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Polanski Reservations to Genocide Conv.

Cases Int’l Legal System & Sources of Int’l Law (I & II)   Questions: 1) whether reserving state could be regarded as member while maintaining reservation and 2) if so, what was the relationship with other states that objected/accepted?  Summarizes VCLT principles for multilateral treaties. W/R/T certain conventions like Genocide though “complete exclusion…of one or more states would…restrict scope of it’s application…[and] detract from…[it’s] humanitarian authority.”  Court says O+P of certain conventions like this limit both the freedom of making reservations and that of objecting to them.  Therefore we look to compatibility of a particular reservation with O+P of Convention rather than applying traditional rules. Objecting members shouldn’t just exclude reserving members over minor shit because that would destroy treaties that require universal participation, however state’s can’t be bound to reservation’s they don’t assent to either.  AT THE SAME TIME, reserving members can’t use sovereignty as a shield to defeat purpose of Convention.  Thus: 1) IF a state’s reservation is objected by some members of the convention but not others, it can be regarded as a member so long as the reservation is compatible with the O+P, otherwise not a member. 2) a) Party that objects to reservation it considers incompatible with O+P, can consider reserving state not a party, b) BUT if Party determines reservation is compatible with O+P, it can consider reserving state a party  HRC Committee Response: Absence of prohibition on reservation don’t mean any reservation is permitted. If it offends peremptory norms, incompatible with O+P. Provisions that represent customary law can’t be reserved to in Convention. Committee should be responsible for determining compatibility.  U.S.: We should be able to exclude a means of enforcing a peremptory norm, but we agree that we can’t exempt ourselves.  PH taken as war prizes, sold, ancient custom says nah.  Two factors to ascertain if custom has ripened into CIL = 1) Obj. Req. – State practice and 2) Subj. - Opinio Juris  1) Scholarship, history (e.g. comity practice) other nation’s treaties, lack of contrary principles, member proclamations.  2) Acting because they feel compelled by law, not just mere lipservice.  SC: Int’l law part of our law, in absence of treaty or governing force, look to customs and usages of civilized nations. We conducted war according to int’l law custom, sufficient. Wouldn’t apply to fishermen engaged in war or large commercial trade (whale, cod). Who Makes International Law? Participants (III)  Principle of non-intervention involves right of every sovereign state to conduct affairs without outside interference. Prohibited intervision must bear on matter in which each state is permitted to decide freely based on the State’s Sovereignty. Prohibition on use or threat of force is based on notion that using force to influence social, political, economic, etc. violates State’s ability to decide freely (UN Charter + Declaration)  In the case, US declared signing the General Assembly resolution merely a formulation of political intent, but the essentials were repeated in another resolution + we didn’t except.  I: Territory belong to first discoverer even if they never exercise any authority for centuries, or does it belong to state which actually exercises sovereignty (over extended period)?

Reservations compatible with O+P, state can still be a member, if Party considers reservation against O+P, they can consider the reserver not a member, otherwise they can.

Paquete Habana –

Custom obj. requirement of general practice and subjective of OJ.

Nicaragua v US-

State organs, effective control required, overall insufficient w/r/t determining resp. for third party acts.

Island of Palmas –
Territorial sovereignty can

suffice for title, original claim without exercise of sovereignty is insufficient.

Bosnia v. Serbia –

Actual, De Jure or De Facto SO required under Art. 4, State can still be responsible for a third parties conduct under Art. 8 if effective control is established.

Reparations Case –

UN is international person, not a state.

Certain Expenses –

UN Expenses must be related to UN’s purpose, but if wrong body spends, doesn’t necessarily mean it’s not legit.

Iraq (2003)

