TRANSNATIONAL LAW Introduction: While domestic law is a centralized system, international law is a decentralized system: it has no executive (although

the UN Security Council may be said to have certain executive powers, and there is the UN Secretary General), no legislature (although the measures adopted by the UN General Assemble and Security Council may have certain legal value), and no judiciary (although the is the ICJ). Additionally, rules of international law operate somewhat differently than those on the domestic level. Rules of international law are often referred to as norms. They are, in fact, akin to societal norms governing human behavior the difference being, of course, that the society in question is the international community, and the entities governed are, largely, countries. These social customs are powerful, often more powerful than actual laws that apply to our everyday behavior. General Definition: International Law: - International law may be defined simply as the law governing the relations between nations.Restatement of international law § 101: the rules and principles of general application dealing with their relations inter se, as well as with some of their relations with persons, whether natural or judicial. While international law confers certain rights and responsibilities directly upon natural and legal persons, it deals with them for the most part through states, to which it is principally addressed. International law is made chiefly by states, through their practice and agreements. Thus, it may be said that IL consists primarily of customary IL and treaties. Customary IL may be compared loosely with the custom that formed the basis of the early common law. The law of treaties bears many similarities to contract law, and multilateral agreements, especially those open to all states, have many of the attributes of legislation. Public vs. Private International Law: 1. Public: The term used to refer to international law in Europe and many other countries outside the U.S. Consists principally of rules governing the conduct of states, but also affects other actors. Is less likely to be relevant in private disputes than in controversies between states; it may, however, come into play in private civil or even criminal proceedings before domestic courts.` 2. Private: An expression used chiefly in Europe and the civil law world to refer to the field known as conflict of laws in the United States. It deals with choice of the applicable private disputes involving more than one jurisdiction and may include questions of procedure such as personal jurisdiction and the enforcement of judgments. Issues of private IL may arise in disputes between natural or legal persons, and are increasingly likely to do so as advances in transportation, communication and technology make the world ever smaller. More fundamentally, while private IL contains rules concerning the resolution of multi-jurisdictional disputes between private parties, public IL governs and to a large extent determines the conduct of states, whether or not a dispute exists. The Blurring Distinctions: While there is a relatively clear distinction in principle between public and private IL, the line has become somewhat blurred as they increasingly penetrate each other. Issues of private international law such as service of process and taking evidence abroad, application of US regulatory law-especially antitrust and securities law-and even enforcement of judgments may have important implications in the field of public international law. On the other hand, cases involving questions of private international law can entail public international law issues such as treaty interpretation, international human rights law and the fact of foreign sovereign compulsion (i.e. where another country prohibits compliance with US discovery requests). 1

Transnational Law: all law which regulates actions or events that transcend national frontiers. Included is both public and private international law, as are other rules which do not wholly fit into such standard categories. Transnational situations may involve individual's, corporations, states, organizations of states, or other groups. ACTORS OF INTERNATIONAL LAW STATES: Introduction: States remain the central actors in the field of international law; most international law is created, interpreted, complied with, or enforced by the Government of states. Though on whether a state exists, and on what entity is the government of a State, are imbued with political considerations, certain basic rules of international law have emerged as a guide. When an extraordinary political event occurs-emergence of a new state or the rise to power of a new government by other than routine processes-other states in the world community indicate their willingness to accept both the fact of change and the legal consequences arising from that fact by either explicitly or implicitly recognizing the new state or government. Recognition of States: Various scenarios in which a particular entity should be recognized as a State. \An existing state might fragment into several new states. A portion of an existing state might secede to form a new state. Two states might merge together to form a new state. Advantages in being recognized as the state. Being recognized allows the new state to consolidate sovereign control over its territory in the eyes of the world; it brings a new state into a normative system that protects it from foreign interferences and intervention. The new state can conclude with other states treaties that advance its interest, such as on trade and investment, and can directly seek foreign aid. The new state can also obtain access abroad to assets associated with its territory and can sue in international or national fora to vindicate its right. Montevideo Convention The fundamental elements of statehood are: (1) A defined territory; (2) A permanent population; (3) An effective government; and (4) The capacity to enter into relations with other states. -No aspect of these conditions speaks to magnitude; even a small geographic area with a small population qualifies as a state.With respect to third condition, the emphasis has been on the control that the government exercises over the relevant territory, to the exclusion of other entities. The degree of control necessary may be a function of the manner in which the government came to power.With respect to the fourth condition, it is possible for a state to assign some of its foreign relations capacity to another state (such as Liechtenstein has assigned to Switzerland) or to an international organization (such as the EU) without losing its status as a state.Only capacity is required, not actual practice.

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Is California a state in international law? No, because, while it has a defined territory, a permanent population, and an effective government, it does not have the capacity to enter into formal relations with nations; that power is reserved to the federal government.Who gets to decide whether these conditions are met? 1. Declaratory Theory posits that an entity is ipso facto a state once these conditions are met, regardless of what other states do or say. 2. Constitutive Theory provides that only when other states decide that such conditions have been met, and acknowledge the legal capacity of the government, is a new state actually constituted. While the declaratory theory is probably more widely subscribed to, in reality a new entity can only achieve many of the benefits of statehood when they are recognized by other states. Recognition of Governments: Under traditional international legal theory, the establishment of a new government through normal, constitutional processes within a state raises no questions regarding the recognition of the government.In such situations, the new government is entitled to all the rights and obligations accorded under international law.An entity that comes to power through non-constitutional means is not automatically accorded such rights and obligations. Its status as the government of the state may be in doubt until such time as it is widely recognized by other states.The central (and often determinative) issue for a state when deciding whether to recognize a newly formed government has been whether the new government is in effective control of its state (sometimes referred to as the de facto control test ). Effective control has largely been measured by the degree to which the government commands the obedience of the people within the state.The decision to recognize a new government, however, has not always been dictated simply by whether it passes the effective control test. Factors taken into consideration: (1) Whether the new government has declared its willingness to honor international obligations of its predecessor's, including debt obligations; (2) Whether the new government acquired authority over the territory through aggression; and (3) The political nature of the new government, including the degree to which it is democratic. Establishing diplomatic relations with a new government is not required as a part of the recognition process, although they usually go hand in hand.Breaking diplomatic relations merely signifies that one state declines to deal with another's government; it does not vitiate the recognition of that government. Recognition in U.S. Practice: The power to recognize foreign governments is inferred from the express grant to the President of the power to receive and Ambassadors and other public ministers. The Supreme Court has consistently stated that whether a government should be recognized is a political question whose determination is within the exclusive prerogative of the executive branch.The rights of governments recognized by the U.S. government include the right: (1) To bring a law suit in US court; (2) To claim sovereign immunity in U.S. courts and to receive diplomatic protection to the same extent as other recognized governments; and (3) To have access to the bank deposits and other property of the state located in the United States.the newly formed state succeeds to the rights and obligations of the prior state.

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If not expressly provided. 4 . An international organization (such as the United Nations) can be very large in membership and permanent staff. the organs may play role in various matters concerning the functioning of the treaty. This purposive . such an instrument is often interpreted not just by focusing on the ordinary meaning of the treaty language. the compatibility of a state s reservation to the treaty. The treaty provides the basic framework for the work of the international organization: It normally: (1) Sets forth the purposes of the organization. such attributes arise as a matter of international law given the international personality of the international organization as an entity separate from that of its member states. states have also formed hundreds of international organizations (sometimes referred to as intergovernmental organizations ) as more permanent for a for addressing various issues. Legal Personality: Once an international organization is created. Some IOs have only states as members. the treaty is also regarded as having a special status as the constituent instrument of an international organization.Alternatively. such as the creation of one or more organs and their associated powers. rather than just the practice of its member states. some tribunals and scholars assert that certain attributes are inherent in any international organization.At the same time. (4) Creates a secretariat permanent staff of the organization and identifies where the organization will be located. rather than remain static. or whether the treaty should be revised. which is often (but not necessarily) labeled a charter or a constitution. such as the ability of a state to join the treaty. Such a treaty is governed by the law of treaties in the same way as any other treaty. but also by considering the organization s basic purpose and goals. Membership can be global. (2) Specifies which kinds of states may join the organization. and how these goals may be achieved in a changing world. That is. and once they join how they participate in the work of the organization.INTERNATIONAL ORGANIZATIONS Formation: Rather than conduct inter-state relations solely through direct contact among governments.or teleological . these attributes might be implied based on the overall purpose of the international organization. and its constituents instrument is regarded as needing to evolve with it. while other IOs have both states and other IOs as members. an IO (such as the International Whaling Commission) can be quite small and focused on a discrete topic. questions may arise as to whether the international organization has certain attributes.approach to interpretation of the constituent instrument attempts to give greater vitality to the international organization than might otherwise exist under standard treaty interpretation. Further. how they can join. Further. and need not be based on geography. the constituent instrument of an international organization is often interpreted in light of the practice of the organs of the organization. IOs are typically created by a treaty.Consequently. An international organization is expected to evolve over time. or bilateral. regional. and can be responsible for addressing a wide array of issues. and (6) Addresses the privileges and immunities that the organization and its staff shall have.Unlike regular treaties. (5) Indicates how disputes concerning the treaty will be resolved. (3) Indicates the structure of the organization.

official. Yet. Conduct will be attributed to IO when it is committed by one of the organization s organs or officials. must combine to bring a claim against the defendant for the damage suffered by the organization. the state of the persons nationality would bring an international claim for damages against Israel (thus. Holding: The court held that the United Nations could seek reparation for the personal injury of a UN agent (as opposed to the injury of the United Nations as a whole). it would appear that an international organization is responsible for the consequences of wrongful conduct that can be attributed to the organization. it would be rather inefficient to rely on individual states for pursuing such claims. Rule: Under traditional international law. a question that sometimes arises is whether the organization itself is responsible for wrongful acts or its member states either directly or on a subsidiary basis (i. as a legal matter. the charter provides privileges and immunities to United Nations and each member state. Issue: Whether. it is impossible to see how the United Nations can obtain reparation unless it possesses the capacity to bring an international claim. save the defendant State. the court noted that the UN charter defines the relationship between the United Nations and its members. There is a general presumption that member states have not created an agency relationship with an international organization simply by ratifying the constituent treaty and participating in the work of the organization. or by a person entrusted with one of the functions of the organization. the court. to the extent that the human representatives of differing nationalities are often at risk in dangerous parts of the world. and allows for the conclusion of agreements between the United Nations and its members. the assassination was clearly an affront to the United Nations and its entire membership.CASE: Reparation for InjuriesSuffered in the Service of the United Nations(ICJ advisory opinion) Facts: A Swedish national. Even if the origin. Sweden would bring the claim). the court unanimously concluded that the power to pursue claims for direct injury to the United Nations necessarily followed. and this case. As in the case for state responsibility. nevertheless. the UN was capable of bringing a diplomatic claim against Israel for the death of a UN representative. Reasoning: Although nothing in the UN charter expressly accorded the UN such a power. requiring them to give the United Nations their assistance and to obey Security Counsel decisions. Having found the existence of an international personality. and thus member states are not responsible. was acting as a human mediator in the Middle East in 1948. 5 . as a policy matter. when the international organization cannot bear the responsibility). Legal Responsibility: -The creation of an international organization also raises issues as to when it is responsible for wrongful acts. It cannot be supposed that in such an event all the members of the organization.e. and the evidence suggested that the Israeli agents were responsible. Further. or person is acting ultra vires (outside the scope of their powers). Because of the unique character of international organizations. nor had any international organization previously exercised such a power. Among other things.. While performing his duties in Palestine. Count Bernadotte. Moreover. Further. determined that to achieve UN ends the attribution of international personality is indispensable. attribution may occur if there is a close enough nexus to the official work of the organization. Bernadotte was assassinated. not just to Sweden. That presumption is even stated explicitly in the constituent instruments of some international organizations. the court found that such claims could be pursued even against a State who is not itself a member of the United Nations. According to the court.

