the damage caused to the UN and its employees 3. 2. it would be rendered impotent b. RELATE TO: a. Holding: Any implied powers for an international organization should be strictly limited to those that are necessary to the exercise of powers expressly granted. Themes: Living Tree Approach (Charter is a growing document). Two UN observers were there. Issue #1: League of nation was asked to decide whether the inhabitants of the Aaland Islands should be authorized to determine by plebiscite (a referendum/vote) whether the archipelago should remain under Finish sovereignty or be incorporated in Sweden a. on the international level ii. and ii. it may deal as well with peoples rights to have some say in matters of their internal governance iii. General Assembly.b. c. Charter is changed through amendments/practice a. 4. 34 . ICJ. Secretariat. The disposal of national territory is primarily a matter to be determined by the sovereign state. the Court determined that that principle must be brought into line with that of the protection of minorities which is already provided for in constitutions and treaties. 2. Court found that UN had international personality but only after this recognition did the Court find that the UN could bring an int l claim against a responsible government to obtain reparations on behalf of a UN employee/his survivors. United Nations following demise of the League of Nations 1. dealing with rights of some groups. If an organization is recognized as having personality . if not complete independence. Int l Personality. 3. Objective View of Int l Law Self-determination and Peoples i. UN came into existence in June 1945 via the UN charter v. and killed by what is assumed to be Israeli fighters. from some types of external interference. The choice between two existing states iii. in a State like manner. If the UN doesn t have an international personality. however there are exceptions: i. 4. General Assembly relate to Texacol/Libya Case b. UN. Secretary-General s role Rainbow Warrior 2. Aaland Islands Question 1. 6. The Reparation Case 1. Facts: GA recommended Palestine be divided into two states. Economic and Social Council. Formation of an independent State. However. a. Consists of Security Council. Trusteeship Council (now dormant) a. If the state with de facto sovereignty is not definitively constituted b. it is an entity capable of availing itself of obligations incumbent upon its Members Reparation Case iii. League reserved on the question of whether international law would become relevant where a people were abused by a sovereign ii. to some degree of autonomy. Self-Determination concerns the rights of groups rather than individuals ii. The ability of an organization to represent it s interest. Key Inquiries: 1. Court listed two situations where the principle recognizing the rights of peoples to determine their political fate i.

Held that Finland. Principle of Effectivity We declare it to be so. They did not get full independence. b. therefore int l will not allow it absent oppression or not allowing a peoples access to gov t. at best. Here. c. Issue: Does int l law give the National Assembly. in situations of former colonies. Reference Re Secession of Quebec 1. int l recognition would be conferred on such a political reality if emerged. or where a definable group is denied meaningful access to gov t to pursue their political/economic/social/cultural development 1. Given their territorial boundaries. even if characterized as a peoples none of those factors exist and therefore. historic and cultural background (race/language/traditions to the Swedish race) the Islands must be recognized. Holding: Int l Law right to self-determination only generates. RELATE TO: a. Result: the Islanders become part of Finland but are guaranteed of demilitarization and autonomy of the Islanders a. Sovereignty iv. Court refused to leave the question to Finland because they were in a state of chaos and political transformation. under int l law. then we should be recognized i. legislature or government of Quebec the right to effect the secession of Quebec from Canada unilaterally? a. via effective control of the territory . but int l law equally does not prohibit secession and. Article 1(2) of the charter 5. economic. Internal Self-D = the establishment of a sovereign and independent state either integration with an independent state or emergence into any other political status freely determined by a people ii. The UN on the other hand explicitly refers to Self-Determination. Does this absence of specific prohibitions granting unilateral succession implicitly grant permission? 1. Argument was advanced by the amicus curaie stating that int l law may not ground a positive right to unilateral secession for Quebec. a right to external self-determination ie. 35 . or whether it is a transitory/not fully developed? a. where a people is oppressed. i. Quebec does not possess a right to secede unilaterally from Canada Quebec did not meet any of those thresholds c. In those 3 situations. after transforming itself outside the domain of positive law (the political transformation) cannot take advantage of positive law to force upon a national group a political status which the latter refuses to accept. so it is. Self-determination. No unilateral secession would be incompatible with the domestic Constitution. social and cultural development within the framework of an existing state 2. in fact. b. 3. External Self-D = a people s pursuit of its political. THEMES: League of Nations. They were granted special status as unique peoples within Finland b. the Aaland Islands is of a definite and normal character. Issue #2: Whether from the standpoint of territorial sovereignty. Int l law does not specifically grant component parts of sovereign stats the legal right to succeed unilaterally. If we govern ourselves effectively. entitlement to Self-D comes from them being denied ability to exert internally their right to self-D iii. their self-determination was expressed through these negotiations 4. NOTE: There was no mention of self-determination in the Covenant of the League of Nations. however.Court determined that Finland was not a de facto sovereignty and held that we cannot expect the islanders to go to an unstable entity to ask for independence 2. c.

INTERNATIONAL LAW AND MUNICIPAL LAW a. Rule [Self-Executing Treaties] a treaty operates of itself without the aid of any legislation. Significance: Established the concept of self-executing treaty a. and state consented ii. Otherwise. a treaty is self-executing if it appears that the treaty intended to provide a rule that. Spain ceded the disputed territory to France. § 2 Supremacy Clause declares treaties to be the law of the land. Protocol 1 of Geneva Convention a. Dualist system of law i. Gave the International Committee of the Red Cross a mandate to protect the victims of international and internal armed conflicts 2. iii. before the land was granted by the Spanish Governor. Geneva Convention Relating to the Protection of Victims of Int l Armed Conflicts 1. For a treaty to supersede local laws. The treaty between France and Spain looked at was unclear. Lack international personality but there are hybrid NGO s ex. Spain insists that the cession to France did not include that specific territory. d.domestically. then from France to the U. By and large dependant on private contributions and donations 4. therefore. Reasoning: Justice Marshall here establishes that the constitution declares a treaty to be the law of the land. Principle of Effectivity Non-Governmental Organizations i. a. but they do not necessarily possess any official status. Definition 1. the international realm of law . Red Cross has a mandate. Foster & Elam v.whether a right to unilateral secession exists RELATE TO: a. would be enforceable by the courts.where US has made an agreement with Spain. Self-Determination. mission. by the Treaty of Paris. ceded it to the US. P claimed that the land was granted by the Spanish Governor. 2. US Constitution. NGO s play a role on int l level by virtue of their activities. Facts: The suit is about possession of land in Louisiana.ii. 1. Article VI. nor do they have a mandate for their existence or activities 3. b.S. on October 1800. Asakura v. Sovereignty. a legislative act must be enacted by the legislature into municipal law. d. privileges and immunities which most NGO s do not have ii. NGO s are created under municipal law rather than by interstate agreement. On one hand. in the domestic realm . Ildefonso. and it will be applied and given authoritative effect by the courts. Court says Principle of Effectivity is not applicable to issue 2. ii. may be brought in international court if treaty provisions say this.S. insisted that by Treaty of St. City of Seattle 36 . Self-Execution of Treaties i. Generally. Red Cross a. it would be equivalent to legislation without the aid of a legislative provision. the treaty doesn t become law until it is ratified and implemented domestically. state or national. standing alone. on April 1803. U. United Nations. Holding: It's ok to look at treaties. On the other hand. and then France. XI. 2. D asserts that there is no title on which P can recover b/c the territory on which the land is on had been ceded to France. and so there was no authority by the Spanish governor to grant the land. Here. Neilson 1. it must be self-executing. a. Issue: The array of sources to be used by the US court when deciding who the land belonged to c. like legislation.