 Spain first discovered, Netherlands exercised rights.  Not enough to point to history, maps, treaties, etc. as US did (cession) Development of int’l law suggests that occupation must be effective, would be pointless if that only applied to acquisition and not equally for maintaining right. Element essential to constitution of sovereignty shouldn’t be lacking in its continuation. Element lacking here?  Continuous and peaceful display of terr. sov. is as good as title. Cont. and peaceful display of functions of a state is a constituent element of TS.  Terr. Sov.: Exclusive right to display activities of a state. Comes with AFFIRMATIVE obligation to protect w/in territory rights of other states, particularly their right o integrity and inviolability, together with rights each state may claim for its nationals in foreign territory. NOT just a negative side.  BH alleged FRY committed genocide supporting Republika Srpska/VRS. FRY paid some RS/VRS officers and administered some matters.  Issue 1: FRY responsible for genocide pursuant to Art. 4 Conduct of SO? (Actual, De jure, or De Facto). NO o RS/VRS didn’t conduct genocide themselves and leaders didn’t have hand in carrying out, so doesn’t satisfy A.4 of ILC. o Not de jure organs because they didn’t have SO status under FRY law, TF don’t satisfy A.4(2). Mere salary pay not enough, they still were acting FOR RS/VRS, NOT FRY. o Not De Facto: Requires Complete Dependence (Nic v US)  Issue 2: FRY responsible under Art. 8 for directing/controlling conduct of RS/VRS? Still applicable even if not an SO under Art. 4 (Nic v US) NO. o Attribution Std: Effective Control – State must exercise control or give instructions w/r/t to each alleged violation, not general BS. o Overall control test not appropriate (see Conventions). MIGHT be appropriate to determine whether or not an armed conflict is international in nature though. Diff. issues, involvement giving rise to responsibility for acts can differ from nature of involvement making a conflict international, plus unforeseen liability concerns. o No evidence FRY instructed RS to genocide OR any instructions were given with the spec. intent of genocide. RS seemingly acted ind. of FRY.  UN can bring claim against de jure/de facto injuring state on agents behalf  UN has international personality, is international person.  States gave implicit waiver of power for UN to enforce certain things in UN charter and charter arranges relationships such that UN requires legal personality and ability to bring actions, otherwise would be useless.  Can bring for agents because that agent’s states in certain UN cases may not be motivated/can’t bring claim on their behalf, need assurances to work.  B/c of character/functions entrusted to UN and nature of agent’s missions, it’s necc. for UN to be able to exercise functional protection  Certain expenses for ops in Congo and ME expenses of the Organization?  Purpose of UN from Art. 1: 1) international peace and security; 2) friendly relations; 3) achieve econ. social, cultural, humanitarian goals and respect for HR; and 4) center for harmonizing actions of nations for those ends.  If it’s agreed that action is w/in scope of functions of the UN, but has been carried out not in conformity with division of functions described in Charter, then INTERNAL structure of the UN should handle that, but that doesn’t mean that the expenses aren’t legit, national law and int’l law permit corporate/politic to be bound by ultra vires act of agent.  Because expenses were for peace settlement, he could expense. Enforcement and Implementation (IV)  Resolution 1441 stated Iraq was in breach of previous disarmament

Nicarague v US –

No inherent right to SD or Coll. SD to non AA. Lack of N+P in SD can be additional grounds of wrongfulness. Arming/training not AA but is UoF. Can still commit a wrong by violating principles of nonintervention.

Holland – Treaty

valid then IL is valid, treaty can do what Congress may not be able to.