if so.Further issues may arise as to whether the injury resulted from the action of an organization official who was acting outside the scope of his official duties. and as a general matter enjoy the same privileges and immunities as diplomats. the United Nations and United States in 1947 concluded a bilateral Headquarters. not to the specialized agencies of the United Nations. are accorded freedom of speech. 6 .Having said that. which also sets forth the powers of those organs. the convention provides that they are immune from personal arrest. High-level UN officials (secretary-general) are accorded the same privileges and immunities accorded to diplomats. exemptions from taxes on their salaries. The US Diplomatic Relations Act is principally directed at the privileges and immunities of diplomats.There is no single blueprint for how many organs an international organization should have.Because there is no global convention on the privileges and immunities of all international organizations and their staffs. archives and documents are inviolable. in 1946 the United Nations adopted a General Convention on the Privileges and Immunities of the United Nations. nor the size or powers of those organs. the UN charter provides that the United Nations shall enjoy in its member states such privileges and immunities as are necessary for the fulfillment of its purposes. and that the United Nations is exempt from taxes and customs duties. -With respect to representatives to United Nations from member states. the national law may largely consist of local rules on agency. its property and its assets are immune from process. contract. -Third. the law in this field is uneven. however. it is common to have one plenary organ in which all member states are represented and which meet annually or biennially to provide overall guidance to the work of the organization. -The United Nations serves as a useful example of the types of privileges and immunities that exist for international organizations.Second. but the language and legislative history appears broad enough to cover representatives to international organizations and. The convention provides that United Nations. and other privileges and immunities. in which case the organization may not be responsible. This convention applies to the United Nations itself. Privileges and Immunities: It is generally thought that international organizations and their officials must have certain privileges and immunities in order to undertake their work without interference by the states in which they are operating. difficult issues may arise as to whether the injury resulted from an action taken within scope of the official powers of the organization (intra vires) or from an action outside the scope of such powers (ultra vires). accords them the privileges and immunities accorded to diplomats under the Vienna Convention on Diplomatic Relations.Under the former. that UN premises. the convention provides immunity from suits for acts performed in their official capacity. exempt from immigration restrictions.First. while a second organ-consisting of a smaller subgroup of the member states-meets more often to decide on the details for implementing that guidance. many of the rules of state responsibility applicable to states would appear to apply.Under international law. With respect to officials of the United Nations. or from the action of a person hired temporarily by the organization (such as a chauffeur). Structure and Powers: An international organization normally has organs created pursuant by its constituent Treaty. In either event.The level of responsibility of the international organization itself may differ depending on whether national law or international law is being applied. It also provides that representatives of members of the United Nations (meaning persons sent to the United Nations to represent a member state) and UN officials shall similarly enjoy such privileges and immunities. and corporations.

protections for persons have grown enormously. As a general proposition. interpretation of. such as on trade and investment. including before international tribunals. In limited situations. Legal Persons (Corporations): Multinational corporations: corporations with affiliated business operations in more than one country. they may be dual nationals. the activities of multilateral corporations can be global in scope. and provide significant benefits by creating wealth in states where they operate. that is. voluntarily created. but with a transnational scope to its activities (such as the International Committee of the Red Cross. such as the role employer representatives play in the tripartite (government/employer/labor) representation established for the International Labor Organization Assembly. natural persons can even bring claims against their own states before international tribunals to vindicate rights. other NGOs embrace government involvement. naturalization can occur by voluntary application and acceptance in a formal process or as a result of marriage. and compliance with international law. they are governed by and covered natural and legal persons. An individual may also become a national of a state that acquires a territory on which he or she lives. Individuals may also have more than one nationality. A person's nationality is important aspect of the rights and protections accorded the person under International law. which was created under Swiss law and whose members are also its nationals).NON-GOVERNMENTAL ORGANIZATIONS NGOs are generally regarded as groups of persons or societies. In other instances. or the reacquisition of an original nationality by operation of law. but are then affiliated with numerous offices worldwide that have legal status under other national legal systems. produce goods and services. introduce technologies. Through their investments and trades. Over time. which act independent of governments on a nonprofit basis.These corporations have become extremely important actors and the transnational arena. Natural persons may now be criminally prosecuted for violations of international law.Some NGOs are principally the creature of a single national legal system. In some situations. -Further. 7 . for the NATURAL PERSONS AND GROUPS -While states are the dominant actors in field of international law. to be entitled to recognition on the international plain. While a corporation is deemed to have the nationality of the state where it is incorporated. they are directly involved in the creation of international agreements. adoption. While many NGOs firmly retain independence from states by not accepting government donations. these corporations create jobs. that nationality must be based on a genuine link between the state and the person or entity. especially with the dramatic rise of human rights in international humanitarian law in the latter half of the 20th century.While there have been some effort to afford NGOs a formal status under international law.NGOs come in many different shapes and sizes. are designed to create a right for individuals or corporations to sue states before international or national fora to vindicate rights. -Conversely. such as before the European Court of Human Rights. and develop markets. various economic treaties. -Although each state has the right to determine how a person may acquire its nationality. although the consent of an individual is normally required before states can impose its nationality upon that person.Other NGOs have a headquarters office created under a single national legal system. There are various ways that these corporations become involved in the creation of. nationality may be acquired as the result of birth. either by being born within the state's territory (jus soli) or through the nationality of one's parents (jus sanguinis). NGOs are creatures of national law.

and the environment. The convention directly applies to treaty relations between two VCLT parties. the VCLT does not directly apply. or between two or more IOs. can be sure or lengthy.For treaties concluded prior to that date. human rights. such as an exchange of diplomatic notes between two states. the licensing of intellectual property across borders.The treaty need not expressly state that it is governed by international law. Finally. contracts between two or more states are commonly referred to as treaties or conventions. Thus. MNCs are the source (and target) of efforts to develop certain forms of nonlegally binding norms (referred to as soft law. or it will be regarded as a contract. A variety of treaties and codes have developed in the field of private international law to address these transactions. Vienna Convention on the Law of Treaties. is adjudicated by international arbitration between the investor and the state ( investor-state arbitration ). and for treaties concluded by states that have not yet ratified the VCLT (including the US). If two states conclude a written instrument containing language that is non-legally binding in nature. In any event. when disputes arise. rather than the local courts of the host state. meaning that the contract becomes governed by international law and. in suspension or termination of the Treaty. INTERNATIONAL LAW CREATION TREATIES: Introduction In the international arena. They have engaged extensively in the international sale of goods. MNCs have often internationalized their investment contracts with such states. then it will not be regarded as governed by international law or national. What constitutes a treaty? Article 2 of the VCLT defines a treaty as an international agreement concluded between states in written form and governed by international law. many states (including the US) regard the VCLT as largely reflecting customary international law. many international rules protecting foreign investors have emerged from both international agreements and arbitral decisions.these corporations have developed or availed themselves of international legal norms in their relations with such states in which they do business.treaty on treaties A means of codifying the background rules states were following in their treaty practice. MNCs have also been important players in the field of private international law as it relates to economic matters. and often contain important provisions regarding performance. can be of limited or unlimited duration. and other forms of international business transactions. general IL accepts that there can be binding oral treaties between states. or transnational corporate codes of conduct).The VCLT s definition recognizes that a treaty may consist of not just a single written instrument but of multiple written instruments. dispute settlement. its intention to be governed can be determined from the language and context of the instrument. however. Although the VCLT only speaks to written treaties concluded between states. Like contracts between persons. which often draw on international laws relating to labor. should or will rather than shall enter into effect rather than enter into force 8 . whether embodied in a single instrument or in two or more related instruments and whatever its particular designation. treaties can be on a wide variety of substantive issues. A treaty must be governed by international law. but only for treaties concluded after the date the VCLT entered into force for those parties. as well as binding treaties between a state and an IO.

Negotiation: Bilateral Treaty: The two states meet for one or more sessions to hammer out the details of the Treaty. The Treaty might provide that a state's signature establishes the state's consent to be bound to the Treaty. the person's credentials to the conference may serve a similar function. Article 18 provides that. Simultaneously. if internal approval is not secured. then signature alone will be regarded as establishing a state's consent to be bound. agreement. may the President proceed to the next step of ratifying the treaty. For instance. such as one year from the date of adoption. and then normally initialed the final text once the negotiation is completed. a state s signature simply reflects a commitment by the State to pursue whatever measures are necessary to ratify the treaty.To indicate that multilateral negotiation have ended. in the US. typically by consensus or at least a twothirds majority vote. which may last several years if there are many states involved and the subject is politically or technically difficult. as well as certain international organizations. how often they met. If there is no indication in the Treaty that any further steps are anticipated after signature.An instrument s exact label is not significant. When this two-step process exists. authorizing a person to represent it in the negotiation or adoption of a treaty. A multilateral treaty is normally opened for signature for a discrete period of time. including all translations. then it will be a treaty no matter its label.If the treaty is being negotiated as part of a multilateral conference. At the same time as (or just after) adoption. Only after receiving such consent. Senate for advice and consent. Most treaties allow states to accede to the treaty after the end of the signature period by filing an instrument of the accession. Making Treaties: Representation: Every state has the capacity to make treaties. it can be called a treaty. and who presided over them. a State is obliged to refrain from acts which would defeat the object and purpose 9 . The principal reason for the second step is that many states have internal constitutional requirements mandating legislative or parliamentary approval of a signed treaty before it becomes binding on the state.So long as the language of the treaty demonstrates an intent to create a legally-binding instrument. charter. Ratification: When a treaty is written so that a further step by the state is anticipated after its signature. in the period between signature and ratification. Signing does not obligate the state to ratify a treaty. or some other name. such as European Community and United Nations. it simply establishes that the negotiations are over. Full Powers . such as which states attended. the VCLT accepts the state s inability to ratify. Signature: Once a treaty has been adopted. convention. Once the period for signing has closed.a document provided by state or international organization. the President or his representative signs the Treaty and it is then sent to the U. is certified by such procedure as agreed upon by the states involved. Adoption of a treaty does not mean that the Treaty becomes binding upon the states. such as ratification. meaning that the definitive text. which may require the passage of implementing legislation. the Treaty is often authenticated. Multilateral: A state or IO will host negotiation sessions. the signature alone does not establish the state's consent to be bound. states adopt the treaty. a state may no longer sign the treaty. the states may issue a Final Act providing a summary of the negotiations.S. the manner in which a state consents to be bound to it is usually indicated in the treaty itself.

where a failure of any state to abide by all the terms of the treaty would dramatically change the effectiveness of the regime. acceptance. since the two states can simply change the treaty in the course of the negotiations to suit their desires. especially for complex treaties. then all the parties must consent to the reservation before the reserving state may become a party. the treaty provides for only some reservations. Two possible consequences: (1) adopt a treaty that allows no reservations (and thus preserve uniformity of obligations). whereby it purports to exclude or to modify the legal effect of certain provisions of the Treaty in their application to the State. Articles 20-21 of the VCLT If a State files a reservation to a multilateral treaty and the Treaty expressly authorizes such a reservation. Entry Into Force: -A Treaty enters into force as agreed upon in the Treaty. Article 19 of the VCLT provides that a state may file a reservation unless: The Treaty prohibits reservation. then no acceptance by the other parties is necessary (unless a treaty so provides). It may take many years for a State to file its instrument of ratification. or the reservation is incompatible with the object and purpose of the Treaty. Reservations: -Article 2(1)(d) of the VCLT defines a reservation as a unilateral statement. Only once a Treaty enters into force does it is binding on those states who have ratified it. For example. It is possible for a state to notify the depositary that it has no further intention of seeking ratification. when signing. The reserving state becomes a party to the treaty with a reservation in force. and there may well be no authoritative place to go for an interpretation of the issue. A state may not undertake any act that would impede its ability to comply fully with the Treaty if the state eventually becomes party to the treaty. but that must be very superficial or that attracts very few parties. the treaty enters into force as between the reserving state and the accepting state (and any others who accept the reservation). Determining the exact object and purpose of the convention can be difficult. approving or acceding to a treaty. which do not include the reservation in question. thereby permitting many states to join because they can make necessary adjustments. then the instruments of ratification are simply exchanged by the two parties once both have completed their internal processes. yet not become bound until some later point in time when a sufficient number of ratifications have been deposited. then the state submits its instrument of ratification to an entity designated as a depositary of the Treaty. Bilateral treaties normally provide for entry into force upon or shortly after both sides consent (by signature or exchange of instruments) to be bound. If the provisions above are not applicable. ratifying.Normally reservations are not made to bilateral treaties. Multilateral treaties normally provide for entry into force within a set period of time after a specified number of states have ratified the treaty.If the treaty is of a type where it appears that the rule of unanimity should apply because the consent of all parties to the entirety of the treaty is essential. If a bilateral Treaty anticipates ratification. the reserving state can become a party to the multilateral treaty so long as at least one other state expressly or tactically accepts the reservation. The US took 40 years to ratify the 1948 Convention Against Genocide. or approval. which could be a state or an international organization. a state can file its instrument of ratification. Negotiation of a multilateral treaty often involves so many states that it cannot be drafted to the complete satisfaction of all. If a multilateral treaty anticipates ratification. accepting. In such an instance. or (2) adopt a very substantive treaty that allows reservations (and thus sacrifices uniformity). Thus.of the Treaty. as 10 . however phrased or named. made by a State.