Therefore. and the due process & equal protection clauses of the US constitution. it is in violation of the treaty. and therefore doesn t trump CA alien land law. while previous one wasn t? i. and to obtain a license you needed to be a citizen of the U. standing alone. §2 (Supremacy Clause). b. was working as a pawnbroker in Seattle. b/c of the treaty. courts look at: (1) The intent of the signatory parties as manifested by the language of the instrument. 2. In determining whether a treaty is self-executing. Reasoning: US Constitution. because it only asks that we refrain from discriminating. It doesn t require for congress to take any additional steps to affirm it. Holding: Yes. P contends that the CA alien land is trumped by the UN Charter (treaty). Therefore the treaty is binding on the state of Washington. and so is invalidated. If you worked w/o a license. Facts: Asakura. a Japanese citizen. He argued that it violated a treaty between US and Japan. 1.Significance: displays when a treaty will trump state law. and for US to be bound." Therefore. to have the force and effect of a statute it must appear that the framers of the treaty intended to prescribe a rule that. which is in violation of the treaty. the constitution of Washington State. a. b/c he had a lot of money invested in the business. Court decides the UN Charter is not selfexecuting. The ordinance was meant to regulate the business and protect the public against fraudulent and dishonest practices. would be enforceable in the courts. and not to other aliens. it has the power to make treaties. further defines Self-Execution a. The ordinance says that pawnbrokers are regarded as carrying on as a "business. or anything else necessary for trade upon the same terms as native citizens or subjects. b. and ineligible for US citizenship. As long as US doesn t violate the constitution. Court says this outcome relates only to Japanese subjects. but on appeal. and that they shall receive protection. Issue: Does the ordinance violate the treaty between Japan and the US? c. Significance: displays when a treaty will trump state law. says that a treaty made under authority of the US is the supreme law of the land. and held the ordinance valid. California 1. Rule: Treaty trumps state law because of US constitution Article VI. iv. so it should be in effect still against other aliens. Why is this treaty self-executing. The other treaty explicitly states that it needs to be ratified. and (2) if the instrument is uncertain. recourse may be had to the circumstances surrounding its execution. A self-executing treaty operates w/o the aid of implementing legislation. Holding: UN Charter does not supersede CA alien land law (although it was still found invalid b/c it violated the 14th amendment) d. you could be punished by a fine or imprisonment. 37 . Facts: Sei Fujii is a Japanese alien.S. treaty executes itself. the CA alien land law was found invalid b/c it violated the 14 amendment. Issue: When can a treaty supersede local laws which are inconsistent with it? c. Reversed d. the Supreme Court of Washington reversed. Superior Court granted him relief. The treaty between the US and Japan basically said Japanese citizens (& vice versa) could run businesses in the US. Asakura brought this suit to retrain the city from enforcing the ordinance against him. However. He had purchased land which was escheated to the state (reversion to the state) b/c there is no treaty between Japan and the US that allows Fujii to own land. Sei Fuji v. The problem here is that Asakura will be denied equal opportunity to engage in business. Reasoning: A treaty does not automatically supersede local laws which are inconsistent with it unless the treaty provisions are self-executing. Test: the treaty has effect without Congress needing to pass legislation. the supremacy clause. The city then passed an ordinance that any person working as a pawnbroker needed to have a license. further defines Self-Execution a.

"The powers not delegated to the United States by the Constitution. forward-looking in nature." i. b/c they were in the state's possession. The State of Missouri brought the suit to prevent its enforcement b/c it would be in violation of the 10th Amendment which says. But when the terms of the stipulation import a contract . so not self-executing. They wouldn't have intended that a treaty could change it so easily. Doesn t say that executive party has unlimited power to enter into treaties. a. Court says treaty cannot be valid if it infringes the constitution In terms of supremacy. You can imply that constitution is highest law in the land Intent of the framers of the constitution that it be the highest law in the land.very definite on what they want to happen. and it is not sufficient to rely on the states. so the treaty is binding." b. 1918 . c. Treaty upheld. Significance: speaks to the possibility of a treaty being in violation of the US Constitution a.Rule: A treaty does not automatically supersede local laws which are inconsistent with it unless the treaty provisions are self-executing. They have the authority to execute treaties under Art 2. Court gives examples of language from self-executing treaties: "national shall be allowed a term of 3 years in which to sell the property . Rule: A treaty cannot violate the US constitution. There are limits to the treaty-making process. Some parts of UN charter are very specific. Court says isn't enough to just look at the 10th amendment. Language of enforcement: mandatory v. the treaty addresses itself to the political. Issues: if fed wants to trump state law. There is a national interest here in the protection of these birds. Holland 1. d. Missouri v. all they have to do is create a treaty with another nation regarding that issue. Reasoning: Court says the treaty does not violate anything in the Constitution. so where not in possession of anyone as the State claimed. constitution. b/c the supremacy clause (Article VI) gives power to treaties to supersede state laws. 2. so are self-executing. whenever it operates of itself. State of Missouri claims that it is in the power of individual states to regulate the killing and sale of such birds. Facts: This case is regarding the ability to enforce a treaty . Constitution doesn t say that it constitution trumps treaties!!! So according to rule of last in time. Issue: Whether the treaty violates the U. without the aid of any legislative provision. But a bird is only temporarily in any one state. not the judicial department. a.and they have authority under the Constitution. Holding: No. and the Legislature must execute the contract.which protects certain species of endangered birds.when either of the parties engages to perform a particular act. 2. b/c it's so hard to change it. then the treaty would trump. the constitution is higher if inconsistent with the treaty. § 2. it says that when it does have power to enact treaties. and have a mandatory aspect to them. nor prohibited by it to the states. then I trumps state law. not permanently there. Since treaty is supreme. before it can become a rule for the court. Which branch of federal gov't has the power? Executive branch . Justice Marshall: A treaty is "to be regarded in courts of justice as equivalent to an act of the Legislature.the Migratory Bird Treaty Act of July 3. But this is not that easy . 38 .S. congress can implement the treaty i. but maybe it is forbidden by the 10th amendment. UN Charter is aspirational. or to the people. are reserved to the states respectively.

Holding: Yes. 2. Respondents (Belmont's executors) refused to pay. However. Dualism again Domestically." Since the acts of Congress were dated last. etc. state policies are irrelevant to the inquiry and decision. b/c the bank deposit was located in NY. c. The most favored nation treatment was from a treaty between US and the Hawaiian Islands. both are binding. in the international realm. the Soviet Union would take no steps to enforce any claims against US nationals. we care about checks and balances. they claimed b/c of the treaty between US & San Domingo. Facts: Merchants were importing sugar from San Domingo. Affirmed for D. Robertson 1. Collector of the port (D) argued that he treated the goods as dutiable articles under the acts of Congress. Merchants then brought this claim to get back the duties paid. and both should have effect. the US would handle this. b. Governmental powers over external affairs are exclusive to the national gov't. Whitney v. 2. d. they control. so to them it was still the property of the corporation. this is a problem. Merchants (P) argued that the treaty between the US and San Domingo promised to provide most favored nation treatment to imports from San Domingo.936 in duties. He also says that if the country with which the treaty is made is dissatisfied with the action of the US legislative dept. Significance: Court expanded the definition of treaties regarding the Supremacy Clause to include executive agreements which have not been submitted to the legislature pursuant to Article II. Rule: In the case of a conflict between a federal statute and a treaty. and the Soviet gov't wanted the money. judgment for US. or the international compact here. instead. then they may present a complaint to the executive had of the govt. Domestic vs. the one last in date will control. "the one last in date will control the other. However. Rule: The meaning of "treaties" within the supremacy clause includes executive agreements 39 . Belmont. there was an exchange of diplomatic correspondence between the US and the Soviet Union. 3.can be taken to International Court of Justice. Holding: Not necessarily. Notes: Here the act of congress has trumped an earlier treaty. The collector at the port refused. Issue: Whether the US can handle this dispute. whose purpose was to bring about a final settlement of claims between the 2 countries. Belmont 1.vi. were exempt from duty collection. that treaty no longer has any effect. if the court would allow the US to handle this. where certain goods. d. Justice Fields says that when they conflict with each other. otherwise it would be an act of confiscation. and the merchants were made to pay $21. including sugar. United States v. where the result would be contrary to NY public policy. Facts: A Russian corporation had deposited money with a private banker in NY. a. c. where a judicial authority is invoked. The money later became property of the Soviet Gov't. Significance: established the Last In Time Rule a. b/c of a decree that nationalized all of the corporation assets. Breaching treaty . b/c we are not honoring the treaty with Dominican Republic. and the decree couldn t be enforced there. Reasoning: No state policy can prevail against a federal treaty. but. Reasoning: Both self-executing treaties and acts of Congress are considered supreme laws of the land. vii. a. Reversed. international obligations i. §2 of the US Constitution. and when they arrived at the custom house in NY. b. So. Especially when the treaty required the consent of the senate. Issue: Whether a treaty supersedes conflicting acts of Congress. that the goods should be admitted duty free. it would be in contrary to NY public policy.