Bond – IL must

meet N+P which

obligations from Gulf war (Resolution 660, 678, 687) + offered “final chance”  R. 678 authorized “all necessary means” to uphold 660, 1441 did not have similar permissive language. Did provide that SC would convene to decide what to do (12) for material breach (4) noncompliance, omissions or lies (4).  U.S. argues that they remained seized of previous resolutions, material breach was all that was needed to take action (678), and Iraq Breached.  Others: this was an illegal act of preemption, 678 shouldn’t be a basis for armed action under 1441, provides for SC convening, not unilateral action  Taft argues that even if preemption, legal because it adhered to UN procedures. In the 90s under 678 he argues that coalition members acted w/o SC expressly instructing them, and instead relied on 678’s “all necc.” language. Further, 687 provides for ceasefire, but cease-fire connotes that one party not bound to observe if other side violates. Demonstrated by states using 678 after 687’s introduction for armed intervention in 93 and Desert fox. Framework still applies b/c they explicitly debated application of a material breach when drafting 1441+Iraq breached. Essentially VCLT 60 (UN charter a treaty tho?)  Also, 4 allows members (unlike 11) to report breaches, Colin’s report suffices. UK AG- SC didnt need to authorize force, just consider, otherwise 12 would say so. Supported by fact that they removed “decides” language in final  Frank argues against Taft + AG, 687 said UN, not individual states would take further action. Permitting unilateral action is derogation of 2(4). Conflicts with UN power to inspect under 1441. Can’t read 12 like that. 678 applied only to Kuwait. Taft is wrong b/c UN is offended party w/r/t breach, not US.  Use of Force (UoF): Arming/training, but not an armed attack.  Armed Attack (AA): 1) Action by regular armed forces across int’l border OR 2) sending of armed groups by another state which carry out armed forces of sufficient gravity as to amount to actual AA conducted by regular forces, OR 3) substantial involvement in 2. Spectrum: Invasion, yes. One shot? Nah. Bombing of boat in response to naval aggression? Murky, use facts.  SD/Coll. SD: Must be in response to AA in both cases. Violated state must declare view it has been attacked AND must request aid; CIL don’t let other states decide/unilaterally to defend another. US acts TF not justified SD  SD: Necessity: Instant, no other option. Proportional: Narrowly tailored  Intervention in CIL: Also analyze under right to take countermeasures in response to actions that aren’t AA. o CIL: UoF against a state for acts against a 3rd party req. AA, otherwise UoF against territorial integ. or political ind. = unlawful intervention. o No “collective” armed response to non-AA acts. o Even US doesn’t claim there is a right of coll. SD. Speaks to US OJ. Also not CIL but no report under Art. 51 hurts US AND US has contradicted other States claims of SD when this report is missing. o U.S. UoF. Ex: Laid mines, certain attacks on ports, etc. o None “victims” suffered an armed attack, alleged that they did, or if they did, sufficiently requested the US help (El Sal did after the fact). Domestic Implementation  Treaties valid pursuant to Art. 2 presumed to be valid under Art 1 N+P clause. Can contravene state law as supreme law where Congress couldn’t.  Once a treaty determined to be valid, Cong. acts implementing treaty presumed valid as well. “There can be no dispute about validity…” of IL.  “Acts of congress are supreme law…only when made in pursuance of the Con., but treaties are declared to be so when made under authority of U.S.”  Some matters of sharpest exigency require national action that state’s can’t take, as in this case with birds. Holmes was reviewing treaty, NOT IL.  Implementing legislation (IL) must meet N+P Clause. In treaty context simply

merely means it must have RR.

Abott v Abott – Ne

exeat = custody right, interpreting treaty, “great weight”

Avena/LaGrand –

ICJ says on review of case it should be independent claim that they lost consular rights, not DP claim Sanchez Llamas – ICJ rulings not binding, SC interprets laws and treaties are supreme laws, they weigh respectful consideration (not great weight when conflicting evidence from exec).

Made in USA Foundation –

Nonjust PQ in IC Dames & Moore – Cong. Acq., long unbroken history = gloss of Prez power.

Garamendi – EA can
preempt state law, seems expansive but see Medellin

Medellin – SE v non
SE, treaties req. IL if they aren’t SE, submission to JDX =/= agreeing to be bound, President cant unilaterally make law.

