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a brief primer
by Nathaniel Burney
Nothing on this page constitutes legal advice. All content is copyright ©2007-2010
I. The Sources of International Law Customary International Law Treaties, General Principles, and Other Sources Judicial/Subsidiary Sources of International Law II. The Relationship Between International and Domestic Law Domestic Law vs. International Law Customary Law Treaty Law III. Executive Agreements In General What the President Can Do Purely Executive Powers vs. Shared Powers IV. States Definition Recognition of States Recognition of Governments Self Determination Sovereignty Over Land, Sea and Air V. Non-State Entities: Organizations, Corporations IX. International Environmental Law X. International Agreements The Law of Treaties Nonbinding International Documents Capacity to Enter Into Treaties Making a Treaty Observance of Agreements Interpretation of Agreements Amendments and Modifications Invalidity of Treaties XI. Human Rights Basics Some U.S. Mechanisms Related to Human Rights State Involvement Substantive Bases of Responsibility Substantive Human Rights Fundamental Human Rights Violations Procedure What to Do When an American is Tortured by a Foreign Government Suspension of Human Rights
V. Non-State Entities: Organizations, Corporations Suspension of Human Rights and Individuals Duplication of Claims International Organizations Individuals and Nationality XII. Settling Disputes Peacefully Corporations The First Rule of the Use of Force Is Not to Use It Settling Disputes Peacefully VI. Jurisdiction Dispute Settlement through the U.N. and other General Principles international organizations Prescriptive Jurisdiction International Arbitration Enforcement Jurisdiction Formal Adjudication: The International Court of Conflicts of Jurisdiction Justice Extradition XIII. The Use of Force VII. Immunity from Jurisdiction Introduction Sovereign Immunity Analysis for All Use-of-Force Issues The Act of State Doctrine Self Defense Immunity of State Representatives Uses of Force Permitted by Customary International Law, but not in UN Charter Intervention VIII. The Law of the Sea Humanitarian Intervention Introduction Intervention to Effect Changes Territorial Rights Intervention Against Terrorism Transit Passage, Straits and Archipelagos Intervention in Civil Wars Example: Nicaragua Necessity and Proportionality War Powers Resolution Collective Use of Force "Lawfare"
THE SOURCES OF INTERNATIONAL LAW Article 38 of the Statute of the International Court of Justice defines the sources of international law. Look at them in order, to find the law. First, look to treaties and other bilateral agreements to which sovereigns are signatories, and which govern the issue. Second, look to multinational agreements among sovereigns, which govern the issue. Third, look to customary international law. a. b. General practices of states, accepted as if they were law. Followed not out of habit or expediency, but because considered law.
Fourth, look to general principles common to mature legal systems. Fifth, look to subsidiary determinations of law (e.g., Supreme Court decisions). Cases are important. They are used in real life.
CUSTOMARY INTERNATIONAL LAW Customary international law is something done as a general practice — not because it is expedient or convenient, but because it is considered law, out of a sense of legal requirement (opinio juris). Element 1: General practice. Element 2: States do it out of a sense of legal obligation.
What you do becomes precedent. Your actions have a legal effect, even though you didn’t actually create a legal document.
Any order or document issued by any government entity can be used as precedent! The Paquete Habana case relied on edicts and agreements as far back as 1403. Even when no binding document exists, there is such a thing as estoppel. White House memos can be just as precedental as a treaty!
Whenever considering whether something is custom, ask the following: What constitutes state practice? How much practice is required? How much consistency is required? Inconsistent state practices can be ignored if you look at the big trend. Are dissenting and non-participating states bound by custom? Do regional and special customs involve different requirements? May a special custom (one that conflicts with general custom) bind a state that has not supported it? What evidence is required for opinio juris, the requirement that practice be accepted as law? May treaties be invoked as evidence of customary law? May they create it? Is there a normative hierarchy in customary law? Would declarations of law adopted without dissent by the UN General Assembly constitute presumptive evidence of accepted international law, regardless of actual state practice? Would the adoption of recommended standards of conduct by the General Assembly or another representative international assembly give rise to customary law if they are generally followed by states? Those countries with the ability to do it have more influence than others when it comes to creating custom. The U.S. is frequently in this position.
The Paquete Habana (1900) A case about the Rules of Engagement, going into customary international law. Rules of Engagement — Before the military engages in an action, it is governed by standing instructions on what they can and cannot do. These are frequently classified, of course. The Paquete Habana and the Lola were Cuban fishing boats that were seized by the U.S. during the Spanish-American war. The U.S. District Court said that the Navy had acted within its authority, under Federal statute. The Cubans argued that customary international law prohibited us from seizing the ships. The U.S. S. Ct. agreed, holding that “international law is part of out law.” This established rule of international law had existed to protect peaceful fishermen from wartime seizures. Coastal fishing vessels, their cargoes, and their crews, are exempt from capture as prizes of war. (As a result, every US ROE since then has said to leave fishing boats alone if involved in the peaceful act of fishing [but not if using fish to camouflage silkworm missiles, however].)
Asylum Case (1950) Under the Vienna Convention on Diplomatic Relations, when you get inside the walls of an embassy, you are inviolable, because others cannot go in and get you without that embassy country’s permission. One inch outside, though, and you’re out of luck. (There’s lots of tense chases here in DC for that reason,
Certain fundamental rules. spies etc. if you choose. States can do whatever they want. Peru claimed it had no legal obligation. slavery. states can do anything they want to agree to.. Colombia relied on a treaty that Peru had not signed on to. domestic-law contexts. Make your protest. and India wouldn’t let the Portuguese move their . However. unless it violates a peremptory norm. Mere uniformity of external regularity never justifies a conclusion of normativity. etc. but your dissension must be active and persistent. however (such as freedom from torture. There was no multinational agreement binding on Peru. you’re a sovereign. so that it would have the status of a nonconsenting state.) cannot be repudiated. The inductive reasoning that establishes the existence of custom is a tied reasoning: the matter is not only one of counting the observed regularities. Note — “Asylum” has different meanings in international law contexts and U. They are peremptory norms. genocide. (There’s lots of tense chases here in DC for that reason. The Colombians granted asylum. (Not. A multinational agreement can still be binding as customary international law. apartheid. Be specific which ones you are referring to. but of weighing them in terms of social ends deemed desirable. Under it. There was no bilateral agreement between Peru and Colombia. A deposed Peruvian political leader sought asylum in the Colombian embassy in Peru. and China doesn’t let people within a mile of the US embassy. You do have the option of dissenting while international law is being formed. same as Peru here). and the mere practices often dictated by consideration of expediency and therefore devoid of definite legal meaning. related to the Anglo-Saxon concepts of adverse possession or easement. Nobody is going to tell you to do it. Only if you repeatedly repudiate it do you earn the status of a nonconsenting state. Is there a rule of customary international law binding on Colombia and Peru? The ICJ said cases went both ways. Peru had even repeatedly repudiated the Montevideo agreement. It can also mean we won’t repatriate you to a country you fled for political/humanitarian reasons. Governments attach importance to distinguishing between custom by which they hold themselves bound. Lots of conventions of all sorts. but that means you’d better do so or else you may lose the right. India (1960) — Customary relations between nations becoming binding.you’re out of luck. not by contract law. even if you didn’t sign on. the custom was only for political expediency — it was not done out of a sense of legal obligation. You have the ability to assert your rights. Colombia pointed to numerous and frequent examples where American countries allowed safe transport like this. as a matter of law. International agreements are governed.) Note. there are several Vienna conventions. but by the Vienna Convention on Treaty Law. It can mean leaving people alone who are under the protection of another country’s embassy (something the US refuses to do. Portugal v.S. and wanted to transport him through Peru to Colombia unscathed. by the way. Don’t sit on your hands.) Portugal had territory within India.
so the Dutch/Danish method of equidistant lines would have reduced German sea control drastically. The major seafaring nations.S. Also. and protest. Holland & Denmark argued that this treaty had generated a new customary law. there had been very little time since the treaty [customary international law can be created in a short time. The court held that it is no longer okay to settle disputes with force. not because they felt it was a binding legal obligation. so it wasn’t binding on Germany until it was ratified. they object to those countries’ claims. since everyone else was doing it. (1986). You may even create legal precedent for a customary international law contrary to your interests. Customary law may be a source of international law in international disputes. Also. for example. That was hardly acceptance of a norm-creating law. but when it sobered up it decided not to ratify it. The treaty’s rule generated a new customary law following its adoption. it was not apparent that the provision was a norm-creating provision. There are 3 ways the treaty could have become binding customary international law: The treaty re-stated a pre-existing custom. U. That wasn’t such a good argument. Germany had actually signed an agreement to that effect at a party. you acquiesce. and even then they had resorted to equidistance out of frustration. Also. The agreement didn’t say it was binding upon being signed. It is separate from treaty law and convention law. Nicaragua v. Note — Use of force can be justified three ways: (1) self-defense. and India wouldn’t let the Portuguese move their military and ammo back and forth to the enclaves. 7 of the UN Charter. OPINIO JURIS — North Sea Continental Shelf Cases (1969) Germany’s coastline was concave. It was a secondary provision only. and the right of passage only applied to civil activities. sail right up to the 12-mile limit when countries try to claim more sea territory. because Germany had repudiated the treaty. India asserted the rights that England had enjoyed.) That didn’t mean Holland & Denmark couldn’t argue that it was binding as customary international law. a new norm of international law binding on everyone. (Geneva Convention of 1958. At the very least. the treaty permitted reservations. The ICJ therefore held that there was no customary international law for the Dutch/Danish position. as it must be applied even if the countries are parties to a treaty. or (3) pre-UN rules of necessity & proportionality [the US and a few other countries assert this third principle from time to time]. only a few countries were using this rule.Portugal had territory within India. (2) enforcement under Ch. The treaty’s rule crystallized customary law that had been in the process of formation. a customary norm. Also. and many countries had made their reservations known. . If you don’t take the measures to assert your rights. but the presumption is that it isn’t].
Failing to notify violates elementary considerations of humanity. reparation. Albania (1949). There aren’t that many of these: Promises are binding — there is an obligation to perform in good faith. Back to Contents ©2007-2010 Nathaniel Burney TREATIES. There are plenty of mechanisms to work out violations of international obligations. Never agree to a document when there is something in it you don’t understand. Estoppel is always out there to slam you. United Kingdom v. Here in the U. Netherlands v. General Principles of Law and Equity. Therefore. not by contract law. unlike civil law countries. one country can make an agreement with another government. Problems are settled between the parties — apology. the most xenophobic country ever. we use stare decisis. presuming there is a government that works. Belgium was prevented from suing France for breaching its agreement not to build a dam. Especially if you are foolhardy enough to attach a map to an agreement (dangerous). states can do anything they want to agree to. Article 59 of the Statute of . Albania. they can deal with it.this third principle from time to time]. laying mines require you to tell those who sail there. Then it didn’t tell anyone. The ICJ held that elementary considerations of humanity are binding as customary international law. unless it violates a peremptory norm. Clean hands — you can’t take advantage of your own wrongdoing. States are grown-ups. Belgium (1937). Back to Contents ©2007-2010 Nathaniel Burney JUDICIAL/SUBSIDIARY MEANS OF DETERMINING INTERNATIONAL LAW. Meuse case. Many countries don’t have governments that work. b. but by the Vienna Convention on Treaty Law. But. Under Article 38. a. All mature legal systems have equitable principles. Some British ships got blown up. and they also fired at British ships from shore batteries.S. littered the Strait of Corfu with mines. It’s nice to be polite. AND OTHER SOURCES OF INTERNATIONAL LAW Treaties: International agreements are governed. Two big ones: Considerations of Equity. but it is better to be right & useful than to be liked & dangerously incompetent. equity is part of international law. GENERAL PRINCIPLES. Corfu Channel case. with a pillbox every half mile in anticipation of an invasion that has never come.. when Belgium had breached the same agreement. and Considerations of Humanity. Under it. etc.
and alien could sue another alien in U.Here in the U. The 1975 Declaration on the Protection of All Persons from Torture. ICJ cases are cited over and over as representing international law. Ct. The District Court dismissed the case for lack of jurisdiction. the 2d Circuit. District Court! Under the 1789 Alien Tort Statute. And yet.S. (Time was. A Paraguayan official tortured to death a 17-year-old Paraguayan boy. law-school journals) and the U. but because it was a well-reasoned case that countries keep pointing to as evidence of international law. The 1789 Alien Tort Claims Act: US enforcement of foreign violations of international law Filartiga v. one of the first acts of the UN. torture was just good police work. nevertheless. UN General Assembly Declarations & Resolutions. A Declaration creates an expectation of adherence.) Not only is this customary international law. the 2d Circuit turned to two UN General Assembly declarations. for a tort in violation of the “law of nations” (international law). we use stare decisis. abstentions from South Africa. The kid’s father and sister sued in U. even though their decisions are not binding on other countries. but it is a fundamental principle that cannot be limited. Article 59 of the Statute of the ICJ. and Saudi Arabia). All of them say that torture is a human rights violation.S. because of the boy’s father’s political beliefs. It is not law just because the ICJ says so in one case. The Universal Declaration of Human Rights. Often. Note — We also have the Torture Victim Protection Act. and arguably one of the greatest documents of all time (unanimous. but if he or any of his property returns it is subject to jurisdiction. says that ICJ decisions are binding only on the parties to the dispute. Pena-Irala (2d Cir. under which only aliens may sue. and so far as the expectation is gradually justified by national practice. however. unlike civil law countries. and assessed compensatory & punitive damages. concluded that if torture violated the law of nations. a declaration may by custom become recognized as laying down rules binding on all countries. They are still of some use. The defendant escaped the US before the judgment could be enforced. and which has been embellished over time. USSR and other SSRs. however. which also protects Americans.S. however. Not because of stare decisis.S. Foreign law journals (not U. but no more.S. arbitration tribunals and “municipal courts” (such as the US S. Now it is universally renounced. 1980).) are also cited as sources of international law.. Communications between the agencies are not fantastic. To see if torture violates international law. These mere declarations have been foundations for treaties and conventions which took these rights and built on them and codified them as international law. (We actually deported him. courts and collect damages. Restatement of International Law are often cited. These are never enough by themselves — they are only academic opinions of what the law is. however. So the 2d Circuit entered a judgment. It may come to be regarded as law.) . Yugoslavia.
See the judgment entered against Radovan Karadzic [70 F. But Resolution 1803 of 1962 was a clear agreement that Libya would have to compensate Texaco. not by the Libyan courts. In the experience of professional diplomats. so they went to the International Arbitration Court.S. It’s much better to get an agreement between the US government and the foreign government. Back to Contents ©2007-2010 Nathaniel Burney II. Aside — Be wary of even the most highly-paid corporate lawyers’ advice on international law matters. Texaco Overseas Petroleum et al. Not all represent clear agreement. Libya tried to nationalize the fields and refineries. many if not most corporate lawyers are clueless about the realities of international law.3d 232 (2d Cir. the Alien Tort Statute has been used more frequently. and you can easily wind up getting screwed by the foreign government. Texaco’s lawyers put in the contract that the applicable law was Libyan law that was in accord with international law principles. international legal standards won’t apply unless there is some other way to get international jurisdiction. Texaco went to Libya. (That case has a good discussion of the sources of international law and affirms that these are real rules binding on us. They had to find Libyan law. and by analysis of the principles they state. and any blanks would be filled with international law. FOREIGN RELATIONS LAW The US is truly a nation of laws.) This was not a suit against the Paraguayan government because of an official actor — Paraguay had denounced the defendant. v. and disputes would be decided by international arbitration. The court said that UN resolutions are of varying weight. Arbitration decision. THE RELATIONSHIP OF INTERNATIONAL LAW TO DOMESTIC LAW AND THE RELATIONSHIP OF INTERNATIONAL LAW TO U. Note — There is no generally-recognized right to property in international law. Libyan Arab Republic (1977) — The legal value of UN resolutions can be determined on the basis of the circumstances under which they were adopted. especially as compared to many other countries throughout the . and states that certain forms of conduct violate the law of nations regardless of whether undertaken by those acting under the auspices of a state or only as private individuals. 1995)] for genocide. planned for the worst and got an agreement that Libya wouldn’t nationalize the oil fields or refineries.) Western Sahara Case (1975) — General Assembly Resolutions cited for the proposition that free-association and self-determination are norms of international law. As result of this case. and it said you had to perform your contracts. It had no unfettered right to take the facilities without compensation. Otherwise.agencies are not fantastic. but Surah 5 of the Koran was part of it. even though he had been acting under the color of authority. Note — A contract between a corporation and a foreign government is not international law.
We are bound to international agreements. and it may not invoke provisions in its constitution or its laws as an excuse for failure to perform this duty.” Article 13 of the Draft Declaration of Rights and Duties of States adopted by the International Law Commission in 1949 says: “Every State has the duty to carry out in good faith its obligations arising from treaties and other sources of international law. Greece. The principle that a state cannot plead its own law as an excuse for non-compliance with international law has long been established and generally recognized. that if a Government could set up its own municipal laws as the final test of its international rights and obligations. Nazis couldn’t defend their actions by saying they did what the Reichstag said to do. if you can prove an international law violation. and neither can you. e. Lots of systems leave open the question of which rules prevail. there are conflicts at times between our law and international law. Customary international law is NOT the supreme law of the land here. See Switzerland and the Netherlands. and France. yet we will be liable for the breach. don’t acknowledge international law as precedental over municipal law. you win in German court. e. is that often our law is contrary to international law. Back to Contents ©2007-2010 Nathaniel Burney . the substance of international law is not an issue of fact for the jury. but you’re still going to have to compensate for the violation. Shouldn’t have undertaken the obligation. like the US.. and in either case that law furnishes the test of the nation’s liability and not its own municipal rules. International law takes precedence over municipal law. When a treaty conflicts with a federal statute. however. and that in the event of a conflict international law trumps as a matter of municipal law. See also Italy. In 1887. Also. So customary international law loses to municipal law. then the rules of international law would be but the shadow of a name and would afford no protection either to States or to individuals. A problem with that.. especially as compared to many other countries throughout the world. Customary international law is still important — it just isn’t as strong as treaty law.g. in many countries. Treaties prevail over inconsistent state laws. And the treaty would have to be either self-executing or already executed by Congress. But first do all you can to interpret the law in such a way that there is no conflict. by the way. In Germany. We may be obligated by our law to not perform a promised duty. even though our convoluted municipal law may result in failure to keep our end of the deal. Such regulations may either exceed or fall short of the requirements of international law. That standard makes sense. Treaty law is even more complicated. Austria. Some other countries’ constitutions say that international law is part of their law. Sometimes it happens because of internecine squabbles. The Constitution prevails over inconsistent treaties. Other systems. In the United States. but a matter of law for the court. It has been constantly maintained and also admitted by the Government of the United States that a government can not appeal to its municipal regulations as an answer to demands for the fulfillment of international duties.g. the most recent one prevails. That is not an excuse for a violation. Secretary of State Bayard said: “It is only necessary to say. Only treaties are.The US is truly a nation of laws.
Period. Ct. The United States is very complex here. So the framers knew that international law existed. Courts don’t involve themselves in conflicts here — it’s a “political question” for the executive branch. when there is a true conflict. regulate customs. In the Paquete Habana case. make rules for the conduct of the armed forces. The legislature also got some international powers: it can borrow money. When there is indeed a conflict. but note that it did not involve law contrary to US law. but it does have . laws made in pursuance thereof. between the feds and the states. because Congress was and remains jealous of its power to declare war. to apply US law over international law. it would have trumped customary international law. There are potential conflicts between the executive and legislature. which the President is sworn to uphold. federal common law. Not state law. The Constitution refers to international law in Article I § 8: Congress has the power to define and punish offenses against the law of nations. the courts just stay out of it. and treaties made in the name of the US. The President also has an interesting power to receive ambassadors and other public ministers. This has been read to mean that the President alone has the power to recognize another country. monstrous powers in foreign affairs. judge-made law. had a treaty or executive/legislative/judicial law existed. Customary international law.©2007-2010 Nathaniel Burney You have to break this all down into customary international law and treaty international law. said that. Some say that a treaty where we say we will protect another country is a de facto declaration of war. only such action as we deem necessary to take care of a situation. There is authority for the President. head of state embodying the country in international activities. No controlling treaty or municipal law existed. Under the Act of State doctrine. The Constitution makes the President extremely powerful — Chief Executive Officer of carrying out all executive functions. Murray v. Note — Regarding declarations of war. The judiciary doesn’t have much. we must apply the supreme law of the land. because of separation of powers. nationalization. maintain & arm the navy. our courts applied customary international law. if there exists a construction that doesn’t conflict. Commander in Chief of armed forces. and the S. etc. Article 6 says the supreme law of the land includes the Constitution. The NATO treaty doesn’t require US commitment of forces. there haven’t been all that many declared wars in the many conflicts in our history. and the power to declare war. define and punish felonies. Schooner Charming Betsy (1804) — An act of Congress is never to be construed in a way so as to conflict with international law. You cannot plead “supreme law of the land” to excuse a breach of international law. power of the purse for the executive to pay for what it wants to do.
. We had a treaty with England/Canada protecting migratory birds. The Constitution trumps. Denying equal protection. The federal national interest is so supreme that treaties and executive agreements always trump state laws. held that state powers fall whenever they conflict with the treaty. Implementing or executing it. Prohibitions on free speech. Back to Contents ©2007-2010 Nathaniel Burney Treaty international law. Nevertheless. those treaties become the law of the land. treaties are de facto law of the land. regardless of what the House of Representatives or the Supreme Court might have said about it. Know the difference between Ratifying a treaty vs. Under Belmont. The S. then the treaty fails. The 10th Amendment may or may not give the states and the people some say. Missouri sued to prevent a federal game warden from enforcing the treaty. Holland (1920) — Conflict between a treaty and state law. Unlike acts of Congress. Denying due process of law. not citizens). Such provisions thus are never self-executing. The only check on this power is where powers are given to Congress as a whole — the power to declare war is one such power. but it does have responsibility for interpreting the Constitution. A treaty that says “the parties agree to …” is binding. Treaties and executive agreements have the possibility of violating a constitutional provision and thus being invalid. This principle has been stated even more dramatically in years since. and are binding on the states as well as on the federal government. Missouri v. Different things. Reid v.The judiciary doesn’t have much. state lines disappear. states don’t exist so far as treaties and executive agreements are concerned. but only by the President with ratification by the Senate. Note — The rule doesn’t apply when state action is required to implement a treaty. It is a slam dunk: the state loses. A treaty that says “the parties intend to …” is not binding. Watch out for clauses in international agreements that are contrary to the US Constitution: Interference with the power to declare war. If a treaty makes X a crime. Congress alone has the power to decide the punishment — the treaty provision has to be executed by Congress. which Congress guards jealously. which are the supreme law of the land only if constitutional. Treaties are not made by Congress. Covert (1957) — If a treaty is contrary to the Constitution. Ct. Restricting the rights of aliens (recall that the Constitution protects persons.