and who were brought into this country and sold as negro slaves. Dred Scott v. Children born of black women inherited status of their mothers ii. and governed by their own laws. or b. permitting Congress to prohibit slavery in the territories is constitutional. associated in nations or tribes. Sandford. In 1834. as part of the settlement of her husband's estate. Sanford.) 393. Scope of Treaty under Supremacy Clause a. Rape committed upon a female slave is an offense not recognized by law. Scott then brought suit in 1854 in the U. 2. sold Dred Scott and his family to her brother. (19 How. b. The court had expanded the definition of treaty under Supremacy Clause to include executive agreements which have not been subject to review of the legislature.S. (2) The provision of the Missouri Compromise that permitted Congress to prohibit slavery in the territories is not constitutional.b. Eliza and Lizzie). Dew. Therefore.S. 2. Thus they were considered "peoples. § 2 of the US Constitution provides that any treaty entered into by the US become law of the land. succeeding at the trial court in 1850. as alleged.S. despite the fact that they are uncivilized. Here. territory in part of the 1803 Louisiana Purchase from France. was a citizen of New York. iv. In 1853 Dr. Also. Enacted by the legislature into municipal law and is consistent with the local laws. slaves are not citizens of the US. iv. VI. Last in Time Rule when a federal statute and a treaty are in conflict. but losing an appeal before the Missouri Supreme Court in 1854. Generally. because although he. in 1836 Scott married Harriet. since he was a negro of African descent: his ancestors were of pure African blood. Scott sued in Missouri state court in 1846 for his freedom and that of his family (Harriet and their two children. Reasoning: Justice Taney compared Blacks to Native Americans. a citizen of New York." 40 . Circuit Court in Missouri to assert the title of himself and his family to freedom. Conflicts between Federal law and Treaties a. American Expansionism 1. Legal Framework and Contextual Factors i. 60 U. A treaty is only capable of superseding State law when: a. a slave brought to Fort Snelling by Major Taliaferro. Holding: (1) No. Sanford. He considered "Indians" to be free and independent. Peoples have the right to self determination and self governance. Emerson's widow. Scott moved with his master to Rock Island in the free state of Illinois and then in 1836 to Fort Snelling in U. Art. a treaty is self-executing if it appears that the treaty intended to provide a rule that. The noblest blood of Virginia runs in the veins of slaves. ii. iii. Summary i. 3. (2) whether the Missouri Compromise. and to cause the greatest number possible to be raised. Issues: (1) Whether slaves are citizens in the sense that they can bring suit for their freedom. Partus sequitur ventrem 1. a citizen of Missouri. Abolition of the Atlantic slave trade iii.Ed. Scott was not. would be enforceable by the courts. Emerson to Missouri in 1838. XII. their ability to self-govern renders them as peoples in a political sense. THE INFLUENCE OF TRANSNATIONAL LAW ON NATIONAL LAW a. standing alone. induced the master to attend to the negros to encourage breeding. an Army doctor. John A. Facts: Dred Scott was held as a slave in Missouri by Dr. 1. therefore they cannot bring suit in federal court. Therefore we negotiate treaties. The treaty is self-executing: i. Slaves are personal property and thus cannot be free. Sanford asserted that the courts had no jurisdiction in the diversity of the case. John Emerson. 691 (1857) i. Returning with Harriet and Dr. Emerson. who had sold her to Dr. in what later became Minnesota. 15 L. slavery had been abolished by the 1820 Missouri Compromise. whichever had been enacted most recently prevails.

thereby necessitating a comparative law assessment once you move state to state.c. Coker v. The law designated it as a Class C misdemeanor when someone "engages in deviant sexual intercourse with another individual of the same sex. d. So the death sentence was simply too harsh. Georgia.S. Rationale: The court ruled the death sentence was too excessive for the crime of rape. but exercised their right to a new trial before a Texas Criminal Court. Lawrence and Garner were arrested and charged with violating Texas's anti-sodomy statute. A punishment is excessive and unconstitutional if: (1) it makes no measurable contribution to acceptable goals of punishment and hence is nothing more than the purposeless and needless imposition of pain and suffering. but still it was not as serious as a murder. an adult woman was raped and even though it was a serious crime. CT is a liberal state. 584 i. Sentence reversed. 2. he committed the rape while in the process of committing robbery. one would expect liberal and favorable treatment of blacks. Facts: John Geddes Lawrence and Tyron Garner were alleged to have been engaging in consensual anal sex in Lawrence's apartment when Harris County sheriff's deputy Joseph Quinn entered the unlocked apartment. He recognizes that only free white citizens were free to be part of the militia. Procedure: The jury was presented with a Georgia statute for rape in which the jury could consider whether (1) rape was committed by a person with a prior record of conviction for a capital felony. Taney uses 3 sources as to why blacks could never be citizens: a. Significance: The ways in which the Justices differ is based on a comparative law assessment. The authors of the Constitution never intended to consider blacks as citizens c.S. he wants to look to them to see how they treat blacks and if they consider them a people or not. The court considered the statistics of how states were stepping away from death sentences in rape cases and used these statistics to back up its ruling. (2) that the rape was committed while the offender was engaged in the commission of another capital felony. 433 U. Take the same logic of the opinion and put it into international sphere. The jury found that the defendant had about 2 previous rape convictions and murder conviction and he was an escaped convict. Also. but this sentence in a rape case is too disproportionately excessive. Lawrence v. Holding: No 5. In the current case. Facts: The defendant escaped from prison and entered the house of the victims (husband and wife) and robbed the husband and raped the wife. the Texas "Homosexual Conduct" law. Looks to CT and NH: i. So the death penalty was rendered to the defendant. The defendant appeals and argues that this sentence was cruel and unusual under the Eighth Amendment of the Constitution. 2. with his weapon drawn. The Missouri Compromise Taney argued that it interfered with one's property rights. The Court reasoned that death sentence in itself is not cruel and unusual. He was comprehended and under Georgia law. or (2) is grossly out of proportion to the severity of the crime. 539 U. Miscegenation (interracial marriage and sexual relations) b. He looks to the militia in NH. 41 . because we do not have a unified criminal law system. 3. ii. a jury sentenced the defendant to death under the charge of rape." prohibiting anal and oral sex between members of the same sex. He argues that even CT held against them. So they can't get rights if they don't have responsibilities since blacks don't have to fight in the military because they don't rise to the level of being people. Issue: Whether the crime of rape committed by a criminal with past serious criminal record can be punished by a death sentence? 4. Lawrence and Garner were convicted. 1. 1. it differs between jurisdictions and states exercising their own system. Texas. 558 i. arresting the two. or (3) the rape was outrageously or wantonly vile horrible or inhumane. where they asked the court to dismiss the charges against them on Fourteenth Amendment equal protection grounds.

color. etc. Also in 2003. which bars discrimination because of sex. The following year. This right to privacy was determined to be encompassed in the word liberty within the 14th Amendment. Bowers v.) of their Vienna Convention right to notify their consulate. Dudgeon v. which held against the U. Holding: The Texas law did in fact violate due process guarantees provided by the 14th Amendment. (2) Whether the law is unconstitutional in regards to its invasion on the right to privacy. Issues: (1) Whether the Texas anti-sodomy law unconstitutional under 14th Amendment equal protection clause. or national origin. Hours after Medellin's arrest he admitted to his part in the crime and boasted of having "virgin blood" on his underpants. finding that the law violated the 1972 Equal Rights Amendment to the Texas Constitution. Report on the committee of homosexual activities and prostitution b. Acceptance as "integral part of human freedom in many countries. consensual homosexual activity. from where our common law came from 2. temporal (historical)--Justices Renquist and Scalia criticize as cherry picking. the ICJ ruled in Case Concerning Avena and Other Mexican Nationals that the 51 Mexican nationals were entitled to review and reconsideration of their convictions and sentences. So the Court looks to the UK here. The Optional Protocol provides that disputes arising out of the interpretation or application of the Vienna Convention "shall lie within the compulsory jurisdiction of the International Court of Justice. Reasoning: The court employs aspects of comparative law including: spatial (place . iv. The United States withdrew from general ICJ jurisdiction on October 7. so brought this case and won b. they filed an appeal. The full court. Medellín filed a petition for habeas corpus in United States district court which denied relief." The Texas court upheld his conviction. Medellin was convicted of the gang rape and murder in Texas and sentenced to death. Facts: June 24.. Medellín strangled one of the girls to death with her own shoelaces." c. In 2003. but not heterosexual couples. 1985. claiming that the United States had failed to notify 51 defendants (all Mexican citizens accused in state courts of committing crimes in U. saying they should have notified Medellin of his rights. Medellin appealed to the Texas Court of Criminal Appeals claiming a violation of his Vienna Convention rights. Both girls were killed to prevent them from identifying their assailants. however. race. iii. The court draws guidance from: 1. José Medellín (an 18-year-old Mexican citizen) and other gang members participated in the Murder of two girls in Houston. and also on right to privacy grounds.S. 1346 (2008) i. Also Georgia law did not target homosexuals 4.Ct. Texas. 42 . Scalia's slippery slope argument: If we keep looking elsewhere we are going to lose our moral footing. UK a. State. 128 S. Article 36 of the Vienna Convention requires that foreign nationals who are arrested or detained be given notice "without delay" of their right to have their embassy or consulate notified of that arrest. ii. Notions of wider "civilization. Medellín was one of the 51 Mexican nationals named in the suit.S. Hardwick (Georgia Case) a. Sets the trend for the EU 3.nation. Wolfenden Report a. Medellin went to ICJ. Their arguments were presented to a three-judge panel of the Texas Fourteenth Court of Appeals on both equal protection and right to privacy grounds. claiming that the law was unconstitutional since it prohibits sodomy between same-sex couples. The right to privacy provides for adults to engage in private. However. holding that Medellín's Vienna Convention claim should have been raised at trial (not on appeal) and he had failed to show prejudice against his case arising from the Vienna Convention violation." and lack of international following for Bowers b. 1993. creed. An adult male resident desired to engage in homosexual sex and was repeatedly subject to police brutality.). and numerical.e. voted to reconsider its decision. upholding the law's constitutionality 7-2 and denying both the substantive due process and the equal protection arguments. The court ruled in the appellants' favor. Medellin v. After the Criminal Court rejected this request. Mexico brought suit against the United States in the ICJ.

