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I. Introduction • The landscape of IL has evolved dramatically over last few decades. It’s no longer the specialty of government officials and limited to state-to-state relations. • Five key issues to consider in each section and problem: 1. Is there a transnational component to the issue? 2. Which other legal orders or actors might be involved? 3. Are there any transnational law rules that might apply? 4. What exactly is the force of these rules? 5. How are the rules you find pertinent applied? • The Classic Model: The Law of Nations has 3 features: 1) Covered a narrow subset of international legal issues: 1. Public international law: the law existing between nation states as sovereigns. 2. Later, added permanent international organizations and international human rights. 3. Excluded private international law. 2) Presented a fairly simple legal order (limited: Actors, Sources, Principles, Dispute resolution methods). 4. Actors: States, later UN 5. Sources: Those listed in § 38(1) of Statute of International Court of Justice and later soft-law (treaties, CIL, GP, judic decisions, scholars) 6. Basic principles: state sovereignty, international comity, bases for international jurisdiction and sovereign immunity. 3) Had well-defined boundaries. 7. Separated public and private international law. 8. Fundamental difference between international and domestic law. • Transboundary transactions and disputes among private parties were still relatively rare. • Developments: 1) Other areas have become more important. • Public international law has expanded: human rights, international criminal, environmental, refugee and trade law • Private international law has gained importance: globalization, field diversified. • Public and private international law have blended. 2) Legal order has diversified and become more complex • Actors: larger heterogeneous group of states, intergovernmental organizations multiplied (NATO, OECD, EU, WTO, OAS, ASEAN), non-state actors are gaining influence in international law making and pressuring government: NGOs, business corporations: with own rights and responsibilities. • Sources have multiplied and diversified: Larger number of treaties covering more subjects (bilateral and multilateral), customary international law has developed, international tribunal decisions have increased in number, publications on international legal issues, regulatory law on international level issued by international organizations and agencies (like IMF and WB), domestic law now deals w/ transboundary issues, private international law and treaties on international business. • Jurisdiction: not just territoriality and personality anymore, but also over transboundary business activities, exercise of personal jurisdiction in private litigation and enforcement of criminal law beyond national borders. • International tribunals and dispute resolution mechanisms have grown: ICJ, UN Commission of Human Rights, etc., mainly in public int’l law realm, but European Court of Justice and dispute resolution body of WTO outside of classic public int’l law. International arbitration regime growing + ad hoc institutions. International cases adjudicated in domestic tribunals. 3) Blurring of boundaries between public (among states and IGOs) and private international law (between private parties) and international and domestic law. What is Transnational law • See pics in course pack o Definition: all law which regulates actions or events that transcend national frontiers. Includes both public and private international law. Includes civil and criminal aspect. Includes national law and international law. o Public international law: Law of Nations: law applicable only between nations (inter nationes): statehood and state succession, state rights and responsibilities, treaty making and customary international law, war and peace, law of the sea. o Private international law: Conflict of Laws: international issues arising between private individuals: which state has jurisdiction, whose law applies (choice of law), judgment recognition? o Supranational law: Law that is superior to national law (very little of this kind): EU Law, UN SC resolutions (?), WTO Law (?)
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• Domestic law: National rules applicable to international activities or events. Comparative Law: Comparative study of laws.