California (1950) — A California statute forbade aliens ineligible for citizenship from owning or using real estate. But. (He won on 14th Amendment grounds. An international agreement cannot bring to US into a state of war. Non-self-executing treaties. The treaty was alleged to give the King of Spain power to grant title to land even after the US took control. But the land had French subjects and Spanish subjects. claiming that the statute violated human rights. An international agreement cannot take effect as domestic law without implementation by Congress if the agreement would do something that is within the exclusive law-making power of Congress. The treaty was contractual. The language said that such a grant “shall be ratified and confirmed. (We’d get a reasonable time to do so before being held in default. In order to secure the rights and privileges of the people on the land.Denying equal protection. then the US is under an international obligation to adjust its laws and institutions (if necessary) to give effect to the agreement.) Any agreement which itself requires further legislative enabling action by the countries is non-self-executing. The treaty merely stated the intent of the parties to confirm a grant of land. the US. however. .” That means it operates of itself without aid of any legislative provision. An international agreement cannot raise revenue by imposing a new tax or tariff. Titles were granted to different people for the same land. anyway. the parties must execute it. when the terms are contractual. It envisioned an additional act of the legislature to implement it before the grant was confirmed. If an international agreement is silent as to whether it is self-executing or not.) Fujii v. and the intention of the US is unclear. it may still need a little more to make it the supreme law of the land. Thus. Just because a treaty is agreed-to. Foster & Elam v.” Did that meant it was automatically ratified. Neilson (1829) — A treaty is equivalent to a legislative act whenever it is “self-executing. then the US got it all. Therefore. An international agreement cannot make something a US crime. and Napoleon needed money for his wars. in part. then look to things said by the White House/State Department or by the Senate in ratifying it. Taking private property. The charter was not a binding set of rules without some other act. Limiting the right to travel. so it requires an act of the legislature. and so was willing to sell the whole Louisiana tract for $15M. or did it need an additional act of Congress. but it can affect tariffs with “most-favored-nation” and similar clauses. the contract must be actually performed to get the end result. an international agreement providing for the payment of money by the US requires an appropriation of funds by Congress. Self-executing treaties vs. The plaintiff relied on the UN charter. The US needed access to the Gulf of Mexico. This was held not to be enough. If a provision is non-self-executing. Spain and France needed a treaty to settle it.
but that’s not binding as part of the international legal obligation.countries is non-self-executing. states don’t agree to extradite their own natives. The Supreme Court held that a material violation of an international agreement doesn’t automatically void the agreement. and argued that because Italy had breached the agreement it was void.R. Italy refused to extradite its own nationals to the US. An American was going to be extradited to Italy under this treaty. the one that is most recent in time prevails. and paid only under protest. then the later in time controls. Robertson (1888) — In the event of a conflict of a treaty with United States statute. The US and Italy had a mutual-extradition treaty. You do have some power to go into who implements what. sure. Congress then let Hawaii export sugar duty-free. however. Note well — If the agreement makes it enter into force. objected to the duty its had to pay. Back to Contents ©2007-2010 Nathaniel Burney . still has the right to reparations or other satisfaction. The D. so it was still binding and the US had to perform. The D. It’s just a problem when the unilateral obligation is not rationally-related to the international agreement itself. though. it held. then the Dominican Republic would get the same treatment. was utterly dependent on sugar exports. Charlton v. A treaty is binding until abrogated.R. Otherwise. they felt that it wasn’t worth it. Usually. The US and the Dominican Republic had a “most-favored-nation” agreement. Ratification is self-execution. The D. Note — A more recent treaty overtakes inconsistent prior legislation automatically only if it is a self-executing treaty. where the US would never give another country a better deal on sugar tariffs. but this agreement said that’s what the parties would do. it overtakes the legislation upon the passage of implementing legislation. then it is binding even if it hasn’t yet been implemented by the legislature. that’s fine. Whitney v. If another country did get a better deal.R. The S. In this case. Ct. but the US law is whichever is most recent. The statute violates the international agreement. acknowledged that treaties and statutes are both the law of the land. Note — I’m not talking about “ratification” by the parties. and so there was no need to extradite him. When there is a conflict. so it was important that the treaty say they’d always get the lowest tariffs on sugar. If you write in a provision describing how the US will fulfill its obligations on its side. Kelly (1913) — A breach of a treaty by one party makes the treaty voidable by the other party. So the American got extradited to Italy. The executive branch decides when a treaty has been abrogated. and the provision is self-executing.
extradition. UN membership. Belmont. 1 U. These are huge executive powers. Nevertheless. NATO. In terms of municipal law. Pink. postal matters. All that happens. The Constitution doesn’t refer to executive agreements. or . If an executive agreement conflicts with the Constitution. Only the really big commitments. but they have been entered into from the beginning. Only the President could do that. Not the same as a treaty.S. 2. state law loses. Treaties must be. Whenever there is a conflict between an executive agreement and state law.S. so it couldn’t be done. so even if the result of federal action would be contrary to the controlling public policy of the state. though. If the agreement is crucial to international and national agreements. but at least it would be something. In exchange. he can do one of three things: 1. New York didn’t have the power to recognize foreign governments. is that Congress recognizes the existence of the executive agreement — there is no need for congressional approval. The United States sued to recover the soviet deposits with him. 203 (1942) — same holding. Ct. 324 (1937) — The Soviets nationalized everything in Russia. The 1972 Case Act requires that Congress be given a chance to look at executive agreements within 60 days.S. The S. § 112b. based either a. which would then be distributed among the United States citizens whose property had been taken. the President recognized the soviet government. on his sole powers under the Constitution. American companies’ property was seized. Pennies on the dollar. EXECUTIVE AGREEMENTS 95% to 99% of all international agreements to which the United States is a party are Executive Agreements. The President may just sign the agreement as an executive agreement.C. Back to Contents ©2007-2010 Nathaniel Burney When the President needs an executive agreement. the difference is that executive agreements are not submitted to the Senate for approval. The lower court held that this would conflict with the interests of New York state. The President froze soviet bank accounts. Belmont was a private banker doing business in New York state. state law loses. he should get a treaty. but in terms of international law there is no difference. taxes. nothing else. so that an agreement could be made where the soviets would drop their claims to the accounts. United States v. the state still loses. If an executive agreement conflicts with state law. the Constitution prevails. it is important to establish good relations with state authorities who do things.III. held that the feds have sole and complete power over international affairs. as always. because they are probably going to violate some executive agreement along the line if they’re unaware of it. 301 U. United States v. 315 U.
on his sole powers under the Constitution. Only Congress could do it. The President does it with Congress’ blessing. in certain economic agreements. such as: Recognition of foreign governments. areas where the President has powers that he doesn’t have to share with Congress. the President alone can do these things. So most executive agreements are Congressional-Executive Agreements. and it goes to the House and Senate for a strict thumbs-up or thumbs-down. said his power to do this had to come from either the Constitution or a statute. When there are shared powers. versus Shared Powers. GATT. The President makes the agreement. Apply this analysis to conflicts in foreign affairs: . There are some. only three of which allowed the President to go ahead and do it. Hours before the strike. Merely because Congress has powers in an area. There was lots of overlap between the powers of the executive and the legislature here. or actively supports them. So Truman lost — the President did not have the power to seize the steel mills. with congressional acquiescence if based on shared powers. Justice Jackson’s opinion broke it down well (he was freshly back from the Nuremburg tribunal). Usually. or b. albeit very few. No statute. The statute books are full of acquiescences by Congress to let the President make executive agreements in certain areas. not even any act of Congress existed from which this power could be implied. While that was going on. Congress’ opposition or acceptance is irrelevant — regardless of how Congress votes. a steelworkers’ union strike was planned. without a peep from Congress yea or nay. Most presidential powers here are shared with Congress. 50. and the President still does it? 3. Congress has either supported it or acquiesced to it. and the President still did it? What happens when Congress is vocally opposed to it. which created a “zone of twilight” (soon the be the name of a TV show) in between the areas where each branch clearly trumps. the President knows he could do a treaty or an executive agreement. Truman ordered the executive branch to take over the steel mills and keep them running. The S. Congress winks at the executive’s actions. Receiving ambassadors. Truman’s steel seizure case. These are rare.a. The lawyer’s job is to decide whether the President can go ahead or not. it is important to know whether Congress has spoken on the area. They cannot make any modifications. that doesn’t mean that the President doesn’t. Congress was silent. Ct. Back to Contents ©2007-2010 Nathaniel Burney Purely Executive Powers. Sometimes. Truman committed many troops to Korea. but instead he does a fast-track agreement. But this isn’t always the case. Recall Youngstown Sheet & Tube. neither kind of executive agreement requires congressional approval. even though the basis is shared powers. This case had many different opinions. So what happens when. NAFTA. Regardless of which basis it is.000 of whom would die there.
Congress justifiably is anxious that something be done about it and fast. Nuclear devices are all over. then Congress prevails. not for eating. and they’re no joke either. Because we aren’t part of an exclusive club here any more. and the President makes an executive agreement? The President has a good record here. as it was only a few months old. The law said that should the President detect a possible trade problem. etc. In 1948. If Congress vocally opposes it. for example. then there’s a problem. too. but they’re just as deadly. The nation-state is the fundamental entity of international law. States are not the only actors — there are also people. there were certain things he could then do. so it’s still okay. Of course the Secretary of State likely had no knowledge of the statute. There was another case in 1981. There was much citing of Youngstown. then the President was to order an investigation. If the investigation turned up a problem. the nonproliferation of nuclear weaponry. the 4th Circuit decided Capps. however. — but states are the big ones. Congress had spoken — don’t do X without doing Y. A “government” is not the same thing as a “state. Regan. international organizations. What if Congress hasn’t spoken on a subject. They aren’t technically weapons. So Capps remains the only precedent here. So Congress gives the executive branch funding and marching orders to do “something” about it. Back to Contents ©2007-2010 Nathaniel Burney IV. Dames & Moore v. The court nevertheless still held that the executive agreement failed because Congress had said not to do it. but it really wasn’t on point here. and Congress shares the authority. Executive agreements are handy tools for doing something about it. Our ambassador to Canada noticed that a lot of potatoes were pouring in to the United States from Canada. where Congress had passed a law to protect farmers. Nothing is more important — tons of it is pouring over borders. The Secretary of State made an executive agreement with Canada to permit unlimited potatoes. The Secretary of State took it upon himself to do this without going through the steps Congress had laid out. but only for seed purposes. and the executive agreement conflicts with a statute.Apply this analysis to conflicts in foreign affairs: Take. STATES Definition.” . Only once has a court addressed this problem. corporations. Chemical & biological weapons are out there. If the President lacks the sole constitutional authority to make this executive agreement. This is clearly a shared power — commerce and trade. The standard is not the same as a conflict between a statute and a treaty.
4. There was a U. has given p all foreign-affairs power to Switzerland. The question of statehood arises particularly in the following situations: Break-up of an existing state into a number of states. rather than the rule.. You have to make decisions on whether an entity is a state or not. Had the nations of the world enforced that border agreement. should pay for it. Can be a few hundred only. meeting to determine who was to pay for a certain project. for example.N. Still. this is not a problem. but you do need some people. Four Requirements: 1. then ran back to the Switz. But sometimes. you’re not a state yourself. Border disputes are common. Claims by constituent units of a union or federation to the attributes of statehood. Emerging states — It is a common principle that emerging states inherit the territorial borders they had before. UNDER CONTROL OF ITS OWN GOVERNMENT. OVER WHICH THE SOVEREIGN EXERCISES CONTROL. the “all bets are off” approach seems to be the exception. Cases where states have merged or formed a union. If another state governs you. rights and duties of states include the following: . for emerging states. unilateral imposition of authority. yet it is still a state.A government is a separate entity from the state. Usually. Secession or attempted secession by part of a territory of an existing state.. stream and rock need be defined. The former Yugoslavia did have a border agreement at first — each entity would retain the borders it had prior to independence. seat to argue that the beneficiary nations should pay for it. Territorial or non-territorial communities which have a special international status by virtue of treaty or customary law. seat and argued that the U. 2. Liechtenstein. Cases where foreign control is exerted over the affairs of a state. whether by treaty. DEFINITE POPULATION OF PEOPLE. 3. Usually. the only other alternative is bloodshed. CAPACITY TO ENGAGE IN INTERNATIONAL DEALINGS WITH OTHER STATES. Not every single river. DEFINED TERRITORY. much of the bloodshed and atrocities would have been avoided. The Swiss ambassador ran over to the Liech. and which claim statehood for certain purposes. The Restatement (Third) § 206 states that the capacities.N. if you are to know what to do in a situation. More on the 4 requirements: States can give up any of these. or delegation of authority.
Recognition is discretionary. There is no duty to recognize a state. Then Lee said that the best way to win the war and get foreign recognition was to invade the north. and general authority over its nationals. legal remedies. as customary law or by international agreement. acquire. you may still be obliged to treat its authorities and actions as if it is a state. Salimoff (1933) — Recognition neither creates nor constitutes a state. the United States and U. there would have been no surrender. In retrospect. make contracts and enter into international agreements.K. Wait until it’s really independent. the Dutch first (to stick it to the English). Like when Iraq invaded Kuwait. and nonrecognition of the puppet government. but it helps. The Confederacy at first fought a defensive war. Other situations where you don’t recognize a state: Where recognition would be premature. showed that the rebels had something to back up their independent entity. for example. The capacity to join with other states to make international law. and transfer property. but couldn’t. embassies remained there for a very long time in horrid conditions. they should have gone after Washington’s army. When the United States rebelled against England. Rhodesia. Recognition is unnecessary for you to be a state. Back to Contents ©2007-2010 Nathaniel Burney Recognition of States. founded on a violation of international law. States long for recognition. And without the French fleet in the Hampton Roads. Other states were eager to recognize us. the first time the brits got their butts kicked. Status as a legal person. as when an emerging state is still in the throes of civil war. Only then could France intervene (and even then it was way premature). and savor it when they have it.Sovereignty over its own territory. and there would be no United States. Is there ever a duty not to recognize a state? Yes. and be subject to. France wanted to. even though it isn’t necessary for statehood. They need foreign recognition. Then Saratoga. As when the general international consensus is that control has been wrested by force or threat of it. This was calculated to get British and French recognition. with the capacity to: own. Recognition was a major issue in our Civil War. we wanted recognition from other countries. become a member of international organizations. in certain circumstances. because the smart British took control of the cities. The blockade of the southern ports had put . Even if you don’t recognize a state. even if it meets the 4 requirements. as well. but they didn’t. to emphasize the nonrecognition of any incorporation into Iraq. and pursue. was a fake South African apartheid “home-rule” reservation. Illegal states.
They got their own territory. that it is not one state any more. The blockade of the southern ports had put vast numbers of the British population out of work. And the flag resembles Alexander the Great’s seal. human rights still mattered. See Recognition of Governments. below. (Even though they were starving. but it isn’t law yet. Safeguarding human rights. Because a government is not the same thing as a state. The average subject.. people. the US. post offices. These criteria are NOT part of customary international law! They are expedient. because Greece doesn’t like the name (they have a border province with the same name. and the EEC has gone back on requirements in many cases. both internal and external — and change to those borders only through peaceful and consensual means. recognition is a political power left up to the President alone.. and the UN said they had to do the above as well. other than that you don’t like each other). unsurprisingly). But the EEC.. etc. 5. Also. See. Prussians. balkanized. British. for there to be recognition. (So immediately . especially adherence to the Helsinki Final Act and the Charter of Paris. Recognition would be accorded in light of the state’s adherence to: 1. Recognition isn’t guaranteed. and there was great starvation. developed following the Yugoslavian crisis that began in 1991. Macedonia meets all 4 requirements for statehood. Support for democracy and the rule of law. Yet nobody has recognized it. 2. It looks like a state.British and French recognition. The UN peacekeepers are there with the consent of the government. There has to be a government in charge. (Proposed) FIVE ADDITIONAL CRITERIA FOR RECOGNITION. though. based on full respect for the individual and including equal treatment of minorities. So Greece hasn’t recognized Macedonia. etc. This may be the beginning of a custom.) The driving force behind Antietam and Gettysburg was foreign recognition by the French. Finland wasn’t recognized for a while. but went the opposite direction and became so. In the United States. (as well as that little thing called winning the war. Peaceful and democratic determination of the country’s future. even if it would be okay. Respect for all existing borders. with emphasis on the key role of elections in the democratic process.. Yugoslavia had the same situation. because all sorts of peoples lived there. was still so appalled by the idea of slavery that no matter how much it hurt the British refused to recognize the Confederacy. 3. so the Greeks don’t like that either. as in Somalia in the 1990s. even though it is there. Slovenia had broken off and whipped the Serbs’ thoroughly. not law. but that’s a subject for another discussion). you can do both yet still have limited or severed diplomatic relations (these mean little. 4. A government may be a hard thing to find. though they came very close. and it gets mad at anyone who even thinks of it. and they don’t like the implications. there is a difference between recognition of a state and recognition of a government. Respect for international law and obligations. acts like one.
De facto — the government that is actually there. petty people.S. This has resulted in a ton of awkward.Macedonia. difficult situations and problems. 126 (1938) — Which government is to be regarded as the recognized representative of a foreign sovereign state is a political question. The one we like best. Even though a state is not recognized. of New York v.” For a long time. It is to be determined by the executive. So go ahead and slap that government in the face by not recognizing it. if it was formed by the will of the people then we recognized it. De jure — the “proper” government. In the 20th Century. instructing the U. There was a period of time when we didn’t recognize governments of revolutionary countries (like Mexico). we had the simple standard that every nation possesses a right to govern itself according to its own will. but that’s all. we recognize Castro’s government in Cuba. we just don’t have any embassies there. Nonrecognized states can and do engage in activities that affect other states. . regardless of how the government was formed. to change its institutions at discretion. It is possible to recognize a state — its borders and people at least — yet not recognize the governing authority. the “lawful” government. envoy in Paris that “it accords with our principles to acknowledge any government to be rightful which is formed by the will of the nation substantially declared. and it gets mad at anyone who even thinks of it. the United States got upset at the Latin-American governments. United States. not a de jure state. During the 1800s. Back to Contents ©2007-2010 Nathaniel Burney Recognition of Governments. whose decision will be conclusive on all domestic courts. 304 U. Lesson: Governments are made up of people. Like the United States did with Vietnam. Standards for Recognition of Governments: Thomas Jefferson set the early stage for this following the French Revolution. and to transact its business through whatever agents it may think proper to employ. whether by revolution or whatever. We developed an interesting dichotomy between de facto government and de jure government. For example. Bitter. You can also recognize a government yet choose not to have diplomatic relations with it. (So immediately Turkey and Bulgaria recognized it. There is no requirement under international law to recognize a foreign government. Guaranty Trust Co.S. not judicial. There are certain legal ramifications in your own country. it still may have responsibilities and obligations as a de facto state.) But nobody else has recognized it. Foreign governments that are not recognized cannot sue in United States courts.
and that its acts couldn’t be repudiated. Britain argued that the Tinoco government was the only government in Costa Rica when the liabilities were created. “To hold that a government which establishes itself and maintains a peaceful administration. including an oil concession to a British company. Being the de facto government is enough. (Still. Restatement (Third) § 203 — Although you don’t have to formally recognize the government of another state. This cannot be.problems. which had come to power by a coup and maintained itself in control for two years. and Costa Rica. The 1930 Estrada Doctrine (from the Statement of Mexican Foreign Minister Estrada) was that there is no need for recognition of governments. true. What is the status of a government during the murky period of nonrecognition? Tinoco Claims Arbitration (1923) — Britain asserted claims against Costa Rica for acts of the predecessor Tinoco regime. Britain didn’t recognize the Tinoco regime. If you do it too soon. When has a government emerged to the point where you can recognize it? Have to be careful. and it’s usually a bad idea for a corporation to contract with a government anyway). Such premature recognition can constitute impermissible involvement in the conflict.) The movement now is to just focus on the de facto government. not the government. Costa Rica argued that the Tinoco regime was not a government. The sole arbitrator (Chief Justice William Howard Taft) held that a government which asserts control throughout the country with the acquiescence of the people becomes the de facto government — the nonrecognition of it by major powers has no effect on whether or not it is the government. Britain stepped in to protect the company (rare. you may be impermissibly intervening in a civil war. You couldn’t deny that it had been in control.” It didn’t matter that the government wasn’t recognized. but they did so way prematurely (when the fall of Madrid was anticipated by many observers). When it fell. and that Britain was estopped by its nonrecognition of Tinoco anyway. the restored government nullified all of the Tinoco contracts. does not become a de facto government unless it conforms to a previous constitution would be to hold that within the rules of international law a revolution contrary to the fundamental law of the existing government cannot establish a new government. and is not. the claim of estoppel was wrong because the British nonrecognition didn’t dispute the existence of the Tinoco regime. It’s still an emerging area of law. (Of course the Nazis had no problems with violating international law left and right. They actively got involved in the conflict anyway. There were two warring camps over who represented the people of Spain in 1936. Mexico never recognized Franco as the de jure government of Spain. you still have to treat as the government whatever regime is in effective control of the state (unless its control came about in violation of international law). and also because the successor government had not been led by British nonrecognition to change the government’s position. This had been a deal between a British company. Also. The Nazis and Italians supported Franco as the lawful government. .) There is definitely a subjective element to this. with the acquiescence of the people for a substantial period of time.
The President signs for his state.anyway). maintain diplomatic corps. The land had been confiscated from Salimoff & Co. So the New York court held that the Soviet government’s actions did pass title of the oil lands. read in conjunction with Tinoco.Y.. Salimoff & Co. so what was the validity of its acts? The case was taken to court in New York State. because East Germany didn’t feed its . not for himself. and the Soviet government de facto existed. though. v. Remember Tinoco in dealings with nonrecognized entities — they are still the effective government of their states. You also can’t take over a portion of a state and speak for the whole state (with the small exception of obligations that are normally incurred by government anyway). who claimed that the Soviet government was a band of robbers. and it was legally binding in United States courts. Salimoff. 1. Standard Oil of N. Here. Is the foreign government involved? 2. Tinoco only had thirty months. unrecognized governments do things like sign agreements with foreign governments. New York appellate division 1961 — Just because a government isn’t recognized. the only parties involved were businesses. The Shah’s agreements are still binding on Iran. also means that successors of nonrecognized governments are bound by their actions. Nonrecognized governments can engage in acts that will be recognized by United States courts. however. and they have to go through the procedures to remove them if they don’t like them. then you’d be recognizing it. such as bank accounts in the United States. We didn’t permit the Soviets to confiscate assets abroad. Is it a party to the court proceeding? The USSR met all four requirements of statehood. neither party was the Soviet government. The defendant company issued a note to pay for typewriters from East Germany (very cheap. The first thing to ask in a situation like this is “Is a foreign government (or its agency) a party directly involved?” There are a whole array of analyses that will go wrong if you don’t ask this first. Control can be brief. New York Court of Appeals 1933 — Even though the Soviet government was not recognized by the United States. Here. Note that this was only property located within the USSR. changes in government don’t change the state’s obligations. The property in question. that doesn’t invalidate private obligations arising out of dealings with that government. If a nonrecognized government is allowed to sue. Once in a while. It can’t be just for a day. Mercury Business Machines. Recognition does not create the state.. was in the USSR. The Soviet government was not yet officially recognized by the United States. Ordinarily. soviet confiscation of property within the territory of the USSR was binding on the United States courts. oil land. The de facto power in control of the Russian territory was the Soviet government. etc. Upright v.
the rights/capacities/obligations of the state are unchanged. Back to Contents ©2007-2010 Nathaniel Burney . the fact that the government was not recognized doesn’t invalidate the typewriter sales transaction. 1988). National Petrochemical Company of Iran v. However. you honor it. The Palestinians have been doing everything they can to look like a state — they’ve got a flag. claiming that East Germany was not a recognized government. It doesn’t control a defined territory. to which the judiciary deferred. but Israel won’t let that happen until they’re satisfied on security. Iran was trying to sue in United States courts over black-market shenanigans. currency. thus it is not a state. because East Germany didn’t feed its workers).Germany (very cheap. The State Department wanted Iran to be allowed to sue. But they aren’t necessarily in control of their own territory. because although it could have been recognized as such. regardless of the validity of the manufacturer. however. even though the manufacturer was controlled by that government. You made the note. It may be de jure. and citizen Upright tried to have it honored. The rights and responsibilities a state takes from its predecessor are only those which it can convince other states that is has succeeded to. The Polish government in exile was very effective during WWII. and the manufacturer of the typewriters was an instrument of that government. on this one occasion only. The defendant company rebuffed the poor schmo. etc. Fairness is also an issue here — you can’t transact with the manufacturer and then refuse to honor your own note. If a state has just undergone a change in government. or became independent). On international law matters.) State Succession. The PLO decided not to. and they’re not really able to engage in foreign relations. The executive has great powers here. a State Department amicus is actually given weight by the courts. however. A foreign government in exile is not a “de facto” government. M/T Stolt Sheaf (2d Cir. however. The note got passed around. It can be treated as a de jure government. acting out of London. Maybe they’ll be an independent state sometime. Bizarre exception to the rule that nonrecognized governments cannot get access to United States courts. (Israel still makes agreements with the Palestinians regarding extradition. passports. Only a concern if the state acquired sovereignty over a territory from another state (absorbed another state or part of it. You have to choose whether to take the status of de jure government in exile. that would be admitting that they weren’t actually in control.
. Citizens owe real allegiance to their sovereign state (IRS goes wherever you go. and thus possessed of a government representing the whole people belonging to the territory without distinction as to race or creed. you don’t have to physically occupy every square inch of land 24-7. There is also a middle course. but not a day goes by without some action to maintain your borders. you can’t determine which side of a border you’re on. How do you acquire territorial sovereignty? How do you get control over this plot of land? Borders are not set in stone. Peace. of course. have human-rights rights. not with tanks. States are sovereign. Sea. and Air. etc. Acquisition of Territorial Sovereignty. (They do. UN Charter Article 2. Self-determination is not just the right to break free and establish a new territory. religious or linguistic group claimed statehood. linguistic. Separatist groups may not have the right to rebel. that leads to more separatism. To maintain your territory. This is a big exception. If every ethnic. The problem is. Borders have amazing legal ramifications. totally or in part. there would be no limit to fragmentation. Sovereigns are responsible for everything and everyone inside their territory. a right of minorities to be themselves without being punished — a right to participate in cultural.Self-Determination. Usually.) Back to Contents ©2007-2010 Nathaniel Burney Sovereignty over Land. Nor may they be entitled to foreign assistance. security and economic well-being for all would become even more difficult to achieve. One source of customary international law here is the United Nations Declaration of Principles of International Law Concerning Friendly Relations Among States in Accordance with the Charter of the United Nations (1970). The right to split away and form your own new government is only recognized in terms of ending colonialism or ending foreign subjugation. On one side of an imaginary line drawn through the woods. and there are many border disputes around the world. The right of peoples to self-determination is undeniably a right under customary international law. ¶ 7. for example). says that you can’t interfere with what a sovereign does in its own territory. groups. But most border disputes are settled by negotiations. . and cannot interfere with other states without permission. the territorial integrity or political unity of sovereign and independent states conducting themselves in compliance with the principle of equal rights and self-determination of peoples. The declaration is not meant to authorize or encourage any action which would dismember or impair. you’ll be punished for behavior that may be positively encouraged on the other. without GPS or a surveying team. but the hard part is defining “Self” in “self-determination. with the exception of enforcement.