thus requiring no further legislative action in order for it to create binding federal law that preempts state law. v. The two broke into Mrs. They drove her to a state park and threw her off a bridge.N. 551 (2005) i. and thus impulsiveness. the U. it disagreed that the President was acting with implicit congressional approval under Youngstown category one.S. 543 U. and tossing the victim off a bridge." 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. while Avena is a binding international obligation of the United States. to give effect to the Avena judgment in the cases that the judgment addressed? (2) Did the President of the United States act within his constitutional and statutory foreign affairs authority when he determined that the states must comply with the United States' treaty obligation to give effect to the Avena judgment in the cases of the 51 Mexican nationals named in the judgment? iii. logic suggests that a ruling about the meaning of treaty text by the dispute settlement body empowered to hear the dispute is to be binding on the parties. with the President explicitly favoring enforcement of it. with the courts continuing 43 . Significance: Examines U.a request for "review and reconsideration" -. states. tying up a victim. Simmons first moved for the trial court to set aside the conviction and sentence. Issues: (1) Are state courts bound by the U. the question of what legal effect the Court should give the opinion is a question of domestic law. The relevant treaties in the case -the Optional Protocol. the majority's approach presents serious practical impediments. with a two friends (one dropped out). Once the case went to trial. at the age of 17.S. The trial court rejected the motion. ineffective assistance of counsel. Because the Court already concluded that the treaties at issue were non-self-executing. was on the issue of giving domestic judicial effect to those decisions. bound her hands and covered her eyes. The plan was to commit burglary and murder by breaking and entering. Even considering mitigating factors (no criminal history and his age) the jury recommended a death sentence. Simmons had confessed to the murder. performed a videotaped reenactment at the crime scene. the particular judgment at issue here -. citing. and there was testimony against him that showed premeditation. along with a troubled background were brought up as issues that Simmons claimed should have been raised at the sentencing phase. Crook's home. The case worked its way up the court system. to murder Shirley Crook. concocted a plan. he can only act in accordance with an act of Congress and the Constitution. While the President plays a unique role in resolving foreign policy disputes that might bear on compliance with an ICJ decision. holding that: "neither Avena nor the President's Memorandum constitutes directly enforceable federal law that pre-empts state limitations on the filing of successive habeas petitions. Supreme Court s application of Comparative Law 1.S. His age. joined by justices Alito. and neither the President nor Congress has expressed concern with judicial enforcement of Avena. Constitution to honor the undisputed international obligation of the United States. the Optional Protocol applies to a dispute about the meaning of a treaty provision that is itself self-executing and judicially enforceable.S.f. The jury returned a guilty verdict. Holding: No and No iv. Kennedy. Dissent: (Justice Breyer) The Optional Protocol represents a treaty obligation that is self-executing. wrote for the majority. and Simmons appealed. Facts: Simmons. (2) The Court further concluded that the President does not have inherent authority to enforce ICJ opinions against U. Scalia and Thomas. He concluded that.S. Charter and the ICJ Statute . the decision of the ICJ under the Optional Protocol must be examined on its own terms to determine what the intent of the U. Simmons.are non-self-executing and cannot be given effect as federal law absent implementing legislation. Roper v. ii.is the kind of relief courts are particularly well suited to provide. Since Congress has not implemented any of those treaties through federal statute. Reasoning: Chief Justice Roberts. the evidence was overwhelming. The language of the relevant treaties supports self-execution in this case. which the trial court imposed. a court finding of self-execution would not create any conflict with the other branches. Majority's insistence on the "absence or presence of language in a treaty about a provision's selfexecution proves nothing at all. under treaties duly ratified by the President with the advice and consent of the Senate.

not what it should say. Scalia attacked the majority opinion as being fundamentally anti-democratic. Virginia. was a party to the action because it was brought as a petition for a writ of habeas corpus. His dissent cited a passage from the Federalist Papers in arguing that the role of the judiciary in the constitutional scheme is to interpret the law as formulated in democratically selected legislatures. they sentenced Simmons to life imprisonment without parole. Only three states had done so in the past 10 years: Oklahoma. Pakistan. Yemen. and that it is for the legislature. acting in the manner prescribed in Article V of the Constitution. The Court exists to rule on what the law says.ii.) th 2. the Superintendent of the correctional facility where Simmons was held. Furthermore. 1. and the Supreme Court of Missouri concluded that "a national consensus has developed against the execution of the mentally retarded" and held that such punishment now violates the 8th Amendment prohibition of cruel and unusual punishment. the Court noted the increasing infrequency with which states were applying capital punishment for juvenile offenders. and China. the Court held that it was cruel and unusual punishment to execute a person who was under the age of 18 at the time of the murder.S. and Virginia. Reasoning: Writing for the majority. 304 (2002). laws are less restrictive than the international norm. (Donald P. 20 states had the juvenile death penalty on the books. Adolescents were found to be overrepresented statistically in virtually every category of reckless behavior. to offer amendments to the Constitution in light of the evolving standard of decency. iii. However. but rather whether the execution of such defendants was considered cruel and unusual at the point at which the Bill of Rights was ratified. However.S. his dissent questioned not only the relevance of foreign law." noting that in the case of abortion U.S. Challenged the Court majority's assertion that there had been a significant change in society's rejection of the juvenile death penalty. Nigeria. Roper. The Court also noted that only the United States and Somalia had not ratified Article 37 of the United Nations Convention on the Rights of the Child (1990). the Democratic Republic of Congo. but also accused the Court of "invoking alien law when it agrees with one's own thinking. v. Justice Scalia also objected in general to the Court's willingness to take guidance from foreign law in interpreting the Constitution. not for the Court to arbitrarily make de facto amendments. in Atkins v. 536 U. but only six states had executed prisoners for crimes committed as juveniles since 1989. which expressly prohibits capital punishment for crimes committed by juveniles. and ignoring it otherwise. Saudi Arabia. The Court also looked to practices in other countries to support the holding. In support of the "national consensus" position. as per the 8 Amendment. At the time of the decision. Thus. iv. the court said. to uphold the death sentence. Challenged the majority's opinion 44 . "only seven countries other than the United States had executed juvenile offenders: Iran. Dissents: The dissents put into question whether a national consensus had indeed formed among the state laws. Between 1990 and the time of the case. five of the states that allowed the juvenile death penalty at the time of the 1989 case had since abolished it. Supreme Court. Justice Kennedy cited a body of sociological and scientific research that found that juveniles have a lack of maturity and sense of responsibility compared to adults. The State of Missouri appealed the decision to the U. Issue: Whether capital punishment is constitutional. that overturned the death penalty for the mentally retarded. Supreme Court ruling. Simmons filed a new petition for state post conviction relief. Justice O Connor: Expressed concern regarding the establishment of a categorical rule prohibiting the execution of any juvenile offender. which agreed to hear the case. citing the fact that at the time of the ruling only 18 of 38 death penalty states (47%) prohibited the execution of juveniles." Since 1990 each of those countries had either abolished the death penalty for juveniles or made public disavowal of the practice. Texas. for persons who were juveniles when their crimes were committed Holding: Under the "evolving standards of decency" test. in light of a 2002 U. and that the United States stood alone in allowing execution of juvenile offenders.S. Scalia and Thomas questioned whether such a consensus was even relevant Justice Scalia: The appropriate question was not whether there was presently a consensus against the execution of juveniles.