Preparatory work is generally understood to include successive drafts of a treaty and other records and negotiations. the treaty does not enter into force as between it and the reserving state. Article 31-32 of VCLT. Once an interpretation is in reach following the above steps. it is appropriate to examine the preparatory work (or legislative history ) of the treaty . they are only prospective in application. the new treaty will govern with respect to the relations between states who are parties to both treaties. or offer alternative ones. as a consequence. When a new treaty conflicts with an earlier treaty.often referred to travaux preparatoires .modified by the reservation. Normally. any subsequent practice of the parties regarding its interpretation. The consequence of these provisions can be a treaty regime where there are numerous variations in rights and obligations as between any two parties to the treaty. Operation of Treaties: Once a Treaty has entered into force. The context of the terms of the treaty includes not just the entire text (including its preamble and annexes).in order to confirm the interpretation. which is widely used by states and international tribunals.A third state might object to the reservation. if other states do not object. If there is a conflict with national law. the understandings or declarations might be viewed as evidence of the parties interpretation of the Treaty. or leads to an absurd or unreasonable result. Tactic acceptance occurs when a party is silent for 12 months after being notified that a state has sought to join a treaty subject to a reservation. but also any agreement relating to the treaty that was made by all the parties in connection with its conclusion (or made by one party accepted by the others). 11 . a party's obligations under a treaty are not retroactive. the principle pacta sunt servanda provides that each party to the treaty must perform its obligations in good faith. other states may declare that the filing is actually a reservation and object to the submission in accordance with the procedures discussed above. the party should seek to alter its law prior to joining the treaty. the accepting state has its rights and obligations under the treaty vis-à-vis the reserving state modified to the same extent as that of the reserving state. The reservation does not solely benefit the reserving state. Such understandings or declarations become important when interpreting the meaning of the treaty since. except for the provision(s) to which the reservation relates (those provisions simply fall out of the Treaty). the treaty will enter into force as between it and the reserving state.A fourth state may object to the reservation and assert that. Account should also be taken of any subsequent agreement reached by the parties regarding interpretation of the treaty. and any relevant rules of international law applicable to the relations between the parties. such that the regime looks more like a network of bilateral treaty relationships than a unified multilateral treaty. If a state files an understanding or declaration that seeks to modify the legal effect of a provision of the treaty. Resort to preparatory work is also appropriate if the initial interpretation leaves the meaning of the relevant terms ambiguous or obscure. provides: A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.It is also common in treaty practice for a state to file an interpretive understanding or declaration that purports to clarify the meaning or scope of the treaty. but unless that State says otherwise.

Such state practice can take many forms. The practice of larger and more powerful states is often given greater weight than the practices smaller states. the court stated that absolutely rigorous conformity with the rule is not required. in part because the former are leaders of blocks of states and in part because they are better at publicizing the practice the written digests or other materials. and gradually ripening into a rule of international law. not as indications of the recognition of a new rule. Despite numerous treaties. yet since the court regarded customary international law as part of US law. Customary international law is important for its potential general application to states not parties to treaties. Ideally. instances of state conduct inconsistent with a given rule should generally be treated as breaches of that rule. Similarly. Holding: By an ancient usage among civilized nations. rather. In any event. and Even inaction by states when they are confronted with a particular matter. Rules of customary international law are often global in nature. customary international law (sometimes thought of as akin to common law) is one of the two principal sources of international law. In theory. the court found that the United States should not have seized the coastal fishing vessel as a prize of war. pursuing the vocation of catching and bringing in fresh fish. Two key requirements: (1) A relatively uniform and consistent state practice regarding a particular matter. Consequently.The first requirement is referred to as the objective 12 . real or apparent that may exist in the practice. there are many topics and many parties that are not covered by treaty law. in Military and Parliamentary Activities in and against Nicaragua.In the Anglo-Norwegian fisheries case.is to establish that states are engaging in their practice out of a belief that it is compelled or permitted by international law. have been recognized as exempt. the practice of all states is to be accorded equal weight. but it need not be perfect. beginning centuries ago. it should be evident over some extended period of time. the ICJ stated that there must be constant and sufficiently long practice.CUSTOMARY INTERNATIONAL LAW Introduction: Along with treaty law. the ICJ accepted that they could exist a customary rule of international law special to the states of Latin America regarding the right of the state to issue a unilateral and definitive grant of political asylum. but also that too much importance need not be attached to the few uncertainties or contradictions. with their cargoes and crews. rather than a very short period of time. Acts taken by states before international organizations.Acts taken by states in their diplomatic relations with one another. but they can also be regional. and (2) A belief among states that such practice is legally compelled. from capture as prize of war. a practice must be relatively uniform and consistent. it embarked on an analysis of state practice from the 1400 s through the 1800 s. There was no treaty on the matter that bound the United States. Opinio Juris: The second requirement of customary international law referred to as opinio juris sive necessitates . as well as its ability to supplement areas of international concern not addressed in treaties. but certain topics the practice of some states might be deemed of greater relevance than the practice of others. Acts taken internally by states through their legislatures or court. CASE: Paquete Habana: Issue: whether coastal fishing vessels of an enemy state could be seized by the United States as a prizes of war. coastal fishing vessels. Uniform and Consistent State Practice: The first requirement of customary international law is to establish that there is a relatively uniform and consistent state practice regarding a particular matter. In the Asylum case.

an individual state is not bound if the state persistently objected to the norm as it emerged. there may be no obvious opportunity to articulate such a belief. if most states agree on the emergence of a new norm.For example. for the state practice it would not be uniform and consistent. Obviously. There is often disagreement on which norms (if any) are Jus Cogens. whether opinio juris exists if often surmised from the context in which the practice took place.One difficulty in establishing opinio juris is that states often engage in a practice without publicly stating whether they believe the practice to be legally compelled. There are a handful of decisions by international tribunals to help clarify the matter: The ICJ has referred to the prohibition on the use of force by one state against another as a conspicuous example of jus cogens.The Inter-American Court of Human Rights has advised that the prohibition against racial discrimination is jus cogens. Jus Cogens: Peremptory norms. This persistent objector rule is a not to the centrality of state consent in international law. and force disappearances might also qualify. even where those two categories of law are largely identical.law so fundamental to interrelationship of states that a state cannot. jus cogens reflects a belief that certain important norms of international law have a superior claim to authority and therefore trump other norms. the ICJ found that customary international law on the right of a state to use force against another state exists separately from such rules as contained in the UN charter.The International Criminal Tribunal for the former Yugoslavia declared that the prohibition against state-sponsored torture has evolved into a peremptory norm or jus cogens.element of a customary international law. As an abstract notion. a few hold out states will not prevent the norm from coming into existence. deviate from the law. Super customary international law . 13 . Jus cogens appears not to arise from the normal processes of customary international law. then the state will not be bound by it. The principal idea in the opinio juris requirement is to distinguish customary international law from everyday customs of states followed out of courtesy or habit. to the extent that the relevant practice consists of inaction. Indeed. while the requirement of opinio juris is referred to as the subjective element. a norm that enjoys a higher rank in the international hierarchy and treaty law and even ordinary customary rules. Persistent Objector Rule: Even if both requirements are met so as to establish a norm of customary international law. It is a concept that seeks to bind states together in a fragmented world. Relationship of Treaties and Custom: An important dynamic within international law is the manner in which treaties shape and develop customary international law. slavery. Consequently. if a State refuses to consent to the norm of customary international law. a customary international law norm cannot emerge at all. defined by Article 53 of the VCLT as accepted and recognized by the international community of states as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character. but the objector states will not he bound by the norm. that is. through its treaty practice or otherwise. It seems that prohibitions on genocide. the emphasis is less on consensual state practice and more on notions of universal morality or justice. Yet. in Military and Parliamentary Activities in and against Nicaragua. if there are a large number of persistent objectors.

and application of the principles of good faith. However. Unlike a treaty. it is actually quite difficult to ascertain the practice of states.to which and 136 out of 191 states are party . Article 66 of the VCLT provides for settlement of disputes by the ICJ. the charter gave expression in this field to principles already present in customary international law. in theory customary international law can involve and overtake treaty law. new rules on the use of force established in the treaty (the UN charter) had influenced State practice and thereby passed into customary international law.may well reflect customary international law. There are no clear rules on what level of consistency or uniformity must exist in the practice. and that law has in the subsequent four decades developed under the influence of the chapter. especially since Article 1 of the treaty is written not to create a new crime. Nevertheless. For example. Moreover. As international law expands to encompass new subject areas. it is generally thought that the existence of a treaty between two states establishes a legal relationship with respect to the treaty's subject matter. but to confirm that genocide is a crime under international law. or what types of practice count. on how long the practice must exist.On the other hand. the doctrine of res judicata. rules concerning liability for damages. While in theory determining that a customary rule exists can be determined empirically. if the new customary norm is jus cogens in nature. a persistent objection to the application of the new norm to them. in fact. while other provisions may not. In other words.g. a customary rule of international law is defined from the practice of states. where the relevant rule is expressed in writing. Since there is no hierarchy between different sources of international law. to such an extent that a number of rules contained in the charter have acquired a customary status independent of it. general principles of law from domestic legal systems may be utilized until custom is established or treaties are developed. with customary rules simply filling in the gaps. Some critics even question whether customary international law really exerts any independent normative force.. For example. a treaty such as the Convention Against Genocide . the prohibition against being a judge in one's own cause. states agree to and follow customary international law only when it is in their national self-interest. unjust enrichment. right of passage over territory. Unlike treaties or international customary laws.Moreover. general principles are derived from domestic law and are not principles originating from international relations or obligations. General principles are losing importance in modern international law because many of the norms 14 . let alone determine whether opinio juris exists. Some provisions of a treaty may be regarded as reflecting customary international law. while the rule set forth in the UN charter may have initially converged from customary international law at the time the charter was adopted in 1945.Arguably. which may vary over time. the Treaty might not reflect new customary international laws since several states have declined to join (hence.The treaties that have secured low levels of ratification man may not support the existence of the customary rule. then any existing treaty which is in conflict with that norm becomes void and terminates. there is insufficient uniformity to establish a customary rule). yet only a state s express acceptance of an international tribunal's jurisdiction (e. by ratifying the VCLT) would be viewed as a basis for such jurisdiction. General principles of law are primarily applied to fill in gaps left by treaties and customary law. Criticisms of Customary International: Scholars often observe that it is an imprecise source of international law. Even if a treaty supports the existence of new customary rule. GENERAL PRINCIPLES OF LAW A general principle of law recognized by civilized nations is one so fundamental that it is a basic tenet in virtually every major legal system. some basic humanitarian rights. it might be argued that states refusal to join is.

and increases respect for the adherence to their decisions by states.International courts are especially likely to refer and rely upon prior judicial decisions. or other international courts. and once agreed upon may have the effect of narrowing the options that would otherwise be legally-available. With respects to the courts.once recognized as general principles are now incorporated in treaties or are recognized as customary international law.The better reasoned the judicial decision or opinion of the scholar.These norms may also begin a process of delegitimizing an existing rule of international law and may even serve as a basis for invoking a rule of international law. making agreement more likely. consisting of thirty-four highly regarded individuals in the field of international law.Moreover. Although generally decreasing in importance. such norms are taken seriously by state and non-state actors (they are usually regarded as at least politically-binding ). issues reports on various topics of international law that are often relied upon by states and international courts. SUBSIDIARY SOURCES: COURTS AND SCHOLARS The ICJ Statute describes as a source of international law judicial decisions and the teachings of the most highly qualified publicists of the various nations.For example. reference may be made to the decisions of courts and the writings of scholars when identifying the content of international law. General principles of often relied on are the doctrine of res judicata and laches. Despite being non-legally binding.Law actually generated by an organ of an international organization that is regarded as binding upon the member states of that organization.Negotiation and conclusion of the norm can often occur more quickly and with less procedural or bureaucratic obstacles at both the international and national level. Contracting costs and sovereignty costs are lower. there are groups of esteemed scholars whose work can be influential in establishing the content of international law. over time. INTERNATIONAL Law-making Introduction: In addition to the traditional sources referred to in Article 38(1) of the ICJ Statute. as well as the rule that judges are to act with impartiality and independence. NON-LEGALLY BINDING NORMS: Introduction: Non-legally binding norms or soft law may have important effects on the ordering of relations among international actors and. there are a variety of highly regarded treaties on international law generally and in various specialized fields.Judicial or arbitral decisions (especially of the ICJ) serve as an extremely persuasive authority in subsequent cases.These subsidiary sources are extremely important in clarifying the existence of norms. Thus. on the formation of international law. the International Law Commission.States delegate authority to the IO to make law. a particularly important source of law is law created by international organizations. such as the principles of good faith or estoppel. general principles continue to be applied in procedural matters and problems of international judicial administration. the principle of stare decisis does not operate for the ICJ. such as whether a customary rule of international law has emerged.With respect to scholars. The Restatement (3rd) of the Foreign Relations Law of the United States now classifies general principles as a secondary source of international law. and the more prestigious the court or scholar. since doing so promotes their own authority and legitimacy. the more persuasive it will be as a source. as a subsidiary means for the determination of the rules of law. The decisions of national courts as to the content of international law are also often referred to and relied upon as evidence of that law. Non-legally binding norms may be found in various places. including:Treaty provisions that call only for general cooperation among states or that bind states only to reach agreement on a 15 .