In 1814. During the couple of hundred years that this was going on. “I don’t see anybody here. descends from discovery of the land. Spain’s claim of “contiguity” was a red herring here.000 square miles of territory. Denmark lost Norway and Sweden because it had sided with Napoleon and lost (ironically. but not settled. Norway landed a military force on the island. That’s just a preliminary right. in the meanwhile. Spain should have objected to the Dutch activities. For many years. Right on the international boundary between the Dutch East Indies and the Philippines sat the Island of Palmas. on the map only. The United States got Spain’s Pacific holdings. they’d have had to occupy the island.” Denmark disputed this claim. This was a big deal — 840. Legal Status of Eastern Greenland Case (1933). But all they did was see it. However. saying that it had been terra nullius.”) That’s not a factor when islands are at issue. In 1931. Spain got inchoate title. and some other islands. And the Dutch weren’t party to the Treaty. in most cases. And thus so was the United States when it took over Spain’s territories. and in good Nordic .Title. So was the island Dutch or American? Spain had based its territorial claim on discovery (well. not until the first half of the 20th century. Greenland. it was estopped from claiming sovereignty over the island. In this case. Well. By failing to do so. You have to do something else within a reasonable period for title to vest. nobody objected or disputed Denmark’s claim to Greenland. they didn’t set foot on it. there was nary a peep out of Spain. The Dutch claimed that it was theirs. by Spain. they hadn’t occupied it either. but the Dutch government had been having official relations with the tribal leaders there. Denmark still retained control over Iceland. so they wouldn’t be estopped by the map anyway). however. it wasn’t listed in the document. Maybe. Sweden’s new ruler had been a field marshal for Napoleon). It had been treated as Dutch by the Netherlands for centuries. at least they were the first Europeans to sight it). (“It’s ours because it’s close to us. Island of Palmas Case (1928) — oft-cited case here. It had been discovered. At the very least. and they’d had dealings with the island from time to time. By discovery. Norway secretly coveted Greenland. if part of a land mass. In 1921. but including something on a map that’s part of a document is dangerous this way. and the Treaty of Paris specifically included this island (well. and that now they occupied it. based on a continuous and peaceful display of sovereignty. Norway disputed Denmark’s claim. and it’s mine now.
Display that sovereignty through affirmative actions — not just by saying that nobody else owns it. Don’t take the risk of getting stuck like this. It was sufficient. From 1815 to 1914. Denmark based its claim on a peaceful and continuous display of sovereignty (having read the Island of Palmas case). state that your country does not assent to that assertion). .” Understandably. Norway’s express promise not to contest Danish sovereignty over Greenland were oral. especially because the conversations can’t accurately be reconstructed. TWO REQUIREMENTS FOR “PEACEFUL AND CONTINUOUS DISPLAY”: 1. lawyers get antsy when the appointed diplomats start talking out of turn. Norway had failed to object when signing a multilateral agreement on herring. What they should have done was either not sign it. AND 2. Just some vague statements between ministers at a cocktail party. but they had done what they could — they put their claims in international documents from time to time. It’d been continuously asserting its rights. and nobody had disputed it until 1921. is binding upon the country to which the Minister belongs. Demonstrated will to be sovereign.” The PCIJ considered it “beyond all dispute that a reply of this nature given by the Minister for Foreign Affairs on behalf of his Government in response to a request by the diplomatic representative of a foreign Power. Norway had expressly promised not to contest Danish sovereignty over Greenland.Denmark disputed this claim. where the Danes had stated that Greenland was theirs. that the foreign minister acted within his province in replying to an inquiry of the Danish government. PUT IT IN WRITING. DON’T DO BUSINESS ORALLY. stating: “I told the Danish Minister to-day that the Norwegian Government would not make any difficulty in the settlement of this dispute. and even between 1921 and 1931 Denmark had still done enough for the arbiter to decide in their favor. there was no doubt about their claim. According to the court. on 2 other unrelated grounds. or make a reservation (up in the corner. 1919. Denmark had done little. and in good Nordic tradition submitted it to ICJ arbitration. in regard to a question falling within his province. Norway replied that under its constitution. the Court found. Norway would have lost anyway. the foreign minister could not enter into a binding international agreement on matters of importance without approval of the King in Council. How could that possibly be legally binding on Norway? Norway’s Minister for Foreign Affairs sent an official memo back to his government on July 22. But the PCIJ rejected that claim.
and they run out of fuel over water. If the shift is sudden (avulsion). His handlers quickly covered for him. NON-STATE ENTITIES: ORGANIZATIONS. . bloodshed was avoided by an ICJ settlement. When an incoming craft is high-speed. or make them all contested (in which case bloodshed is unlimited). So now where was the border? (This happens all the time on the Rio Grande. not in diplomatic channels.J. These are established by states.C. even within the 12-mile limit/territorial sea. Don’t shoot people down who pass in and out. but that’s out of caution. too. El Salvador v. Mali’s President made a statement to the press that Mali wouldn’t care if Burkina Faso got the disputed territory.J. You have to get explicit permission to fly over someone’s airspace. These rules are real. They can live with the borders as drawn. and often it isn’t given.) If the shift is gradual (accretion). or who are just dropping leaflets. There is NO right of innocent passage in AIRSPACE. Use of force against violations must be PROPORTIONATE. because the statement was made to the press. Back to Contents ©2007-2010 Nathaniel Burney V. 1992) — A riverbed was the border. Pilots die because countries won’t let us fly over their airspace. Honduras (I. not technically international law. Thalwig Doctrine — Borders along rivers are usually in the middle of the NAVIGABLE CHANNEL. The riverbed shifted.Burkina Faso v. we ask for ID before it gets to the 12mile limit. but try telling that to the Sovs. AIRSPACE/SEA TERRITORY (much more on this under “Law of the Sea”). then the border shifts with the riverbed. You may not even have the right to shoot the plane down. CORPORATIONS and INDIVIDUALS International Organizations. Regularly-scheduled airline corridors and routes aside. then the border is not changed. everybody needs clearance for each plane going over each country’s airspace. Airspace goes all the way up into outer space above your territory. saying that it was a marvelous example of his witty nature. Countries vigorously enforce their airspace as their territory. Here. The ICJ held that it wasn’t binding anyway. Footnote: The horrid bloodshed and war that led up to this case was the result of a soccer match! I kid you not. Americans are dead because of them. There is a right of “innocent passage” on water within the 12-mile limit (the territorial sea). not necessarily the same thing as the physical halfway point of the riverbed.C. 1986) — There are lots of problems in Africa resulting from political borders being drawn across tribal and geographical boundaries. Republic of Mali Frontier Dispute (I. Governmental (Public) International Organizations.
Given powers by states (specified in the organization’s charter). For example. Not corporations that operate in several countries. Determining the nationality of the individual is therefore CRITICAL in a situation like this. or as a responsible official in government. not by abstract entities. The official position of a defendant. Non-governmental International Organizations. Great Britain took up the corporation’s claim on its behalf against Costa Rica. [Aside: Honduras. as do ships & planes. a state is in reality asserting its own rights — its right to ensure respect for the rules of international law. A Greek citizen said he had been treated unfairly by Great Britain in violation of international law. Only the state of which the individual is a national has the right to provide diplomatic protection. not solely their actions as government agents. It is not the individual’s decision to make. Individuals can be responsible to international law for their own actions as individuals. (Those are “transnational” corporations. and only by punishing individuals who commit such crimes can the provisions of international law be enforced. Crimes against international law are committed by men. they may be able to enter into treaties with states. Back to Contents ©2007-2010 Nathaniel Burney Individuals and Nationality. The individual has always been a factor in international law. shall not be considered as freeing him from responsibility. nor in mitigating punishment. by taking up the case of one of its subjects and by resorting to diplomatic action or international judicial proceedings on his behalf. and Liberia have competed to have the lowest . Tinoco Claims Arbitration case again.) A truly “multinational” company is owned by several countries. Great Britain said an individual has no right to have a state take up his claim on the individual’s behalf. with piracy if for no other reason. whether as a head of state. DIPLOMATIC PROTECTION — the state takes up a citizen’s claim on behalf of the individual. Powers include much of what states can do. The decision to provide “diplomatic protection” is left up to the state. Corporations have nationality. Multinational Companies. Mavromattis Palestine Concessions (Greece v. and he asked Greece to take up his case before an international tribunal. It just happens to be asserting that right through one of its subjects. Panama. These are tolerated by states.These are established by states. The PCIJ held that. Great Britain) (PCIJ 1924).
but not for little crap.C. Nottebohm Case (Liechtenstein v. for ships and planes. and lived & worked there for a long time. but they aren’t nationals. It’s okay for espionage or treason. Many states also say you can’t be repatriated once you’re in their territory. to know if there are any applicable treaties. Guatemala) (I. (Nationals have a right to a passport. although most of the population may be nationals. and doesn’t affect how someone is treated under international law. There they had some minimal procedures for naturalization. Nationality is important. There is no right of asylum. He never became a Guatemalan national. He took an oath of allegiance and paid back taxes. however. they’re residents of some state or other.) Mr. Panama. you’re screwed.] Decisions about nationality are important. Sure. the laws of your country can follow you wherever you go. The doctrine of diplomatic protection is alive and well. and he went through them to become a national. Nottebohm was born and reared in Germany. Established the rules for when states must accept you as a national of X country. A state has prescriptive jurisdiction over nationals overseas. if your country so desires. and is in constant use. All citizens are nationals.). he just left a security . but not all nationals are citizens.) After 34 years (it was now 1939). but that’s the way things worked then. There is no international law obligation to let aliens into your territory. but they aren’t required to say that under international law. Many refugees are stateless. and most permissive liabilities law. and Liberia have competed to have the lowest safety standards and taxes.J. no matter what awful thing is happening to you. it was suddenly not a good time to be a German national. 1955). Extradition treaties may provide that a state need not extradite its own nationals. because that way he could avoid taxes. When must a state recognize your passport. At the age of 24. If you are stateless. Thus. In some countries. he went to Guatemala. States can’t arbitrarily strip you of nationality. No state can intervene on your behalf. Citizenship is decided under municipal law. it’s good to have backup. So he went to Liechtenstein. Well. But once admitted. they are not entitled to the same rights as nationals. (Countries have since gotten tired of this loophole. only a tiny portion of the population are citizens (with rights like owning property. he didn’t really pay the taxes. but it isn’t customary international law yet. Whatever your citizenship. Big-time important case. etc. you have no protection. This makes things even worse if you have a problem on such a ship/plane. A state can give diplomatic protection to a national. but whether it is honored or not is different. Stateless people are at the mercy of a cruel world. Many states are signing agreements envisioning asylum.Honduras. there are obligations on how you treat them. You’re an alien everywhere. You need to know the nationality of people in a given situation.
Critical point — but. Extradition is when you send someone to another country to stand trial for a crime. Guatemala didn’t honor it. to this state than to any other state? Here. said no. acquisition of real property in the state’s territory. He said he wasn’t a German.taxes. . because first they had to decide whether Liechtenstein was allowed to assert diplomatic protection and assert the rights of this individual..” Requirements: At the time of naturalization. In wartime.. Involuntary Nationality.C. Liechtenstein was outraged that its passport was being treated like toilet paper. Note. he didn’t really pay the taxes. You walk through the airport. whether other states must recognize that nationality is up to international law.. they say “Welcome back. they were just deporting an alien. A state is not required to recognize a nationality imposed by another state on an individual against his will on the basis such as marriage to a national. Merely being a resident isn’t enough for this “genuine connection. a genuine connection of existence. Nationality is a legal bond having as its basis a social fact of attachment.” and the next thing you know you’ve been sent into the army for your required service. So Guatemala didn’t have to honor his Liechtenstein nationality. . Whatever the state says are the requirements. N. interests and sentiments. they waived the residence requirement. his activities.) Mr. and sued Guatemala in the I. his intentions for the near future. and he was a Liechtenstein citizen. his establishment. Had his passport and everything. was picked up by the Guatemalans and sent to the USA for interment. he just left a security deposit. at the age of 54.. together with the existence of reciprocal rights and duties. his switch wasn’t genuine. he was a Liechtensteiner. This may violate international law. or having a particular ethnic or national origin. Some countries embrace you as a national whether you want them to or not. Critical point — international law leaves it up to each state to make the rules for nationalization. You might be able to say there isn’t a genuine connection. this wasn’t a formal extradition. Well.J.C. bearing a child there. Nor is a state required to recognize a nationality that the individual has . that’s the requirements to be a national. did the individual appear to have been more closely attached by his tradition. The case never got to the legal issue of extradition. He paid his fees. enemy aliens are frequently rounded up and put into interment camps where they are held to be traded for your own nationals abroad. They could only do that if he really was a Liechtenstein national. citizen.J. the I. are bad. Then he went back to Guatemala. WWII began. where your own citizens are put. a specified period of residence. (Interment camps based merely on race. his interests. his family ties.
United States citizens who owned property in other countries. The US brought a claim on her behalf for the value of the piano. In 1914. her US citizenship became very valuable. Applying these factors. economic bonds. the Commission decided that she was principally an Italian citizen. claiming that she was an Italian citizen. Second. Sad case. United States ex rel. The Commission rejected a United States claim on his behalf. She tried to maintain her United States citizenship. looked at the Hague Convention of 1930. if you are before a third party. Italy refused. At the end of WWII. BUT. The Commission had to decide whose national she was. Dual Nationality. she possibly could have maintained it. Mrs. (Not only had she married an Italian national. Mergé was born in the United States. He lived in the US until he was five years old. there is a different test — what is your DOMINANT nationality? What is the country to which you have the most connections. so the US couldn’t represent her. your principle or habitual residence. he was impressed into military service. Under United States law. and voluntarily subjugated himself to the duties and obligations of an Austrian citizen. such as an international tribunal. First. Italian Republic (1955). thereby becoming an Italian citizen under Italian municipal law. Austria & Hungary) (1928). which was destroyed during the war. She’d had a grand piano in Italy.Nor is a state required to recognize a nationality that the individual has renounced. Mergé v. which says you cannot ask state 1 to intervene against state 2 when you are a national of state 2. Commission held that a 5-year-old accompanying his parents to Austria was voluntarily incurring the risk incident to residing in Austria. When wars are over. thereby acquiring both US and Austrian nationality.) They were assigned to live in Imperial Japan. etc. on the ground that Tellech was a citizen of both countries and that he had voluntarily taken “the risk incident to residing in Austrian territory and subjecting himself to the duties and obligations of an Austrian citizen arising under the municipal laws of Austria.” . Alexander Tellech Claim (United States v. social/family bonds. The claimant was born in the United States of Austrian parents in 1895. when he accompanied his parents to Austria. States cannot assert diplomatic protection against another state when the individual is a dual citizen of both. bring claims in front of commissions where nationality is important. at the age of 19. The United States therefore couldn’t make a claim on her behalf for the loss of the grand piano. she married a diplomat under Mussolini.” After 16 months in an interment camp. That was no help. and was an American citizen. he was interred “as an agitator engaged in propaganda in favor of Russia. looked at the peace treaty. She married an Italian. and foreigners who had property in the United States.
and for how long it exercises diplomatic protection.K. The wrong was only done to the corporation.) Back to Contents ©2007-2010 Nathaniel Burney VI. but 88% of the shareholders were Belgians. a corporation is clearly distinct from its shareholders. The test for nationality of a corporation is not a “general connection” test.C.K.K.. and Germany happens to have an extradition treaty with Singapore. Say a citizen of the U. JURISDICTION General Principles of Jurisdiction.K. Back to Contents ©2007-2010 Nathaniel Burney Corporations.J. Prescriptive Jurisdiction A legislature passes laws prohibiting conduct — criminal laws. He flees to Germany. . even if your company is registered in the United States and its principal place of business is in the United States. the company had to be a national of Belgium. and loses.Here’s a hypothetical situation. Should Germany extradite him to the U. when. there would be tremendous legal difficulties. Absent nationality. A shareholder is not personally liable for the corporation. The loss of a shareholder’s investment therefore is not a legal wrong against the shareholder. the state couldn’t intervene on behalf of the company. He bets the firm’s ass on the Nikkei. He isn’t responsible for it. Nor is it a “dominant/effective nationality” test. is a trader in Singapore. The test is wherever the corporation is registered. since Singapore can be a tad harsh in its punishments. Wherever its principal place of business is. 1970) — Belgium wanted to exercise diplomatic protection for the shareholders of Barcelona Traction. (Unless there’s an international agreement to that effect in place already. Barcelona Traction (Belgium v. or to Singapore? The citizen would prefer to go to the U. Definitions. This power to pass laws to regulate conduct in your territory (and sometimes extraterritorially) is prescriptive jurisdiction. a state is the sole judge of whether. Enforcement Jurisdiction. The company was incorporated in Canada. to what extent. there is no guarantee that the State Department will argue on your behalf if you’re being screwed by another country. For that to happen. The shareholders clearly suffered harm when Spain deliberately sank the company. The U. No problem. so bye bye trader. Unequivocally. Spain) (I. How do you decide if a corporation is a national? Apply a different test than for people. Whether or not a company is a national depends on municipal law. And of course. Still. Otherwise. simply drops its extradition request.
So states make extradition treaties in advance. outside the territory. Objective — Did the legislature intend to attach liability to the conduct. I know the labels appear mixed-up. But extraterritorial prescription can be a problem. to monopolize aluminum and control its prices. . States can choose to give up little bits of sovereignty in this manner. This can be problematic — how remote can the repercussions be from an act done in another country. just a business association. This is the power to send cops out after you. 2 German. of non-nationals? The crime began elsewhere. Regardless of where the crime’s results were consummated. 1 French. Passing a law criminalizing conduct in another state is one thing. which doesn’t say that it only applies to United States corporations. but was consummated here. The United States said all participants in this violated the Sherman Antitrust Act. Subjective — Did the legislature actually attach liability to conduct within its own borders? A crime was committed inside your territory. Absolute power of the sovereign over its own territory. Going to that other state and arresting you there is another thing entirely. Bases of Prescriptive Jurisdiction: Territorial — states can regulate conduct within their borders. ALCOA (2d Cir. Entering another state’s territory without permission is a violation of that state’s sovereignty. (This is important as hell. Also called “Executive jurisdiction. People doing business in Switzerland shouldn’t have to worry about the laws of other sovereigns to whom they owe no allegiance. Back to Contents ©2007-2010 Nathaniel Burney PRESCRIPTIVE JURISDICTION. 1 Swiss) formed an alliance in Switzerland under Swiss law. and still have liability here? [Yes.Enforcement Jurisdiction. The United States was trying to apply the statute to everything worldwide. There was no law against this in Switzerland. 1 British.) The power to prescribe is not questioned on your own territory. This is the power to try and punish you.” Judicial Jurisdiction. This was not a governmental association like OPEC. 1945) — Six international corporations (1 Canadian.] United States v. but that’s the way they are used.
A federal statute gave the Attorney General power to subpoena witnesses from abroad. Here. and foreseeable. You don’t even need to look at the legislative history for intent. (effects in the US. as it would be a meaningless statute if you could get around it just by shifting your operations overseas. act abroad) the legislative history had to show that Congress intended the statute to be applied extraterritorially. (You don’t have to extend your jurisdiction unless you want to..) There was no problem finding such intent here. United States (S.. statutes are not construed to apply abroad. Unless the legislature’s intent was otherwise. so far as the binding effect of the legislation is concerned. fined. for example. whatever that was. . A foreigner can lose his visa to travel to the United States.) Helms-Burton Act — The law seeks to punish foreign countries that trade with Cuba. e. they had to have both the intent to affect commerce and the actual effect of their conduct.g. to prescribe the conduct of its citizens abroad. and laid down the procedure for getting them. Counter-regulation like this does happen. One state has no right to mess with the affairs of another by passing laws governing the conduct of foreigners abroad (with the exception of reasonable international law principles). can get kicked out. is a jurisdiction in personam. Murder. he will be subject to Mexican penalties. because the statute itself specifically said nationals abroad. The next question was whether the Constitution permitted it. he was in France. and he is personally bound to take notice of the laws applicable to him and to obey them. has never been applied extraterritorially. etc. Blackmer v. Ct. He was subpoenaed in France to come back to the US and be a witness at the criminal trial.. Nationality — prescriptive jurisdiction follows you abroad. But the jurisdiction of the United States over its absent citizen. planes that were leaving Cuba. Passed because Cubans were shooting down planes that were in Cuban airspace .In order for the statute to apply extraterritorially. This can cause problems for you when the law of the United States conflicts with the law of the foreign country you happen to be in. Allows the United States. (Courts today say this must be a substantial effect. 1932) — Blackmer was a witness to part of the Teapot Dome scandal. And a United States court’s ruling won’t be upheld by a Mexican court. as he wasn’t in the US. Blackmer objected to the service of the subpoena.) (Not all laws have been held to apply extraterritorially. Some countries (like Mexico) say that if one of their citizens pulls out of the United States under Helms-Burton.
as many countries make most of their money from drugs. etc. The activity has to have been illegal where it was done. Universal — for crimes that are universally bad. Covers slavery. are being identified. Apply this in a very limited fashion. Blackmer is cited all the time when we grab nationals abroad for any of the 3000 federal crimes where the United States has expressed intent to get you abroad. Almost there on hijacking airliners.If Congress wants to regulate American citizens abroad. such as bribery. Protective — states can exercise jurisdiction over things that are inimical to the state itself. This began with piracy. Doesn’t yet cover drugs. treason. it can do so. Iran would be able to pass a law requiring all United States women to wear veils and not work. it doesn’t matter where they were done. in addition to being inimical to United States interests. Anybody can implement such laws. Maybe terrorism too. and crimes against humanity. Enough states have signed agreements to that effect that this may well be now a universal crime. this basis of jurisdiction would make a mockery of the others. who the victims were. counterfeiting money. This holding is consistent with international law. This area of jurisdiction is only grudgingly and carefully extended. people that preyed on shipping. espionage. how long ago you did it. Certain terrorist traits. genocide. because it offends their sensibilities. however. but first it must say it wants to. Crimes that violate the political/territorial integrity of a state. no matter where they occurred. anybody can prosecute. Not just acts that put some people out of a job. but terrorism is hard to define. you could prosecute them. Jurisdiction over ships and airplanes registered under the state’s flag. The Fawaz Yunis case (below under passive nationality) held that it is. Not just acts that offend sensibilities. If you could catch them. Falsifying passports. If not applied in a very limited way. The laws of the flag nation apply to crimes committed on . There are certain fundamental principles & interests that a state has a right to regulate. There are a very few certain crimes that are so universally abhorrent.
as well as to the registration of the plane? Yes it does. as is the number of crimes that apply.) The person who did it is also under his country’s nationality jurisdiction. and has jurisdiction over it. its laws also apply. then the locals have exclusive jurisdiction.S. The flag country of an airplane is responsible for events on the plane wherever it flies. This often fills in the holes when other sources of jurisdiction don’t work. The United States has exclusive jurisdiction if the act was on-base or against a U. 18 means JAIL. then the United States has exclusive jurisdiction.S. or it can be bilateral between two countries. like conventions. paragraph 1. Locals have exclusive jurisdiction if the act was offbase or against a local. (Terrorists used to have loopholes they could take advantage of. The powers of the state of registry have been expanding over time. Jurisdiction granted as a result of agreements. Does that refer to property ownership. Well. Code says the United States has jurisdiction over “any aircraft belonging in whole or in part to the United States. A stateless ship can be boarded by anybody.” — That’s pretty vague. rather than applying local law. Article 91 of the Law of the Sea Convention. citizen.S. ideally anyway. while such aircraft is in flight over the high seas. (Note that this is from 18 U.C. it depends on who has primary jurisdiction.S. S.The laws of the flag nation apply to crimes committed on ships and planes. That’s why most foreigners don’t want Americans to own any part of their planes. When an act is a crime both in the United States and in the foreign country where it happened. The victim’s country may have passive-nationality jurisdiction. There must exist a genuine link between the state and the ship. 1957) — the most oft-cited case . If only local law was violated. or over any other waters within the admiralty and maritime jurisdiction of the United States. “Status of Forces” treaties — Apply United States law to American servicemen abroad.Ct. Wilson v. The agreement can be multilateral. If the crime was done in the territorial waters of another country. We don’t want our guys put in local jails when we’re over there to help the locals. Chicago Convention on Civil Aviation. says ships have the nationality of the state whose flag they are entitled to fly. If only United States law was violated.) The U. Girard (U.
ultimately waived any jurisdiction it might have had. Girard. Passive-nationality basis of jurisdiction (jurisdiction because the victim of the crime was your national) — new basis. Then he asked for an injunction against delivery to the Japanese authorities. It’s getting more popular. and it went through a woman’s back). The United States claimed the right to try Girard. They had decided to waive jurisdiction and deliver Girard to the Japanese authorities. An agreement between the two countries provided that the United States might waive its jurisdiction over offenses committed in Japan by members of its armed forces. wounded a Japanese woman during a military exercise in Japan (he stuck an empty .S. Cir. and the plane was hijacked in a .S. soldier. The defendant was Lebanese. but it was denied. and who has first claims. a U. United States v. 1957) — the most oft-cited case in this area. Girard (U. unless it expressly or impliedly consents to surrender its jurisdiction. and absent that the wisdom of the arrangement was left up to the executive and legislative branches. which provided that “the authorities of the state having the primary right shall give sympathetic consideration to a request from the authorities of the other state for a waiver of its right in cases where that other state considers such a waiver to be of particular importance. But the U. The DOD appealed. This can be unpleasant and time-consuming. and rare. S. 1991) — The defendant was one of four hijackers of a Jordanian aircraft.l. and the injunction was granted. Work this stuff out before you start doing things in another country. etc. but it is infinitely preferable to not having done it.o. on the ground that his act was done in the performance of his official duty. so he was s. Just work out an agreement on who had jurisdiction over what.Ct. your program probably isn’t going to work. Japan’s cession to the United States of jurisdiction to try American military personnel for conduct constituting an offense against the laws of both countries was conditioned by the protocol agreement. though.” There had been no prohibition against this. The Court held that a sovereign nation has exclusive jurisdiction to punish offenses against it committed within its borders. Fawaz Yunis (D. Girard tried for habeas. especially with regard to tourism. the military authorities of the United States would have the primary right to exercise jurisdiction over members of the armed forces for offenses arising out of any act or omission done in the performance of official duty. and therefore the United States had the primary right of jurisdiction. in criminal cases where the right to jurisdiction is concurrent. A later agreement authorized that.S. And without it.Wilson v.C.30-cal shell casing in his grenade launcher and launched it.
the court said that you don’t construe laws to conflict with international law if a nonconflicting construction exists. then they don’t have jurisdiction over you unless there . then the U. and then either extradite him or try him yourself. Also. a state may punish non-nationals for crimes committed against its nationals outside of its territory. Article 4 of the Tokyo Convention 1963 said that only the state of registration has jurisdiction. Note. air piracy. Normally. If there were Americans on board. the fact that victims of a crime were Americans isn’t enough to give the United States jurisdiction over the criminal. law applies. No other state gets jurisdiction unless crimes are committed against or by a national (or even a permanent resident) of that state. Hostage-Taking Act 18 U. The United States still got jurisdiction.S. Under the passive-nationality principle. Then he goes to Syria for a bit. 1203 gives us that jurisdiction here. More on jurisdiction over terrorism. he commits a terrorist act in Germany. and the plane was hijacked in a foreign country. the fact that your ass is in Burundi doesn’t mean that Burundi has jurisdiction over you. Charming Betsy being cited again. However. then tried to elaborate who has jurisdiction over events happening on the plane.The defendant was Lebanese. that’s enough. If the entity being threatened is the United States. You cannot be forced to extradite someone unless you already agreed to. then to Libya. and he goes to the Bakaa Valley to become a terrorist.S. and hostage taking. This opened up passivenationality jurisdiction. Then he goes to France. He was brought before a magistrate for conspiracy.S. Because he lived permanently in France over the last 2 years. you must detain him. it doesn’t even have to have been an American plane. A couple of Americans on the plane were taken hostage. and Montreal 1971 — Tried to define illegal acts on international flights. Libya has signed a lot of these conventions. A boy born in the West Bank becomes an orphan when his parents are killed. The defendant said that these laws exceeded the bounds of extraterritorial jurisdiction under international law. If you didn’t commit a crime there. at least where the state has a particularly strong interest in the crime. After two years in France. under the Air Piracy Act. Tokyo Convention of 1963. But here. or the hostages are Americans.C. Hague 1971. the U. so a lot of terrorists are covered by them. France can assert jurisdiction even though he isn’t a national. Article 6 & 7 of Hague 1971 says that when a terrorist ends up in your territory.