Part One: Foundations: The Law of Nations o Classical view of public international law: Law between nations Actors: only sovereign nation states Authority: certain rights and privileges and duties and responsibilities, plus idea of comity. Sources: longstanding customs and treaties Dispute resolution: besides diplomacy and war, lacked permanent institutions, ad hoc: arbitration International and domestic law fundamentally different. Reflected Western tradition due to European imperialism, which was forced upon the whole world and reflects much of: 1) 17th and 18th century natural law 2) 19th century positivism and nationalism o Oversimplified view I. ACTORS: SOVEREIGN NATION STATES o 1. WESPHALIAN ORIGINS Trad regime of IL is called the Wesphalian System, which is where the 30 year war peace treaty was signed – 1648. Treaty is important b/c it changed the entire power structure of Europe from the traiditional medieval system to a Sovereign State System. Medieval Euro Order: 3 main features o 1. Coexistence of Spiritual (Pope) and Temporal (Emperor) authority – competed for political supremacy o 2. Feudal (top-down) organization of political power. Authority was delegated from supreme ruler to nobility and so-on – creating feudal triangles o 3. Power was more personal than territorial – defined by how much loyalty you could command • All this created complex and overlapping power structure/struggle. Political power was widely dispersed and overlapping with conflicting loyalties and obligations. o Neither Pope or Emperor were strong enough to guarantee lasting order. Decline of Med Order: 13-16th century • Temporal weakening: Great interregnum 1254-73 – civil war in Holy Roman Empire – no universally recognized emperor. Weakened Emporer’s Position – yielded power to princes – who went from inferiors to rivals • Spiritual weakening: o Great Schism 1378-1417 – 2 rival popes o Reformation 1517-onward Together these events destroyed most of the papacy’s power on an international level • 30 Year War – Early 1600’s – finally led to self-destruction of old order. Destroyed most of central Europe and killed up to 50% in some areas w/ disease etc i. The Westphalian Origins Location of Peace Treaty that ended the Thirty Years War in 1648 (Treaty of Munster and Osnabruck), established “Westphalian Peace”. o Consensual, reciprocal agreement to make peace: for the common benefit of the community. Equality among states, States may make alliances: for preservation and security of all. NEW ORDER – Hobbes – Sovereign State 1648 Treaty – ushered in new period of international relations and new legal and moral principles were needed • Treaty legitimated right of sovereigns to govern their people free from outside interference, whether interference was political, legal, or religious. Defined in great detail what each sovereign ruled (great quieting of title across continent) • Inaugerated the organizing principle of the sovereign state: Domestic Power and International Independence. Hobbes: The Leviathan (1651) (celebration of the sovereign State): • Justified Sovereign State: Their must be a single Mortall God, which under the Immortal God, people owe deference. There must be a strong internal authority that could command everyone “and to direct their actions to the Common Benefit” o People are inherently self-interested, so need a strong institution to call the shots.
By suggesting that the Key actor was sovereign State (with all loyalty was due internally and with independence externally) Hobbes helped dissolve old systems ties and helped forge new simple allegiances. Grotius: The Law of War and Peace (1625) (theory of law and order for inter-state relations): • Founder of international law (system worked well for 300 years in Europe until the World Wars): treaties, diplomacy, arbitration, and laws of war: defined State powers, rights and duties. • Disagreed with Erasmus and John Ferus that all Christians must be forbidden to use arms. o Grotius “secularized” international law. Although did not go as far as the irreligious and faithfully unscrupulous princes of Machiavelli. • Treated the sovereign State as a reasonable person. • Authentic law of nations which was based on “mutual consent” of sovereigns acting in the context of a “great society of States” (consensual theory). • Secularized international law and morality in order that all people would adhere to it: sovereigns made rules and were obliged to abide by them (legally and morally binding). o All Treaties fulfilled and interpreted in good faith (express or implicit) Nations had an obligation to fulfill their promises: binding on all the people. o Nations agree to be bound by law (contractual and implicit through international custom): In self-interest to abide: rely on community for well-being. Social contract theory among states States usually agree to some fundamental laws: made for the benefit of all. Better if you can rely on contracts Quasi-liberal/quasi-laissez faire regime among states. Natural Law Theory o War should be carried out only within bounds of law and good faith. Should not be undertaken except for enforcement of rights. o Allowed for states to make peace and alliances among themselves. • Interaction btwn Hobbes and Grotious theories: o Both came to concept of sovereign state, but Grotious indirectly The apparently inherent conflict btwn sovereignty and IL was resolved and balanced by notions of contract and covenant. • What inherent conflict? • Consensual theory of international politics o Leo Ross: Beginning of international constitutional law, enactment of common regulations by concerted action. Beginning of a transformation Most important developments: o 1) was a public act that disregarded the international authority of the Church o 2) marked abandonment of hierarchical structure of society and shift to co-existing equal states which there is no authority above. • Notion that all states form a world-wide political system: law and power operating between states, not above.