persuasiveness. Declarations or Political Pacts by States.Non-treaty declarations or political pacts issued by states that set forth certain aspirations. if there is a near-universal participation of states in the work of the organization. these declaration can make reference to numerous legal principles. human rights) are matters of their national jurisdiction.Language of this nature is so vague and susceptible to myriad interpretation that it provides little if any normative guidance.e. 16 . it may regarded as reflecting the opinio juris of the global community. none are subject to a process of ratification. and consensus which are incorporated in agreements between states but do not create enforceable rights and duties. Recommendatory Resolutions of International Organizations: A third form of soft law may be found in widely-accepted resolutions of IOs. in the field of international environmental law. but they are not regarded as themselves altering existing international or national law. Most of the UN General Assembly resolution (except those relating to the budget of the UN) may only be recommendations (UN Charter Articles 13-14) and therefore (unlike the Security Council s resolutions when acting under Chapter VII) are non-legally binding. if a resolution is adopted in a manner that speaks to the existence of an international legal norm. thereby making it difficult for states to claim that right (i.For example. then such resolution (even if not technically binding) can have a very powerful influence on the development of international law. May also serve as a basis for promoting more detailed cooperation among states through global and regional agreements and through the adoption of national legislation.Committee reports and comments can serve as a basis as a basis for encouraging states to enter into subsequent more detailed treaties. in that the states of the world did not purport to create a new crime under international law but. For instance. A second form of soft law may be found in non-treaty declarations or political pacts issued by states that set forth certain aspirations. on several occasions the GA has adopted resolutions that speak to the legal norms and that have strongly influenced the practice of states and decisions of international and national tribunals. rather. Vague or General Treaty Provisions: One form of soft law may be found in treaty provisions that are too abstract to be implemented automatically.Such a resolution may also serve to legitimize conduct occurring elsewhere.These norms of various degrees of cogency.Resolutions of IO that are recommendatory in nature.Part of the importance of such soft derives from the fact that it can lead to hard law over time. that call only for general cooperation among states.As such. None of these instruments are viewed by the states that agreed to them as legally binding.Nevertheless.Provisions which are so vague with respect to the norm being expressed that it requires further elaboration before it can have a serious legal effect. and unlike treaties.matter in the future.Such non-legally binding statements are an important means by which the international community pursues a consensus on normative values. Some treaty provisions simply call for generalized cooperation among states when possible and appropriate. andUN Generally Assembly DeclarationCodes of behavior that states or non-state actors operating transnationally are invited to adopt. which is important when considering the status of customary international law.If the IO has expertise or recognized competence with respect to a particular matter. there are numerous non-binding declaratory instruments or action programs made by states for the purpose of promoting environmentally sound management of resources. to recognize an existing crime.. or that bind states only to reach agreement on certain matters sometime in the future. the style of the language in the 1946 UN GA resolution affirming genocide as a crime was important. even though those resolutions are not legally binding.While not itself legally binding.

-Parties may designate the procedures and the laws to be applied. International law seeks to channel friction between states and mechanisms for pacific resolution as a means of avoiding armed conflict. mediation. Disadvantages of Arbitration: If the parties do not specify procedures. Advantages of Arbitration: -It is more conclusive than the other forms of non-judicial dispute settlement because the decisions of the arbitral panels are binding upon the parties. ARBITRATION Introduction: Arbitration results in legally binding settlements. the continuance of which is likely to endanger the maintenance of international peace and security. arbitration may be a very cumbersome and timeconsuming process. Though these processes are not centralized.If a more formal method of resolving the matter is required.If disagreement remains after those measure. a great advantage in disputes regarding sensitive matters. in various ways and before various fora. arbitration. Arbitral panels may be used to settle not only disputes between states.Giving GA resolutions such weight is more controversial when the resolution is not adopted by a large majority representing the various groups of states worldwide. The disputing parties retain greater control in the arbitration process than they retain in the judicial process because they appoint the arbitrators. Many states have passed domestic legislation to facilitate arbitration and have ratified bilateral treaties and conventions utilizing arbitration as a means of settling disputes. which may take the form of negotiation (where two or more states engage in dialogue) or of consultation (where a state intends to pursue a course of action and so notifies others). or to resolve disputes among international actors. The selected procedures are usually less cumbersome than those applied in the courtroom and the arbitration process can therefore be less time-consuming. INTERNATIONAL LAW INTERPRETATION AND DISPUTE RESOLUTION Introduction: Just as there is no global legislature to create international law. The settlement is reached on the basis of law by a group of judges appointed by the parties. Arbitration panels do not have the authority of courts to conduct discovery or subpoena witnesses.In making such appointments. they are fairly robust and often effective. judicial settlement. Arbitration is less formal and less contentious than adjudication. first of all. resort to regional agencies or arrangements. This is especially important for maintaining commercial relationships. inquiry. shall. states may agree to bring in a third party to assist through mediation or conciliation. the resolution may accelerate the conclusion of a legally-binding treaty that contains the norm. Chapter VI (Article 33) of the UN charter provides: The parties to any dispute. conciliation. but are widely used to settle commercial disputes between a state and a private party or between private parties. The parties themselves pay for the entire cost of the arbitration. states (and non-state actors) seek to resolve ambiguities in the law or avoid disputes through direct discussion. the parties may select people with specialized knowledge of the matters at issue. Both the arbitration proceedings and decisions can be kept confidential. In the first instance. seek a solution by negotiation. resort may be made to arbitration or judicial settlement.Finally. or other default and of their choice. which 17 . there is no global court with all embracing jurisdiction to interpret vague or ambiguous rules of international law.Interpretation of international law and international dispute resolution occur all the time. and even more so when it purports to progressively develop (as opposed to simply codify) international law.

S. Overseas v. A compromise may confer jurisdiction of particular legal questions on the ICJ and indicate the 18 .This provision basically allow a party to attack an award predicated upon arbitration of a subject matter not within the agreement to submit to arbitration.The Federal Arbitration Act has been specifically read to include an implied defense to enforcement where the award is in manifest disregard of the law. which the parties refer to it. Such arbitration clauses are common in commercial treaties and in international civil aviation agreements. The defendant was not given proper notice or was otherwise unable to present its case. The party defending against enforcement must overcome a powerful presumption that the arbitral body acted within its power.An example is the Iran-U. Recognition and enforcement of the award are contrary to the public policy of that country. The agreement is invalid under the applicable law of the arbitration or under the law of the country where the award is to be made. stating that the court has jurisdiction in all cases. or it contains decisions on matters beyond the scope of the submission to arbitration. Rakta The defense should be limited to awards contrary to principles of law and awards of violative of fundamental principles of law. if the arbitration is conducted efficiently these costs are often less than the costs of litigation. Claims Tribunal. Such after-the-fact arbitral agreement is often concluded when the parties have been unsuccessful with the other methods of dispute settlement. The award is in manifest disregard of the law. The burden of proof is on the party defending against enforcement. Types of Arbitral Clauses: Clause inserted in treaty: An arbitration clause ( compromissory clause ) may be inserted in a treaty dealing with one or more substantive issues to provide a method of settling disputes arising from the treaty.includes compensation for the arbitrators as well as administrative costs. However. The composition of the arbitral tribunal was not in accordance with agreement of the parties or of the law in the country in which the arbitration took place. The award is not binding because it has been set aside or suspended by a competent authority in the country in which the award was to be made. Ad Hoc arbitral agreements: Arbitral agreements may be concluded after the dispute has arisen. The New York Convention provides the following defenses to enforcement of the arbitral award: The parties to the agreement were under some incapacity. The award deals with a difference not contemplated by or not falling within the terms of the submission to arbitration. The award exceeds the powers of the tribunal. The Role of the ICJ: Article 36 of the Statute of the ICJ sets forth the ICI s role as a public international arbiter. The subject of the arbitration is not capable of settlement by arbitration according to the laws of the country where the award is to be recognized and enforced. Enforcement of foreign arbitral awards may be denied on this basis only where enforcement would violate the forum state s most basic notions of morality and justice. Treaty itself establishes settlement method: The treaty itself may exist solely to establish a method of resolving either certain categories of disputes or all disputes that may arise between the parties.

however. such as in a situation of distress. or other nature. -Each State enjoys the rights inherent in full sovereignty. At its heart. thus. drawn from the practice of states. (2) When a state's wrongful conduct might be excused. two or more states may always choose to craft alternative rules as among themselves. and the writings of scholars in a wide range of areas. The rights generally protected by the U. the decisions of courts and tribunals.rules of law to be applied by the court. For example. political. Rules on state responsibility are more general in application ("secondary" rules). and (4) When a wronged state may respond through the use of countermeasures. Thereafter. Rights and obligations are binding on the international community as a whole only if accepted as customary law with universal application. such as restitution or compensation. these articles have not been transformed into a treaty.N. and as yet there exists no finalized written statement of the rights and duties of states. Charter as a whole does impose obligations on its members to respect certain rights of states.To date. the U. In August 2001. Having said that. social. 19 . The U. they were not drafted by. UN General Assembly Declaration 2625 provides that all States enjoy sovereign equality. historically many studies of the rules on state responsibility focused on the treatment of aliens in the territory of a state and much of the law in this area has arisen in that context. They have equal rights and duties and are equal members of the international community. THE RIGHTS OF STATES There is much controversy regarding the basic rights of states. sovereign equality includes the following elements: -States are juridically equal.N. the precise content of their rights and obligations continues to be surprisingly ill-defined and uncertain. differs from other arbitration tribunals in that its membership is pre-established. -In particular. the ILC finally adopted the Draft Articles on Responsibility of States for Internationally Wrongful Acts. -Each State has the duty to respect the personality of other States. states.N. resolutions are as follows: Right of Sovereignty: Article 2(1) of the UN Charter provides that The Organization is based on the principle of the sovereign equality of all its Members. The ILC articles and their associatedcommentary are an important reference point for the law in this area. The ICJ. Charter and other U. the rules establish: (l) When particular conduct may be attributed to a state. RULES OF STATE RESPONSIBILITY INTRODUCTION: Although states have been the most prominent actors in international relations. General Assembly commended the articles to the attention of governments. -The territorial integrity and political independence of the State are inviolable. the field of state responsibility is concerned with rudimentary rules about when a state is responsible for a breach of international law and the consequences that flow from such a breach.N. let alone adopted and ratified by. not withstanding differences of an economic. a series of fifty-nine articles that purport to codify and progressively develop the rules in this area. (3) What kinds of remedies are available to a state that has been wronged. The rules on state responsibility are background or default rules.

Sovereignty in the relation between States signifies independence. Equality of States: Under international law theory. In the absence of treaty provisions to the contrary. particularly with respect to matters affecting individual rights.-Each State has the right freely to choose and develop its political. and in the Corfu Channel case the ICJ observed that between independent States. All states are to enjoy equal treatment.N. . In the Lotus case the PCIJ stated that the first and foremost restriction imposed by international law upon a State is that. It is said to have territorial sovereignty or territorial jurisdiction. The notion of exclusive.Each State has the duty to comply fully and in good faith with its international obligations and to live in peace with other states. and have equal capacity in their exercise. it may not exercise its power in any form in the territory of another State'. Article 4 of the Montevideo Convention provides that States are juridicially equal. social. Under a number of U. Independence in regard to a portion of the globe is the right to exercise therein. Neither the size of territories or populations nor the level of development has any bearing on states. Territorial sovereignty involves the exclusive right to display the activities of a state. including the Charter of Economic Rights and Duties of States and the Stockholm Declaration on the Human Environment. all independent states are equal. The concept of sovereignty and equality are closely joined. but upon the simple fact of its existence as a person under international law. Article 2 of the Montevideo Convention provides that the federal state shall constitute a sole person in the eyes of international law. The right of sovereignty is fundamental because it prohibits foreign intervention in internal affairs. resolutions. and the International Law Commission has been studying articles of state responsibility to extend state liability to injuries caused by acts lawful per se. failing the existence of a permissive rule to the contrary. states receive equal treatment when disputes arise in international organizations. no state is permitted to intervene in the affairs of another state. respect for territorial sovereignty is an essential foundations of international relations. the right to defense included the right to initiate hostilities in anticipation of 20 . Declaration on Principles of International Law Concerning Friendly Relations and Cooperation Among States provides that "armed intervention." Likewise. economic. enjoy the same rights." The Right to Defense: A state has the right to take steps necessary to protect its own security. Thus. The rights of each one do not depend upon the power which it possesses to assure its exercise. Customary international law also recognizes immunity for warships and limited immunity for merchant ships.N. and cultural systems. Before the U. The state is the supreme authority within its national territory. Charter was adopted. or to prevent them from doing or to compel them to do certain acts in their domestic relations or international intercourse. economic and cultural elements are in violation of international law. to the exclusion of any other State. and all other forms of interference or attempted threats against the personality of the State or against its political.N. states are declared to have absolute sovereignty over use of natural resources within their territories. The U. "No circumstances may place parties to a dispute in an unequal position before the court. domestic jurisdiction is subject to much controversy. The concept of legal equality is set forth in the Statute to the ICJ.This right has been qualified in recent years by growing recognition that a state has an obligation to ensure activities occurring within-its jurisdiction or control do not cause harm in areas beyond its territory. a state is not allowed to intervene in the management of the internal or international affairs of other states. the functions of a State.