Your state has jurisdiction over crimes committed by stateless people who are residents of your state.there. Punishment for noncompliance must be preceded by an appropriate determination of violation. --if the person is given an opportunity to be heard. 1979 Convention Against Hostage-Taking. A state may employ enforcement measures against a person located outside its territory: --if the person is given notice of the claims or charges against him that is reasonable in the circumstances. All countries have these various kinds of prescriptive jurisdiction. Articles 6 & 7 of Hague 1971 are exceptions to this rule. Restatement (Third) § 431 — Jurisdiction to Enforce. and --when enforcement is through the courts. You need explicit permission to go onto another country’s territory to enforce your own laws. Back to Contents ©2007-2010 Nathaniel Burney ENFORCEMENT JURISDICTION. BIG SOURCE OF SCREWUPS. then they don’t have jurisdiction over you unless there is some other basis. but whether or not we have enforcement jurisdiction is another matter entirely. whether in person or by counsel or other representative. A state may employ judicial or nonjudicial measures to induce or compel compliance or punish noncompliance with its laws or regulations. if the state has jurisdiction to adjudicate. and must be proportionate to the gravity of the violation. In cases of overlapping jurisdiction. . but a country has to want to assert that jurisdiction. There is no question that we have prescriptive jurisdiction over someone who killed Americans. The United States has jurisdiction even if there is no connection with the United States other than that the terrorists want prisoners who are held in the United States released. Oh. there is also another universally-signed convention giving you jurisdiction over crimes committed against your diplomats. which state gets to assert it first is usually up to whoever has possession of the suspect. Don’t mix them up. provided it has jurisdiction to prescribe. Enforcement measures must be reasonably related to the laws or regulations to which they are directed. Enforcement jurisdiction is separate from the other kinds of jurisdiction (prescriptive and judicial). ordinarily in advance of enforcement.
Argentina was not pleased with the kidnapping part. Back to Contents ©2007-2010 Nathaniel Burney Conflicts of Jurisdiction. but some Turkish sailors had been killed. Instead. If it consents. (The South American countries were popular with former Nazis. The French contended that the Turks had no right to assert their jurisdiction over officer Demons.In a country with which you have an extradition treaty. but they are preferable to violating another country’s sovereignty. put him in a box.I. under the French flag. In cases of overlapping jurisdiction. he was quickly (and violently) arrested. he was tried. Ruses don’t always work. But before anything was done about it. -. territory we would have had jurisdiction over him. and shipped him to Israel. ship. There was another guy named Eichmann.I.Aboard a ship flying your flag. said that fact was so obvious that they wouldn’t even discuss it. which state gets to assert its jurisdiction first is usually up to whomever has possession of the suspect. 1927). He was fined and sentenced to 80 days in a Turkish prison.J. then there would have been a problem. We go out of our way to respect other countries’ sovereignty. and the P. and executed. who was an evil Nazi now hiding in Argentina.S. You need permission to take the suspect from the other state’s territory.N. The suspect has to be in one of these places: -. they said.) Some Israeli nationals kidnapped him. Americans are dead because of them. But first. At mile 13. and Officer Demons was arrested and blamed for negligently causing the accident. -. The U.S. These rules are real.C. There.J. and the two countries agreed to international arbitration. when then went into international waters. The French got upset. (That’s the Ker-Frisbie doctrine). The passive nationality of the Turkish victims wasn’t a basis for jurisdiction. and Israel admitted that it had committed an offense. -. We might have sent in the Delta Force to grab him. Two ships collided on the high seas in the Mediterranean on a dark murky night. Argentina withdrew its objection.Kidnapping a felon is a no-no. The Turkish ship sank. One ship was Turkish. convicted.C. said that if the State of Israel was involved in the kidnapping. The French ship put into port in Istanbul. we set up a clever ruse to lure him onto a U. He had spent most of his life in countries unfriendly to the United States. Yunis again. the foreign sovereign must object.On the high seas. because they didn’t have extradition treaties. Lotus (P. then there is no violation of international law. drugged him. S.Aboard a ship that permits you to board. and the other was French. Mr. and the French ship picked up the survivors. and once he was physically in U. and thus only the French had enforcement jurisdiction . The French argued that Officer Demons’ acts took place on a French ship.S.
The Hostage-Taking and Hijacking conventions say that the country with possession must either try the suspect there or extradite him for prosecution elsewhere. So the terrorists fled the Achille Lauro and went to Egypt. then the country with physical custody of the perpetrator has jurisdiction. In the United States. . the events took place on both the French and the Turkish ships. the U. Then Egypt secretly put the terrorists on a plane. said the abduction was legal. if the abduction was accompanied by brutality. They committed many serious crimes. But. They let them stay in the country. How could the United States get jurisdiction over them? By EXTRADITION (see below.S. mere possession of the suspect is not enough to grant jurisdiction. and made it land in Italy. Italy ultimately got control of the bad guys. The perpetrator’s country had jurisdiction. an Italian ship called the Achille Lauro was on the high sea. so Turkey was entitled to exercise its jurisdiction. The United States still doesn’t abduct foreign criminals on a general scale. who were then surrounded by Italian troops. and it is unknown what their nationality was.S. Humberto Alvarez-Machain (S. extradition only results from an extradition treaty or the sovereign's choice. including the murder of an American who was in a wheelchair. and that both states had concurrent jurisdiction over the matter. Ct. The plane was surrounded by U. The victim’s country had jurisdiction. but they took responsibility. The Turks argued that jurisdiction is inherent in sovereignty. The Court finally held that there was no rule of international law prohibiting a state from exercising enforcement jurisdiction over a foreign national who committed acts outside the state’s borders.s. The DEA didn’t do the kidnapping. 1992) — A DEA agent was tortured over several days. Some Mexicans kidnapped him and brought him to the United States. troops. and a Mexican doctor involved in torture kept the agent alive throughout the ordeal so the torture could continue. Now. The ship’s flag country had jurisdiction.) But Egypt didn’t extradite the terrorists. Of course. Ct.. and then they let them go! United States v. The Turks said that was b. we get them by deception and ruses. Also. the fact that you were illegally seized doesn’t mean that you still can’t be tried. many years later. and some F-14s intercepted the plane and forced it down over the high seas. Here. and that the French did it all the time and had always done so. and thus only the French had enforcement jurisdiction over the alleged crime. Otherwise. S. or if it violated the HostageTaking or Hijacking conventions. Terrorists hijacked the ship.under the French flag. The French also argued that you cannot assert your jurisdiction beyond your borders. the United States is the best at intercepting communications. The DEA put out a bounty on the doctor. Usually. If the crime were one of the rare universal crimes. and Officer Demons was then physically located in Turkey. So who had jurisdiction? Conventions have filled in the holes. except under these conventions. The Court held that the French had the burden of proving that there was a rule against the Turks having jurisdiction.
S. you can’t be extradited without a treaty. S. Such situations create nightmares for corporations. and the bank didn’t really try to get the information released. But that’s irrelevant. Requirements for Extradition. So they didn’t. and fined them $100. he only argued that the U. where the secrecy laws prohibit banks from releasing depositors’ info.) The doctor didn’t argue that customary international law applied. court held the bank in contempt. 1982) — A Canadian bank opened an office in the United States. Lots of murders and rapes in California go unpunished. there were not yet any hijacking/terrorism treaties requiring extradition. the lower court still let the guy go. . so the United States had to either convince Egypt to voluntarily give us the perpetrators. or violate Egypt’s sovereignty and grab them ourselves.S. and Mexico says you go to jail if you obey the U. The bank had a branch in the Bahamas. Field (S. There was no provision like that in the treaty. and it subpoenaed the bank for information on certain depositors. United States v.000 per day until they complied. Bank of Nova Scotia (11th Cir.S.S. and he fled to Mexico.Ct.” That’s when a court steps back and recognizes that another country has a more fundamental national interest at stake than what is at stake here. United States v. The U.S. This involves also the idea of “comity. law? You’ve got overlapping jurisdictions with conflicting laws. Back to Contents ©2007-2010 Nathaniel Burney Extradition. so he lost. said the abduction was legal. because the perps go to Mexico. in light of the 1992 Supreme Court. This bank appealed to the 11th Circuit. What happens when the United States says you violate U.-Mexico extradition treaty was violated. No matter how heinous the crime. (On remand. In the case of the Achille Lauro. Not that this treaty has been complied with by Mexico. law if you trade with Cuba. Every corporation out there should be aware of the web of conflicting laws. Ct. where the terrorists had killed an American on an Italian ship on the high seas and then fled to Egypt. It first argued that this was a real violation of Due Process. That was a really bad tactic to take. A Florida grand jury was convened to investigate some drug lords. The Court said that nobody would have really gone to jail. but its officers would go to jail in the Bahamas. 1976) had applied a balancing test — which country’s interests outweigh the other’s? Here.Here. the 11th Circuit held that the United States’ interest in getting the drug lords was more fundamental than the Bahamian interest in account privacy. The bank wanted to comply. the U. Wham. It was therefore subject to personal jurisdiction in the United States.
assert any of these: -. rocket. courts unless Russia agrees to it. -. Note: Knives are not listed. IMMUNITY FROM JURISDICTION Sovereign Immunity and the Act-of-State Doctrine. but as states have gotten more directly involved in commerce.§ 1330. -.You haven’t yet had a hearing to determine whether you are the same person who is wanted.Offenses against a diplomatic agent or any other internationally-protected person. -. If you are extradited. etc.Offenses using a grenade. To successfully object to your being extradited. you have to be tried for the same crime for which you are extradited. bomb. Back to Contents ©2007-2010 Nathaniel Burney VII. -.Violations of the 1971 Hague Convention.S.Actions on an airplane. The European Convention on the Suppression of Terrorism lists a number of things that cannot be political-offense exceptions: -. Sovereign Immunity. and is part of modern customary international law.It was a political crime — Need to show (1) it was a political offense.It isn’t a crime specifically listed in the extradition treaty (treaties usually cover all crimes punishable by more than 1 year in prison). So a terrorist who uses a knife or boxcutter instead of a gun may be trying to benefit from this loophole.What you did isn’t a crime in the country you’re in now. and (2) your actions were politically motivated. or is it commercial? This view of immunity is codified at 28 U.S. The United States can’t sue Russia in U. their immunity has gotten less and less absolute. Sovereign immunity used to be absolute. You can be extradited to a third-party country.Requirements for Extradition. So check out the kind of action involved — is it an official or public act. -. There is no obligation for a state to extradite its own nationals. automatic weapon. Sovereigns cannot exert jurisdiction against other sovereigns without their consent. -. -.Hostage-taking.You haven’t had a hearing first to determine whether there is enough evidence — under the law of the country you’re in now — to hold you to stand trial. Semi-official / semi-public entities pay big bucks to lock in their status . -. firearm.C. This is the loophole that terrorists try to use. just so long as it has an extradition treaty with the country you’re in.
S. and started selling them under the Czech national name. Any case where money damages are claimed for tortious acts. Case involves rights to immovable property in the United States. § 1602. If a warship comes in without your permission. Participation in wills and estates in the U.S. buying perfume. Dralle v. but they do get involved in financial dealings. that caused problems all around the world.S. The Schooner Exchange v. The Czechs said that selling cosmetics was an official government function. General exceptions to sovereign immunity in the U. Republic of Czechoslovakia (S. of Austria 1950) — When the communist countries started nationalizing commerce. But. If a diplomat runs over a pedestrian.Ct. because warships are floating pieces of immunity. so long as the tort occurred inside the U. Dralle sued for trademark infringement. An act in the United States connected with a commercial activity elsewhere. An act elsewhere. that’s called war. This was a classic example.Semi-official / semi-public entities pay big bucks to lock in their status here. It is okay within the Foreign Sovereign Immunities Act to sue the foreign government or the individual.: The state waived immunity. etc. Private individuals don’t own warships. The communists seized Dralle’s perfumes.Ct. Foreign Sovereign Immunities Act 28 U. Unless the Act says otherwise. Even if a citizen is raped on board in the harbor. but with a direct result in the United States. it is immune from your jurisdiction. and therefore they were entitled to sovereign immunity from lawsuits here. Commercial activity in the United States.S. 1812) — United States ships were stolen by the French and converted to warships.S. the Vienna Convention on Diplomatic . jurisdiction. investing. If you let a warship into your territory.S. But there was nothing the United States could do. and the owner recognized them and sued to have them returned.S. The Supreme Court of Austria looked at customary international law and saw that a state is not immune when its acts are commercial. a foreign government’s activities in the United States are exempt from U. you can’t prosecute the crime. then there is no sovereign immunity.C. connected with a commercial activity elsewhere. McFaddon (U. They came to New York harbor in a storm.
But. and unilaterally extending the term.S. courts. It is the only way. under § 1605(a)(2).” Specifically defined in § 1603(d): “either a regular course of commercial conduct or a particular commercial transaction or act. Argentina said issuing bonds was an official public act. but in other financial markets chosen by the creditors (New York.S. courts (that’s why NYC was chosen). The act must be in connection with a . See below. — but unless there is an exception under the Act. not in pesos. banks (ever stupid) accepted this. NOTE: They weren’t claiming immunity under the Act of State doctrine. under the terms of which the principle and interest would be repaid in U. The Foreign Sovereign Immunities Act is the “sole basis” for obtaining jurisdiction over a foreign sovereign in the United States. oft-cited cases here are Weltover and Amerada. When the bonds came due.” The definition looks at the nature of the act. For the “commercial activity” exception to apply. It created bonds. Zurich. The main exception is “commercial activity. and got sued in U. kill. Applying the Foreign Sovereign Immunities Act is not snag-free. Argentina decided to refinance. and insisted on full payment to be made in NYC. Weltover. or Frankfurt). so it was immune from U. Inc.. terrorize.S.S. Republic of Argentina v. not its purpose. Argentina didn’t pay. The State Department goes to the mat on this all the time. not commercial.S. The payments would be made not in Argentina. See below. etc. 1992) — Argentina borrowed money.Ct. U. When it came time to pay. torture. jurisdiction. London. rather than by reference to its purpose. The commercial character of an activity shall be determined by reference to the nature of the course of conduct or particular transaction or act. Selling cosmetics to advance justice for the global proletariat is still selling cosmetics.S. But Panamanian corporations and Swiss banks refused to go along with the rescheduling.. you cannot sue them in U. (U.. Two beautiful. dollars. Argentina issued a presidential decree substituting other instruments for payment. So you still couldn’t sue.S. That’s something else entirely. The act must take place outside the United States. the Vienna Convention on Diplomatic Relations gives immunity to diplomats. They can do bad things — maim.
In Foremost. the complaint alleged a constant flow of capital. The nature of the activity governs. Iran pleaded sovereign immunity. machinery. 1990). and . the statute unmistakably commands that to be done. Cir. It is something an individual cannot do. The court distinguished this case from Zedan v. etc. it matters only that it did so. issuing the bonds. The Islamic Republic of Iran (D. they could exercise the bonds in NYC. The brilliant U.C. the American plaintiff brought an action against Iran asserting that Iran had used its majority position in an Iranian corporate joint venture wrongfully to deprive plaintiffs of benefits to which it was entitled. so there was no sovereign immunity. It is irrelevant why Argentina participated in the bond market in the manner of a private actor. management personnel. The Supreme Court responded that the purpose is irrelevant. — was all governmental. in which it found the circumstance that the plaintiff had not received the contractually-stipulated payment for work done in Saudi Arabia after his return to the United States wasn’t an effect in the United States as required by statute.S. Kingdom of Saudi Arabia (D. engineering data. 1988). so it is a government activity even though it is an economic activity. Cir. v. And these were garden-variety debt instruments. So was there an immediate consequence in the United States? Sure. In Foremost-McKesson. it doesn’t matter. And the act must have caused a direct effect in the United States. So even though the Panamanian corporations and Swiss banks had no dealings at all in the United States. That was commercial. so there was a direct effect. Argentina purposely availed itself of the privilege of conducting activities in the United States. refinancing.The act must be in connection with a commercial activity of Argentina outside the United States. However difficult is may be in some cases to separate the purpose of the activity from its nature. Inc. The court ruled that Iran’s alleged wrongful conduct was commercial and also found the requisite direct effect under the third clause of § 1605(a)(2). An act that would have been immune as a sovereign activity would be regulation of currency — a uniquely governmental act.C. economic policy. Argentina said the whole thing — setting up the bank. and garden-variety deadbeat refinancing. Whether there was a profit motive or a public-interest motive. lawyer who drafted the bond instruments made NYC the place of payment.
It turned out that there was no exception to the Foreign Sovereign Immunities Act here. without provocation. Then the ship was attacked repeatedly by Argentinean warplanes. speed. Argentine Republic v. Liberia is a country where the government isn’t going to pick up the phone. but only if that tort occurs inside the United States.Ct. the nearest safe port. After an investigation by the Brazilian Navy. international call sign. because the ship was Liberian. Argentina was definitely involved. and that an undetonated bomb remained lodged in her No. At 12:15 GMT. and voyage description.” between Argentina and the Falkland Islands during the war. course. the Hercules reversed course and sailed to Rio de Janeiro. Here.S. another Argentine military plane began to bomb the Hercules. Even though the bombing was clearly illegal under international law. and the captain of the ship radioed his presence. there was no lawsuit in the I. (U. Certainly. This was definitely an official act. The company told the belligerents about it. The ship’s master repeated his earlier message by radio to Argentine officials. Amerada Hess Shipping Corp. There had to be an exception to the Foreign Sovereign Immunities Act to sue. A neutral ship on the high seas shouldn’t be attacked. So they sued in the United States courts.. registry. But the Alien Tort Statute is not an independent ground for suing a foreign government.equipment between the United States and Iran. At Rio de Janeiro.J. About 45 minutes later. when an Argentine jet struck the ship with an air-to-surface rocket. and a third attack came about two hours later. The master immediately hoisted a white flag. they decided it would be too hazardous to remove the undetonated bomb. it wasn’t necessarily a case that could be brought in the United States. providing the ship’s name. as in Filartiga. Argentina said it was okay to pass. public international law was violated. A second bombing soon followed. the ship was determined to have suffered extensive deck and hull damage. an Argentine military aircraft began to circle the Hercules.C. Congress intended the exception to have this limitation. However. Six minutes later. 1989) — A Liberian shipping company had to float an oil tanker. position. the “Hercules. They sued under the Alien Tort Statute. the ship’s master made a routine report by radio to Argentine officials. who acknowledged receiving it. And Liberia doesn’t get involved anyway. because bullets are probably flying through the room where the phone is ringing. 2 tank. and a couple of weeks later the ship was scuttled 250 miles off the Brazilian coast. So the . The Foreign Sovereign Immunities Act has an exception for torts.S. Disabled but not destroyed.
This is a very important case. This was an action by the Saudi government. court. The 11th Circuit said in 1991 that the action was “based upon” a commercial activity — the plaintiff’s recruitment — carried on in the United States. and the suit was against the country. so be careful! The plaintiff alleged that he had been recruited in the United States as a monitoring systems engineer in a Saudi hospital. Was it an act of state? If a state does something that is not a state act. So the United States had no jurisdiction.S. so they leave it entirely up to the executive. court is a decision left up to the executive branch (the State Department). 1994) — An American plaintiff sued Saudi Arabia to recover for his detention and torture in Saudi Arabia. You have to assess whether it was an act of state. which is a requirement of international law.Ct. or vice versa. the Act of State doctrine is purely a municipal policy of the United States. They don’t want to get involved in the executive’s application and determination of foreign policy.S. Comes into play when the litigants are both private individuals or entities (nobody is suing a state or a state official). Rule — Whether or not the laws of another state are to be respected in a U. Comes into play only when the issue is whether the laws of another state are to be respected in a U. and textbooks get the outcome wrong. then this doctrine doesn't apply. It is neither required nor barred by international law. and the suit was against the person who did it. Unlike foreign sovereign immunity. Nelson v. Other countries may or may not have similar rules. Mistreatment in foreign prisons is a governmental official act.S. but the United States courts couldn’t do anything about it.S.S. So Saudi Arabia was immune from suit in the U. based on separation of powers. Saudi Arabia (U. The reason is they don’t want to say a foreign law is bad while the President is saying it’s good. It was bad deed. An act of state is not necessarily the same thing as an actus imperius . The Supreme Court reversed. This was not a case where the government denounced the actions. holding that recruitment and hiring were not commercial acts related to the detention and torture.Foreign Sovereign Immunities Act here. The courts have decided not to get involved. Back to Contents ©2007-2010 Nathaniel Burney Act of State Doctrine. but he was detained and tortured in retaliation for reporting safety violations.
Redress of grievances by reason of such acts must be obtained through the means open to be availed of by sovereign powers as between themselves. To obtain the now-nationalized sugar. CAV or Banco Nacional. Farr Whitlock gained possession of the shipping documents and negotiated them to its customers. CAV said it had title because the confiscation under Cuban law was illegal under international law. even if the complaint alleges that the taking violates customary international law. an American commodities broker. had contracted to buy a shipload of CAV sugar. but. done within its own territory. 1964) — In retaliation for an American reduction in the import quota for Cuban sugar. Farr Whitlock defended on the ground that title to the sugar never passed to Cuba. That law was odious. from disposing of the proceeds. which assigned the bills of lading to its shipping agent.S. It was an argument over who had title to the sugar (who the broker should pay). the Cuban government nationalized many companies in which Americans held interests. which was nationalized enroute. and it no longer holds water in expropriation cases. . in the absence of a treaty or other unambiguous agreement regarding controlling legal principles. This was not a suit against Cuba. including Comañia Azucarera Vertientes-Camaguey de Cuba (CAV). the temporary receiver of CAV’s New York assets. extant and recognized by this country at the time of suit. Sabbatino (S. Farr Whitlock.” That is a broad statement. Banco Nacional. There may be the occasional overlap.) The case never got to the merits.” “Every sovereign state is bound to respect the independence of every other sovereign state. because the expropriation violated international law. Farr Whitlock turned the proceeds over to CAV instead of Cuba. Bernstein exception — If the foreign act was so odious that the State Department begged the U. (Recall that it is very difficult to define what is and isn’t illegal confiscation in international law. But they’re only going to consider the State Department request — they aren’t necessarily going to acquiesce. Supreme Court didn’t want to assess whether an act by a foreign government was contrary to international law. (There are many things that states do that the Foreign Sovereign Immunities Act doesn’t cover. but that’s not necessarily so. protected by CAV’s promise of indemnification. Farr Whitlock entered into a new agreement to buy the shipload from the Cuban government. and the courts of one country will not sit in judgment on the acts of the government of another. then maybe the courts would.An act of state is not necessarily the same thing as an actus imperius for Foreign Sovereign Immunities Act purposes. courts to please make this assessment. because the U. Banco Nacional sued Farr Whitlock for conversion of the bills of lading and also sought to enjoin Sabbatino.S.Ct. The only time they even got close to doing this was when the German Reichstag confiscated Jewish property. “Rather than laying down or reaffirming an inflexible and allencompassing rule in this case. we decide only that the Judicial Branch will not examine the validity of a taking of property within its own territory by a foreign sovereign government.) Banco Nacional de Cuba v.