The Criteria for Statehood Montevideo Convention (1933) – criteria has changed little over last century and Monte__ still considered traditional definition Art 1-4. Art 1 criteria - State as a person of international law 1) Permanent population 2) Defined territory 3) Government 4) Capacity to enter into relations with other States Art 2: “Federal state constitutes a sole person in IL Art 3: Political existence of state doesn’t depend on recognition by others. Even if not recognized, a state has right to: defend independence and interest (internation) and govern itself in whatever manner domestically Art 4 – all states are equal – not based on power of each state possesses, but on principle that its defined as a state. Crawford: 1) Permanent population: rule doesn’t relate to the nationality of the population. Only a state can grant nationality to its population. No min required.
Issues with creation of new state. Do residents retain nationality of old state or become stateless until granted nationality until new state grants. 1) New state is not required to grant nationality to all persons resident in its territory. Defined territory:states are territorial entities, but a territory is defined in terms of governmental control, rather than land ownership. a. No size or contiguity requirement Government: must maintain law and order and establish basic institutions. All the other criteria depend on government (ie. Gov control defines the territory) a. Suggested/implied conclusions: 1) To be a state, entity’s govt must control territory to exclusion of others 2) No estab def of what effective control is, but must have basic institutions and maintain law/order 3) In specific cases, must consider: 1. Whether statehood of entity is opposed under title of IL. IF YES, effectiveness of gov’t more closely scrutinized 2. If govt doesn’t effectively control, did it obtain authority by consent of previous sovereign 3. There is diff btwn creating new state, and the extinction of established state. Std for effective govt may be stricter for new state. Capacity to enter into relations with other States: Not a requirement to be a state, rather, it’s a property of being a state. Independence: central to statehood. a. Independence from other political power is a hallmark of being a state, although not listed in Montevideo Convention. 1) Does not include puppet states or agency of another State. o Equality of state: if recognized as a state, have formal equal status in the law (Article 4) Could be used as a test for statehood. a.
II. Authority A. Part One: Classic View: The Classical Understanding of Sovereignty i. What Does Sovereignty Mean? Brierly, The Law of Nations (1955): Sovereignty is a bundle of rights claim: an aggregate of particular and very extensive claims that states habitually make for themselves in relations with other states. o Power to judge own controversies, enforce conception of right, increase its armorments w/o limit, treat nationals however it wants, .....sovereignty isn’t the essence of statehood, its merely a term for all the claims a state makes. Philpot, Revolutions in Sovereignty (2001): Sovereignty = supremacy: final authority that can’t be legitimately opposed. • Territoriality: sovereign over the people within its borders • External sovereignty: other states may not interfere or influence governance within the sovereignty (no trespassing). The Island of Palmas (Permanent Court of Arbitration 1928) (I: does a territory belong to first discoveror – even if never exercises control, or to state that exercises control for a long time. H: the later – continuous and peaceful display of territorial sovereignty is as good as title – occupation must be effective. Sovereignty entails certain duties – including the protection of those within the territory – must act as guardian to some extent.) • Sovereignty means: o Independence: right to exercise therein, to exclusion of other States, the functions of a State. o Duties of sovereignty: obligation to protect. Can’t claim sovereignty after leaving and never returning. Did not fulfill duties. Need to display functions of state continuously and peacefully. o Must exercise sovereignty: to maintain control, have to be capable and willing and if necessary, to show up to exercise sovereignty. Someone has to be there to be in charge. ii. Rights and Privileges Sovereignty is a default rule of power: you have the power unless you give some of it out.
1. Sovereign Equality: Between states in international order.
Simpson, Great Powers and Outlaw States (2004): No state is legally superior to another. Only legal superior is international law itself. Some scholars say this notion is jus cogens. Bound only by rules to which they consent. o State autonomy in domestic sphere (can organize communities on any basis they wish) and pluralism and diversity in international system as a whole. o Gives rise to right to territorial integrity (UN Article 2(4)) and right to self-defense (Article 51) o Prohibition on use of force secures sovereign equality. o Equal right and access to treaties. Counterbalances other inequalities. • UN Charter, Article 2: The UN is based on principle of sovereign equality. UN can’t interfere in matters that are essentially within the domestic jurisdiction of any state o But Security Council. • UN General Assembly Declaration 2625 (1970) (not binding): States have equal rights and duties: Territorial integrity and political independence inviolable.