ICJ. treaties typically have certain gaps or ambiguities that require reference to rules outside the treaty for its application and interpretation . as evidence of these. and . Acts taken by states before international organizations d. Oklahoma barred execution of offenders under the age of 16. Contextual Background: A 1988 Supreme Court decision Thompson v. What role did int'l law play in Roper v. that it was permissible to execute the mentally retarded. another case. which amplifies their importance. Treaties often leave many international topics untouched. Pattern among National jurisdictions ii. Evolving standards of decency i. Can take many forms a. have made themselves peculiarly wellacquainted with the subjects which they treat. b. Treaties are the most certain source of international law. Looking abroad confirms court's conclusion on what is decent and what is not. i. Virginia. 45 . to the works of jurists and commentators. Kentucky upheld the possibility of capital punishment for offenders who were 16 or 17 years old when they committed the capital offense. including principle of proportionality 2. 2. vi. 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). Simmons? a.in some sense the theory of customary international law is simply an implied side to the contractual theory that explains why treaties are international law. How does the court determine whether a punishment is cruel or unusual? a. b. BUT: a. also our law derived from theirs.expressed agreements. and most states are not party to most treaties. the Supreme Court ruled in the case Penry v.that juveniles could not reliably be classified among the worst offenders and therefore the death penalty was disproportional to any crime they may commit. Chastised the Court majority for failing to reprimand the Supreme Court of Missouri for their refusal to follow the Stanford precedent. 1. In 1989. research and experience. Moreover. certain states might not be a party to the treaty and therefore not bound by it. 38 International custom. where there is no treaty and no controlling executive or legislative act or judicial decision. A belief among states that such practice is legally compelled (OPINIO JURIS see below) ii. Looked at UK (shared closest history. and by. who by years of labor. Theories of punishment. even if there does exist a treaty addressing a particular topic. Lynaugh. The same day in 1989. their international practices may implicitly consent to the creation and application of international legal rules. Customary international law exists when two key requirements are met: 1. XIII. CUSTOM AND THE NON-CONSENUAL SOURCES OF INTERNATIONAL LAW a. Even inaction by states when they are confronted by a particular matter. Principles states in. Acts taken internally by states through their legislatures or courts c. However. Int'l and foreign law is certainly not controlling c. HAS TWO ELEMENTS State Practice (Objective Element) and Opinio Juris (Subjective Element) 1. A relatively uniform and consistent State Practice regarding a particular matter. Art. in 2002. that decision was overruled in Atkins v. so particularly persuasive). i. Acts taken by states in their diplomatic relations with one another b. Consequently the second source of international law is customary international law c. where the Court held that evolving standards of decency had made the execution of the mentally retarded cruel and unusual punishment and thus unconstitutional. b. resort MUST be had to customs and usages of civilized nations. Stanford v. as evidence of a general practice accepted as law is ranked second only behind treaties. Even if states are bound. STATE PRACTICE.

of international law on point. so fundamental.but mention debate ii. Court also noted that it was the "general policy of the govt to conduct the war in accordance with the principles of int l law. Court decisions. By an ancient usage among civilized nations. One could argue that custom is nothing more than repetition. b. International Law books. Reasoning: Customary international law was utilized to fill gaps when there are no easier. other nations observation of the practice [France. Regulations. Executive Agreements. Holding: Despite the fact that there is no treaty. Court said that int l law is part of our law. Brought to US and sold by auction. use the positivist approach.American war. having been recognized as exempt. Natural law/Universal (jus cogens) or Custom v. Louis XVI ordering English fisherman not be captured. and Italian]) in the jurists writings. International law is part of our law and the general policy of the government is to conduct war in accordance with the principles of international law (generally going against an executive order). and (b) opinion juris. Argentina. 46 . Facts: Cuban/Spanish ships. In many treaties and decrees fishermen catching fish as an article of food are added to the class of persons whose occupation is not to be disturbed in war. Austrian. Dutch. Issue: (1) what is the status of the seized fishing vessels? (2) During the course of the Spanish. more definite rules available. US treaty with Prussia. d. it should be evident over some extended period of time. The practice was then surveyed as it pertained to the US participation in the practice. German.a sense of legal obligation. are fishing vessels subject to capture and forfeiture as prizes of war? c. Portuguese. Use for a connection to municipal law. from capture as prize of war. US practices. rather than a very short period of time. dating back to King Henry VI. Exam Relevance i. their cargo and crews are exempt from capture. English.2.and concluded that such a customary practice exists. d. customary law provides that these ships. Proclamations. Positivist Approach Unless what you are clearly dealing with is so universal. nor doctrinal rule. beginning centuries ago. we must look at the customs and usages of civilized nations. e. Legislation. US law." By looking at the sources of the evidence. coast fishing vessels. 175 US 677 (1900) 1. Court found that. The Paquette Habana. pursuing their vocation of catching and bringing in fresh fish. ETC. Even though there is a requirement of opinion juris this is a legal fiction which is often ignored. Speeches/Testimony before national/international bodies. The court then surveyed the historical honoring of this practice. and the practice as stated by Wheaton. Ideally. May be ascertained from a wide variety of sources: Treaties. and when there is no treaty or other governing force. court finds sufficient to enforce the custom. Relevant Cases i. and gradually ripening into a rule of international law. Significance: ascertaining customary international law (at least for the US) requires finding two elements: (a) a general uniformity of the practice. She was stopped by the blockading squadron and captured (they were fishing vessels). with their cargoes and crews. a. MUST be UNIFORM and CONSISTENT (But it need not be PERFECT. Court looked at the totality of the circumstances and writings (history. 3.

Thus an emotional condition is at the heart of the legal definition. religious persecution cases etc. Positivist view that custom is merely an implicit treaty. General Exam Implications i. sexuality asylum cases. b. a. a. Exam Relevance i. You have to be a vocal objector. iii. a. Natural (universal) law views on CIL 1. Positivist v. i. Issue of Positivist v.) is not helpful to asylum seekers as it punishes those who have symptoms of persecution (meaning passing/covering) a. The party relying on custom must prove that it is established in such a manner that it is now binding on the other party d. but such a custom is not made out here. Facts: Failed military rebellion leader in Peru sought political asylum in Columbia. Peru didn t sign onto the Montevideo convention. 266 1. This test promotes homosexuals in acting flamboyant and absurd. The Persistent Objector If Peru objects persistently. The decision is representative of a trend in immigration law to equate visibility with the potential for antihomosexual persecution. Four Enumerated Groups: race. but Peru refused to allow him to leave. poorer. which essentially is whether or not you act like a homo or heterosexual. not many countries at this point had signed on to the convention. Reasoning: Not enough evidence to establish CIL. for the purposes of proving their identities as homosexuals. This test ignores the fact that one s visibility is often inversely related to fear If you are more afraid you are going to be less visible. Refugee Act of 1980: a successful asylum applicant must establish a well-founded fear of persecution on account of a protected characteristic. Generally in Asylum law. Also. even if custom is very common. No evidence of consent to the custom Debate as to what constitutes an objection. consent is implied unless you object e. ii. religion. 3. Other groups acting blacker. But visibility is only a means of ascertaining whether persecution occurs on the basis of a protected characteristic. one is a member of a protected group or they are not. etc. of course. ICJ looks at customary international law. Jus cogens norms trump other norms . Dispute goes to ICJ. The Asylum Case (Columbia v. iii. Treaties Custom General Principles and Equity (typically are used as gap-fillers as well. 2. International Law Hierarchy: 1. Pink Asylum (Asylum in the US) 1. Naturalist views on Custom s role in international law. Peru).J. Visibility Test: A visibility requirement (either in domestic violence cases. Issue: May a regional custom be established? c. and since there s no treaty concerning this.if. not in this case). Regional customary international law fits well with the positivist notion that customary international law is a form of implicit agreement.e. Peru has not acted in a way that showed they practiced this custom. 1950 I. Significance: Customary law can be regional (however.C.there is no qualitative analysis as to how much of a member of the group the person is. which includes membership in a particular social group. are lower in rank) 2. you are willing to accept the reality of jus cogens ii. Imports a visibility test. and thus. arguably. Holding: Yes. Custom s effect on Municipal courts 47 . As such this visibility threshold is inconsistent with a fear-based standard for asylum. silence = consent. In re Soto Vega The Board of Immigration Appeals (BIA) denied a gay man's application for asylum because he appeared too stereotypically heterosexual (had a wife). nationality. they still wouldn t be bound (unless it was a natural right). and political opinion.