Nevertheless. however. a Philippine citizen and an official of the Philippine government. and if he was acting on behalf of the government. If he had been acting within his official capacity. after Daza instructed the Philippine National Bank to dishonor a letter of credit issued by the Republic of the Philippines to Chuidian. suing the individual is the practical equivalent of suing the state. There may occasionally be overlap. If a foreign country seized property. Marcos cut an unethical deal. Suing an official for purely official acts is really the same as suing the government he works for. Letters of credit are better than cash. in California). a Philippine citizen. The bank sued Daza in California federal court. Hickenlooper only affects this narrow context. In such a circumstance. Ask: What is the entity being sued? Is it an entity entitled to foreign sovereign immunity? If the dispute is between two non-state entities.S. Chuidian v. They’re how international dealings are financed. the Foreign Sovereign Immunities Act doesn’t cover individuals. Then Marcos got kicked out of office. Remember that the Foreign Sovereign Immunities Act doesn’t cover many evil things that states do. courts must assess the legality of the expropriation unless the State Department begs them not to. the 9th Circuit held. And that property was within its own territory. then he is immune if the state would be immune if the state was being sued. when he did it on behalf of his government. 1990) — Chuidian. then the Act of State doctrine doesn’t come into play. If an individual is sued for actions he did in his official capacity. but that isn’t necessarily so. sued Daza. you must assess whether it was an act of state. Commissioner Daza ordered the bank not to honor the letter of credit. then a suit against Daza is the same . Apart from expropriation of property on the sovereign’s own territory. Therefore. If a state does something that is not a state act. An official government commission tried to find all the wealth he had stolen from the Philippines and bring it back. by the way. Then the U. Back to Contents ©2007-2010 Nathaniel Burney Immunity of State Representatives. payable by the bank (located. or else the world financial system would collapse. They must be honored. then the Act of State doctrine doesn’t apply.Sabbatino has been overruled by the Hickenlooper Amendment. the Act of State doctrine is alive and well in the United States courts. Philippine National Bank (9th Cir. issuing a letter of credit to an underling. An act of state is not necessarily the same as an act imperii for Foreign Sovereign Immunities Act purposes.
You are. Therefore. and there’s nothing the cops can do. a lawsuit over a decedent’s estate. the various levels of staff. The receiving state shall treat him with due respect and shall take all appropriate steps to prevent any attack on his person. He cannot be arrested. their families. you are entitled to shut off their gas. against your will. So you have to sort out the legal status of everybody involved — Ambassadors. summer without air conditioning or water. etc. The diplomatic compound is inviolable. The person of a diplomatic agent shall be inviolable. so it may not be all that much of a deterrent. The private residence of a diplomatic agent shall enjoy the same inviolability and protection as the premises of the mission. etc. then that individual is immune. His property is also inviolable. an action relating to professional or commercial activity. however. A diplomatic agent’s correspondence is also inviolable. Article I describes who is covered by this convention. electricity. the Foreign Sovereign Immunities Act does apply here. (Of course. Diplomatic Immunities. the way a person or some property is treated varies. But if they don’t pay their bills. outside his official functions. It is territory of the state where it is located. outside the jurisdiction of the receiving state when you are on the diplomatic compound. there’s another convention. Vienna Convention on Diplomatic Relations — Signed by pretty much everybody (173 out of 180). not even detained the slightest bit. .) The land on which a diplomatic mission is located is not sovereign territory of the sending state. This is not necessarily a good thing. no matter what he does.was acting on behalf of the government. freedom.C. water.C. Article 30 — Inviolability of the person’s residence. Consular officials are not covered by this one. or dignity. Article 29 — Inviolability of the person. You might be inside the compound of a foreign mission here in D. performed in the receiving state. If a state official is acting within his official capacities. Depending on the legal status of the individual involved. people from some countries feel right at home in a humid D. then a suit against Daza is the same as a suit against the sovereign. He shall not be liable to any form of arrest or detention. If your problem concerns a consular official. except in the case of: an action concerning private real estate in the territory of the receiving state. on behalf of the state. consular officials.
the personal baggage of a diplomat is also exempt. Under Article 36. performed in the receiving state.G. The immunity of a diplomatic agent from the jurisdiction of the receiving state does not exempt him from the jurisdiction of the sending state.N. his family. . The administrative and technical staff (and their households) (but not nationals of the receiving state) have the same immunities as the agent. with a couple minor exceptions. For someone enjoying full privileges and immunities. you still cannot exercise your jurisdiction over him if that involves infringing the inviolability of his person or residence. etc. Privately-employed servants and other private members of the mission who aren’t employed by the sending government only enjoy the privileges and immunities granted to them by the receiving state.-ed” — sent home as persona non grata. Article 27 concerns the diplomatic bag. except: The civil and administrative immunity only covers acts performed in the course of their duties. staff. Article 37 — Family and Staff. He is immune from civil and administrative jurisdiction. Even if one of these exceptions applies. A diplomatic agent is not obliged to give evidence as a witness. Article 31 — Immunity from jurisdiction. an action relating to professional or commercial activity. Simply goes through without any problem. the worst that can happen to you is to be “P. Vienna Convention on Consular Relations.It’s good when you’re being chased or need a safe haven for some other reason. except in the case of: an action concerning private real estate in the territory of the receiving state. A diplomatic agent is immune from the criminal jurisdiction of the receiving state. The sending state can waive the immunity of a diplomatic agent. Article 32 — Waiver of immunity. The service staff (but not nationals of the receiving state) have criminal/civil/administrative immunity only for acts performed in the course of their duties. The diplomatic agent’s household family has the same privileges and immunities as the agent himself (unless the individual is a national of the receiving state). outside his official functions. a lawsuit over a decedent’s estate. It can be as big as a truck. Even if the act was not part of his official duties.
In order to invoke your immunity: You have to request immunity. of constitutional import. You have to be on the list of immunized people. The basis is that diplomatic and consular officials have incompatible roles. But diplomatic officials are very jealous of their important functions. You have to have been recognized as somebody entitled to it. If you came in the consular office. While the trial was pending. However. The Libyans decided to deal with the protestors the way they did back home.Y. and opened fire with machine guns. So the State Department put its foot down and said a country’s mission can either be consular or diplomatic. and this was not part of his official duties. Arcaya v.Vienna Convention on Consular Relations. because this meant consular officials who got in trouble could get out of trouble by being elevated to diplomatic status. A whole bunch of people were protesting outside the Libyan embassy in London. because of their diplomatic immunity. This was intended to (and did) serve to completely immunize him from the civil jurisdiction. All the British could do was declare them PNG and kick them out of the country. so there is some overlap. from Venezuela. it isn’t automatic. The British police surrounded the embassy to protect it from the protestors. So the private citizen sued the consul general for libel.N.D. What do the courts do here? Only the courts can decide what a person’s legal status is for . A famous abuse of diplomatic immunities occurred when a British policewoman was killed by a member of the Libyan consular staff in the mid-80s. they can’t have both diplomatic and consular offices in the same place. and you can’t just switch. killing her. The Libyans got away with it. you saw posters saying what a bad guy this citizen was. So you’re either one or the other. He was only a consular official. representative to the U. Páez (S. But if the consular official is the only guy there. All you need to know is that consular officials are only immune from jurisdiction when they were acting in their official capacity.N. Consular officials often get diplomatic duties. The State Department was infuriated by this case. because the action had been begun while he was but a consular official. In South America. the moment he would lose his diplomatic status. scot-free. The State Department can permit shared functions if it wants to. 1956) — The consul general of Venezuela in New York was spending his time publicizing the bad acts of a private Venezuelan citizen. he’s got to do it all. the case could be resumed. States can agree to grant greater immunity to consular officials if they want to. impugning someone’s honor is a really big deal. the consular official was elevated to diplomatic rank as the U. They missed the protestors.S. so he was not immune from a suit for libel. but shot a policewoman in the head.
to pay taxes to the U. with its own court and bureaucracy.the treaty is promoted as a codification of navigation rights through straits. Nevertheless. Arguments against ceding authority to the U. THE LAW OF THE SEA ©2007-2010 Nathaniel Burney Introduction. and other sovereign nations. but deals with the scores of straits around the world. The straits issue is not limited to the U. has already accepted much of the treaty by way of the U. The courts jealously protect this power of theirs.N. Only the courts can decide whether a person was acting within his authority or not. reflecting the importance of careful consideration when entering into binding agreements such as this.S. but the United States' rights are not threatened by anyone.N.the laws passed by US citizens would be endangered through conservation provisions. Prevents Safety Measures -. Articles 88 and 301 appear to restrict all military operations entirely. and the boarding of ships for anti-terror purposes are restricted by the Convention. limiting the sea to "peaceful purposes. Charter and the 1958 Geneva Conventions.S. Intelligence collection. Agency-created laws based on treaties could be enforced against the U. agency that is not democratically elected.it would require all unmanned ocean vessels.it would pave the way for increased power of nongovernmental organizations over the U.S. which the U. it sits apart by itself. and we abide by them.S. It is governed by the Law of the Sea Convention. Internationalizing Domestic Law -. which allow foreign organizations to change US environmental law through legal action in international and domestic courts. This eliminates their value for such purposes.N. Bad Precedent -." It's Unnecessary -. This is a discrete area of international law.N.S. waters.S. apply to all international agreements. submarines in coastal waters.a U. the United States considers most of the provisions of the Convention to be customary international law. The U.the treaty limits US military activities significantly. Furthermore. but has not yet ratified it. Unfair Redistribution of Technology -. and other countries rely on for military and trade shipping.S. businesses to turn over their technologies to other countries. legal authority. Arguments against the treaty include: National Sovereignty -. to navigate only on the surface in territorial waters. would have power over U. including submarines that protect ships by detecting mines. The United States signed the Law of the Sea Convention. Instead of requiring all countries . the Convention would force the U. and there has been a vigorous debate in the Senate for many years. Undue Restriction on Military Activities -. Back to Contents ©2007-2010 Nathaniel Burney VIII.Only the courts can decide what a person’s legal status is for immunity purposes.the Convention would force U. The courts jealously protect this power of theirs.S. President Ronald Reagan issued an executive order that treats the 1982 version of the Convention as binding except for the mining provisions.
The Law of the Sea Tribunal does have wide jurisdiction. in which case ordinary diplomatic pressures and sometimes military action would be required anyway.rely on for military and trade shipping. might have been successfully ratified as a treaty unto itself. but when it’s indented and convoluted. The seafaring nations want freedom of shipping. Unfortunately. it gives already-friendly countries a peaceful alternative to alreadypeaceful options. while the coastal states have territorial claims over often vast stretches of ocean. More and more countries are signing on to the Convention. standing alone. You have to know where the baseline is. Rivers and Bays. . Article 7 permits straight baselines to be drawn from set points on the coast. Borders on the sea are measured from the low-tide mark. The Law of the Sea in general is the result of an eternal contest between the seafaring nations and the coastal states.) Land Territory. Water on the land-side of the baseline is “Internal Waters.” the same as land territory. It is not useful. and gives no help to non-party countries like Iran and the U. Article 5. The sovereign has exclusive jurisdiction over everything within its borders (including lakes and rivers). Not enough to know just where the coastline is. The Law of the Sea Convention is a compromise of many competing interests. This dispute has been going on at least since the rise of the nationstate and Grotius’ development of international law back around 1648. Essentially. however. though it allows for arbitration between nations. other terms in the Convention are more divisive. Back to Contents ©2007-2010 Nathaniel Burney Law of the Sea. The purpose is to give nations a peaceful way to resolve disputes when one country tries to close its straits to navigation. It is getting more and more important for a lawyer to know the rules out there on the ocean. This low-tide mark is the baseline for measuring everything in the law of the sea. That’s easy when the coastline is convex. the International Seabed Authority only has jurisdiction over seabed mining.S. when the country closing its straits is not a party to the treaty. Kinds of Territorial Rights. It is worth considering that the portion on straits. Instead of requiring all countries to collect a multitude of two-party navigation treaties. (The farther out you go. The state has exclusive jurisdiction. the more rights ships have and the fewer rights the coastal state has. There is no right of innocent passage. With respect to dispute settlement. this would simplify matters with a single agreement.
When the few rogue states out there try to claim more. If the mouth of the water is broader than 24 nm (12 nm from either side). but not exceeding. 100. there are protests and countermeasures against them. Territorial Sea. security. That became meaningless with long-range weapons. If the coastal batteries could hit you. You get the 12mile belt provided other states get the right of innocent passage within it. The Law of the Sea Convention got the vast majority of the states to agree on the 12 nm limit. the area must be at least that of a half-circle of that diameter. The United States recognizes the 12 nm rule. but they aren’t required to exert their jurisdiction this far out. Can’t practice with your weapons. This is what effected the compromise between the seafaring and coastal nations. and asserts its territorial-sea jurisdiction right up to the limit. etc. No launching or landing aircraft or any military device. A variety of laws and regulations can be applied to ships in innocent passage — it is not the same as the high seas. and good order of the coastal state. Article 10 defines “bays. Cannot do anything threatening force. Countries have the right to claim this much. Territorial seas are 12 nm out from the coastline. This caused problems for those who were trying to navigate.32. Article 3 permits states to claim out to. Taking the mouth as a diameter. Unless it is a “historical” bay. No commerce contrary to the laws of the coastal . 20. then 3 nm. Articles 17 . 12 nm from the low-tide baseline. then just draw the baseline straight across the mouth of the river/bay. 200. then you were in the state’s territorial sea. then the territorial sea will be indented there. If the distance between the low-water marks is 24 nm or less. Passage is innocent so long as it is not prejudicial to the peace. Innocent Passage. No spying or propaganda. Then in the 1940s states started claiming all sorts of distances — 15. otherwise it’s just an indentation.There is no right of innocent passage. It used to be just 1 nm.” There must be a certain amount of area behind the mouth of the bay. There used to be no rule as to what was the breadth of a territorial sea.
France. A Panamanian cruise liner is just passing through the United States territorial sea. If the crime disturbs the tranquility of the coastal state. Many states say that passage of a warship is by definition prejudicial to the peace and good order of a coastal state. U. authorities board the ship and make an arrest? Yes. S. Ct. etc. It is up to the local police and judicial authorities to decide whether a particular incident “disturbs the peace of the port. Jurisdiction in Territorial Seas. Exception — Israel’s only Red Sea port is at the mouth of the Gulf of Aqaba.” Wildenhus’ Case. Article 27 defines the only circumstances in which the coastal state gets criminal jurisdiction over ships in innocent passage. Can the U. etc. A murder occurs while the ship is in port. So many states say it’s okay only if the coastal state gives permission. 1987 — Belgian ships . Can’t do anything else not having a direct bearing on passage. No willful and serious pollution.No commerce contrary to the laws of the coastal state. The consequences of that crime must extend to the coastal state.K. No research or surveying. Can the U. and he has clearly violated United States laws. No fishing. The ship puts in to port. They set up sea lanes. U. Russia.S. Article 45 says that innocent passage there cannot be suspended by Egypt and Saudi Arabia.S. then the coastal state can assert jurisdiction. Innocent passage is a problem for warships. A different set of rules applies when the ship is anchored in port. Abu the Butcher is on board. Submarines must navigate on the surface and show their flag. nnocent passage CAN be SUSPENDED at the discretion of the coastal state. Coastal states have the rights & duties to regulate innocent passage.S.. regulate safety. Coast Guard board the ship and arrest him? No.S. A crime must occur during passage. The big-navy states (U.) contest this.
Wildenhus’ Case. Any derogation from it is a matter of comity in the discretion of the coastal state. So it is important to know: What the flag state is. Ct. then the flag state has jurisdiction. so the local authorities had jurisdiction. Flores. 1933. Pursuit must be continuous. because the murderer was a U. ship that was moored at the Belgian Congo. You have to keep . United States v. Hot pursuit. 1987 — Belgian ships were moored off New Jersey. Where the crime occurred. You cannot board a warship and exert your jurisdiction. S. under Nationality jurisdiction and Flag-ship jurisdiction. has extended its jurisdiction over all acts on U. even in port.S. (Article 111) If someone engages in a violation in one zone. A Belgian national killed another Belgian on board a Belgian ship. U. It doesn’t matter that the crime took place outside of the United States. U.S. and they try to flee. and is caught in the act by a marked official vessel or plane. Note that the U. You have to assert it. then the coastal state may pursue them into the high seas and board you.S.S.S. If anything happens on board that ship. citizen. But the ships were moored in port here.S. and also because the U. so the murderer was brought back to the United States to stand trial. it is exclusively the concern of the flag state. Murder disturbs the tranquility of the shore state. When the local sovereign does not assert its jurisdiction. Article 95 gives them complete immunity.Ct.S. Warships are immune from jurisdiction within the territorial sea. Whether the ship was in port. There was a murder on a U. wanted jurisdiction. flag vessels.S. British view: The subjugation of the ship to the local criminal jurisdiction is complete. Belgium did not want jurisdiction. The murderer could have been subject to Belgian jurisdiction.
Radar/satellite tracking does not count as contact. or sanitary laws within its territory/territorial sea. fiscal. You have to keep constant contact. Drug courier ships by definition do not have innocent passage. The Contiguous Zone prevents this. Punish infringement of those laws which were committed . they are scot-free. Within the Contiguous Zone. Less than it has in its territorial sea.) Unless the bad guys are flying your flag. (Article 33) Beyond the 12nm territorial sea. Of course. but still some. (You can’t exert your police powers within another sovereign’s jurisdiction. Immigration laws. for hot-pursuit purposes. All you’d have to do is line up your ships just beyond 12 nm. a coastal state has some jurisdiction. in which case you can board them anywhere. and wait for the right moment to send your speedboats in (after all. Civil jurisdiction is almost impossible to assert against a ship in innocent passage. And of course you can get the state’s permission to board the bad guys even if they’re flying a different flag. Fiscal laws. yet. You can always cut a deal. you still have to decide whether the ship was in innocent passage or not. As long as you maintain contact with the bad guys. Sanitary laws. Civil jurisdiction. because they’re trafficking drugs. With just a territorial sea. You can go through other states’ EEZs. Contiguous Zone. but once the bad guys get into another state’s territorial sea. even in another state’s territorial sea. you can’t police every inch of the sea every second of the day). the Contiguous Zone is another band that goes out another 12 nm. But you cannot pursue them into another state’s territorial sea without permission. so you can go after them.Pursuit must be continuous. Customs. immigration. The coastal state may exercise the control necessary to: Prevent infringement of its customs. if they violate innocent passage you can chase them all the way into the high seas and still exert jurisdiction. a coastal state could be harassed by violations of innocent passage.
Punish infringement of those laws which were committed within its territory/territorial sea. and you’re likely to get blown out of the water. the same as other coastal states. conserving. even when there is no physical geologic shelf present. but usually 200 is right. EEZ’s are ruthlessly patrolled by many countries for enforcement purposes. and managing the fish and other resources below the surface. . Some geologic continental shelves go out beyond 200 nm. you need a license. Continental Shelf. Conservation and management are the coastal state’s responsibility. they have the right to be released on bond.75) This goes out 200 nm from the Baseline. the Continental Shelf extends out 200 nm. Fishing is the prime contributor to many countries’ economies. Legally. If you’re going exploring. Rocks which cannot even support life do get a territorial sea. exploiting. a coastal state has the right to exploit the resources within the Continental Shelf area. There’s also a lot of mineral and oil mining out there. Art. This is big business. Otherwise. Article 21. A ship passing through the EEZ is only subject to the economic regulation of the coastal state. it’s pretty much like the high seas. If you do arrest someone. fishing or mining. but they don’t get an EEZ. You go fishing in someone else’s EEZ. 56: Within the Exclusive Economic Zone. Enforcement. As Spain’s fishing fleet learned from Canada not long ago. (Article 76) Underneath the water. (Articles 55 . Islands. (Article 78) You can inspect other ships in your EEZ. the coastal states has rights for exploring. Islands get to assert a 200 nm Exclusive Economic Zone. EVERYTHING ELSE which would be a violation of innocent passage IS OKAY in the Contiguous Zone. Exclusive Economic Zone. and can make arrests or otherwise enforce your rules.
and Archipelagic States. mostly dealing with the deep-seabed mining authority.” There are a lot of provisions here. Refrain from any activities other than those incident to their normal modes of continuous and expeditious transit (unless necessary because of distress or force majeure). ships can do just about anything. On the high seas. it’s drug trafficking. however. Ships (and aircraft) must: Proceed without delay through or over the strait. Engaged in unauthorized broadcasting and the warship’s flag state has jurisdiction under Article 109. And you can even chase them all the way out to the high seas if you’re in hot pursuit. You still can’t board another state’s ship. whether coastal or landlocked. The high seas are open to all states. Comply with generally-accepted international regulations for . Back to Contents ©2007-2010 Nathaniel Burney Transit Passage. The Area (Articles 133 . Warships CAN board you with your flag state’s permission.S. Article 108 deals with drug-courier ships. Engaged in the slave trade. Transit Passage. Coast Guard is adept at getting permission. Anybody can go there.High Seas.191). You can only be boarded under the narrow scope of Article 110. Right of Visit (Article 110) Warships of a different flag CANNOT board you unless your ship is: Engaged in piracy. Straits. and you can go for it. In reality. beyond the 200nm Continental Shelf. Without nationality. of the same nationality as the warship.” With a capital “A. Refrain from any threat or use of force against the coastal states. Less restrictive than innocent passage. lies what is called “The Area. Below the High Seas. even though you’re flying a different flag. BUT if the drug ship enters your territorial waters that’s not innocent passage. The U.
Not obligations yet.54). When you extend a territorial sea out from 3 nm to 12 nm. not transit. used by international navigation. These can set baseline borders around the clusters of islands. Turkey says Russian tankers shouldn’t be allowed to use the Bosporus to get into the Mediterranean. Then. INTERNATIONAL ENVIRONMENTAL LAW There is no clear customary international law here yet. is a strait. and there’s a pipeline right across Turkey anyway (which by the way provides Turkey with some fees). Definition: It must have been a traditional sea route. the rule is that the ratio of water to land must be no greater than 9:1 within the boundary.Comply with generally-accepted international regulations for sea/air safety. The Law of the Sea Convention says signatory nations have the obligation to preserve . Comply with generally-accepted regulations for controlling pollution. The baselines cannot be extended out around islands far away from the rest of the group. for example. So through straits you have Transit Passage. Corfu Channel — Even if there are alternate routes. Straits. straits have a tendency to disappear. just goals. is when the strait lies between a state and its island. Military ships have every right to transit in their normal mode. Subs get to submerge. there is only innocent passage. It doesn’t help the Russian position much that their tankers keep running aground. Like Gibraltar. Archipelagic States (like Oceania). if there is an alternate route that is just as convenient. Transit Passage may not be suspended. because they’re too bad for the environment. but they must permit sea lane passage (Articles 46 . And then all passage between the Atlantic and the Mediterranean would have to be innocent passage under the jurisdiction of Spain and Morocco. To prevent gerrymandering. rather than innocent passage. Generally passage from one High Seas/EEZ to another. a route from the High Seas to the High Seas. under Article 38. Exception. but we’re starting to establish some clearly-stated goals. Back to Contents ©2007-2010 Nathaniel Burney IX.
N. because that’s what it’s all about. you have to notify everyone about it. . The court held that: Under the principles of international law. as well as the law of the United States. (Chernobyl sped that provision along. Parties must have agreed. An “international agreement” is defined at the top of the Vienna Convention on the Law of Treaties. Really mealy-mouthed. This is soon to be a binding provision. when the case is of serious consequence and the injury is established by clear and convincing evidence. Restatement (Third) § 601: State Obligations with Respect to Environment of Other States and the Common Environment. no state has the right to use or permit the use of its territory in such a manner as to cause injury by fumes in or to the territory of another or the properties or persons therein.the sea. Agreement must be in writing.) The duty of a source state to inform others of impending arm to them or of significant risk of such harm is an obvious corollary of the general obligation to prevent and minimize transboundary harm. To understand international environmental law. The United States hasn’t signed it. because we have some problems with appendices to the Convention. U. Covers anything that is it treaty: Parties must be states. Transborder Pollution Trail Smelter Case (U. The agreement must state that the governing law will be international law. The parties must have intended it to be binding. but that’s a really broad statement. Back to Contents ©2007-2010 Nathaniel Burney X.S.S. INTERNATIONAL AGREEMENTS Vienna Convention on the Law of Treaties. you’ve got to understand the formation of customary international law cold. arbitration tribunal 1941) — United States claimed that Canada was polluting the U. v. An example of how to draft something so it won’t be a binding obligation. which is universally accepted as the codification of the law of everything to do with treaties. It is international law with regard to treaties. but we do obey it. Canada. The Law of the Sea Convention also says states must take “all measures necessary” to ensure that activities within their own jurisdiction won’t harm the environment of other states. The Vienna Convention on the Law of Treaties is gospel. And when you learn of damage to the environment.