2. Immunity from Outside Interference
• • Internal sovereignty: complete control over inside of territory External sovereignty: right to be free from outside interference. • Oppenheim I, International Law (1992): GR: all states are obligated not to violate the independence, or territorial and personal authority of other states. Also duty to restrain agents from violating. Cannot allow for one state to enter another, intervene in the management of internal or international affairs of other state, etc., without consent (territorial sovereignty). May enter territory through consent however. No hot pursuit on land – but possibly ok in water???? Pg 48. Self-help generally not permitted. Cannot abduct criminals • Nicaragua v. USA (ICJ 1984) (US supported rebels in Honduras that fueled civil war in Nicaragua) No right of intervention. o The support was interference: principle of non-intervention accepted as international norm (customary int’l law): non-intervention forbids all States to intervene directly or indirectly in internal or external affairs of other States. Cannot use coercion. • Rights that cannot be interfered with: choice of political, economic, social and cultural systems or foreign policy o Intrusion to self help especially bad bc only more powerful states can do it. UN General Assembly Resolution 2131: Declaration on Inadmissibility of Intervention in Domestic Affairs of States and the Protection of their Independence and Sovereignty and in Declaration 2625. • In old order, Germany killing Jewish citizens was not a violation of the duty to protect its own citizens, and thus non-intervention would hold. Traditional order gives enormous amount of leeway to even bad states. •
3. Power to Exercise Jurisdiction (power to act through law)
3 kinds of jurisdiction Legislative: power to make rules Judicial: power to adjudicate disputes under rules (power of courts) Enforcement: to execute laws, enforce decisions. • Lotus (Permanent Court of International Justice 1927) [Judicial Jurisdiction](France v. Turkey: collision of French and Turkish ships at high seas. Turkey arrests captains of each ship and sentences both. Turkey has jurisdiction) o Lotus Presumption: States can exercise jurisdiction as long as it doesn’t violate a rule of international law - don’t need a affirmative basis in international law for exercising juris. • Juris is territorial: o States cannot exercise power in territory of other states (absent permissive rule) o Cannot exercise juris outside own territory (absent permissive rule) o But doesn’t prevent exercising power in own territory, even if events/crime occurred elsewhere • Burden on France to show violation of IL, but cannot here because b/c territoriality of crim law is not binding rule of IL. o o o
(1991): federal statutes apply within territorial jurisdiction of US only. and exercised jurisdiction in Turkey. and S2 refuses to recognize asserted citizenship: Nottebohm case (German citizen living in Guatemala. not allowed to enter as a German enemy alien. o Whats the diff between each type of juris? Greater for judicial than legiS? – lotus only to judicial? Territoriality • American Banana Company v.6 Rules of international law are binding on States if they have consented through conventions. o Statutes are presumed to only apply w/in territory of state. prescribe penalties for disobedience (like obligation to pay taxes) o This is a matter of the construction of the statute. by virtue of their citizenship even when not in their territory.(criminal limitation???)): EFFECTS: once established that effects of crime occurred/extended to turkey (here Turkish Vessel). unless a contrary Congressional intent is clear. Dismissed for lack of jurisdiction) (no longer completely good law) o GR: Legislative jurisdiction is territorial and power to make laws/govern acts ends at your territory (can extend to high seas where no one is sovereign). or customary international law. Not clear this rule would carry over to if it was not on a Turkish ship. rather than territorial limits. When returned to Guatemala. rather than territoriality. then exercise of crim presecution legitimate. Only rule really is that can’t exercise jurisdiction in territory of another State. Burden on France to show international law that prohibits Turkish jurisdiction. unless clear legis intent to extend abroad • If not. US (1932) (US citizen living in France failed to answer subpoena.. IL: 2 provisions • 1) International law determines whether citizenship granted to an individual by a state is entitled to recognition by other states. • is based on the states own definition of its citizens obligations and duties. o Personality Principle: States may retain authority over its citizens. Arabian-American Oil Co. Nationality • Blackmer v.. Judicial Immunity: Sovereigns/official state actors are immune from Jurisdiction in Each Other’s Courts . laissezfaire system. b/c • Citizenship: domestic law of states who they consider citizens. so Guatemala didn’t have to recognize his naturalization there) IL apparently requires some bond of attachment when citizenship contested • 2) Provides min protection for “stateless people” 4. Bought citizenship from Liechtenstein during WWII. guilty of contempt) o US statute: an judge may issue a subpoena to US citizen even when abroad and citizen must come back. Presumption against restraints: have not consented to restraint. United Fruit Company (1909) (Antitrust violation claimed by P (AL corporation): American Banana company (NJ) prevented competition to monopolize banana trade: all acts happened in Panama or Costa Rica. then would be unjust interference with authority of another sovereign (violation of territorial sovereignty) o Affirmed in EEOC v.. o Note distinction: not trying to regulate behavior in another territory o Congress can establish duties to citizens of US. o Restraint on states is comity: not legally binding but sometimes works.. Events happened on a Turkish ship. ICJ found that Nottebohm lacked genuine “bond of attachment” to Liechtenstein. so like happened in their territory. o Relevant when S1 exercises right to protect citizen. Liberalism. Jurisdiction based purely on citizenship of victims may not hold.. Court requires plausible link however (Limits general principle.