-Capacity to join with other states to make international law. The U. -Conflict with a municipal law does not excuse a state from its international legal obligations. and to pursue and be subject to legal remedies. In such cases. to become a member of international organizations. -Incorporation of international law in the domestic legal order: -A state's constitution and domestic legal doctrines determine the effect of international laws within the domestic legal order. international law is automatically effective within the domestic legal order." Since there is no dividing line between them. there are instances when an international tribunal encounters and must interpret a municipal law at issue between disputing states.Dualism assumes that international and domestic law are separate matters and must. a variety of other inherently international issues) while domestic law addresses the relationship between the state and its citizens as well as among these citizens themselves. a state may not impose its municipal laws on the international legal system.Status as a legal person. including: -Sovereignty over its territory and general authority over its nationals. today. be kept apart. The Right of International Intercourse: States are free to establish and regulate their own international relations. to make contracts and enter international agreements. Incorporation of municipal law in the international legal order: -Incorporation of municipal law in international legal order: -Ordinarily. The Restatement (Third) § 206 incorporates some of these rights in US law. a state may be legally bound to an obligation under international law that would have no legal force under its own domestic legal system. Although municipal law cannot generally impose itself on the international legal order. INTERNATIONAL LAW AND MUNICIPAL LAW DUALISM AND MONISM Dualism: Under the dualist theory. Domestic courts do not apply international law itself but rather the domestic rules that "incorporate" it.A state may no longer engage in anticipatory self-defense without running the risk of being held responsible for an act of aggression in violation of international law. acquire and transfer property. as customary law or by international agreement. the international tribunal attempts to interpret the municipal law in conformity with the interpretations of the municipal courts. -The constitution also imposes on international laws the same limitations imposed on municipal laws.an attack. by and large. . and directly applied by. domestic Courts without any 21 . The most important practical consequence is that international law can be invoked before. with capacity to own.N. NOTE:Thus. International law regulates the relationships among sovereign nation states (and. Declaration on Principles of International Law Concerning Friendly Relations and Cooperation Among States in fact imposes a duty on states to cooperate with one another in maintaining international peace and stability and promoting the general welfare of nations. Monism: The monist theory holds that municipal and international law belong to a single "universal legal order. as long as they do not violate the accepted rules and principles of international law. international law and municipal law are entirely separate legal systems.

Purpose of the treaty and objectives of its creators 2.Thus. U. Non-Self-Executing: A treaty is non-self-executing if it instructs the legislature to implement enacting legislation. Medellin v.S. VI. law. Immediate and long range social consequences of self or non-self execution With the first factor being critical. CONST. that court held that Geneva Convention norms dictate the executive's ability to create military commissions because Congress had previously passed legislation that called for application of the Geneva Convention norms. FOR EXAMPLE: treaties pertaining to international crimes (e. the Optional Protocol to the Vienna Convention on 22 . a treaty containing hortatory or indeterminate language may be non-selfexecuting. self-executing) and treaties aimed at the legislature and requiring implementation before taking effect under the municipal legal order. alliances. Constitution. are "the supreme Law of the Land" and prevail over conflicting state laws. CONST.further ado.Whether or not a treaty is self-executing depends on the intent of the government and is an issue for the courts to decide when the treaty is invoked as law. TREATIES IN MUNICIPAL LAW Treaties in US Law Article II treaties: The President of the United States has the authority to make treaties with the "Advice and Consent of the Senate. Rumsfeld. U. law (i. § 2. § 2. courts without the need for implementing legislation by Congress." Two-thirds of the senators present must concur. or confederations with foreign nations. along with the Constitution and federal laws. The doctrine makes a distinction between treaties directly applicable by the courts as U. I. The question then becomes whether the treaty is self-executing and enforceable in domestic courts or non-self-executing and unenforceable without congressional implementation. § 10. U.S. Self-executing treaties may be applied directly in U. it is then the implementing legislation that is given effect as U.S. art. § 2..g. U. Self executing treaty ± becomes law upon ratification 4 part test to determine: 1. not the treaty itself. genocide. Texas The only modern guidance on distinguishing between self-executing and non-self-executing treaties. The individual states of the United States may not enter into treaties. Self-Executing Treaties: The doctrine of self-executing treaties is not explicit in the U.Neither the IC] Statute.N. CONST. CONST. Existence of domestic procedures and institutions appropriate for direct implementation 3. art. hijacking) or the raising of revenue require Congressional action before taking effect as domestic law. Charter. art.S.Where there is no express statement by the executive or congressional branches. art.e..S.S.S. Availability and feasibility of alternative methods of enforcement 4. The judicial power of the United States extends to cases arising · under treaties. III. Strictly speaking.S. In Hamden v. Treaties. the U. A treaty cannot be self-executing if the subject matter is one that lies within the exclusive law-making power of Congress. The diminished role of the state as a legal personality results in a dominant role for international law over municipal law. II. it is a judgemade doctrine. some courts focus on whether the language of the treaty is susceptible to enforcement.Difficulties arise if a treaty does not clearly mandate enactment through implementing legislation and the government takes no actions to implement the treaty. A Treaty that purports to create a private right of action is likely self-executing.

The court held that the cited provisions of the U. it is not for the federal courts to impose one on the State through lawmaking of their own.N. a conflict between treaty obligations and domestic law does not excuse the United Slates from its international legal obligations. absent any indication to the contrary. a California state law barring certain aliens from owning land was upheld against conflicting provisions of the U. there is support for the proposition that the federal government may do by treaty what it cannot do by statute. Whether executive agreements. legislative action may supersede an earlier treaty. incorrectly applied a presumption against self-execution. supersede existing federal statutes is doubtful but unsettled. Treaties and Conflicting Federal Statutes: Self-executing and legislatively executed treaties prevail over state law but do not necessarily prevail over federal statutory law.N. Under international law. In so concluding. When both address the same issue. A later treaty may supersede an earlier federal law.N. such treaty provisions prevail over conflicting state law. according to dissent. The majority held that where a treaty does not provide a particular remedy.When reconciliation is not possible. The "last-in-time" rule applies only to article II treaties. automatically binding the State. Treaty law and federal statutory law are virtually equivalent in status. In Missouri v. Holland. "Treaties" benefiting from the Supremacy Clause include "congressional/executive" agreements and "sole-executive" agreements. that is. Charter was the equivalent of shall comply or must comply. and thus made the obligation self-executing.S. Test for Non self-executing treaty requires Congress to pass additional legislation Factors determining: -Intent of drafting parties -Explicit language in treaty (whether it can be enforced based on that alone) -Comments made during treaty making process -Look at how broad the language is (if very broad probably non self-executing) -Does it create a private right of action (if it does then it is self-executing) Treaties and Conflicting State Law-Effect of the Supremacy Clause: Self-executing treaties and legislatively implemented treaties have the status of enforceable federal law and benefit accordingly from the Supremacy Clause. Scope of the Treaty Power: The authority of the United States to enter into international agreements is coextensive with the foreign affairs interests of the United States. The dissent pointed out that since Foster the Court had frequently held or assumed that particular treaty provisions were self-executing. the general rule is that the last in time prevails.Consular Relations. Charter. Thus. Charter were not "intended to become rules of law for the courts of this country upon ratification of the charter. The "last-in-time" rule applies only under U. law.S. 23 . like treaties. the Supreme Court the state of Missouri asserted that the regulation of birds was a matter "reserved" to the states under the Tenth Amendment of the U. Likewise. those made with the advice and consent of the Senate. either expressly or implicitly. these Justices.The dissent further argued that the phrase "undertakes to comply" in article 94(1) of the U. For example. courts attempt to interpret the terms of each in such a manner as to avoid outright conflicts. nor the ICJ decision in Avena were directly enforceable as federal law in state courts.A treaty lacking required legislative implementation does not prevail over conflicting state laws. Constitution. Indeed.

Holding: All agreements are subordinate to the Constitution and the Bill of Rights. and it is not lightly to be assumed that. however.-U. Justice Holmes found that the federal government could regulate migratory birds pursuant to a treaty. Incorporation of Customary Law into Domestic Law: -The United States joins other common law jurisdictions in considering customary rules to be automatically incorporated into the domestic legal order and thus directly applicable in domestic courts.S. As early as 1784 (Respublica v. resort must be had to the customs and usages of civilized nations. Canada.Note again. agreement was within the power of the federal government and whether the UCMJ constituted legislation necessary and proper to fulfill that international agreement. like treaty law. law is unclear.S. In Reid v. and India all treat customary rules of international law as part of domestic law. CUSTOMARY LAW IN MUNICIPAL LAW Common Law countries: International Law as Common Law International law derived from sources other than treaties is considered by common law countries to be a special type of common law. and no controlling executive or legislative act or judicial decision. England. In effect. the law of nations was considered to be part of the law of the United Slates.In upholding the treaty. This principle was stated in The Paquete Habana: "International law is part of our law. The United States. that U.K. Facts: An international agreement between the United States and the United Kingdom provided the United States with exclusive criminal jurisdiction over the crimes. and had murdered their husbands. Whether customary international law supersedes a pre-existing treaty or a preexisting statute under U. no jury trial. as often as questions of right depending upon it are duly presented for determination. However the Court stated: It would be manifestly contrary to the objectives of those who created the Constitution. courts will attempt to 24 . Issue: Whether the U. where there is no treaty. in matters requiring national action. and lacked certain other constitutional rights normally accorded civilians. such construction would permit amendment of that document in a manner not sanctioned by Article V. For this purpose. The only recourse was to try the civilian dependents before a court-martial under the Uniform Code of Military Justice (UCMJ). there existed no federal or state statute in the United States granting jurisdiction to a regular court over murder committed abroad. Analysis: The Supreme Court noted that Article VI of the Constitution made treaties part of the Supreme law of the land. even though a similar federal statute had been struck down previously by lower courts as unconstitutional. The court stated: It is obvious that there may be matters of the sharpest exigency for the national well being that an act of Congress could not deal with but that a treaty followed by such an act could. is considered federal law and receives the benefits of the Supremacy Clause. After being convicted and sentenced to death. and must be ascertained and administered by the courts of justice of appropriate jurisdiction.S. Supremacy Clause and Customary International Law: Customary law.S. the defendants appealed to the U. Covert. a military system of justice that (at the time) provided no grand jury. Supreme Court. the defendants were civilian dependents of armed servicemen posted in the United Kingdom. Justice Holmes also found that the scope of the treaty legislative powers granted to Congress did not govern the scope of the treaty power. Yet. a power which must belong to and somewhere reside in every civilized government is not found. De Longchamps). as well as those who were responsible for the Bill of Rights-let alone alien to our entire constitutional history and tradition-to construe Article VI as permitting the United States to exercise power under an international agreement without observing constitutional prohibitions.