Parties must have intended it to be binding. and he informed his government what was said. Companies/individuals cannot even make international agreements. An agreement can exist without a writing.N. at the international legal level. Oral agreements are difficult. How do you establish what actually happened? And did the words used establish an intent to be bound? Recall the discussion between the Danish and Norwegian ministers that became a binding agreement. Mali v.J. The U.International agreements can lack some of these requirements. It was not announced to the world in the forum of a legal dispute. Mere hopes. your country has no obligation to come to your rescue when the other country shafts you. In context like this. The assertion was made while negotiations were going on. 1974) — France was making above-ground atmospheric nuclear tests. even though there was no consideration. The assertion was made by the head of state. Statements are only binding when . when the Norwegian minister’s statement was affirmative. setting the rules for the treatment of companies and contracts. is not a state.” or “the parties agree” Nuclear Test Case (Australia & New Zealand v. but that just means they aren’t “treaties. A contract between a corporation and a state is not an international agreement. however. France. dealt with an issue within his authority. . The assertion was made to the international community. to get an international agreement between your state and the state you’re dealing with. He was merely chatting to the press. Context is important. Agreement must be in writing. Australia and New Zealand protested furiously. It was not in the context of negotiations. And everybody was clamoring for this result at the time. then. I. You want the words “the parties shall . . The court never got to the legality of these evil cloudproducing tests. and there’s nothing you can do about it. Absent that. And that country you’re dealing with can shaft you big time. Burkina Faso case again — The Prime Minister’s statement to a reporter from Mali about conceding a border dispute did not create a binding legal obligation. the statement was binding. Parties must have agreed. The title of the document means nothing. and it went to the I. much less treaties. and even though it was just a unilateral assertion.” Parties must be states. but the Vienna Convention won’t apply to it.C. and desires mean nothing.J.C. because the French President made a unilateral statement that they would cease above-ground atmospheric tests. plans. Preferable.
and others have achieved great legal significance.” You initial the document. but there is no need if you’re negotiating with a head of state or the foreign minister. The agreement must state that the governing law will be international law. it just means “this is the text we were talking about. Back to Contents ©2007-2010 Nathaniel Burney Making a Treaty. Don’t minimize the importance of these documents. because it makes it easier to go forward during the negotiations. In most negotiations. and a requirement for statehood. So what you do is “adopt the text. Make sure you know WHY YOU ARE AT THE TABLE! And if you’re just there to discuss. Statements are only binding when the state intends them to be binding. So nonbinding documents are still out there to be used against you. you make offers which. n discussions. Some nonbinding documents have become binding international law. The capacity for treaty-making is both an attribute of statehood. Often what will happen is a document is drafted. or sign it ad referendum. Doctrine of Full Powers. become binding. Back to Contents ©2007-2010 Nathaniel Burney Capacity to Enter Into Treaties. when you said you did intend it in a nonbinding document. Are you engaged in “discussions” or are they actually “negotiations”? In negotiations. if accepted. translated.” That’s smart. You are estopped from claiming that you never intended X. You can request a document to that effect. . you’re just spouting off ideas without intending to be bound by them. Or a letter to another government. . and redrafted again. Sub-entities of a state only have treaty-making power if the constitution of the state says so. don’t slip into negotiation! Back to Contents ©2007-2010 Nathaniel Burney Nonbinding international documents may still have legal effect. Be careful.was merely chatting to the press. This doesn’t make it binding. Such as a State Department memo. Or a document where the two countries say wouldn’t it be great if we . It helps to know which text you’re talking about. the presumption is that the guy at the table has the authority to speak for his state. redrafted. Nonbinding documents may still be the building blocks of binding obligations. .
Reservations. You can’t make them. (The consent of the original parties is required. unless you REPUDIATE the agreement. A reservation is a unilateral statement by a state. Unless you repudiate the agreement. how long it remains in force.) Reservations are then impermissible. while you’re waiting for signature you comply with the agreement as if it was signed. becoming a party to it. if you neglect to include such language. because the default provisions may be contrary to the needs of your country. Do it yourself.S. It is otherwise established that the negotiating states were agreed that such consent may be expressed by that state by means of accession. . but would be objectionable to the other signatory states. (The Law of the Sea Convention is an example. The agreement should definitely say when it goes into force. Senate loves to make reservations to treaties. and how it may be extended. because our Bill of Rights permits free speech (treaties forbid hate speech). While awaiting signature. Reservations are always impermissible if they go to the very heart of the agreement. . you cannot do things that are contrary to the object of the agreement. And also because we still want the death penalty.) We have made reservations. they are permissible. But. for example. the Convention fills in the blanks. in human rights treaties.) The consent of a state to be bound by a treaty is expressed by accession when: The treaty provides that such consent may be expressed by that state by means of accession. Accession is the acceptance by one nation of a treaty already concluded between other states. Unless the agreement forbids reservations. The third nation can formally enter into the treaty.That’s smart. Reservations have the effect of turning one agreement into many different agreements. or All the parties have subsequently agreed that such consent may be expressed by that state by means of accession. Articles 9 & 10 of the Vienna Convention on the Law of Treaties — adoption of a text is not an expression of intent to be bound. excluding or varying the legal effect of certain provisions of the treaty as they are applied to that state. Some treaties expressly forbid reservations. The U. Some reservations are permissible. amended and terminated. (We agree so long as this clause doesn’t mean we have to . Accession (Article 15). because it makes it easier to go forward during the negotiations. .
Acceptance will happen by default if they don’t reply within 12 months. Take context not only from the surrounding text. rather than going to a third-party arbitrator. International law is not an excuse for the non-observance of an agreement. however. Failure to object to potential breaches makes them okay. Use the ordinary meaning of words. C. C. If you want the agreement to be interpreted a certain way. B is okay with it. (Sometimes. Stick to the agreement itself first (text and context). and D. you still have to comply with agreements or be held liable for the result of your noncompliance. .agreements. Article 31. There’s only a partial agreement. With plurilingual texts. They must be in writing. you have to go through the same steps. there is an agreement. and D. There is no agreement between A & C as to Article III. They must be communicated to the other parties. but also from actions and failures to act after the agreement was made. or make your objections known. Be consistent. Suppose there is a treaty signed by countries A. C opposes the reservation. there is a treaty between A & B. the trend has been to forbid reservations in multilateral agreements. Back to Contents ©2007-2010 Nathaniel Burney Interpretation of Agreements. Even if by doing so you would violate your own laws or international law. They are only binding on the other parties if the other parties accept the reservation. in light of the context and purpose of the agreement.) Back to Contents ©2007-2010 Nathaniel Burney Observance of Agreements. A makes a reservation on one part of it. but only when the Article 31 rule doesn’t give you any useful interpretation. say Article III. Between B. B. There is no agreement at all between A & D. Because of the hodgepodge this creates. Fine. Best to negotiate out any problems between the parties. It ought to have a dispute-settlement clause as well. an arbitrator is preferable. either get in there are enforce it. including the reservation. and that A is not a party as far as D is concerned. Only if it remains ambiguous do you go to other sources. D says the reservation is intolerable. Preparatory documents and discussions can be used to help interpret an agreement.
unless the violation was manifest to any other state. Specific Restrictions on Authority to Express the Consent of a State. Both parties must make an interpretation. then you may invoke the fraud to invalidate . his failure to observe that restriction may not be invoked as invalidating the consent expressed by him . and if the presumption formed an essential basis of the state’s consent to the treaty. Instead you go to Article 79 (Correcting errors). Articles 46 . Error is not an excuse if you contributed to the error. The exception is when the restriction was notified to the other negotiating states prior to his expressing his consent. A violation would be manifest if it would be objectively evident to any state conducting itself in the matter in accordance with normal practice and in good faith. Jesse Law’s Case (United States v. you have to go through the same steps. An error relating only to the wording of the text doesn’t invalidate the treaty. None of these automatically invalidate it. Error invalidates a treaty if the error relates to a fact or situation which was presumed to exist as of the time the treaty was concluded. (This has never happened. they simply give the other side cause to invalidate it. Back to Contents ©2007-2010 Nathaniel Burney Invalidity of Treaties. make the original parties do it. Great Britain. Special Arbitration 1921) — Neither party individually interprets treaties. Ultra Vires treaties — You can’t excuse nonperformance just because entering the treaty was in violation of your internal laws (your internal laws did not give you authority to enter into the treaty). Fraud.) “Ultra vires” means an act beyond your authority. Back to Contents ©2007-2010 Nathaniel Burney Amendments and Modifications. Nor is it up to the courts of either party to interpret treaties. Also. If the negotiator’s authority to sign it has been limited by a specific restriction. for it to be authentic and binding. Otherwise. Always write in your agreements that amendment and modifications must be in writing. Error. or you should have known of it.With plurilingual texts. you’ll have a nightmare to deal with when it gets amended orally.53 list things that can invalidate a treaty. If you were induced to conclude a treaty by the fraudulent conduct of another negotiating state.
another negotiating state, then you may invoke the fraud to invalidate the treaty. Bible is full of international agreements, and frauds. The Israelis amazingly admitted to being duped in Joshua 9. The Israeli army was conquering and liquidating the whole region, and anybody on the territory was fair game so far as they were concerned. Joshua was not making any treaties with neighbors. The Gibeonites lived on the other side of the hill, and didn’t want to be crushed. So they got together a negotiating team and made them look like they’d made a long journey — dressed in old ragged clothes, carried moldy food. They met up with Joshua and claimed they were from far away, and wanted a peace treaty. Joshua made a peace treaty, and three days later came upon the Gibeonites, and he couldn’t conquer them because of his treaty. Joshua needed a good lawyer. He had God as a lawyer, not bad, but he didn’t consult him.
Corruption. If your consent was procured through the corruption of your representative, directly or indirectly, by another negotiating state, then you can invoke that corruption to invalidate the treaty.
Coercion — Automatically Void. If your consent was procured by the coercion of your representative through acts or threats directed against you, then the treaty is invalid. If your consent was procured by the threat or use of force in violation of the principles of international law embodied in the U.N. Charter, then the treaty is void.
Conflicts with a Preemptory Norm of International Law. A treaty is void if it conflicts with a pre-empting norm of general international law.
Breach. The breach has to be material. It depends on the object/purpose of the agreement. You can’t just automatically renounce an agreement because the other side breached. Breach only gives you grounds to revoke. And you may only be able to revoke part of the treaty.
India v. Pakistan (I.C.J. 1972) — An example of states trying to wriggle out of a dispute-resolution clause. A plane was hijacked in India, and landed in Pakistan. India claimed that Pakistan was behind it, or at least supported it. In return, India suspended all flights that would have flown over Pakistan or landed there. But there was a treaty saying they couldn’t do that. The treaty said that the ICJ would make binding settlement of disputes. India said there was no need to go to the ICJ, however, because Pakistan had also violated the agreement. Because the two parties mutually breached the agreement, it must be void, so they didn’t need to abide by its dispute-resolution clause.
India was wrong. That’s total chutzpah, you can’t do that. So they were bound by the dispute-resolution clause.
Radical Change of Circumstances. Termination of a treaty is okay if the circumstances have fundamentally changed. Article 62 spells out the narrow circumstances where this is okay: The change has to be material, unforeseen, and has to radically change the performance of the agreement. Back to Contents ©2007-2010 Nathaniel Burney
HUMAN RIGHTS Basics. There are several sources of human rights. Bilateral agreements establishing substantive human rights. Bilateral agreements establishing procedural human rights (how to enforce the substantive rights). Multilateral conventions establishing substantive human rights. Multilateral conventions establishing procedural human rights. Some provisions of these conventions and treaties (especially those which are fundamental norms) are also customary international law. So even if a state isn’t a signatory to a certain treaty it may still be obliged to abide by its provisions.
First look to see if there is a bilateral agreement. There may be diplomatic protection of nationals, there may be human rights protections. If that isn’t adequate, look to see if the states signed on to a multilateral convention that deals with the rights at stake.
What you think people are entitled to is not necessarily the same as what international law says people are entitled to.
When the government is involved in violence, torture, etc., rather than mere individual evils, it is a higher level of evil. It corrupts the whole state, by creating a bureaucracy to administer it and to inflict it. Corrupts even innocent people. The exact same evils committed by the Nazi state are still being done worldwide.
Human rights are not bestowed by individual states on their people. States cannot dictate what human rights their people have and don’t have. The Universal Declaration of Human Rights states that every human being is born with rights. Nobody gives them to you. Also the International Covenant of Civil and Criminal Rights. The rights derive from the dignity of the human person.
The rights derive from the dignity of the human person. Law is what makes the difference between the despot’s whims and justice.
“Universal,” by the way, means “universal.” Once, there was a time when countries could say “don’t impose your western ideals on us.” But that was before practically everybody got together and agreed to these human rights. Now if a country says “don’t impose your western morals on us,” you point to the Universal Declaration of Human Rights and respond “you signed this beforehand. You helped write it. These aren’t ‘western’ ideals, these are universal. So obey them.” These rights have been articulated in convention after convention after convention, by almost every country. Many states have been cajoled or compelled into agreeing to these conventions, and there still remain a small handful of renegade states.
Not every bad thing is a violation of international law. You need to know whether a particular evil is covered by customary international law, or by a bilateral/multilateral agreement. You also need to know what the law provides. Back to Contents ©2007-2010 Nathaniel Burney
Some U.S. Mechanisms Related to Human Rights. 22 U.S.C. § 1732 — Release of U.S. Citizens Imprisoned in Foreign Countries. When U.S. citizen is imprisoned abroad, the President (State Department) must demand the reasons for that imprisonment. If the reasons are unjust, he must request the release of the citizen. If that demand is not met, then he should try to get him out, preferably by means other than an act of war. The President is only required, however, to inquire. Often a single source of information is not enough.
America is not required to come to your aid. We do it a lot anyway, but many other countries couldn’t care less about the fate of their citizens abroad. Some governments are notorious for not caring about the treatment of their citizens abroad. But the United States will at the very least inquire as to the reasons for your imprisonment.
To sue for a remedy in a U.S. court for human rights violations, the best basis is the Alien Tort Statute. Oldie but goodie, but only applies to non-nationals, remember. Aliens hurting aliens. You sue the torturer as an individual. If you don’t know who the torturer was, you’re out of luck.
Otherwise. 1989). and of Commerce are usually what establish certain guaranteed rights and the enforcement procedures.S. unless both parties are states. recall. A good lawyer will make sure that you did exhaust your remedies. Merely putting such a clause in a contract between your company and the foreign state is not enough to protect you. of Navigation. you wind up suffering through the cold reality of litigating disputes in a foreign court. There are a couple of exceptions to this rule. When you draft such a treaty.J. Procedural Point — Before you even go into the tribunal. Otherwise. There is no exception for torture. Especially property rights.S. Raytheon’s assets were seized by Italy. you must show that you have exhausted all local remedies. courts for human rights violations. Make sure this is a bilateral agreement between the two governments. and all the U. (ELSI) (United States v. It’s not an international agreement. Responsibility for Injury to Aliens. to protect their rights. you’re out of luck. to show that there .C. Torture Victim Protection Act.A. ensuring the protection of your property rights. Treaties of Friendship. Don’t forget about international agreements. The Foreign Sovereign Immunities Act prevents that. Corporations really need such treaties. You cannot sue a foreign state in U. The United States is party to a lot of bilateral agreements that do this. Not ripe enough. only for commercial activities. (Because the world cannot agree on what are and are not property rights. do make sure you include both substantive and procedural rights. which set further protections and rights. It just so happened that there was a treaty between the United States and Italy protecting the property rights of corporations doing business in these countries.p. Their property rights are often at risk in foreign countries.) So a corporation should get the United States to make an agreement with the foreign country.If you don’t know who the torturer was. Citizens too. your case is going to get thrown out of court. however. Case Concerning Elettronica Sicula S. can do on your behalf is whine a bit. The burden is on the defendant state. Good lawyers know the procedural requirements. Italy) (I. and it requested United States diplomatic protection. The torturer is liable for civil damages. Property rights have never really been codified in any human rights conventions. Anybody can sue under this one. Raytheon now couldn’t pay off its creditors.
The burden is on the defendant state, however, to show that there were remedies that you failed to employ. You also must have made a good-faith effort to comply with the law. Raytheon’s lawyers did attempt to litigate the matter in the local Italian courts. Of course, the local jurists ruled against them, so they then went on to the international level. They asked the United States to sue Italy on their behalf, for violating the agreement. Italy claimed that local remedies had not been exhausted; Raytheon could have appealed, in some arcane fashion. Raytheon responded that this was ludicrous. How many courts did they have to look for? The I.C.J. ruled that, once Raytheon made the attempt to use local remedies, the burden was on Italy to show that there was another remedy available. And Italy did not do that to the satisfaction of the court (it really was pretty arcane).
Claim of Finnish Shipowners (Finland v. Great Britain) (Arbitration 1934). Ships, owned by Finnish nationals, were used by Great Britain during war. Some of the ships were lost, and Great Britain never compensated the Finnish owners. Finland, the state, sued in British courts and lost. Then Finland took the claims to an independent sole arbitrator, claiming that the local remedies had been exhausted. Britain argued that arbitration was precluded, because Finland could have appealed. Finland replied that an appeal would not be a true recourse, because the issue would no longer be an issue of fact but of law. So an appeal would not be an effective remedy in itself. The arbitrator held that there is no obligation to exhaust local remedies if, as here, they would be ineffective or illusory. This is still the rule. And it’s important, since the U.S. has the same legal system. If your “opportunity to be heard” means you’ll be dead if you show up, then the local remedy would be illusory, so you aren’t required to use it before going to the international courts. If the machinery simply doesn’t exist to handle your case, then local remedies would be ineffective, so go international. You are exempt from the requirement to exhaust local remedies. If it would be pointless to use local remedies, then go international. If the local courts say they don’t have jurisdiction, then go international.
The Calvo Doctrine (Latin American view on responsibility for injury to aliens). Like much of the world, Latin American countries have a deep-seated feeling that foreigners only have as many rights as locals. So corporations are made to sign contracts where the corporation waives diplomatic protection. This is odd, as it is the corporation’s state, rather than the corporation, that has the right to assert diplomatic protection. So usually such provisions will not be given much weight by
So usually such provisions will not be given much weight by international tribunals. However, when the corporation didn’t make good-faith efforts to obey local law, then the international tribunal is likely to rule against the corporation.
Standing for Diplomatic Protection. You need to be a national of the country asserting diplomatic protection. Use the Nottebohm standard to determine whether one is a national or not. (Genuine intent, etc.)
In pleadings for a human-rights case, you must attribute the violation to the state, not an individual. Any state official counts. His acts may be attributable to the state. Back to Contents ©2007-2010 Nathaniel Burney
Was The State Involved? For there to be a human-rights violation, the harm must have been inflicted by the state. Getting mugged in an alley doesn’t count. Government conduct frequently can hurt you without being considered a human-rights violation. Taxes, bureaucratic nitwittery, currency devaluations, conduct reasonably necessary in an emergency, etc. However, even conduct that would not ordinarily be illegal will still be a violation if it involves unreasonable discrimination.
William T. Way Claim (United States v. Mexico) (General Claims Commission 1928). A local Mexican sheriff issued a bad warrant, for the arrest of an American (warrant was facially void under Mexican law for failure to state a charge). The bad warrant was based on a personal grievance he had against the American, and directed the armed officers to use “suitable” means to bring him in. The American was shot and killed during the arrest. The United States sued Mexico on behalf of the American’s family. Even this personal vendetta by the sheriff was considered conduct attributable to the state. Even a lowly official is still an official. Gross mistreatment in connection with arrest & imprisonment is not tolerated under international law. The United States always immediately accepts responsibility for the actions/inaction of local officials, in order to maintain this precedent. Back to Contents ©2007-2010 Nathaniel Burney
Substantive Bases of Responsibility. Restatement (Third) § 711: State Responsibility for Injury to Nationals of Other States — A state is responsible for injury to a national of another state caused by an official act or omission that violates:
A human right that a state is obliged to respect for all persons subject to its authority. A personal right that a state is obliged to respect for foreigners. A right to property or another economic interest that a state must respect for any persons.
B.E. Chattin Claim (United States v. Mexico) (Claims Commission 1927) — An American was subjected to a Mexican kangaroo court. He was seized without being notified of the charges, neither his family nor anybody else was told of this, there was no habeas corpus, no opportunity to confront his accuser, no opportunity to interview the witnesses against him, no oaths were taken. He was given a 5-minute hearing (the court merely read the paperwork), and was sentenced to two years in a Mexican prison. (He escaped after 11 months.) International standards weren’t violated by any of this, however. Such standards didn’t exist yet. So this case held that certain proceedings had to be required: Regularity of court proceedings. Proper investigations. Confrontation. Informing the accused of all charges against him. No undue delay. Hearings in open court must be more than a mere formality. There was direct governmental responsibility for the injury to the American, so he was awarded $5,000. (The U.S. had claimed $50,000 on his behalf, but because he was able to escape the damages were reduced.)
Before WWII, nobody could sue their own country for violations of human rights. Only after Hitler’s Germany did the nations realize that there was a need for universal rights in addition to diplomatic protection. The real full-blown recognition came with the Nuremburg Charter. The Nuremburg Charter was not the victors beating up on the losers. It was the result of the nations of the world agreeing that certain acts are crimes against humanity, and cannot be tolerated. The definition of these crimes against humanity, enumerated in the Nuremburg Charter, are what led to the creation of the U.N. Back to Contents ©2007-2010 Nathaniel Burney
SUBSTANTIVE HUMAN RIGHTS. U.N. Charter Article 55 — The U.N. shall promote: Higher standards of living, full employment, and conditions of economic and social progress and development. Solutions of international economic, social, health, and related problems. International cultural and educational cooperation. Universal respect for, and observance of, human rights and fundamental freedoms for all, without distinction as to race, sex, language, or religion. Great, but that’s just a goal, not an obligation. Furthermore, it’s really
All we’re concerned with here. liberty & security of person. Furthermore. inhuman. No arbitrary interference with privacy. Right to effective remedy by competent tribunals for acts violating the fundamental rights granted by constitution or by law. They are not obligations. home. No cruel. China.N. passed it in 1948. At first this was just a bunch of goals. over time this has acquired the status of law. language. Even today. in a public trial at which he has had all the guarantees necessary for his defense. religion. This isn’t really a binding obligation.Great. Right to a fair and public hearing by an independent and impartial tribunal. Two of the U. . Civil & Political Rights. family. not an obligation. They are not customary norms of international law. from persecution (Art. including equal protection against discrimination. Can’t impose greater penalties than were applicable at the time you committed the offense. to which almost every state is a signatory.D. the economic/social/cultural rights are still only goals. rights did not get codified: Property rights (Art. place of origin. No arbitrary arrest. No slavery or servitude. etc. Merely a non-binding declaration when the U. without regard to race. 17). Right to asylum in other countries. but that’s just a goal. Right of accused to be presumed innocent until proved guilt according to law. Universal Declaration on Human Rights.D. it’s really vague.H. property. The civil/political rights no longer apply only to signatories of the U. Right to recognition everywhere as a person before the law.H. not rights. are the civil/political rights.R. There is a division between civil/political rights on the one hand. 14). Codified in the Covenant on Civil and Political Rights. They only became legal rights over time. in the determination of his rights and obligations and of any criminal charge against him. Singapore. and a couple others are conspicuously absent. or degrading treatment or punishment.R. detention. sex. Need to be specific about this. or correspondence. No torture. then. Rights apply to all human beings. Cannot find you guilty for something that wasn’t a crime when you did it. Right to equal protection of the law. or exile. and economic/social/cultural rights on the other hand. Right to life.
then it must tell other countries (Art. These are fundamental norms of international law. And none of the 8 states that abstained are around any more. Every corner of the globe was represented and had a say in the formulation of these rights. No arbitrary deprivation of nationality. expressed in periodic and genuine elections with universal suffrage and secret ballot or other free voting method. or religion.R. 7). Even dissenting states are bound by these norms. Right to peaceful assembly and association. to manifest one’s religion in teaching. receive.D. (The U. and observance. This is truly a universal declaration. No attacks upon honor and reputation. including one’s own. This includes freedom to hold opinions without interference. No marriage without free and full consent of the spouses. Right to a nationality. worship. Right to freedom of opinion and expression. except for 8 states. 4). and impart information and ideas through any media and regardless of frontiers.correspondence. Right to marry and start a family without limitation due to race. Right to expression of the people’s will as the basis of authority of government. and religion. except Saudi Arabia. designed for application in the real world. Rights to leave any country. States who argue that this is “eurocentric hooey" are wrong. and freedom either alone or with others.H..S. Right to free thought. This is not just a rule of customary international law.) Right to freedom of movement and residence anywhere in the state. This includes freedom to change religions. And even in a state of emergency certain rights are still inviolable (Art. because of 1st Amendment. directly or through freely-chosen representatives. Right to equal access to public service in one’s country. If a country declares a state of emergency. There are no exemptions. practice. Everybody voted on the U. Right to take part in the government of his country. nor denial of the right to change nationality. . Right to state protection of the family as the fundamental group unit of society. in public or private. International Convention on Civil and Political Rights — Realistic. conscience. and to return to one’s own country. and to seek. nationality. and Right to state protection against such attacks. hasn’t gone along with this. Can’t compel someone to belong to an association.