b. A Russian boat was out on the water looking out for these vessels. it was foggy and everyone was exhausted and on edge when they spotted a 48 . b. More conclusive than other forms of resolution settlement b/c decisions are binding b. i. c. c. by allowing the ship manufactures to sell the Confederacy. Relevant Cases i. there is no recourse to domestic courts. Held: Britain violated duty of active due diligence to prevent private companies/parties from supplying arms to the southern rebels d. Rulings are generally enforceable through municipal courts. Two companies enter into K ( if there is a dispute. the courts of the state where the arbitration is held generally oversee the arbitration to ensure that there is at least a modicum of procedural fairness. The Alabama Arbitration 1. a. Was empowered by both US and Great Britain to decide whether Great Britain had violated international law. A nation s decision to comply with rulings depends on other factors. Reasons States Use Public Arbitration Arbitral Tribunals? i. Composition: arbitration panel described as ad hoc. Provides neutral forum 1. used to avoid going to war. Both the proceedings and decisions can be kept confidential 2. Disadvantages a. were made by the British. a. Italy. INTERNATIONAL COURTS AND TRIBUNALS a. Parties retain greater control b/c they appoint arbitrators c.e. ii. Compared to Private Arbitration private parties only. Public Arbitration (Between States) Provides a formal process for obtaining a binding decision without the greater costs and time associated with the formalities of a traditional judicial resolution. and composition. Advantages a. No authority to conduct discovery or subpoena witnesses d. Arbitration can be among states as well as the ICJ. Issue: whether Britain had violated international law when it permitted British companies to build warships for the Confederacy during the American Civil War. Russia was at war with Japan and got intelligence that Japanese torpedo boats were disguised as fishing boats. 2. resolved by arbitrator. The court of state where arbitration is held can oversee the tribunal to make sure it carries out its functions with procedural fairness.five judges. Significance: First real establishment of the use of arbitration. one from each of the following countries: US. The Dogger Bank Affair Case (Great Britain v. If parties don t specify procedures. Parties may designate the procedures and laws to be applied d. 1. the process becomes time-consuming b.XIV.. Significance: the flexibility of tribunal formation. UK. The parties themselves pay the cost of the arbitration. Party finds arbitration to be unfairly conducted Self-justified non-compliance c. 2. and Brazil. Confederate ships. thus. Facts: During the American civil war. Switzerland. Arbitration process is de-nationalized. The influential tradition of public international arbitration in the 19th century provides a bridge to the establishment of the Permanent Court of Arbitration in 1899 Permanent Court of International Justice in 1921 the International Court of Justice in 1945. Facts: Russia shoots UK fishing boats and claims it thought they were torpedo boats. that were specifically designed to intercept American (Union) commerce. Arbitration is less formal and contentious than adjudication e. Russia) 1905 1. Public arbitration is set up and controlled by the parties themselves. Exam Relevance a. i.

France argues for the release of the agents. Use of Force? Costly. v. ii. Consequences of the termination of a treaty Unless the treaty otherwise provides or the parties otherwise agree. New Zealand asks for compensation. in a way. Article 70. Each state would have probably come up with its own findings. b. The Permanent Court of Arbitration. and (2) Customary law of State Responsibility. the termination of a treaty under its provisions or in accordance with the present Convention: (a) releases the parties from any obligation further to perform the treaty.Customary Law of State Responsibility.fishing vessel. Possible Justifications: (1) The existence of exceptional circumstances of extreme urgency involving medical or other considerations of an elementary 49 . or (b) the violation of a provision essential to the accomplishment of the object or purpose of the treaty. The agents are arrested in New Zealand and sentenced to time in jail. was father to the PCIJ and grandfather to the ICJ. New Zealand saw the agents as criminals and the French saw them as heroes. (2) Distresscircumstances of extreme urgency involving elementary humanitarian consideration i. increased difficulty or burden. paragraph 1 applies in the relations between that State and each of the other parties to the treaty from the date when such denunciation or withdrawal takes effect.including the legal consequences of a breach c.admirals instead of lawyers for the judges. Why Arbitrate i. cruel and expensive exercise. war is a messy. ii. obligation or legal situation of the parties created through the execution of the treaty prior to its termination. France unilaterally moved two people from an island. Relevant Law: (1) Customary law of Treaties per Vienna Convention. b. Vienna Convention A material breach of a treaty. iii. (b) does not affect any right. Facts: French agents sink the Rainbow Warrior (which belonged to Green Peace). 1. The Rainbow Warrior 1. Significance: Displays the concept of comity in respect to state sovereignty a. New Zealand wanted their doctors to examine them first. iii.inappropriate defense as that test demands absolute and material impossibility v. 2. Goes to arbitration. b. Article 60. i. International Court? There was none. Custom. Economic Sanctions/Embargo? Would have hurt international economy and NOT helped to resolve the conflict at hand. Also does not want trade disturbed. They torpedoed the hell out of it only to find out that it was a UK fishing boat and they had killed innocent fishermen. The flexibility of composition. § (2) If a State denounces or withdraws from a multilateral treaty. iii. iv. makes UK into bullies. National Inquiries? Could have appointed a team of experts to look into the problem. UK wants something public to placate the many British who were pissed and calling for war. France s Defenses: (1) Force Majeure. consists in: (a) a repudiation of the treaty not sanctioned by the present Convention. for the purposes of this article. but Different experts can give two conflicting results. Diplomacy? Too secretive and closed-door 1. Exam Relevance a.

Territoriality Principle sovereign state can prosecute criminal offenses committed within their borders 1. wanted an apology. This goes to the principle of reciprocity we do not want to interfere with the authority of a sovereign state e. Issue 2 Yes Ct. (2) The reestablishment of the original situation of compliance . Holding: While a country may treat some relations between its own citizens a governed by its own law in regions subject to no sovereign. Jurisdiction. United Fruit a. Facts: Plaintiff is a US citizen and has banana plantation in Panama. However. as Blackmer is personally bound to take notice of the laws that are applicable to him and to obey them. Reasoning: All legislation is prima facie territorial because of sovereignty every state has sovereign control over its own territory i. there must be due process which requires appropriate notice of the judicial action 50 . Decision: Decision of the arbitration tribunal was based on: Treaty between France and New Zealand. Customary international law reference to this but w/o stating what principle is (so leave tribunal w/ option of defining these principles). Reciprocity ii. b.was France respecting New Zealand s independence. i. American Banana Co.2. COMITY & Sovereignty. v. XV. Issue: Does US have jurisdiction over a US citizen residing in another country? c. RELATES TO: Sovereignty. US a. The Nationality Principle the government of a citizen can obtain jurisdiction over its citizen even when that citizen is abroad 1. P built a railroad which would be the only means of expropriation. We can t extend our laws outside our borders. like the high seas. D instigated dispute between Panama and Costa Rica which ultimately resulted in Costa Rica holding lands which P s railroad were going through. The Principles of Jurisdiction i. Court says there is no question of international law. i. Issue: Does US have jurisdiction/ does the Sherman Act apply? c. His obligation was to appear in court. for failure to respond to subpoenas served upon him in France requiring him to appear as a witness for the US in a criminal case. Public Arbitration Remedies: Satisfaction Set up fund (here). Issue 2: Can the court enforce the obligation of Blackmer to appear/was his Due Process violated? d. but solely of the purport of the municipal law which establishes the duties of the citizen in relation to his own government. Facts: Blackmer is a US citizen and resident of Paris France and found guilty of contempt of Supreme Court of D. the general rule is that the character of an act as lawful or unlawful must be determined wholly by the law of the country where it is done. No DP was not violated Jurisdiction of the US over absent citizens is a jurisdiction in personam. nature . Holding: Issue 1 Yes . d. D intended to prevent competition and monopolize the banana trade. his citizenship created obligations and rights. d. New Zealand s pursuit of damages was more about national honor. INTERNATIONAL CONFLICTS OF LAW a. b. Blackmer v. or to no law recognized as adequate. P claimed violation of Sherman Anti-Trust Act b. can make him appear. Efficacy of these remedies here? Exam Relevance a.C. made K s with others and bought out others regulating purchase of the fruit and controlling stock. Therefore. and (3) The existence of a good faith effort to try to obtain the consent .Blackmer continued to be a US citizen even after removing his residence to France.