Any other presidential authority in international affairs must be premised on the inherent authority generally conferred by Article II. foreign.interpret a federal law to avoid conflict with international law. and declare war. two-thirds of the U. practice is long-standing and reflects a practical accommodation of the 25 . government authority in the field of foreign affairs is exercised by the executive branch. courts have interpreted these Congressional powers broadly in the field of foreign affairs when Congress chooses to act. and from the president's duty to take care that U. such as agreements by "alliance.Although it may seem startling that U. an extraordinary amount of U. provide for the common defense. create and regulate an army and a navy. and judicial opinions are all consulted in order to establish a rule of international law. this U. FOREIGN RELATIONS LAW OF THE UNITED STATES Congressional Power: Under the U. Article II of the U. regulate naturalization.. This practice contrasts with that of international tribunals. U. Congress also. whether the international law is in the form of a treaty or custom.S. of course. As a practical matter. laws (including treaties and customary international law) are faithfully executed. and international courts.S.S. unless there is a specific constitutional limitation on governmental power. regulate commerce with foreign nations. Custom. Further. without the advice and consent of the Senate. such as in the Bill of Rights. which consider each a discrete source of law.S. which alone represents the United States in diplomatic relations and before U." and "compact. Congress has several powers touching upon foreign affairs. Constitution expressly grants the President authority: -To be Commander in Chief of the Army and Navy.S. there is an indirect recognition in the Constitution of types of international agreements other than treaties. Much of this general executive power is also derived from customary practice. -To make treaties. often as the result of struggles between the executive and legislative branches for the right to exercise a given element of foreign affairs authority.S. Constitution. practice in concluding international agreements deviates so starkly from the means contemplated in Article II for the making of treaties. define and punish piracies and felonies committed on the high seas (as well as offenses against the law of nations). concluded by the president.S. make rules regarding the law of prize.S. As in other areas of law. but also from vesting of the "executive power" in the president." "confederation.S. general principles. Moreover. foreign policy and make credible commitments to foreign governments. Executive Power: General Executive Power: In contrast to Congress.S. -To appoint ambassadors.As a single voice the president is in a much better position to articulate a single U. government and enact all laws "necessary and proper" to execute any federal powers. and -To receive ambassadors and public ministers.S. US Treatment of Customary international law: US courts group customary law together with other non-treaty sources of international law to form what is called international common law. such as the powers to lay and collect duties. Executive Agreements: Introduction An executive agreement is a binding international agreement. has the power to appropriate funds for the U. Senate must provide advice and consent before the president may ratify a treaty. public ministers and consuls. Such power not only is derived from the few express powers noted above. the president is expressly allocated few foreign affairs powers by the Constitution. scholarly works.

without further congressional approval. there is some authority for the proposition that the foreign affairs power is a necessary attribute of sovereignty itself and therefore is inescapably embedded in the national government. relying solely on his constitutional power to appoint and receive ambassadors. In Dames & Moore v. Indeed. JUDICIAL POWER Article III of the U. Curtiss-Wright. In upholding the President's authority. Third. all the important foreign affairs powers are explicitly denied to the states by the U. ambassadors. and cases between a state (or its nationals) and foreign states (or their nationals)." Bases for Striking Down State Laws: 26 . that agreement might even involve the settlement of outstanding claims between the two nations. the Supreme Court took a very broad view of the inherent powers of the President to enter into international agreements. the Court upheld executive orders to effectuate the settlement agreement between the United States and Iran concerning the U. Executive agreements are based on one of twoother forms of legal authority: 1. the president may conclude those agreements without obtaining further Senate approval. and admiralty and maritime jurisdiction. 2. while the Senate provided advice and consent to the NATO Status of Forces Agreement. the Constitution's Supremacy Clause expressly makes federal legislation passed pursuant to these federal constitutional powers (as well as all treaties) binding upon the several states as "the supreme Law of the Land. Second. but the current practice is to recognize any government in effective control of a state. Constitution provides that the federal judicial power extends to all cases concerning treaties.S.S.president's need to conclude numerous agreements. the Court emphasized that Congress had acquiesced in the President's action and that there had been a long-standing practice of settling claims of U. The executive branch has used recognition of governments as a political tool. the president might conclude an executive agreement with another state to establish diplomatic relations. disputes concerning the interpretation of constitutional provisions and statutes relating to foreign affairs are also within the scope of the judicial power. nationals against foreign countries by executive agreement without the advice and consent of the Senate. U. Moreover.S.Thus. a series of bilateral agreements with individual states in order to implement the treaty. Since federal courts are vested with jurisdiction over matters arising under federal law. In United States v. Constitution. FEDERAL-STATE RELATIONS Reasons for Federal Dominance First. many of marginal significance.S. For instance. Regan. without adhering to the formal treaty process. hostages seized from the American Embassy in Tehran in 1979. Recognition of Governments: Implicit in the express constitutional authorization to receive ambassadors is the president s exclusive power to recognize foreign governments.S. Sole-Executive Agreement: The president may conclude an executive agreement when it is based on one of his constitutional powers. the vast majority of international agreements entered into by the United States are never submitted to the Senate for advice and consent. Treaty-Based Executive Agreement: If there exists a prior treaty that contemplates explicitly or implicitly subsequent international agreements. constitutional history makes clear that matters touching upon foreign affairs were intended to be dealt with under federal law. the president thereafter concluded.

Dismissal of Petitioner Honduran National s Article 36 Claim in State Habeas Corpus Case Petitioner Honduran national was arrested and charged with murder. the officers did not inform him that he could ask to have the Mexican Consulate notified of his detention pursuant to Article VCCR. States may not act to exacerbate relations with foreign nations. [v]indicating victims injured by acts and omissions of enemy corporations in wartime is . but the police never informed him that he could request that the Honduran Consulate be notified of his detention. including the names of policyholders and beneficiaries. attempted murder. not state. Oregon Facts and State Court Proceedings Denial of Defendant Mexican National s Motion to Suppress after Article 36 Violation When defendant Mexican national was arrested after an exchange of gunfire with police. even if Article 36 did grant individually enforceable rights.If the federal government has issued a foreign relations law that directly conflicts with a state law or policy. The state trial court denied a motion to suppress incriminating statements that defendant had made during interrogation. When suit was brought by insurance companies for injunctive relief. After defendant was convicted of attempted aggravated murder. while those agreements did not directly preempt HIVRA. a state law may be struck down as contrary to the "foreign commerce" power reserved to Congress if the law facially discriminates against foreign commerce without a legitimate local justification and attempts to regulate conduct beyond the state's borders. Even if there is no direct conflict with a federal law. then-under the Supremacy Clause-the state law or policy will be struck down because it has been preempted by federal law. interests are overriding. within the traditional subject matter of foreign policy in which national. Sanchez-Llamas v. a state appellate court and the state supreme court affirmed his conviction. neither defendant nor petitioner was entitled to relief. The state habeas court dismissed the Article 36 claim as procedurally barred. Thus. the Supreme Court struck down the statute. . and has more than an incidental or indirect effect on US foreign policy. and the state supreme court found no reversible error in the dismissal. In the Garamendi case. nor may they contravene policies advanced in a US international agreement even if no direct conflict with the agreement exists. as well as a certification as to whether and how policy proceeds had been paid. and other offenses and sentenced to prison. HVIRA mandated broad disclosure of information by insurance companies doing business in California regarding all policies issued in Europe between 1920 and 1945. Further. the court affirmed the long-standing premise that "at some point an exercise of state power that touches on foreign relations must yield to the National Government's policy" so as to maintain uniformity in U. Petitioner subsequently filed a petition for a writ of habeas corpus in which he argued for the first time that authorities had violated his right to consular notification under Article 36. and the conviction and prison sentence were affirmed on appeal. and which the National Government has addressed. The court held that in this instance. dealings with other nations. which concerned the California Holocaust Victim Insurance Relief Act (HVIRA). .S. A jury convicted petitioner of first-degree murder. a state law may be struck down if it infringes on the general foreign affairs power of the federal government. The Consolidated Cases on Certiorari Judgments Affirmed The Supreme Court of the United States affirmed the judgments of the state supreme courts in both cases because. the executive branch had embarked on various executive agreements designed to resolve holocaust-era claims and. state interference with federal Policies may be prohibited even when those policies are not reduced to legislation. Suppression was not an appropriate remedy for a violation of 27 .

and a state could apply its regular rules of procedural default to Article 36 claims. Supreme Court of the United States Affirms Dismissal of Prisoner's Application for Writ of Habeas Corpus The Supreme Court of the United States. and the reasons for suppression in cases of Fourth and Fifth Amendment violations were entirely absent from the consular notification context. a writ of certiorari it had granted the prisoner to review the trial court and court of appeals decisions in his prior federal habeas corpus proceeding. 94(1). the federal courts could not impose one on the states. The Court determined that in the absence of implementing legislation. After the ICJ entered its Avena judgment in favor of Mexico and the Mexican nationals. and inconsistent with the basic framework of an adversary system. 2. Rights under Article 36 were more comparable to Miranda rights. it was not conclusive on the courts of the United States. the Vienna Convention on Consular Relations (Vienna Convention). U. with the result that his application was precluded by the state law rule against the filing of successive habeas corpus petitions. N. VI. Article 36 Claims Could Be Subjected to Procedural Default Rules: The Court concluded that intervening cases in which the International Court of Justice (ICJ) had interpreted Article 36 did not compel reconsideration of the procedural default holding in Breard v. although the ICJ's interpretation deserved "respectful consideration.Article 36. The Supreme Court of the United States granted the prisoner a writ of certiorari to review the decision of the court of criminal appeals. affirmed the judgment of the Court of Criminal Appeals of Texas dismissing the prisoner's application for a writ of habeas corpus. art. The Court had primarily applied the exclusionary rule to deter constitutional violations. Const. cl. was convicted of capital murder and sentenced to death in a state court of respondent Texas. alleging that the United States had improperly failed to advise the Mexican nationals of their right to consular assistance in defending themselves against criminal charges in the United States. a Mexican national. moreover. The Court stated that the President's Memorandum to the Attorney General (Feb. which were denied. Because the Vienna Convention did not provide for a particular judicial remedy. did not make the ICJ's decision binding domestic law 28 . which often could be asserted for the first time in a postconviction proceeding. Medellin v. incapable of overcoming the plain import of Article 36. The prisoner was one of 51 Mexican nationals on whose behalf the government of Mexico brought an action against the United States in the ICJ pursuant to U. the prisoner filed a second state court application for a writ of habeas corpus. in an opinion by Chief Justice Roberts. the prisoner filed applications in state court and in a federal court of amicus curiae United States seeking writs of habeas corpus. because. Greene.S.Neither Vienna Convention nor Exclusionary Rule Precedents Supported Suppression The Vienna Convention prescribed no specific remedies for violations of Article 36 but instead expressly left the implementation of the provision up to domestic law. and the Optional Protocol Concerning the Compulsory Settlement of Disputes to the Vienna Convention. directing state courts to implement the Avena decision. than to a Brady claim. to which procedural default rules applied. Court of Criminal Appeals of Texas Dismisses Prisoner's Application for Writ of Habeas Corpus The Court of Criminal Appeals of Texas dismissed the prisoner's application for a writ of habeas corpus. 28. Charter Art. pending state court action on the prisoner's latest habeas corpus application. the ICJ's Avena decision had not created automatically binding domestic law made applicable to state courts by the Supremacy Clause. In addition to an unsuccessful appeal of the judgment of conviction. 2005) (President's Memorandum). Texas Factual and Procedural Background Petitioner prisoner. The court of criminal appeals held that the prisoner's application constituted an abuse of the writ because he had failed to timely raise his arguments under the Vienna Convention. The Supreme Court of the United States subsequently dismissed as improvidently granted.

i. whether in civil or in criminal proceedings. relations. international law examines whether there is a particular link between the state and the person or thing when jurisdiction is asserted. whether by legislation. by executive act or order. yet not regard as reasonable the exercise of personal jurisdiction over that person (and vice versa). i. and the Avena judgment did not constitute domestic law.. rule. however. Const. or domiciled or resident in. say that its limitations on jurisdiction apply to civil as well as criminal jurisdiction.. the exercise of jurisdiction must fit within one of the five "principles" permissible bases of jurisdiction. restraints on a state's exercise of civil jurisdiction other than sovereign and diplomatic immunity. jurisdiction is understood to be the allocation of power and authority among the states. or the interests of persons in things.S. to subject persons or things to the process of its court or administrative tribunals. the state. to make its law applicable to the activities.e. under international law. (2) Whether the person is a national of. under international law." As the Restatement (Third) notes. a state is subject to limitations on its "jurisdiction to prescribe. § 3 to take care that the laws be faithfully executed because that power extended only to the carrying out of the laws. JURISDICTION INTRODUCTION Jurisdiction can be defined as the authority to affect legal interests. TYPES OF JURISDICTION Jurisdiction to Prescribe: Section 401(a) of the Restatement (Third) asserts that. or by determination of a court. As stated by the PCIJ in the Lotus case: Far from laying down a general prohibition to the effect that States may not extend the application of their laws and the jurisdiction of their courts to persons. by administrative rule or regulation. or status of persons. It is entirely possible that international law would regard as reasonable the exercise by a state of subject matter jurisdiction over a person. as regards other cases. art." International law requires that a state exercise jurisdiction to adjudicate only in situations where it is reasonable to do so. Regardless of the form. not to making them. The standard of reasonableness is not the same as the standard applied for jurisdiction to prescribe. International law appears to impose few. or regulation.because the President could not rely upon a non-self-executing treaty to establish binding rules of decision that preempted state law and the President's Memorandum was not a valid exercise of his foreign affairs authority in the area of settlement of claims by foreign nationals. a state is subject to limitations on its "jurisdiction to adjudicate. II. it leaves them in this respect a wide measure of discretion which is only limited in certain cases by prohibitive rules. More specifically under international law. whether or not the state is a party to the proceedings.e. For this type of jurisdiction. The Court rejected the prisoner's argument that the President's Memorandum was a valid exercise of the President's power under U. every State remains free to adopt the principles which it regards as best and most suitable. and 29 . Relevant links include: (l) Whether the person or thing is present in the territory of the state. Jurisdiction to Adjudicate: Section 401(b) of the Restatement (Third) asserts that. property and acts outside their territory. The comments to the Restatement (Third) of the Foreign Relations Law of the United States. or even extension of the law through judicial decision. if any. Civil and criminal jurisdiction: International law in this context is most important for the restrictions it imposes on state jurisdiction over criminal matters. a state might seek to regulate conduct extraterritorially through enactment of a statute.