means IL must have RR to treaty. If there is RR, no 10th scrutiny.  Bond implies Holland court saying that only Constitutional limits like First Amendment restrict Congress’ power w/r/t to IL No qualifying language.  Reid supports their position, people+states delegated treaty making power.  Executive’s interpretation of a treaty “entitled to great weight” in courts  Opinions of sisters signatories are also entitled to considerable weight  Court should also consider whether an interpretation fits O+P of treaty (if neexeat wasn’t a custody right wouldn’t make sense, return remedy fits O+P)  ICJ – Failure to inform of consular rights? U.S. obligation to permit a review and reconsideration of case to determine if actual prejudice occurred.  US law permits review IF national raises consular right issue at trial, otherwise procedural default rules will bar them from raising later. This frames an Art 36. claim as a due process, but ICJ says on review it’s an IND. claim the US should consider as part of its treaty obligations, not as DP claim.  ICJ rulings deserve “respectful consideration” but treaties are supreme law, and it is SC province to interpret laws, TF they ain’t compelled to listen to ICJ.  ICJ rulings requiring US to discharge obligations doesn’t mean their rulings are binding, simply means Fed. Gov would undertake to get states to comply.  Exec entitled to great weight. Bush pushed for respecting Avena, but then withdrew us from the Optional protocol, so his push only gets “resp. consid.” on the level of ICJ.  Procedural def. rules apply to Art. 36 like Const. claims because Art 36(2). Similar to Miranda claim, even if you didn’t know, failure to raise at trial = bar.  Dissent: SC should defer to ICJ, unclear whether ruling give full effect as 36(2) requires, SC has misinterpreted ICJ, hasn’t given RC, nations can grant rights above what their local laws may so this isn’t necessarily wrong.  “In context of int’l commercial agreements…the issue of what kinds of agreements req. senate rat. Pursuant to Art 2…” is a nonjust. PQ  Why? Int’l commerce not exclusively subject to Exec/Congr. Powers.  Congressional acquiescence  Twilight Zone, look to legislature’s intent  IEEPA = nullification of transactions NOT claims, and Hostage Act isn’t const. authorization for claim nullification BUT both can indicate Cong. intent  Enactment of law closely related to question of Prez. Authority evinces legislative intent to provide Prez broad authority to act independently.  Bills indicate intent, implicit approval of Prez. claim settlement in Int’l CS Act, int’l history of allowing exec claim settlement, unbroken acquiescence  DOES NOT SUGGEST P HAS PLENARY POWER OF CS.  Valid EA are fit to preempt state law, especially w/ express preemption  W/o? If it produces more than incidental conflict with FP, yield. W/in areas of traditional state competence is where State’s may have claims.  Weigh state interest as well when considering seriousness of conflict. State interest was weak + even if legit, national interest was the same w/ more ppl.  All int’l law obligations don’t have immediate effect as dom. law. Only SE  Thus, treaties aren’t dom. law unless there is IL or treaty itself is SE.  Head Money: Treaty = compact between nations, recourse int’l unless SE  Optional P, UN C., ICJ statutes don’t provide relevant obligation giving Avena binding effect b/c all are non SE and there is no IL  OP: Submission to JDX not same as agreeing 2 be bound. Just grants JDX  UN Art. 94: “undertakes to comply” not shall/must. Provides for sole DIPLOMATIC, not judicial, remedy (referral to UN SC, any P5 can veto). Refusal to acknowledge = political dispute + if ICJ judgments were immediately binding as dom. law, the veto power of Art. 94 remedy = useless  ICJ St: 1) Between nations; 2) 59 says no binding force except between parties in

SS Lotus – Lotus

American Banana Co – Territoriality Blackmer Nationality Alcoa – Effects

Yousef – Protective

Principle. Interfere w/ security or governmental func. Yunis – Passive Personality

Eichman –


Iran Hostage –

Appropriate CM to violation is persona non grata. Reparations.

UK Case – VCDR

rights not modified by breach of treaty Arrest Warrant – Diff. between immunity and impunity

respect of that case (Medellin not a nation, tf not a party); 3) Exec. consistently asserted that none of the treaties were SE  Memo: Can’t unilaterally make fed law by giving effect to judgment of ICJ pursuant to non SE treaty. Power to act must come from Congress or Const.  Stems from Art 2S2. P can “make” treaties, if he wants it to have effect, make them SE. Once signed w/o SE provisions, falls on Cong. to make the IL as power to make laws is in Congress. Thus this is 3rd cat of Youngstown  SC: No D&M argument that cong. acq. = gloss of exec power indicates approval. No unbroken history like D&M, US itself says act is unprecedented. Reach of Domestic Law (V)  States can exercise JDX to the limits that int’l law permits  Whatever isn’t prohibited by CIL principles is permitted.  General rule, “character of an act as lawful/unlawful determined wholly by law of country it is done in.”  There is a nationality principle that permits U.S. law to apply to citizens abroad b/c US retains authority by virtue of obligations of citizenship.  Invoked when national interest req. (acting as witness when summoned)  1st Test: Did Congress intend for act to attach liability to conduct outside of US on non-citizens and does our Constitution permit it?  2nd Effects Test: 1) Conduct intended to have sub. effect w/in the US AND 2) Conduct actually has intended effect (close + sub., like Prox. Cause)  State can assume JDX for conduct of non-nationals outside of country if it effects security of state. Generally fundamental government/security interest.  Not ltd to acts with political purp. Interfering with state’s “governmental functions” if act is contrary to host state laws + state has reasonably dev. Sys.  PP lets states assert JDX over crimes committed against citizens abroad  Controversial, but recognized in CIL + explicitly approved w/r/t hostages, so in this instance it would definitely apply despite controversy   Every state has auth. To try those who commit universally condemned acts  Scope, 3 theories: 1) Only applicable to piracy; 2) Only resort to PP when you can’t rely on territorial/nationality AND you have to first offer to extradite offender to state where crime occurred; 3) PP fine for a universally agreed list (not accepted b/c consensus too hard); or 4) PP applies whenever no1 else will  Ct. had JDX despite Iran’s claim that US claim was “small slice” of 25 year altercation, no princ. that ICJ shouldn’t take case because it has other aspects  Violated VCDR by not protecting embassy, not restoring stat quo, forbid US entry, permitting agents on premises, held diplomats, prevented communications, gained access to privileged communications, chargés also received no protection AND Iran contemplated crim. prosecution of hostages  Recourse = declare persona non grata, could bring own charges in ICJ for alleged U.S. violations. The violations aren’t even established AND EVEN if they established violations, taking hostages isn’t an appropriate CM.  This is a self-contained regime, inviolability of diplomats is foundational.  VCDR provisions are not modified by breach of treaty obligations by diplomatic agents, still a self-contained regime.  Search bags? Maybe, but reciprocity concerns (Polit. not legal judgment)  No customary int’l law or custom or practice exception to the rule according immunity from criminal jdx and inviolability of Foreign Ministers  Jdx doesn’t imply absence of immunity, and vice versa.  There’s a difference b/t immunity (temporal) and impunity: o (1) No criminal immunity in home state; o (2) Home state may waive the immunity at any time;