for conduct outside its borders that has consequences within its borders which the state reprehends. even though the agreement was solely between foreign companies and performed entirely on foreign soil. after proving intent to affect imports. corporation who was engaged in an international cartel with several Canadian and European aluminum producers to monopolize the aluminum market. and even though made abroad. Whether own constitution permitted to do so. Its targeted f. it does not appear that they actually did. Another agmt. ALCOA. Foreign Sovereign Immunities Act. causing serious and harmful consequences to the social and economic order within the state s territory g. Court found that service was not a violation of Due Process once it was made and he received it. limiting exports to the US. but this agreement was made outside of the US. h. Then determined that although alliance intended to restrict imports. 1. corp.and an opportunity to be heard. Issue: Whether or not suit could be brought in US based on the effects an international agreement on a U. US v. However. b. in 1936 which only substituted system of unconditional quotas with a system of royalties. The European companies were explicitly violating the Sherman Act. Second Circuit ruled that Sherman Anti-trust Act applied to a foreign agreement intended to affect US market. Did have an effect? c.S. because it superseded 1931 agmt. even upon persons not within its allegiance. LIMITS to the EFFECTS PRINCIPLE: a. Both agreements would have been unlawful if made within the US. then they are unlawful.S. Whether congress chose to attach liability d. iii. under a violation of the Sherman Act (anti-trust) i. through its subsidiary company Limited which is incorporated in Canada set up an agreement in 1931 that provided for the formation of a Swiss corp which would fix a quota of production for each share and each shareholder was to be limited to the quantity measure by the number of shares it held. IN case. ALCOA a. US brought suit against ALCOA even though it found that ALCOA was not part of the cartel because its subsidiary Limited was part of the alliance. Facts: ALCOA is a U. Applied to offenses or acts commenced outside the state s territory. RELATE TO: Alien Tort Claims Act. Hand determined agmt. EFFECTS PRINCIPLE: i. 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. Socony-Vacuum and repeated the underlying doctrine that all factors which contribute to determine prices. Jurisdiction 51 . This issue turned on the Congressional statute for serving notice. e. Did it intend to have an effect? b. Therefore. expressly made to have an effect on imports. c. EFFECTS PRINCIPLE: Any state may impose liabilities. Legislative b/c INTENDED to affect US commerce. Then Court looked to whether prices were actually affected and looked to US v. if they were intended to affect imports and did affect imports. Sherman act was violated and US has jurisdiction under the effects principle d. Holding: Justice Hand first looked at whether Congress intended to attach liability to conduct outside the US of persons not in allegiance to it. must be kept free to operate unhampered by agmts. Hand looked at only 1936 agmt. i. The Effects Principle Jurisdiction based on where effects were felt 1. the burden of proof shifted to Limited to show lack of effect on US.

d. The Schooner Exchange v. b. with the interest of foreign govts in being free to perform 52 .S. Therefore. Interfering with this ship when it came to US docks in a friendly.S. The court found that the vessel was a public armed vessel commissioned by. The doctrine originated in an area of personal sovereignty. the vessel was violently and forcibly seized by Napoleon of France. and if one sovereign exercised authority over another it indicated hostility or superiority. as an arm of the sovereign gov t of Spain. appellant can be sued in the US without its consent for private or public acts? i. Comisaria General a. Public loans. justiciability (properly a matter for the executive). Sub-issue: was the transport of wheat a private or public act? c. the arm of the Gov t does not have sovereign immunity when conducting private acts. the sovereignty is a public function. Court discusses several treaties that basically limit immunity to back this up (pg 835. What are public or sovereign acts? (jure imperii) usually limited to: Internal administrative acts. Facts: Owner of a cargo ship wants to sue the Spanish Ministry of Commerce in U. The court held that when the vessel entered American territory. and it declines to give consent. Justice Marshall distinguishes this military ship from commercial/individual/merchant ships. Holding: The Comisaria General s chartering of the appellee s ship to transport wheat is more of the character of a private commercial act than a public or political act. Foreign Sovereign Immunity 1. such as expulsion of an alien. Facts: The vessel was owned by an U. McFaddon a. Acts concerning the armed forces. Victory Transport. and specifically points to The Schooner Exchange as an example of this. it cannot be sued in a U. citizen. court without its consent. globalization 2. The purpose of restrictive theory is to try to accommodate the interest of individuals doing business w/ foreign govts in having their legal rights determined by the court. Issue: Whether an American citizen can assert. b. Acts concerning diplomatic activity. and on a voyage.S. d. The district court denied the libel for lack of jurisdiction. in an American court. The court found that the United States was at peace with France and permitted the vessel to enter the ports as a friendly power. but denying immunity to a foreign state's private or commercial acts (jure gestionis). customary int'l law. Reasoning: The test the court uses is the restrictive theory of immunity. Legislative acts. and in the service of the emperor of France. 1st full paragraph). recognizing immunity for a foreign state's public or sovereign acts (jure imperii). though. v. so that previous explanation no longer has much import. Issue: Whether. where a king could do no wrong. Military ships constitutes part of the military force of a nation which operates under the direct command of the sovereign. The modern trend is to abandon it in lieu of the restrictive theory.iv. The vessel sailed into an American port and the citizens filed a libel action to reclaim it. it did so under the implied promise that the vessel was exempt from United States jurisdiction and enjoyed sovereign immunity. Now. such as nationalization. RELATE TO: comity/reciprocity. The Court acknowledges that there has been a great deal of deference to the idea of foreign sovereign immunity in our history. However. The Tate Letter expressed US s adherence to the restrictive theory of immunity (immunity for public acts. a title to an armed national vessel found within the waters of the US? c. Govt of Spain says that because of foreign sovereign immunity. Inc. peaceful manner will affect France s sovereignty and will possibly ruin the peaceful relationship between the US and France. court. the reasons we had this in the past don't really apply anymore because of the increase of int l transactions. Holding: No. The appellate court reversed. not immune for private acts) but the Tate letter did not make a distinction between public/private acts.

e. int l agmts. 4. d. There is a presumption against foreign sovereign immunity unless factors present that show public act. or unless there's a letter from state dept recommends sovereign immunity. i. The Foreign Sovereign Immunities Act of 1976 a. Facts: Liberian corporations chartered its oil tanker to Hess. Notes . law f.3. counter-claims.S. Nigeria ordered its government bank.Notes and Questions: · Tate Letter inaugurated the restrictive doctrine in U. Amerada Hess Shipping Corp. not to pay the suppliers the contracted for amount. 5. to the U. 2) US case law in existing upon passage of FSIA using restrictive theory public acts are immune. Facts: Nigeria repudiated contract with US cement suppliers when they realized they bought too much and cargos were dangerously overloading their docks. not purpose. then you do. certain political acts w/o undergoing the embarrassment or hindrance of defending their actions before foreign courts. v. Issue: Whether the Nigeria Central Bank is a public institution who may enjoy foreign sovereign immunity? c. as in Schooner. 3) Current standards of int l law concerning sovereign immunity follows restrictive theory as well.S. then not immune. f. Immunity in Victory case the presumption is that you do NOT have immunity unless you are doing one of the following. commercial act.The doctrine. expropriation claims. but denying immunity to a foreign state's private or commercial acts (jure gestionis). commercial activity. Nigeria then enacted a law prohibiting entry into a Nigerian port to any ship which had not secure two months prior approval and imposing criminal penalties for unauthorized entry. the US Maritime Administration gave both UK and Argentina a list of vessels that would be passing through. Nigeria wanted the court to look at the goals as being public policy oriented b. private acts are not immune. Federal Republic of Nigeria interpreting the FSIA a. is no longer absolute· If a private. i. Other enumerated exceptions include waiver of immunity. Court looked at 3 other sources to determine whether transaction was commercial in nature: 1) legislative history if it s a purchase or sale of goods. The presumption is that you have immunity unless you fall into an exception ie. RELATE TO: Comparative law Texas Trading and Milling Corp. FSIA defines commercial activity as either a regular course of commercial conduct or a particular commercial transaction or act. There was an armed conflict between Argentina & UK. Central Bank of Nigeria. Court has jurisdiction over Nigeria. recognizing immunity for a foreign state's public or sovereign acts (jure imperii). non-commercial torts. around the southern tip of South America. and therefore it was not a commercial transaction. commercial activities. Nigeria argues that it s a gov t action because they were buying for the government. and to protect US interests. rather than by reference to its purpose e. maritime liens. then commercial. and the list 53 . Virgin Islands. Hess was carrying oil from Alaska. or if it s an activity in which a private person could engage in. Nigeria s activity qualified as commercial activity and was characteristic of a private contract transaction and Nigeria defense of sovereign immunity was denied. The commercial character of the activity shall be determine by reference to the nature of the course of conduct or particular transaction/act. FSIA essentially codified the restrictive theory of sovereign immunity c. FSIA Provides the sole basis for obtaining jurisdiction over a foreign state in US courts b. RULE: The modern trend is to use the restrictive theory of immunity. a. Argentine Republic v. Holding: Under the FSIA commercial activity is defined in terms of course of transaction. Therefore under each of those sources.