PERMISSIBLE BASES OF JURISDICTION The case of S. the plaintiffs interest in obtaining convenient and effective relief.. Turkey's law allowed for such prosecution. Further. criminal sanctions (fines or imprisonment). whether through courts or by use of executive. courts have not allowed a unilateral abduction to stand in the way of an otherwise lawful exercise of U. (2) The person is given an opportunity to be heard. whether done through its courts or otherwise (e.When the United States seeks custody of an individual located abroad. Jurisdiction to Enforce: Section 401(c) of the Restatement (Third) asserts that. international law requires that a state only exercise jurisdiction to enforce in situations where it is reasonable to do so. Limitations set by international law generally provide that a state must first have jurisdiction to prescribe before the state seeks to enforce its law. the interstate judicial system's interest in obtaining the most efficient resolution of controversies. measured in proportion to the violation. (2) Assess the defendant's contacts with the forum state to determine whether they constitute purposeful activity. and (3) Look at the "forum state's interest in adjudicating the dispute.S. A state's law enforcement officers may only exercise their functions in the territory of another state with that state's consent. through administrative or police action). U. the United States has a network of bilateral extradition treaties with foreign states which obligate those states to extradite individuals to the United States under certain circumstances (and vice versa). to induce or compel compliance or to punish noncompliance with its laws or regulations. normally it pursues the matter through bilateral channels with the foreign government in whose territory the individual is located. Finally. Typically. Generally. i. at least when that interest is not adequately protected by the plaintiff's power to choose the forum. or sanctions for the failure to comply with a judicial or administrative order. Rule: 30 . Lotus ( THE LOTUS PRESUMPTION ) Facts: France objected to Turkey's attempt to try a French naval lieutenant for criminal negligence stemming from a collision between his ship and a Turkish vessel on the high seas which killed several Turkish nationals. and the shared interest of the several States in furthering fundamental substantive social policies.On rare occasions. courts will: (1) Consider whether the plaintiffs claim arises out of or is related to the defendant's conduct within the forum state. the United States has unilaterally seized a foreign national abroad and brought him to the United States. such that being haled into court would be foreseeable.e. At present. has consented to the exercise of jurisdiction or has regularly carried on business in the state..(3) Whether the person. and (3) Enforcement is through a state's courts that have jurisdiction to adjudicate. absent some express treaty prohibition to the contrary.S.S. jurisdiction over the defendant. U. administrative. under international law. however. a state is subject to limitations on its jurisdiction to enforce.g." Enforcement measures include ordering the production of documents.S. even though the act and injury occurred outside its territory. a state may only employ enforcement measures against a person located outside its territory if the person is given: (1) Reasonable notice of the claims or charges against him. natural or juridical. police or other non-judicial action.

Nationality 31 .A state is free to exercise its jurisdiction whenever it is not prohibited from doing so by a positive rule of international law. 2. In United States v. courts finding that conduct between foreign companies on foreign soil could nevertheless subject them to U. with U. securities trading. regardless of whether or not they were also concluded or consummated there. The first and foremost restriction imposed by international law upon a state is that failing the existence of a permissive rule to the contrary. and environmental protection. B. Nationality of Corporations: Jurisdiction based on the nationality of corporations is controversial because the "nationality" of a corporation is also determined in different ways by different states. 3. no matter how minimal or attenuated. but completed within the state's territory or causing serious and harmful consequences to the social and economic order within the state's territory. In general. The effects test has been applied in antitrust.S. of America.Effects Doctrine: American federal courts and the Restatement (Third) have adopted a broad interpretation of the objective territoriality principle based upon effects within a state's territory. within these limits. This principle of jurisdiction is particularly applicable to conspiracies to commit crimes in foreign states. as well some actual effect upon the state. export controls. United States v. Objective territoriality: The objective territoriality principle is applied to offenses or acts commenced outside the state's territory. Jurisdiction is sometimes exercised on the basis of reprehensible effects or consequences alone. the court concluded that after intent was proved. Such broad claims to jurisdiction have been criticized by many states and may be contrary to international law in allowing a state's territorial jurisdiction to be virtually limitless. jurisdiction if there are effects in the United States. the burden shifts to the defendant to prove that it did not produce some effect.S. "all that can be required of a State is that it should not overstep the limits which international law places upon its jurisdiction. Aluminum Co. Aluminum Co. Holding: The Court concluded. its title to exercise jurisdiction rests in its sovereignty.it may not exercise its power in any form in the territory of another state. Territoriality Principle: The territorial principle is a fundamental and universally accepted basis for jurisdiction. A. 1. the principle being that an essential attribute of a state's sovereignty is to have jurisdiction over all persons and objects within its territory.S. trade is shown. the doctrine requires the offender to have the requisite intent. and perhaps even if only an intent to affect U. International law requires that a state must have a genuine link with the person to assert jurisdiction based on nationality.Nationality of individuals: The right of states to regulate the conduct of their nationals everywhere and thus assert nationality as a basis for jurisdiction is widely accepted. "Pure" territoriality: The pure territoriality principle is applied when acts or offenses are commenced within the state's territory. of America. Nationality Principle: General rule: The state of a person against whom proceedings are taking place may exercise jurisdiction based on the nationality of the defendant. General Rule: The character of an act as lawful or unlawful must be determined wholly by the law of the country where the act is done.Whatever is not expressly prohibited is allowed on the theory that restrictions on the sovereign independence of states may not be presumed.

but may otherwise go unpunished if the state where the offense was actually committed does not itself consider the conduct to be unlawful. criminal law is principally regulated by the laws of the several states (not federal law). some criminal acts against diplomats. Nationality of Vessels: The nationality of a vessel is determined by the flag it flies. However. 4. Universality principle: The international community considers some offenses to be so serious that they are subject to the jurisdiction of all states. C. Passive personality principle: An injured person's state may assert the victim's nationality as a basis for exercising jurisdiction. normally there are no means for prosecuting that person in the United States. Protective Principle: A state may exercise jurisdiction over crimes that threaten its security and integrity or its vital economic interests. it is wholly within the discretion of the state whether to do so. and many states have enacted such laws.The protective principle provides jurisdiction over acts committed outside of a State s territory that are directed at interfering with the State s governmental functions provided that the act is contrary to the laws of the host State. 32 . when a US national commits a serious crime abroad. D. aircraft piracy. however. Consequently. international law permits a state to enact legislation prohibiting its nationals from committing crimes abroad (based on the nationality principle). by the location of the principal place of business. 5. genocide. even though international law permits the United States to do so. For instance. Yunis. let alone outside the United States. which in most instances are not interpreted by state courts as applying outside the territory of the state. slave trading. and violations of immigration or customs laws.The Restatement (Third) limits protective jurisdiction to conduct generally recognized as criminal by states in the international community. with each state free to determine what crimes threaten its security. but international law requires a "genuine link" between the vessel and the state. It is unclear.The reasoning behind the protective principle is that an offense may have extremely grave consequences in one state. law and multilateral conventions also treat torture. and war crimes. such as murder. if such State has a reasonably developed legal system. counterfeiting a state seal or currency. so that the principle often overlaps with jurisdiction predicated on universal crimes. Nationality of Aircraft and Spacecraft: The nationality of an aircraft is determined by its place of registration under the 1944 Chicago Convention on International Civil Aviation. and other crimes as subject to universal jurisdiction.S.S. or by the nationality of those owning or controlling the corporation.may be determined by state of incorporation. Crimes clearly subject to universal jurisdiction are piracy on the high seas. whether customary international law recognizes these and other crimes as universal crimes 6. EXCERCISING JURISDICTION Discretion to Exercise Permissible Jurisdiction: Even if international law permits the exercise of jurisdiction. but registration may not exist in more than one state at a time. U. In US v. The objection to this basis for jurisdiction is that it is subject to abuse. The state of registration may be changed. U. the court state that qualified application of the doctrine to serious and universally condemned crimes will not raise the specter of unlimited and unexpected criminal liability. Crimes generally recognized as being detrimental to a state's interests and within protective jurisdiction include espionage. This principle is not widely accepted for ordinary crimes.

" The Supreme Court has stated that forum non conveniens determinations should be at "the sound discretion of the trial court. the United States should not interfere with the laws of another sovereign regarding conduct occurring within its territory. an exercise of comity. ability to enforce the judgment. The Restatement (Third) also concludes that customary international1aw requires jurisdiction be exercised only in a reasonable manner with deference to another state if its interests are clearly greater. Comity is "the recognition which one nation allows within its territory to the legislative. the Restatement (Third) lists as factors to be balanced: the vital national interests of each state Nationality of the persons subject to concurrent jurisdiction. national laws determine whether the state has actually exercised the discretion permitted to it under international law. having due regard both to international duty and convenience. executive or judicial acts of another nation. In addition. do not confuse the existence of the five principles as in fact establishing jurisdiction by a particular state over particular persons or conduct abroad. Concurrent jurisdiction may exist where multiple states have legitimate interests in regulating the same events or persons. the exercise of jurisdiction is still unlawful under international law if it is unreasonable. Most U.S. hardship to the parties from possibly conflicting national decisions. if that state breached its duty of comity to the United States.S. Under the Restatement (Second) of Conflict of Laws § 84: "A state will not exercise jurisdiction if it is a seriously inconvenient forum for the trial of the action provided that a more appropriate forum is available to the plaintiff. In the United States. Comity is most accurately characterized as a golden rule (as opposed to a hard-and-fast rule of law) among nations-each state should respect the laws. Concurrent Jurisdiction: International law recognizes that more than one state may have jurisdiction over a particular person or event. as it would have others respect their own in similar circumstances.In short. the existence of justified expectations. the extent to which the required conduct is to take place in another state. however." 33 . In determining whether jurisdiction should be exercised. law to foreign persons or events in situations where concurrent jurisdiction exists and for refusing to give effect to a foreign state's law. courts resort to comity in determining how to balance the exercise of concurrent authority in such circumstances. and to the rights of its own citizens or of other persons who are under the protection of its laws. Comity: Defined The concept of reasonableness is closely allied to the notion of comity among states. no conflict exists where a person subject to regulation by both the United States and a foreign state can comply with the rules of both. is an often-utilized method for settling problems of concurrent jurisdiction. courts have resorted to the comity principle as a rationale for refusing to apply U. and consistency with international traditions." balancing "all relevant public and private interest factors. and interests of others. Reasonableness of Exercising Jurisdiction: Even if a state has enacted a statute exercising jurisdiction under one of the principles discussed above. although it has been widely questioned whether customary international law does impose such a limitation. Forum on conveniens: The doctrine of forum non conveniens. For purposes of comity. policies.

In the absence of a treaty there is no obligation to extradite. judgments.Reciprocity Distinguished: U. to the Justice Department. IMMUNITIES FROM JURISDICTION SOVEREIGN IMMUNITY General Rule States are generally not subject to the jurisdiction of other states. Nationals of the asylum state: State treaties sometimes provide that a state may not or cannot extradite its own nationals. Restrictive Theory: The modem view holds that a state may be subject to a foreign jurisdiction when it engages in commercial activity.S. the activity may be regarded as governmental because the bank's activities are serving a public policy interest. A distinction is made between "commercial" activity or property (acta gestionis) and "public" activity or property (acta imperii). Absolute Theory: Absolute immunity is based on the notion that all sovereign states are equal and are not subject to each other's authority. (5) Counterclaims. 34 .S. A requirement of double criminality (when the conduct is an offense in both states and punishable by a specified minimum term of imprisonment). Exceptions to Immunity A state is presumptively immune unless an exception applies. Extraditable offenses: Treaties employ one of two methods for specifying the grounds for extradition: 1. purpose test to determine whether a state s activity is a commercial activity Under the "nature" test a state-owned bank extending credits to encourage investment in its country is engaged in a commercial activity. Immunity does not apply under the following statutory exceptions: (1) Waivers of immunity. Foreign Sovereign Immunities Act (FSIA) The Foreign Sovereign Immunities Act of 1976 essentially codified the restrictive theory of immunity. This reciprocity requirement for enforcement of a foreign judgment. ( (3) Non-commercial torts. EXTRADITION Extradition is the process by which a person accused of a serious crime in one state (the requisitioning state) and found in a second state (the asylum state) is returned to the requisitioning state for trial or punishment. (4) Maritime liens. Some states employ the nature vs. generally disfavored today. Even absolute immunity did not extend to litigation involving a state's interest in property or other immovables abroad. property claims. commercial activities. or its interests in the administration of an estate ill a foreign state's territory. however. courts have refused to enforce proper foreign judgments on the grounds that the foreign states have failed to give effect to U. and (6) International agreements. Under the "purpose" test. or 2. It may list the indictable offenses for which extradition is available. is more a political tool than a legal principle.The United States first adopted the restrictive theory in 1952 in the so-called Tate letter from the State Department . (2) Expropriation claims. Some treaties with such an exception obligate the asylum state to prosecute its own nationals for the crime if it refuses to extradite.