H. and the U. had the . Ct. You cannot extradite to a country that subjects people to torture or to cruel. 65-67 (1978)— England was going all-out to get information from the IRA. 14-17 (1978)— A 15-year-old British citizen living on the Isle of Man assaulted a schoolmate. United Kingdom. Especially not in the name of the state. Ireland v. Tyrer. it was degrading. asked for extradition. nor was it cruel or unusual treatment. Ct. food deprivation. The civilized countries of the world had already long since gotten together and said this was a human rights violation. Under Manx law.R. 11 (1987) — This is the case of Jens Soering. and the U. Ct. H. but strangers cannot. This is not new.K. student. inhuman or degrading treatment. always-hooded. refused.R.Va. including sleep deprivation.S. He was sore. This wasn’t torture — torture is aggravated and deliberate — but it was certainly degrading treatment. This wasn’t torture. it was govt-imposed assault by one person on another.K.S. H. he was sentenced to 3 strokes of a birch branch on his ass. and degrading. It was 1978. Soering v. So yes. a German citizen and U.Torture is a violation of fundamental norms. and which often results in genital mutilation.K. Parents can do it. 26 Eur. inhuman.. or kill. Both the U. it was public in nature.K. so the U. Was it degrading? The state was involved. or degrading treatment.R. “Cruel. Wasn't even brought up during the debate over the caning of that kid in Singapore back in the early 1990s. 161 Eur. are open to local variation. Soering fled to the U. cruel/ inhuman. white noise. it was done via official procedures. which can cripple. (This wasn’t caning. always-standing. who with his girlfriend killed her parents. 25 Eur. He could have gone to death row in Virginia.) The state was involved in the beating. The U. and the police were using severe interrogation techniques. etc. United States. was party to the European Convention of Fundamental Rights and Procedure. disfigure. there was a six-month delay between the sentence and its imposition. which said no torture. The problem wasn’t the fact that he was subject to the death penalty. but not cut.” however. Cases are still developing the standard.
Article 8. was not required to extradite him to the U. Torture. Murdering or “disappearing” individuals.S. Some are more tolerant of pain and degradation than others.S. Prolonged arbitrary detention. Article 11. Without these. and the U. that’s all. The biggies of Art. More and more conventions are out there. The Commission held that the wait on death row was unacceptable. Back to Contents .8 years to await punishment. The deterrent effect of a certain treatment cannot be the only determining factor. these are: Genocide. where it takes 6 . Consistent patterns of gross violations of internationally-recognized human rights. inhuman or degrading treatment or punishment. had the death penalty. You just can’t arbitrarily be deprived of life. but the psychological effects and contact with other death-row types would be too degrading for this kid.K. Systematic racial discrimination. can’t go to jail for debt/contractual breach.K. Torture is always too far. Art. is breaks down. Cruel. can’t be held in slavery. Confinement itself is bad enough. According to Restatement (Third) § 702. Back to Contents ©2007-2010 Nathaniel Burney FUNDAMENTAL HUMAN-RIGHTS VIOLATIONS.Both the U. 14 are the fundamental rights enumerated in the next section. The price people are willing to pay for law & order varies from state to state. Dignity of life is also important. 6 leaves open the possibility of a death penalty. though. so the U. precisely defining these terms and specifying how to enforce them. Slavery & slave trade. The problem was Virginia’s Mecklenburg death-row facility (a favorite target of the ACLU).
You can complain. These provide substantive and procedural rights.C. If such rights were violated. but even on behalf of citizens of the other country. you now can intervene with a U. then individuals within its jurisdiction can petition the Committee. the U. force for humanitarian reasons. .D. The highest court of a country is no longer your last resort. Any country can take up the case of an Iranian being tortured by the Iranian government.”) All parties to the covenant can complain to the Committee about the practices of a party country. then look for procedural mechanisms in the treaty to enforce them. to the International Human Rights Committee. which has been implemented by local conventions. then you couldn’t do anything. spelled out human rights. If a state has signed Optional Protocol # 1. and bring the case before the committee. True. Article 41 — Experts sit on a committee.R. If the state signed Optional Protocol # 1. Article 40 — All states must make reports on their compliance. For a long time.. no matter how tough they act. you can even bypass the local courts and go straight to the Committee for redress of human-rights grievances. they’ll quit the violations just to stop the pickets and protests. then look to see what substantive rights are defined. then the country is required only to submit progress reports on compliance every 5 years. which were later codified in the I. No state wants to look bad on human rights. Back to Contents ©2007-2010 Nathaniel Burney What do you do if an American is tortured by a foreign government? Is there a treaty on point between the United States and the other country? If yes.©2007-2010 Nathaniel Burney Human Rights Procedure: Is the country a party to the International Covenant on Civil and Politic Rights? Are they a party to the covenant. But that is only if Iran had already made the Article 41 declaration. or are they merely signatories? If merely a signatory. not only on behalf of your own nationals. And a foreigner being tortured by his own country had no recourse at all. for example. If no treaty between us and them. then the individual himself could sue the sovereign for human rights violations. regardless of their nationality. This is a big deal.H.N. More on that under Use of Force below. (“Committee. Publicity is the first step towards correction. After WWII. if there was no treaty. Publicity is the bane of human-rights-violating countries. In fact.P.C. If they’re bothered enough.R. All parties can assert claims on behalf of victims.” not “commission.
[ECOSOC]. . and then look for the procedures which make them real. ECOSOC and the Human Rights Commission have provisions for individuals to request the U. When you suspend human rights. Again. Tyrants do fear them. governments have been known to fall and be replaced.N. The concepts of “due process” and “fair trial” are still evolving. to investigate individual human rights violations. then the U. you can have a Resolution 1235 hearing. but every year it pours a staggering amount of resources into avoiding on-site investigations. You need to look at each human-rights convention you’re concerned about to see what procedural mechanisms it establishes. Now that the United States is a party to the I. citizen being tortured in Iran. that’s not much help if it doesn’t say how those rights are to be enforced. where the violating country is made to suffer by all other countries by a vote of disapproval. Or. Look for substantive definitions. If it merely defines rights. under Resolution 1503. there is a Commission (not a committee) that reports on human-rights violations. are limited. China is a signatory. if there are widespread & systematic violations. as well as to the Iranian citizen being tortured there. Following on-site investigations. as are the enforcement procedures that make them real.C. however. The rights themselves are evolving. Ct. U. It already happened to Canada in the Lovelace case. So you have a 2-pronged search. These are universal norms. This is not just “western” idealism. 1961) — Talks about how certain rights can be suspended. codified and signed by all sorts of countries of all cultures and religions. R.N. Back to Contents ©2007-2010 Nathaniel Burney Suspension of Human Rights.. The sorts of permissible restrictions on such rights.R. procedures may be available to both the U. In the Economic and Social Council of the U. Lawless Case (Eur. On more than one occasion. This includes due process & fair trial rights.N.could sue the sovereign for human rights violations. of Hum. Iran has never signed Article 41. and should therefore be respected and left alone.S. you can’t just wash your hands of the rights. can make on-site investigations. If the violating country has signed Article 41.P. we may start to see charges against us brought before the Commission. the violating country cannot argue that its treatment of people is a cultural or religious thing.N.C. so all that can happen is that the other member states vote their disapproval.
war was seen as undesirable. You’d better choose wisely. slaughter beyond understanding. Freedom from torture.N. and the world paid a horrible price for it when Italy. But the League never used the mechanisms that did exist. the League started selectively treating different aggressors differently). If there is duplication. The League of Nations was set up to prevent future wars. SETTLING DISPUTES PEACEFULLY The first rule on the Use of Force is not to use it. You can’t simultaneously appeal to the European Court of Human Rights. Charter: All members shall settle their international disputes by peaceful means in such a manner that international peace and security. You can only bring your claim before a single tribunal. conciliation. paragraph 3 of the U. The big rule is in Article 2. didn’t participate the League of Nations failed (also because. Germany. These are the same problems which the U. Charter says: The parties to any dispute. It used to be that the use of force was one of many acceptable means to resolve a dispute with a neighboring country. can never be suspended. shall first of all seek a solution by negotiation. When the use of force is an issue. and the other fundamental jus cogens rights. the continuance of which is likely to endanger the maintenance of international peace and security. paragraph 1 of the U. or to someone else.N. But after the horrific slaughter of WWI wiped out an entire generation of European men. but rather to resolve your differences in a peaceful manner. because the rights and procedures are different in each tribunal.N. Article 33. all members shall refrain from the use of force against the territorial integrity of another state contrary to the purpose of the U.And some rights can never be suspended or derogated. . So the first thing to do is everything short of force. may face. inquiry. first ask why no other recourse was available. resort to regional agencies/arrangements. Back to Contents ©2007-2010 Nathaniel Burney Settling Disputes Peacefully. and justice. judicial settlement. Back to Contents ©2007-2010 Nathaniel Burney XII. Back to Contents ©2007-2010 Nathaniel Burney Duplication of Claims. but because the U. and Japan started getting away with their aggression. are not endangered. then all of the courts will throw your case out. despite its lofty goals.S. or other peaceful means of their own choice.N. You can only do it for self-defense or as part of a collective enforcement action. arbitration. and to the Commission. Also.
You actually have to make the attempt. then that might be what you wind up having. to settle disputes by peaceful means. It’s not a dispute unless the resolution would have a practical effect on the relations of the parties. Adjudication and arbitration are at the far end of the spectrum. Note that an obligation to negotiate means you have an obligation to negotiate in good faith. try negotiation. These are the most expensive and time-consuming methods available. A settlement is proposed only. The process of establishing the factual basis on which the disputeresolution process will rely in figuring out what to do. It’s a good idea. to refer to it as a “disagreement” rather than a dispute. mediation. First. . Agreements can specify the procedures for the parties to resolve disputes. It can’t be moot. A dispute requires a disagreement on a point of law — a conflict of legal views — or on a point of fact. and inquiry. Second. when drafting a document about a disagreement. It isn’t binding. “Dispute” is a technical term that should only be used in the proper sense. Basically means coming up with an official version of the facts. nor does a sense of injury mean that there is a dispute. The manner in which you participate in the negotiation can be used against you. You can’t go to some court every single time a disagreement pops up. so you can get to work fixing the problem. as opposed to disagreements. try good offices. A dispute is not just a difference in views. Inquiry. under customary international law. Good offices and Mediation usually merge together. Not the result of arbitration. Going to court should be the last resort. Conciliation. If you call it that. so do it in good faith. There is an obligation. conciliation. Negotiation is the State Department’s preferred means of dispute resolution written into international agreements.We’re dealing with disputes. A respected third party helps the two sides reach a mutually-agreeable resolution of the problem. Just a recommendation.
Fact-Finding. Contact with member states should be maintained to . fact-finding mission on its territory should be considered without undue delay. settles disputes using the following methods: Preventive Diplomacy. needs info on economic and social trends in addition to political developments that may lead to dangerous tensions. The arbitrator doesn’t come up with a third solution. It needs early warning. That’s what you do in mediation. and the court decides that. including the monitoring of regional arms agreements.Third. and sometimes may require demilitarized zones. The sides argue what the law should be.N. This requires measures to create confidence. the U. The U.N. try courts. Last. Have to have standing. Examples of Measures to Build Confidence. try arbitration. Systematic exchange of military missions. act swiftly to contain it and resolve its underlying causes. or by the Security Counsel or the General Assembly. or through staff or agencies or programs. Given the economic and social roots of many potential conflicts. Arrangements for the free flow of information. Or. It may also involve preventive deployment of troops. Ease tensions before they result in conflict. All the procedural requirements must be satisfied.N. and the arbitrator decides which one is best. based on good intelligence and fact-finding. as well as an understanding of developments and global trends based on sound analysis. Back to Contents ©2007-2010 Nathaniel Burney Dispute Settlement through the United Nations and Other International Organizations. the case must be ripe. no duplication. Prevention requires timely and accurate information. and the court decides that. Formation of regional or subregional risk-reduction centers. if conflict breaks out. Unlike conciliation.N. The sides argue what the official version of the facts should be. this is usually binding on the parties. or by regional organizations (like NATO) in cooperation with the U. even if it would be best. This can be done by the Secretary-General personally. A request by a state for a U. The court applies the law to the facts and decides what the outcome should be. The parties propose their solutions. etc. can’t be moot.
. The settlement of the civil war in El Salvador was assisted by joint OAS-U. the General Assembly.C. has. The Arab League. Mediation and negotiation are the U. mediators. NATO. or the Secretary-General. Problems sometimes lead to the parties preferring the U. the OAU.N. These are not set under international law. Peacemaking. Formal fact-finding can be mandated by the Security Counsel or by the General Assembly. OAU (Organization of African Unity). over regional organizations. Organizations which have had active roles: OEA/OAS (Organization of American States). has. The conflicts in Yugoslavia have been dealt with by joint U. The individual is usually a distinguished statesman.N. and the Organization of the Islamic Conference. The conflict in Somalia got help in conciliation efforts from the U. You need to set down the ground rules first.Contact with member states should be maintained to keep up the flow of info. They can send a mission or a special envoy. His personal prestige and experience can encourage the parties to enter serious negotiations.N. They often lack the experience that the U.N. CSCE (The Conference on Security and Cooperation in Europe). Regional bodies sometimes have a conflict of interests. ASEAN (The Association of South-East Asian States). others are still working on it. . Mediation and negotiation can be undertaken by an individual designated by the Security Counsel. The mission’s presence alone may sometimes defuse a situation.N. representatives.N.E. the League of Arab States.’s methods here. Back to Contents ©2007-2010 Nathaniel Burney International Arbitration. There are lots of people willing to serve in this capacity.N. You could also take your dispute to a regional organization which would facilitate a resolution of the dispute. Some of these organizations have good records here. They often lack the resources that the U.
So the Soviets never picked any representatives. What law will be applied. drafted by the United States. and the U. Back to Contents ©2007-2010 Nathaniel Burney FORMAL ADJUDICATION — THE INTERNATIONAL COURT OF JUSTICE. That doesn’t mean they have assented to ICJ jurisdiction. A treaty between the U. If the arbitrator reaches a third decision. sitting at The Hague. An arbitration clause in a contract with a foreign state ensures that there will be a forum to adjudicate any dispute that may arise under the contract. Charter has also agreed to the rules of the ICJ. These ground rules can be screwed up big time.S.N. Every state that has signed on to the U. Either X is right. These are not set under international law. What the procedures will be. then it is a “nullity. after WWII contained an arbitration document. Arbitration can only reach one of two decisions.R. What the scope of the decision will be. Examples of Arbitration Rules: The most active arbitration tribunal in the 1990s was the Iran-United States Claims Tribunal in the Hague. . It was bad drafting on our part. and bad faith on theirs. so be careful.S..S. including those of the International Court of Justice.N.N.You need to set down the ground rules first. So there was never any resolution of the dispute under the treaty. What will be the means of determining the facts. which said that arbitration would only happen after the representatives were chosen. and the Iron Curtain descended for 50 years. with 15 judges. If you say so in an international agreement. or Y is right. only that they agree to its rules. In this respect. but it still happened.” This is what happened in the Chamizal Tract case. The ICJ is an organ of the U. with jurisdiction over claims of the citizens of one country against the other state. you can have these same rules apply to the resolution of any disputes under the agreement. Such a clause will also ensure that any award rendered in such a dispute will be enforceable virtually anywhere in the world. awards entitled to recognition and enforcement under the New York Convention enjoy more effective enforcement than other awards or judgments. It was governed by the rules of UNCITRAL (the U. thus arbitration could never take place. Commission on International Trade Law). More and more countries are signing on to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958.
” . however.ICJ decisions don’t bind any nations apart from the parties to the particular dispute. the ICJ can also issue advisory opinions. 1.” State declares that it recognizes the court’s jurisdiction as compulsory in all legal disputes concerning: The interpretation of a treaty. State submits an “optional clause declaration. There are only 3 ways for the ICJ to get compulsory jurisdiction. but the first thing you have to do is find out whether it has been given. The ICJ may have only heard 200 cases or so. if established. And they only bind those parties with regard to that particular dispute. would constitute a breach of an international obligation. However. you’re saying “sue me and we go to the ICJ and submit to its decision. In addition to its dispute-resolution authority. When you submit this declaration. Charter Article 96. including the ICJ. Advisory opinions are not binding on anybody. The nature or extent of the reparation to be made for the breach of an international obligation. but only if I get to sue you too.N. to issue a decision binding on a state. the most common requestors are the General Assembly and the Security Council. For a third party of any sort. Of the 15 or so organizations so authorized. the ICJ only has jurisdiction if the party states consented to that jurisdiction. Only specified international organizations. Consent can be express. They may contain ideas. Individuals and companies do not have standing. some ICJ decisions are so well-reasoned that they get cited a lot as precedent and have become customary international law — binding international law. under U. Only states have standing before the ICJ for a contentious case. or it can be implied. Any question of international law. that go on to become customary international law and therefore become binding on everyone. These are reciprocal. States cannot request advisory opinions. Thus. can request advisory opinions. But the mere threat of an ICJ case is often enough to reach a settlement. that state must have first consented to the third party’s jurisdiction. The existence of any fact which.
of the Statute thereof. then drop jurisdiction right after you win).S. We had actively imposed the 6-month period on ourselves. 60 states now have done this (about a third of the world). Disputes with the government of any other country which is a Member of the Commonwealth with regard to situations or facts existing before 1 January 1969. This declaration will remain in force until six months following the date on which the Government of Guinea-Bissea makes known its intention of terminating it.K. tried . tried a different tack (1969). Oh. the jurisdiction of the Court in all legal disputes referred to in Article 36. but not good enough for the United States. That’s stupid. paragraph 2. Examples. that’s clever. Declaration of Guinea-Bissau (1989): The Republic of Guinea-Bissau accepts as compulsory ipso facto and without special agreement. in relation to any other State accepting the same obligation.This is a common way for states to come within the ICJ’s jurisdiction. or --has already submitted to arbitration by agreement with any State which had not at the time of submission accepted the compulsory jurisdiction of the ICJ. (We had been trying to lead the way and get other states to do the same thing. So we wrote at the end of ours (1946): This declaration shall remain in force for a period of five years and thereafter until the expiration of six months after notice may be given to terminate this declaration. Many years later Reagan was confronted with Nicaraguan claims because we were mining their harbor. Bad drafting. Disputes in respect of which any other Party to the dispute has accepted the compulsory jurisdiction of the ICJ only in relation to or for the purpose of the dispute. We tried to drop out of the ICJ. but four days later Nicaragua filed a declaration. and all of the northern European countries do this. That’s beautiful. so we were subject to ICJ jurisdiction. or where the acceptance of the Court’s compulsory jurisdiction on behalf of any other Party to the dispute was deposited or ratified less than twelve months prior to the filing of the application bringing the dispute before the Court. It accepts jurisdiction over all disputes except: Any dispute which the United Kingdom --has agreed with the other Party to Parties thereto to settle by some other method of peaceful settlement. That’s what the U. to avoid hit-andrun dropping jurisdiction (get jurisdiction to sue. The U.
but the ICJ couldn’t go to the merits. The case must involve a real legal dispute. Nuclear Tests Case (Australia v. This is just an ad hoc referral by the parties. Aegean Sea Continental Shelf Case (Greece v. This also works if the primary settler decides you can appeal its decision to the ICJ. trying to get seismic readings in search of oil. armed conflicts. issue an injunction to stop the Turks from continuing this action. Is there standing? Is the case moot? Even though the ICJ has jurisdiction. resistance to aggression.” So no dispute in Kashmir will ever be in front of the ICJ. . so that issue was never reached. because of a critical failing in the pleadings: Whether or not there was an actual legal dispute. that lawyer sure earned his fee! 2. because France had already come forward and said they would cease testing. Turkey) (1976). measures or situations in which India is..S. tried to do. That’s what the U. The international agreement between the parties spells out that any disputes under the agreement will be decided by the ICJ. . but this one works. Turkey was dropping explosives all over the continental shelf in the Aegean. Admissibility of the Case. Here. Note that France never admitted that they were violating international law. There was jurisdiction. the case may not be justiciable. Standing. and other similar or related acts. Mootness. Greece got upset. India’s clause excludes “disputes relating to or connected with facts or situations of hostilities.e. The ICJ held that there must be a risk of irreparable . More and more international agreements say this. fulfillment of obligations imposed by international bodies. 3. is common. that’s clever. France) (ICJ 1974). Greece wanted the ICJ to “indicate interim measures. individual or collective actions taken in selfdefense. Meaningful local remedies must have been exhausted first. there was no dispute any more. This. too.” i. has been. So it was moot.Oh. or may in the future be involved. You and the other state “refer” the dispute to the ICJ.
even more so than from WWII.-state conflicts. THE USE OF FORCE Unilateral use of force is important to understand. we can try them or we can extradite them. If reparations wouldn’t fix it. Intro. and Libya refused. Most bloodshed nowadays is intramural ethnic cleansing or civil war. The carnage of WWI. It’s actually done a really good job. We had to protect these Americans and return them. Turkey dispute. If the Security council is still debating though. there were 4 kinds of force where rules were established. Up until World War I. then an injunction would be proper. it was “natural. in response to a perceived offense. in .”) Retorsion — An unfriendly act by one state against another state. The irreparable harm and injury was ongoing. it was supposed to go off over the ocean so no pieces would be found) we found out who did it by looking at the pieces. however. was unbelievable. It was to be entered into for the slightest provocation.) Back to Contents ©2007-2010 Nathaniel Burney XIII. the ICJ will not interfere. The action must be necessary to preserve the issue before the court. Acts which would not violate international law. was no longer seen as the best of everything. After Pan Am flight 103 was blown up over Lockerbie Scotland (the altimeter bomb went off sooner than planned because of a change in the flight. The United States asked Libya to extradite the bad guys. After WWII. mind you. (There was no prohibition against the use of force. the U. We still haven’t gone all the way to Chapter 7 collective use of force under the U. When the Security Council has taken action. then the ICJ will get involved. acts of aggression came to be seen as the supreme crime.The ICJ held that there must be a risk of irreparable prejudice for it to issue an injunction.N. Following WWII. ICJ and SECURITY COUNCIL ACTIONS. Before WWI. so we’ll try them ourselves. Case Concerning United States Diplomatic And Consular Staff in Tehran (United States v. Libya said okay. After WWI the nations tried to get their act together. was established to resolve state-vs. Charter.N. War. to be longed for. the Security Council has imposed sanctions. The ICJ refused. war was seen as the best of everything. embodying all other crimes. Then they asked the ICJ to tell the Security Council to end the sanctions. Here. which wiped out an entire European generation. however. There is still a pall over the land as a result of this conflict. but it didn’t work. The standard for irreparable prejudice here was whether Turkey could make reparations for the damage if it was ultimately found to have been bad. (That’s what happened in the Greece v. Instead. which are still there. It was glorious. Iran) (1979). irreparable injury would be hostage-taking and execution of Americans.
The arbitrators stated that the deaths of the German official and the two German officers were not the consequence of an act contrary to international law on the part of the Portuguese authorities. Your response must be proportionate to the harm you suffered. that we will respond in kind to a nuclear attack. In reprisal. therefore: There must have been a violation of international law. Any excuse for violence was all that was needed back then.N. nor do we say it’s okay for anybody else to do it. Charter. Intervention — State intervenes in the affairs of another state. Reprisal — A response that does violate international law. This is not justified any more. We say. etc. We never do it. under the U.to a perceived offense. the U. . and the German struck him while a German officer drew his pistol. An act of retaliation. radio broadcasts. a party of Germans had crossed into Angola to discuss with the Portuguese authorities the importation of food supplies into German Southwest Africa. not self-defense (there’s a big difference). for example. This will probably be something that must be dealt with. has never renounced its ability to conduct reprisals. Three requirements. 1914. An arbitration panel was convened. are examples. Even had such an act happened. in reaction to an act that violated international law. Self-Defense — This was the other option. military maneuvers. limiting the number of émigrés from that country. By the way. The use of force would only be justified by necessity. the question arose as to whether this had been an appropriate reprisal. The Portuguese officer ordered his men to fire.S. in response to acts that may or may not have violated international law. Slapping an embargo on bananas. so be sure to go through the analysis. Reprisals totally out of proportion with the act motivating them would be illegal. On October 19. Due to an interpreter’s screwup. but we’ve kept the option open. Acts which would not violate international law. The German interpreter and a remaining German soldier were interned. The sine qua non of the right to exercise reprisals is a motive furnished by a preliminary act contrary to international law. After WWI. German troops attacked and destroyed Portuguese forts and posts in Angola. the German argument that the reprisals were justified would have been rejected anyway because reprisals are only permissible when they have been preceded by an unsatisfied demand. and the German official and two officers were killed. and a Portuguese officer seized the bridle of a German official’s horse. a misunderstanding arose. You must have made a demand which was not complied with.
and to that end: to take effective collective measures for the prevention and removal of threats to the peace. and in conformity with the principles of justice and international law. then anything not on the list might not count. adjustment or settlement of international disputes or situations which might lead to a breach of the peace. resulting from such an invasion or attack. and which Ribbentrop was accused of violating. This is the treaty which was used at Nuremburg. and for which he went to the gallows. marine and air fleets of another state. General Assembly Resolution 3314 (1974) — Everybody agrees that aggression includes: The invasion or attack by the armed forces of a state of the territory of another state. however temporary. or any annexation by the use of force of the territory of another state or part thereof. or air forces. The first words are: “We the peoples of the United Nations determined to save succeeding generations from the scourge of war. has not found favor as an act of aggression here.Self-defense lives on. The use of armed forces of one state which are within the territory of another state with the agreement of the receiving state. The use of force was prohibited. The states signed the Kellogg-Briand Pact of 1928 — which is still in force today. to be used by that other state for perpetrating an act of aggression against a third state. and to bring about by peaceful means. Bombardment by the armed forces of a state against the territory of another state or the use of any weapons by a state against the territory of another state. however. Indirect aggression. Didn’t want to leave an opening for aggressors.N. sea. The parties condemned recourse to war for the solution of international controversies. in contravention of the conditions provided for in the agreement or any extension of their presence in such territory beyond the termination of the agreement. and renounced it as an instrument of national policy in their relations with one another. See below. An attack by the armed forces of a state on the land. and for the suppression of acts of aggression or other breaches of the peace. . . They left it undefined on purpose.” The first purpose of the U. After WWI. The blockade of the ports or coasts of a state by the armed forces of another state. which twice in our lifetime has brought untold sorrow to mankind . which it has placed at the disposal of another state. . If they made a list of things that are aggression.” “Acts of aggression” isn’t defined anywhere in the Charter. United Nations Charter (1945). The action of a state in allowing its territory. . the League of Nations was established to ensure safety. is to “maintain international peace and security. or any military occupation.
you can only unilaterally use force under the U. Article 51 — Nothing in the U. Charter. etc. don’t count. No matter what the reason for your use of force. Back to Contents ©2007-2010 Nathaniel Burney SELF-DEFENSE. They were unsure as to whether that would count as an act of aggression on our part. It may still be illegal. Ideological acts.N.. You’re just as guilty as if you sent your own army to do it. irregulars. but only if you sent them in such a way that their actions were directed and controlled by you. An armed attack is not a mere threat of force.) of self defense against armed attack. or mercenaries.N. leafletdropping.N. or its substantial involvement therein. Back to Contents ©2007-2010 Nathaniel Burney Analysis for All Use of Force Questions: Did the states try to resolve it peacefully? Did they abide by the U. was it self-defense? Or was it collective action? Two kinds of self-defense: U. It may be an armed attack when you send in armed bands or mercenaries to stage an attack. Not everything counts as a use of force. This is not an exhaustive list. the collective use of force provisions of the Charter permit states to aid other states in defending themselves against aggression. but it isn’t use of force. Charter? If they did resort to the use of force. was it necessary? Unless you can prove a pre-existing customary norm of international law permits it. If not self-defense or a collective action under the Charter. Charter is to be construed so as to impair the inherent right (pre-existing the U. Merely giving them the arms and the cash and the training isn’t enough. then the force was illegal. radio broadcasts. Does that mean an armed attack must have occurred against your country? No. It is a fundamental norm of international law that you do not have the right to engage in acts of aggression or in unlawful use of force. which carry out acts of armed force against another state of such gravity as to amount to the acts listed above. Charter self defense. The sending by or on behalf of a state of armed bands. groups.N.This is why nobody would let us fly over their territory en route to bombing the shit out of Muammar Khaddafi. and the Security Council may determine that other acts constitute aggression under the provisions of the Charter. and preemptive selfdefense under customary international law.N. nor do all acts of aggression .