Mitsubishi – Arb. of
antitrust claims = ok.

Prima Paint – Claims
of fraud. Inducement of arb. clause = justiciable, they go to “making”

First Options - ? of

who decides arbitrability turns on what parties agreed on w/r/t that ?

RATKA (Egypt) Barcelona Traction –
Injury to corp =/= injury to SH

Loewen – Finality of
action on states part req. q/r/t mun. law violations. Adequate + reasonably avail?

Ireland v UK. Agiza v Sweden

o (3) After they cease to hold immune position in gov’t, national ct can assert jdx pursuant to IL for acts before/after period in office and acts committed in private capacity. o (4) Incumbent may be subject to crim. proceeds before int’l cts w/ JDX Putting it all together (VI)  Concerns of int’l comity, respect for foreign tribunals, sensitivity to need for predictability in intl comm., American business req. enforcement of arb. even w/r/t antitrust claims that might come out differently domestically.  Bremen, forum selection enforced, Scherk securities arb. enforced.  Rejected PP concerns w/r/t idea that priv. action fundamental to antitrust efficacy. Ct can protect PP when reviewing award at enforcement stage.  Dissent: Didn’t fit in scope of arb clause, arb clause should’t be construed to cover stat. remedies it doesn’t expressly state, no Cong. intent  Fraudulent inducement of K is arbitrable unless otherwise stated, fraudulent inducement of arb. agreement itself can be adjudicated.  §4 of FAA makes arb. clauses severable, doesn’t empower ct to review fraud. inducement. of K, otherwise all Ks w/ arb clause would be litigated  §3: Fed ct. may consider only issues relating to the making and performance of the agreement to arbitrate.  Whether parties have agreed to submit question of who has the power to decide arbitrability turns on what parties agreed upon. o Parties agreed to submit arbitrability q to arbitration? Defer o Didn’t, or were silent? Ct. decides, absent “clear and unmistakable” intent, presumption is that they did not.  Public Policy: In UN Conv., narrowly construed. Not national policy.  Injury to corp. incidentally harms SH, doesn’t mean they entitled DP. Diff. interests. Injury to right =/= Injury to a simple interest. Must be direct to SH.  Corp. still exists? Then state can exercise DP, even if assets gone. IF host state refuses to exercise on behalf of corp., another can’t use DP for its SHs.  Decision which breaches municipal law and discriminates against foreign litigant amounts to manifest injustice according to int’l law.  However, finality of action on state’s part req. w/r/t mun. law violations  No denial of justice if it can be challenged through judicial process, q becomes were 1) adequate and effective remedy 2) reasonably available?  Main diff. between torture and CID = intensity of the suffering inflicted  Art 3 violation doesn’t solely turn on broad pattern of HR violations, individualized inquiry about whether they would face torture is required.  Individual risk can be established by showing breach of obligation w/r/t treatment by foreign agents (Sweden acquiesced to A16 violation by CIA)  This differs from case where Sweden had assurances even tho they had them here because there wasn’t similar fact pattern (particularly w/r/t CIA).