This immunity applies to heads of state so long as the U. IMMUNITY OF STATE REPRESENTATIVES Head of state The immunity of heads of state relies on both sovereign immunity and diplomatic immunity. particularly with respect to prosecution for human rights violations. including that of their own government. From its earliest origins. HUMAN RIGHTS INTRODUCTION Although it is common to note that traditional international law was concerned only with relations among states. the idea of a state intervening to protect the other state's nationals (a doctrine now referred to as "humanitarian intervention") was advanced by early scholars of international law. Whereas the prior focus had been on granting protections for persons from wrongful treatment by foreign governments. an area known as "state responsibility for injury to aliens. such as the right to vote). STATE RESPONSIBILITY FOR INJURY TO ALIENS Before the emergence of modern human rights law. While a state was not obligated to allow an alien to enter its territory. From Nuremberg to the present. and the protection of combatants and non-combatants from the excesses of warfare. an important component of international law has been the protection of diplomats and envoys sent from one state to another. 35 . the alien could not complain that the local law was less desirable than that of his home state. Hence. A suit against the head of state is often treated like a suit against the state itself for purposes of immunity. not obligations owed directly to the foreigner. such behavior now serves as the basis of criminal liability of the leader himself. the alien was required to accept the substantive and procedural law of the state to whom the alien had voluntarily traveled (which need not accord aliens all the rights held by the local population. then there is no violation of international law. international law had established rules on the responsibility of a state to protect aliens within its jurisdiction. Whereas before the emphasis had been on recognizing the rights of governments to protect their nationals against other governments. the law in this area sought to balance the right of the host state to maintain its substantive and procedural law with its obligation to treat the alien decently. human rights law has evolved in both its substance and process." Some states have taken the position that so long as the same protection is accorded to aliens as is accorded to local nationals. Not as well developed are issues pertaining to former heads of state and other government officials. once it did.S.The party claiming immunity bears the burden of demonstrating that no exception applies. States and international tribunals have struggled with what is meant by treating an alien "decently" or "reasonably. Thus. the focus is now on protecting persons from any governmental action. the person had no standing to complain of wrongful conduct under international law. the state was obligated to treat the alien in accordance with a reasonable standard of decency. Hence. the emphasis has switched to recognizing the rights held by persons themselves." These protect state of the foreigner's nationality. in fact it has always been concerned with protecting persons. Heads of state traveling abroad also enjoy the privileges and immunities accorded to diplomats. government recognizes a person as the head of state. At the same time. international law has always addressed the treatment by one state of another's nationals. Traditional international law also spoke to the protection of persons against the acts of their own governments. so long as the alien was treated decently. Further. Whereas before Nuremberg culpable behavior by leaders of a state might presage a claim against the state.

by resorting to diplomatic action or international judicial proceedings on his behalf. unjust or idiosyncratic. international law takes into account that system's ability to correct its errors through appellate mechanisms made available in the state's system. the state has no further obligation to the alien. either by a settlement agreement or arbitration. In modern situations. a sense of judicial propriety. Rather." Indeed. Inc. 36 . such as by investors against host states under the NAFTA. Traditionally. As indicated by the panel. Yet the position that an alien is never entitled to treatment more favorable than that accorded to local nationals is not accepted by international law and practice. or at least surprises. which shocks. a host state is expected to provide a minimum level of police protection for aliens and their property within its territory. a tribunal can conclude in light of all the available facts that the impugned decision was clearly improper and discreditable. with the result that the investment has been subjected to unfair and inequitable treatment.When modern human rights law first developed. it is now commonly accepted that states may invoke human rights standards on behalf of their nationals with respect to conduct by other states. a gross deficiency in the administration of the judicial process with respect to an alien's claim. the "minimum standard of protection" includes the idea that an alien should not be denied the benefits of due process of law before a state's courts or administrative tribunals. In the recent Waste Management.In other words. however. is discriminatory and exposes the claimant to sectional or racial prejudice. Such treatment is regarded as a "denial of justice. or a manifestly unjust judgment by a local court regarding an alien's claim. As the Permanent Court of International Justice explained: "In taking up the case of one of its nationals. Increasingly. only the state of the person's nationality was entitled to bring a claim against the offending state. to clarify concepts such as "minimum standard of protection" and "denial of justice. The Chamber concluded that in the end the question is whether. an arbitral panel convened under the North American Free Trade Agreement (NAFTA) stated: the minimum standard of treatment of fair and equitable treatment is infringed by conduct attributable to the State and harmful to the claimant if the conduct is arbitrary. the right to ensure in the person of its nationals respect for the rules of international law." Thus. norms associated with modern human rights law are being read back into the law on state responsibility for injury to aliens. When evaluating whether a state has met its obligation to provide an adequate system of justice. the area of state responsibility for injury to aliens provided a useful starting point. and to accord them at least minimal substantive and procedural rights. Mexico case. a Chamber of the ICJ described as arbitrary conduct that which displays "a wilful disregard of due process of law. grossly unfair. or involves a lack of due process leading to an outcome which offends judicial propriety-as might be the case with a manifest failure of natural justice in judicial proceedings or a complete lack of transparency and candor in an administrative process. In the ELSI case." A denial of justice might arise from an unwarranted delay or obstruction in an alien's access to local courts. persons may be empowered to bring claims directly against foreign governments. a state would "espouse" the claim of its national and then proceed diplomatically to resolve the claim. Under the minimum standard of treatment. at an international level and having regard to generally accepted standards of the administration of justice. a State is in reality asserting its own right. so long as an alien receives "national treatment" in the protection of his or her person and property. Modern tribunals continue to express the minimum standard of protection in terms of outrageous behavior by the host government. there has emerged a standard referred to as the "minimum standard of treatment" which sets a threshold below which treatment of an alien may not fall regardless of how local nationals are treated. v.

and these two articles have been the main source of subsequent human rights treaties. and observance of. language or religion. Article 2 requires all parties to prevent acts of torture in territory under its jurisdiction. or religion.S. is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession. the preamble to the U." The two main provisions of the U. not just governments. Article 55 states that "the United Nations shall promote universal respect for. Charter concerning human rights are articles 55 and 56. The imprecision of articles 55 and 56. the U." The Commission on Human Rights (UCHR) was established in 1946 to draft treaties implementing articles 55 and 56. language. Charter begins with "We the Peoples of the United Nations" rather than "We states" or "We governments." while another is to "achieve international co-operation in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race. and to take other appropriate measures to strengthen universal peace. not the promotion and protection of human rights. Article 4 requires states to take effective legislative. whether a state of war or a threat of war. human rights and fundamental freedoms for all without distinction as to race. judicial or other measures to prevent acts of torture in any territory under its jurisdiction and to ensure that all acts of torture are offences under its criminal law. These articles are the foundation of modem human rights law." a clear recognition that the new organization was the product of the will of persons. when such pain or suffering is inflicted by or at the instigation of a public official. Article 16 requires all parties to undertake to prevent all other acts of cruel.N. Further. the "Peoples" are determined "to reaffirm faith in fundamental human rights. however. Furthermore.N." The US implements this obligation the Immigration and Naturalization Services (INS) and Department of State regulations. Convention Against Torture In December 1984.N. General Assembly adopted the CAT which entered into force in 1987. Article 1 then states that one of the purposes of the United Nations is to "develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples. has led U. administrative. sex. punishing him for an act he or a third person has committed. among other things.GLOBAL HUMAN RIGHTS INSTRUMENTS UN Charter: The principal focus of the Charter was on the creation of an organization that could maintain international peace and security. sex. courts to find that they are not self-executing and do not confer any rights on individuals. inhuman or degrading treatment or punishment which do not amount to torture as defined in Article 1.Rather strikingly. whether physical or mental. The language of article 56 may suggest that the member states are obliged to a progressive rather than present fulfillment of the goals set forth in article 55." Article 56 states that "all members pledge themselves to take joint and separate action in cooperation with the Organization for the achievement of the purposes set forth in article 55. may be invoked as a justification of torture. Article 1 defines torture in part as any act by which severe pain or suffering. when such acts are committed by or at the instigation of or with the consent or acquiescence of a public 37 . the preamble states that. internal political instability or any other public emergency. Article 2 provides that no exceptional circumstances whatsoever. return ('refouler') or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture. or intimidating or coercing him or a third person. Article 3 (non-refoulement) obligates the parties not to "expel.

" as used in article 3 of the Convention. the United States understands that "sanctions" includes judicially-imposed sanctions and other enforcement actions authorized by United States law or by judicial interpretation of such law." only insofar as the term "cruel. multinational declarations. (3) The threat of imminent death. the US became a party to the CAT subject to various RUDs including: That the United States considers itself bound by the obligation under article 16 to prevent "cruel. SPCC -Claim that Peru pollution violated customary int l law -Held no self-executing treaty applies -And also that customary international law was not proved -P provided evidence in form of treaties. and/or Fourteenth Amendments to the Constitution of the United States. an act must be specifically intended to inflict severe physical or mental pain or suffering and that mental pain or suffering refers to prolonged mental harm caused by or resulting from (1) The intentional infliction or threatened infliction of severe physical pain or suffering. inhuman or degrading treatment or punishment" means the cruel. or (4) The threat that another person will imminently be subjected to death. "where there are substantial grounds for believing that he would be in danger of being subjected to torture. the United States understands that a State Party could not through its domestic sanctions defeat the object and purpose of the Convention to prohibit torture. of mind altering substances or other procedures calculated to disrupt profoundly the senses or the personality. That with reference to article 1 of the Convention. have awareness of such activity and thereafter breach his legal responsibility to intervene to prevent such activity. general assembly agreements. to mean "if it is more likely than not that he would be tortured. inhuman or degrading treatment or punishment. 1994. The US has enacted 18 USC §§ 2340. the United States understands that." That the United States declares that the provisions of articles 1 through 16 of the Convention are not self-executing. Customary international law in domestic US courts Alien Tort Claims Act (ATCA) -Requires P be aliens -Claim damages in tort only -And prove a violation of customary international law or treaties -Flores v. severe physical pain or suffering. That with reference to Article 1. unusual and inhumane treatment or punishment prohibited by the Fifth. (2) The administration or application. as well as any perpetrator (regardless of nationality) present in the US. That with reference to article 1 of the Convention. 2340A which authorizes federal criminal prosecution of US nationals who commit torture abroad. Nonetheless. the United States understands that the term "acquiescence" requires that the public official. or threatened administration or application. Eighth. That the United States understands the phrase. in order to constitute torture.On November 20.official or other person acting in an official capacity. prior to the activity constituting torture. or the administration or application of mind altering substances or other procedures calculated to disrupt profoundly the senses or personality. and scholarly articles -Did not proved violation of customary int l law **FSIA does apply to this claim 38 .

Schultz (experts on Egyptian law) 3. if both have an interest look to see which jurisdiction would be harmed more if its law was not applied Proving Foreign Law FRCP 44: -Interpreting foreign law is always a question of law -Allows appellate court chance at de novo review -No deference to trial court -Ruled on by judge since it would be too hard for a jury to understand -Court can consider any relevant material or source. They can rely on expert witnesses provided by litigating parties -US v. if only one jurisdiction has legitimate interest then its law controls 3. including testimony -Whether or not submitted by a or admissible under the rules of evidence -Makes it easier for court to do its own investigation -Parties might not submit sufficient proof or sufficiently understand foreign law -Evidence does not need to be admissible since a foreign country might have different rules -Also whoever intends to raise the issue must give notice in pleadings or in some writing 3 options for court to determine what the foreign law is: 1. Bahama Cruise (special master to calculate wages) -Special master calculated wages wrongly 2. AMR -Any relevant material or source -Court does not need to rely on submission other 39 . Then look to see if a true conflict exists a.Governmental interests comes down to balancing of factors: -Where incident occurred -Who is involved -What laws are involved -What forum it is -Citizenship of parties -Policy of forum -Policy of other place Governmental Interest Entails 3 steps: 1. Then look to comparative impairment using the factors (supra) a. They can appoint a special master to apply foreign laws -Henry v. First look to see if foreign rule differs from forum rule 2. They can interpret foreign law based solely on legal sources they have Themselves gathered and analyzed -Curley v.