The result of the war was a continuing hostility between us and them for many years. For more on what counts as an “armed attack. It should also be proportional. the U. We had a bunch of nasty battles with Canada in the War of 1812. You have to state that you are under an armed attack. There must be no other choice. The other side may be engaging in an illegal use of force. overwhelming. And Canada was the big power then. and no moment of deliberation. he is gratified to find that your Lordship admits that such exceptions must come within the limitations stated and the terms used in a former communication from this department to the British plenipotentiary here. Hearing of a planned United States incursion across the border. nor do all acts of aggression count.” As a result of this action. you may use force to repel them and stop it. they only said “targets were set alight. Gotta be necessary. Gotta be proportionate. and sent it over Niagara Falls. we were small fry. Definitely a charged atmosphere. But if it is just an exercise. as on ours. respect for the inviolable character of the territory of independent states is the most essential foundation of civilization. while it is admitted that exceptions growing out of the great law of self-defense do exist. You must promptly report your response actions to the Security Council. wait. had an ongoing correspondence about what constituted self-defense. Side note — When the U. You can’t do anything in self defense. set the ship completely aflame. we say we blew it up and killed people. strike. and the border between Lake Erie and Lake Ontario was heavily militarized. Daniel Webster. Undoubtedly it is just. grabbed the ship The Caroline. We were always trying to take over parts of Canada afterwards. When the British blew something up and killed a bunch of people. applicable to cases of this kind. Charter.’” The necessity must be immediate. but customary international law). It’s not the same as an act of aggression. but it may still not be an armed attack. and his British counterpart Lord Ashburton. If you’re subject to an armed attack.” see the Nicaragua case below.S.An armed attack is not a mere threat of force. and leaving no choice of means. that. Is it a preliminary to an imminent attack? If so. killed everyone on board. Secretary of State. and that on your part. You must immediately report this to the Security Council. which this government has expressed.N. The necessity must be overwhelming. This ended up with the little country being picked on telling the British in 1842: “The President sees with pleasure that your Lordship fully admits those great principles of public law. Troops are piling up on the other side of the border.S. (This comes from an earlier . And while it is admitted on both sides that there are exceptions to this rule. those exceptions should be confined to cases in which the ‘necessity of that selfdefense is instant. The Caroline (1906) — Most famous case in international law — Preemptive selfdefense (not in the U. as in Desert Storm. the Canadians crossed first. There must be no time to deliberate. blows something up.
It was . They even dressed up Polish prisoners in German uniforms. the United States went out of its way to say its actions were not self-defense.N. on the question of whether anticipatory self-defense is proper. The criteria listed are the criteria that get cited. Before they extracted them. The United States proposed this in the U. and blamed it on Poland. and it’s not part of the U. that also led to lengthy discussions of whether the standards for preemptive self-defense attacks had been met. and it was representatives from Ghana (who. Of course. under hardened shelters. shot them and filmed it. but everybody supports it. etc. leaving no choice of means. This can be troublesome when you go in to extract your nationals and wind up changing the government. Back to Contents ©2007-2010 Nathaniel Burney Non-Charter Uses of Force that are Permitted by Customary International Law.) This case keeps coming up over and over.It should also be proportional. Here. Preemptive self-defense. unlike ours. (This comes from an earlier letter. the act had been done by then. taking over. Retrieving your nationals. and no moment for deliberation?” When the Israelis bombed Iraq’s nuclear reactor in 1981 (because it could have been capable of making weapons-grade plutonium). like we did in Panama and Grenada). but it is less intrusive than other kinds. burning the ship. setting up a continuing military presence. so as to justify their invasion. Every time we come up with a cool bomb that can punch through layer after layer.N. A blockade is a use of force. You go into another country with your armed forces to get your nationals and get out. See above. they come up with something to stop it. they took out the entire Ugandan air force on the ground. The Nazis went out of their way to make it look like Poland had started it.. In the Cuban Missile Crisis. did not buy it. One side effect of this was for Iraq to put its reactors underground. but merely a quarantine of Cuba on the high seas to keep the missiles out. killing everyone. narrowly-tailored purpose of pulling out your nationals. This is usually done unilaterally. Israel had some people in trouble in Uganda. and can count how many levels it’s gone down before exploding at the right one. however. Charter. (you know. The use of your armed forces can only be for the exclusive. and sending it over the falls was not proportional. The Nuremburg tribunal. overwhelming. throughout history. asking “is this emergency instant. had been welleducated in international law) who stood up and cited the Caroline case.
remember? Intervention to Effect Changes. The multilateral stuff is okay. however. It didn’t prohibit it. Unilateral intervention for humanitarian purposes is not much supported. If they only killed one of yours. the ICJ didn’t say whether states have a right to intervene on behalf of the ruling government. This attack was not well-received. The response must be calculated to solve the particular terrorism problem. and they similarly got lukewarm support for their actions.them. was set up to prevent. Don’t go blasting everything.N. just the terrorist stuff. Intervention in Civil Wars. saying “they need our kind of government over there. so we need another ICJ decision. Intervention to clean up the other guy’s system is just bad. Intervention Against Terrorism. That’s what the U. The response must be proportionate.S. The response must be narrowly tailored to its purpose. Do states have the right to intervene when the rebels invite them? When either side invites them? In the Nicaragua case (below). It’s hard to attribute terrorist acts to a state. though. however. and Grenada/ Panama. but neither was it universally condemned. don’t go blowing up cities.S. strike against Libya after the Libya-sponsored bombing of a German disco where American servicemen were killed. Prior to 9/11.) This whole area is unresolved. However. Humanitarian Intervention.” and going over to help them get it. if they are widespread humanitarian problems. This is especially true now that the U. . they took out the entire Ugandan air force on the ground. That’s different from looking at another country.N. sets up multilateral collective intervention even for internal problems. there was one case where this has happened — the U. It was a similar situation to the U. Back to Contents ©2007-2010 Nathaniel Burney INTERVENTION. Can’t do this even if you were requested to do so. also one of the reasons why England stayed out of our Civil War. (A big reason why France waited until there was a colonial victory before aiding us against England in our revolution and they still came in too soon. the ICJ did specifically state that you cannot intervene in other countries’ civil wars on behalf of the opposition. Older rule was similar. Previous rules of international law may make you a belligerent. It violates sovereignty.
absent an armed attack there was no right of collective self-defense. mining the harbor. and the U. (4) Illegal uses of force which justified an Article 51 self-defense response. never saw any of the evidence of Nicaragua’s armed attacks. The U. So even though Nicaragua may have been guilty of odious violations of international law. because we didn’t argue the case! That’s right. Until then. so we need another ICJ decision. and training to the Contras count as an armed attack by the United States against Nicaragua? No.S. Even presuming that the supply of arms to the opposition in El Salvador could . The United States’ sole justification for its action was collective self-defense under Article 51.S. The U. The Contras were trying to revolt. might be violations of international law. there was some real tension. as well as the Nicaraguan support of El Salvadorian rebels. training rebels at Camp Perry (the CIA training camp that we don’t admit exists). Back to Contents ©2007-2010 Nathaniel Burney Military and Paramilitary Activities In and Against Nicaragua (Nicaragua v.This whole area is unresolved. The United States support of the Contras.S. What about intervening on behalf of the rebels? See above.S. but we do like much of the legal holding. As are unauthorized overflights. as well as the actual outcome. (2) Illegal interventions. So its attacks on Honduras. so we didn’t even send a lawyer to argue for us. was alleged to have assisted the revolution. its shipments to El Salvador. who were alleged to have committed acts of destruction against Honduras and Costa Rica. and we are now citing big parts of it in other cases (such as the right to as many weapons as you want).R. [Four categories of violations: (1) Violations of sovereignty. the ICJ never saw the photos.S. however. So the only version of the facts that the ICJ had to work with was Nicaragua’s version. So. had difficulty establishing this. United States) (ICJ 1986). Especially now that most fighting is intramural civil strife and ethnic cleansing.” States do have a right of collective self-defense only if they are under armed attack. Did supplying arms. and Cuba were accused of assisting the Sandinistas. the ICJ had to find an armed attack by Nicaragua against Honduras or Costa Rica. Thus.S. equipment. but they are not armed attacks justifying selfdefense. The United States still disputes the facts in this case. in order to justify the U. and they might be uses of force. (3) Illegal uses of force. was displeased with the Sandinistas until they were voted out (in the first free election).’s actions. and its attacks on Costa Rica were not regarded as armed attacks for Article 51 purposes. The court held that there is no such thing as a right of “collective” armed response to acts which do not constitute an “armed attack. we disputed the ICJ’s jurisdiction. The U. he would have known that mining the harbor and not telling anyone is a big-time violation of international law. We were accused of unauthorized overflights.] Had Ollie North consulted anybody.
Even presuming that the supply of arms to the opposition in El Salvador could be treated as imputable to the government of Nicaragua. they were under attack. that would still not constitute an armed attack. you must state that you are under an armed attack. To make an armed response in self-defense under Article 51. Merely giving them the arms and the cash and the training isn’t enough. And you must also promptly report your own actions in response. too. but only if you sent them in such a way that their actions were directed and controlled by you. The United States did not obey international law here. in customary international law. Nobody ever asked the United States to come help them. If you don’t want to trade with someone. it might have been use of force. and our military maneuvers in Honduras). but economic measures of intervention were not a violation of international law. and again presuming the participation of the Nicaraguan government. Nobody ever told the U. So when Iraq invaded Kuwait. prohibiting other countries from trading with a state might be a problem. the use of force must be necessary. Neither the embargo nor giving money to the Contras were uses of force. no matter what the reason. . You must immediately report this fact to the Security Council. Supplying weapons might have been use of force. that’s fine. but it isn’t use of force. If you say you’re using force against another country. Now. Even at a time when the arms flow was at its peak. our support of the Contras. it would have to be equated with an armed attack by Nicaragua on El Salvador. . but it wasn’t an armed attack for self-defense purposes. The ICJ held that the maneuvers were not use of force. to justify invocation of the right of collective self-defense in customary international law. that we were formally invited down there. We have learned our lesson. Kuwait and Saudi Arabia begged us to intervene. Here. Nicaragua claimed that it was the victim of “indirect aggression” (namely. It may still be illegal. . Back to Contents ©2007-2010 Nathaniel Burney NECESSITY AND PROPORTIONALITY. There was no necessity.N. and we said “put it in writing first.N. none of these states announced that they were victims of armed attacks. It might have been illegal intervention. Even presuming that Nicaragua engaged in armed attacks on Honduras and Costa Rica.” An immediate record was established before the Security Council. Honduras has nevertheless already crushed the rebellion a year or so earlier.. and that we had notified the U. however. the provision of arms to the opposition in another state constitutes an armed attack on that state. It may be an armed attack when you send in armed bands or mercenaries to stage an attack. the embargo. The ICJ was unable to consider that.
the US had about 500 KIA. 1989. the American habit of pulling out emboldened Al Qaeda and others to more numerous and harmful attacks on American interests. 1989.] We did not actually invoke self-defense. [. culminating in 9/11.S. Iraqi gunners are shooting at you. George Bush sent a communication to the Speaker of the House detailing the justification for the invasion of Panama: On December 15.) Manuel Noriega made a big mistake by declaring war on the United States. and the bombing of Libya. It’s the half-hearted stuff. the use of force must be necessary.S. and that the continued safe operation of the Panama Canal and the integrity of the Canal Treaties would be in serious jeopardy if such lawlessness were allowed to continue. If a particular act was not necessary. at the instigation of Manuel Noriega. A series of vicious and brutal acts directed at U. you do not take out a dam upriver and drown a million people. All uses of force must be proportional. These acts of violence are directly attributable to Noriega’s dictatorship.] The deployment of U. then it was illegal.the reason. so the United States had failed to abide by this standard. Marine officer was killed without justification by Panama Defense Forces (PDF) personnel. without enough armor and support to protect those who were there. which we lost. [.000 American soldiers killed in all. During the period from 1979 through the late 1990s. that gets people killed.S. . the illegitimate Panamanian National Assembly declared that a state of war existed between the Republic of Panama and the United States. As has been noted by the terrorists themselves. It’s always when we do things halfway that Americans get killed. Had he not declared war. This is not a new standard. (During that same time.S. The only times we’ve done so were in the Nicaragua case. . We rarely do so under Article 51. a lot of s*** might not have hit that fan. These and other events over the past two years have made it clear that the lives and welfare of American citizens in Panama were increasingly at risk. On December 16. personnel and dependents followed these events. as well. however. there were about 15. To do so. Naval officer and unlawfully detained. At the same time. Forces is an exercise of the right of self-defense recognized in Article 51 of the United Nations Charter and was necessary to protect American lives in imminent danger and to fulfill our responsibilities under the Panama Canal Treaties. You need to destroy them. from jeeps turning over to any other reason. which created a climate of aggression that places American lives and interests in peril. and threatened the officer’s wife. No necessity. . where we took out most of our forces and left just a few there to make the political statement that we’re still there. physically abused. a U. the warm fuzzy idea that sending Americans somewhere will somehow make things better. It’s been around at least since the Caroline case. Other elements of the PDF beat a U. . and even it said this is nothing new. Like in Somalia. Noriega gave a highly inflammatory anti-American speech. . Ask this for every particular act.
to either achieve a military objective or to deny an objective to the enemy. Deputy Judge Advocate General for the United States Air Force. The word simply refers to the use of law and legal process as a weapon in modern warfare.. Most people are familiar with the concept. "LAWFARE" The term "lawfare" was coined by Maj. So how did the U.S.P. . Much as with propaganda. War is the last thing you want to get involved in. be it the use of force. This is still law. because we were facing a battle-hardened army.S. Back to Contents ©2007-2010 Nathaniel Burney COLLECTIVE USE OF FORCE. with mint-condition Soviet equipment. at least in the court of public perception. Gen.R.Back to Contents ©2007-2010 Nathaniel Burney WAR POWERS RESOLUTION. One commonly-understood example is the use of “human shields” — the placement of civilians at military targets to deter attack with the fear that the death of innocents would be ruled unlawful. It is most commonly used in asymmetrical warfare. but it also always says the report is “consistent” with the W. none of these things had happened.S. If President doesn’t withdraw first. Need: Declaration of War by the U. The letter always comes within 48 hours.. territory or on our armed forces. This resolution governs the commitment of U. Actual national emergency created by an attack on U. and the 60-day period doesn’t start to run until the letter is sent to Congress. the fourth-largest in the world. not welfare. then he has 60 days to get Congress’ consent or else he must then withdraw the forces. § 1544(b).TO BE COMPLETED. do everything it did? § 1543 — The President has to submit a report within 48 hours of action.S. forces to any activity. Congress. The “-fare” suffix is meant to imply warfare. Charles Dunlap. and the letter isn’t always required. perception is the key to lawfare. Only have to leave after 60 days. not that it is “in compliance” with it. The tension between Congress and the President on declaring war is a healthy tension. IN PROGRESS. Before 9/11. Bush did ask for Congressional support of the intervention against Iraq in 1991. or just international peacekeeping. Lawfare tends to be used as a weapon against countries and societies where the rule of law is strong. Specific statutes authorizing the use of our forces. if not with the term itself. by guerrillas and terrorists who seek to affect public perception abroad and gain a moral advantage.
without any chance for review. knowing that lawyers are not well-regarded in the U. It is not inherently good or bad. During his speech declaring martial law. they need to know how minute fusing changes can affect the destruction caused by a particular bomb. suspending the nation’s constitution. and arresting many. it happens. Groups also use the rule-of-law countries’ own courts to stifle the dissemination of information that would hurt their objectives. Despite the widespread use of lawfare in asymmetrical conflicts going back at least as far as the Vietnam Conflict. Ultimately. however. How you kill an enemy fighter is not the issue. and use it effectively themselves. and that the application of law to military matters is a bad thing that hamstrings commanders in the field.S. This takes advantage of the fact that the citizens of rule-oflaw countries have a sense of justice and fair play that can be manipulated to achieve enemy ends. the ploy did not work. Guerrillas. Pervez Musharraf declared a state of emergency in late 2007. lawfare is waged by those from societies without a strong rule of law. blacking out the media. government. rather than wish it didn’t exist.S.Much as with propaganda. The military wants to avoid killing the wrong people. would continue to support him. Before they can give useful advice to commanders — usually in real time. who had taken over even civilized resort areas of the country. The meaning of words can be manipulated. The lawyers and judges had been sharply criticizing him for failing to control the terrorists. for example.” for example. it’s whether you’re killing far too many other people to take him out. Too often. “Proportionality” is an international law concept that simply prohibits superfluous suffering. The concept is often mis-used by those who claim that there is too much law. are commonly used improperly to make western forces appear to be acting unlawfully when in fact they were not. after four months of bitter opposition from lawyers and the judiciary in Pakistan. Musharraf acted to preserve his control of the country. to ensure that the U. Typically. perception is the key to lawfare. their own governments and militaries are unwilling or unable to change this. you don’t drown a million people to take out a machine gun emplacement. to be sure — in the hopes of affecting Western opinion. and those who wage lawfare are careful to use or release certain words. because of the effect of such a claim on westerners. and without any do-overs — military lawyers must have an understanding of how military operations work. against those who do have a strong rule of law. to say a military should not use more effective weapons than those used by the enemy. terrorists and their backers are already using it with some degree of success. Al Qaeda trains its people to claim “torture” if captured. But it was a clear attempt to appeal to law — mis-stating it and mis-applying it. It might be wiser for such critics to take it into account. It is used by governments as well. For example. and citing principles of “preserving the union” and the precedent of Abraham Lincoln’s suspension of Habeas corpus during the Civil War. western military commanders have only recently begun to accept the grim reality that they must bring lawyers with them to the battle. blaming the lawyers of being on the side of the terrorists. To prevent the killing of noncombatants in a fluid enemy compound. Musharraf’s aide later confirmed to international lawyer Scott Horton that this message was intended for the U. Words have meaning.S. to stifle criticism. Terms of art such as “proportionality. It is commonly mis-used. and Musharraf stepped down. and to gain sympathy while painting the rule-of-law countries as evil. As described above. The fact of the matter is that lawfare is out there. but it doesn’t want the enemy to escape because of that. . Musharraf switched to English and made an appeal to American ears.
of course. So to make the cases go away. If you let the enemy control the terms or the message. with real results. These uses of the word fit its colloquial meaning of the word. In Islam. There is an even greater effect outside the U. is the wrong word to use when attacking islamist terrorists. and even objective reporting and neutral commentary.” which means “evildoer. such as unity of effort and the principle of the offensive.many other people to take him out. the . Books. If you stay on the defensive. especially information prejudicial to their interests. the word “jihadist” has strong connotations of goodness and proper behavior. you are losing. “Legal Jihad” or “Soft Jihad” is an example of the practice of using the courts of a ruleof-law enemy to achieve military objectives against that enemy. (This is one of the few actual examples of the U.) It can be extremely effective.S. (Essentially. it is the use of western law to subvert western legal principles such as free speech and civil rights. Even with the significant progress under the military’s “surge” strategy. in the courts of Canada. Collateral damage is an expected an unavoidable consequence of warfare. they often simply capitulate. these actions have a significant chilling effect on free speech. the local sheikhs and tribal leaders in Iraq began using the word “mufsidun” when describing terrorism. Those who aim to minimize it. but dramatically distort the legal meaning. these actions tend to be withdrawn during the discovery phase. itself successfully using lawfare in that conflict. Typically. This explains the common use of human shields and hiding military personnel and equipment among civilian women and children. this single conceptual change was considered the biggest change on the ground in 2008. for the purpose of making ruleof-law forces appear to be the “bad guys. Their people began opposing and punishing terrorist behavior.. journals. when the plaintiffs would be required to disclose information supporting their claims. “Jihadist.S. Typically. There has been a wave of self-censorship in the media and publishing worlds in recent years.” for example. when a defendant decides to defend itself. even if the underlying claims are meritless. so you’re only reacting to the enemy’s legal ploys or inaccurate reporting. make an apology and retract the “offending” materials. giving an advantage to the enemy. and avoiding it at all costs is a losing proposition. then you are losing. and the stakes are the high as any other. Meritless though they may be. lawsuits are filed to silence and punish legitimate criticism. The proper word to use would be “mufsidun. The battlefield is real. Calling someone a jihadist confers on them real religious legitimacy. or by ignoring the other commonly-understood principles of war. and in hospitals and schools.” In 2008.) A lawfare battle will be lost by ceding the ground to the enemy. This supports the common belief that such actions are brought as a kind of extortion or intimidation. Terrorists and their supporters use western courts as a battleground to attack the free flow of information. and individuals often cannot afford the expense of defending such actions. and generally began acting like terrorism was wrong and bad. are those whose societal standards open them up to criticism when it does happen.” You can mis-use words yourself. even video games are unilaterally pulled from the market to avoid litigation. It is also mis-used to say collateral damage is per se illegal. because publishers and corporations want to avoid the expense and bad publicity of such cases.
for example. where they don’t have the same free-speech protections. actually took the lead in increasing this court involvement. Name: E-mail: Query: . or call 917-975-1435. that the courts cannot review Executive intelligence actions — the courts do not (and should not) have access to the secret information underlying such actions. the U. and even criminalization of causing offense. liberal libel laws.S.There is an even greater effect outside the U. but then the ethnic cleansing began. as judges are neither beholden to the voters for the consequences of such decisions.N. a Croat. but more likely to result in a win for the soft jihadists. passes resolutions banning criticism of Islam (62/145. under the G. and there are deep divisions over whether it should even be happening. the preferred method of dispute resolution in the U. 103. in an attempt to stay on the right side of public perception. The result was three increasingly purged states.S. the border agreement was there. and Europe. So. so at least the judges don’t have to re-invent the wheel every time a wiretap application comes in. This litigation is as much a battleground for lawfare as any other. The U. however.S. they are granted rights they did not have before. Nobody enforced the original plan of regulating the borders. Bush administration. not take them away. For a consultation. and lack the expertise to know what to do with such information even if they had it.S. passed in 2007 and 2008). So by allowing the courts to review claims of wartime prisoners. 333 U. please complete the form below.. and can only get more rights as time goes on. For a brief period after independence. were repeatedly warned never to report a crime. So the borders were crazy. Corp. make lawsuits there not only more common. Waterman S. Some further object that judges and courts can only increase civil rights. in 1948 the U. because you would be jailed until the culprit was caught and convicted. of course. Even the U. Back to Contents ©2007-2010 Nathaniel Burney But Tito. was give another forum to its enemies to wage lawfare against it. for example. with the Serbs scattered all over and a hodgepodge of peoples everywhere. didn’t like the Serbs. The courts are also used to litigate military detention. Hate-speech laws. Litigation is.W.S. and resulting in the Dayton accord with different borders based on the intervening battles. Supreme Court held in Chicago & Southern Air Lines v.S. But there has long been a recognition that the courts should stay out of policy and military decisionmaking. government. Visitors to Saudi Arabia in the 1970s and 80s. nor possessed of the expertise required to make such decisions. The FISA court tries to address that by channeling intel surveillance matters to one court.K. in the courts of Canada. All it did. 111.
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