S. Oil spills are left around which destroyed swamps. ATS HUMAN RIGHTS ENVIRONMENTAL LAW LECTURE (Chomsky) Alien Tort Statute y One sentence long y Gives an alien the right to come to court in the US to sue in TORT for a violation of the law of nations (customary international law) or treaties of the US Wei Wa v. land etc. On a trip back to Alaska. so the Hercules had to be destroyed. foreign nations were immune from suit in the United States for non-commercial. Issue: Whether a federal district court could exercise jurisdiction over Argentina under the Alien Tort Statute? i. included Hess's ship. e. now on appeal. "public" acts unless one of the specific exceptions under the FSIA was present. Shell Oil y Plaintiff: Small tribe in Nigeria. Claimed they had nothing to do with the killings of Wei Wa. Company claims they didn t do it. Holding: Yes ATS and FSIA provide grounds for jurisdiction over Argentina Reasoning: Court found that Congress' intent when creating the FSIA was that it be the sole basis for jurisdiction over a foreign state in our courts. y Wei Wa started to complain and went around to European countries in order to get help. Merkin Oil y y y y Building a pipe line and in order to build in the isolated area they had to use forced labor Military would force people to carry into steep mountains their weight on their backs. y METRO CORPORATE COUNSEL is your business the next ATS defendant? Feel that increasingly transnationals are being made to answer aiding and abetting human rights violations even when they are engaging in ordinary commercial activity y INT CHAMBER OF COMMERCE Americas interest is being compromised because the ATS undermines American competitiveness 54 . and in addition to the damages the vessel sustained. Generally. The Liberian corporations (foreign plaintiffs) sued the Argentine Republic (foreign state) in U. Burma Case v. which was not the case. told them to do it and gave the military the rights to do it AWAKENING MONSTER OF ALIEN TORT STATUTE now an awakening monster and trial lawyers will try to expand this to such an extent that trade and investment in developing countries will be threatened. d. District court dismissed for lack of jurisdiction. etc. Every wildlife was killed. Hercules was attacked by Argentine aircraft. committed in violation of the law of nations or a treaty of the United States. district court under Alien Tort Statute to recover damages for a tort allegedly committed by its armed forces on the high seas in violation of int'l law. y Defendant: Shell is a partner with the Nigerian government y Facts: Let the oil burned so hot that it raises the temperature of the village itself. The damages vessel sought refuge in Brazil. Hercules. c. noise is out of control and there is light 24/7 from the burning. It was determined unreasonably hazardous to attempt the remove the undetonated bomb. to ensure the neutral vessel wouldn t be attacked. People will be in poverty and denied the right to participate in the global economy.establishes district court jurisdiction over any civil action by an alien for a tort only. Transferred through pipes above ground. No food. BUT they paid the military.b. RELATES TO: FSIA. y Shell thought they were stimulating the Nigerian Economy and they should love that they are there. Alien Tort Statute . there was an undetonated bomb in one of the tanks.

(better for the companies) ATS CASES AGAINST CORPORATION CASES y Torture is a violation of the law of nations and customary international law y Can come into court by a violation of the y FILARTIGA = FIRST CASE TO BUILD ON FOR ATS. o Vicarious liability you don t have to be there to do the torture yourself y KADIC CASE former Yugoslavia case involving a claim against a person who was claimed to be the head of an unrecognized Serbian state in Bosnia. who were members of the Indonesian military. at the hands of these security forces. and brand of these companies and causing them to make voluntary principles that they claim to use in operations in developing countries. Police inspector. this is not constructive engagement y There must be a nexis between the harm that the plaintiff suffers and the claims that are brought against them and the company o EX: Apartheid Case allegation that the auto manufacturers didn t want there to be a union of black workers. Claimed that it needs the authority of the state to violate international law o How the case was permitted:  Maybe he was the state  He was complicit with the Serbian state acting in concert with them so he could be held liable as a state actor even if not personally the state  Few crimes that do not require state action:  Slavery  Genocide  Crimes against Humanity (not clear)  War Crimes committed by nonstate actors y Need to know the local culture in the country or it will be hard to bring a case o If you don t know the cultural context you can t work with the plaintiff o Cant bring environmental cases although some can be indirectly with environmental law. The plaintiffs allege that they suffered human rights violations. etc.) Kadish was not the official of a recognized state so how could they find torture? o If I kill someone in my own home just murder. The plaintiffs further claim that ExxonMobil knew or should have known about the Indonesian military s human rights violations against the people of Aceh. This was considered an offense against apartheid and a challenge to the way that the auto manufactures conducted themselves by taking advantage that colored people got paid less and couldn t organize. etc. but sometimes separate orgs for colored. Exxon Mobil y The plaintiffs maintain that ExxonMobil hired the security forces. such as murder. RIGHT NOW environmental isn t a violation of law of nations Pfizer Case conducting tests with children in Nigeria and didn t tell them they were test products We now have a body of law that we have a cause of action if we can prove: y Connection between harm suffered by the victim and the company y CANT bring a case against a bank because a bank invested in a corporation y NEED a closer connection 55 . Why are Businesses Upset about These Cases? y Affecting the image. Victims were being expelled o International law is about the conduct of states. (government officials. When y Bad for positive image y But if you are involved in torture.Doe v. to protect the natural gas extraction facility and pipeline which ExxonMobil was operating. White workers could organize. torture and rape. slave labor.

y Lobbying in the Government going to the government and telling them they are not having a positive image if they are going to protect these companies when they are engaging in slavery. 56 . DEFENSES OF CORPORATIONS: y Claiming that the ATS does not reach corporations because there is no International Tribunal that a corporation can be held criminally liable and that is where we should look for law. etc. they are not state actors and cant be held liable because the corporations are private o BUT in joint venture. Exxon Mobil go forward bc it is interfering with the War on Terror o Executive should be left to decide with issues of Foreign Policy and the courts should stay out of it! y Cory v. This is enough of a connection and will be tested in the US courts Attempted Change To ATS wanted to preclude claims against corporations from the ATS.cant let Doe v. IF not liable under International Criminal Law and therefore not a violation of war of nations not successful y If they are individuals. conspiracy.o IBM can bring against them bc they set up a system to deprive South Africans of their citizenship. Texaco is complaining the court in Ecuador is biased. WHAT LAW DO WE LOOK AT? **OPEN AND DISPUTED AREA y Do we look at the rules of aiding and abetting as in Federal Common Law? (alien tort is creating a tort remedy so the violations are defined by international law but determining who are parties should be looked at though federal common) y Do we look to the International Law? y Do we look to the law of the state where the issue is occurring? CANT HOLD A FOREIGN GOVERNMENT ACTOR LIABLE FOR AN ACTION IT DOES WITH ITS OWN CITIZENS WITHIN ITS OWN JURISDICTION: y Get around it we are dealing with private individuals *MOST CONTROVERSIAL POLITICAL QUESTIONS DOCTRINE (justicibility theme) ALWAYS A DEFENSE BY THE PEOPLE BEING BROUGHT UNDER ATS y Will this create a conflict between the court and those branches of the government that are in charge of Foreign Policy? o Bush. torture. Caterpillar American woman killed by Israeli caterpillar tractor in Gaza. Appellate court looked at the way in which the tractors were purchased which was through congress. etc. This raised a political question because the transactions were decided by other branches of government that have more of a responsibility for foreign affairs OTHER DEFENSE FORUM NON CONVENIENCE y Can try the case somewhere else y Texaco Case in Ecuador every part of the case was sent to Ecuador and the government changed and the Oil Company left the country and left a mess.

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