o When Iran endorsed the actions: violations of Vienna Conventions were even more serious. Economic Relations and Consular Rights (bilateral treaty). seized inmates as hostages. Environmental Detriment to Other States • Trail Smelter case (1905) (Smelting Company in Canada caused damage in Washington . and US was at peace with Napoleon. The Protection of Aliens • James Hathaway. o This law came from customary international law at this time. is neg sufficient? Seems to be a very high std of care –“had duty to take every appropriate step to end attacks” o Art 29 – “State shall take all appropriate steps to prevent attack” o Inaction with regard to the 2 American nationals was breach of obligations of 1955 Treaty of Amity. . Ps brought libel action to reclaim it when it arrived in US port. • Stems from sovereign equality. Canada responsible for damage found. o Only remedy is to approach political branches: but unlikely to find help there against peaceful ally. McFaddon (1812) (Napoleon forcibly took a ship owned by US citizens. Settled under convention: set terms of arbitration. Diplomatic and Consular Protection • Case concerning US Diplomatic and Consular Staff in Tehran (ICJ 1980) (Militants attacked US embassies. foreign troops allowed to pass through. etc. • Creates basis of all international law. etc. Iran violated international law and owed reparations). to wage war. o Private individual is subject to jurisdiction of country it enters though. Int’l Joint Commission investigated problem. Iran did not intervene. Special rule for ships in ports too Other rights: control over State’s airspace and territorial seas. Can use the declaration politically. to enter treaties and participate in making of customary international law. • Exemption can only be denied through explicit claim and exercise of jurisdiction. Iranian authorities then endorsed the actions later. Perhaps stems from nonintervention rule. prevent attack + put end to it quickly on diplomatic agent. Diplomatic protection from home states and some sort of international protection in the States in which you go. protect archives and documents. when the (1) case is of serious consequence and the(2) injury is established by clear and convincing evidence. Obligations 1.) o International law: no State has the right to use or permit use of its territory in such a manner as to cause injury by fumes in or to the territory of another or the properties or persons therein. but had official declaration by ICJ: could possibly justify sending in troops or other countervailing measures. 100 years later: sovereign immunity hardened into international law. establish diplomatic and consular relations with other states. foreign ministers. become full-fledged member of international organizations. • Governments must agree to how to fix the problem under the convention. o No enforcement mechanism. militants’ actions were not imputable to state. o These obligations were not only contractual but also under general international law. ensure freedom of movement. o Jurisdiction is exclusive and absolute sovereign power BUT all sovereigns consented to relax jurisdiction for sovereigns. o Before endorsement. iii. 2. The Rights and Refugees under International Law o 16th century: bilateral treaties for safe passage and basic civil rights of merchants. • 3. turned it into naval ship. No jurisdiction) o Implied promise that sovereign is exempt from jurisdiction: the ship was a public armed ship. • Whats STD of culpability? Ct says Iran was more than neg. Iran did not prevent the attacks or persuade withdrawal. but Iran’s conduct violated international obligations under Vienna Conventions of 1961 and 1963 and 1963 convention on Consular Relations (multilateral treaties): required receiving state to protect embassies. o Implemented through domestic laws of state parties. etc. o Late 19th century: bilateral agreements to protect aliens in own territory. Principle of public law. which is under immediate and direct command of the sovereign.7 The Schooner Exchange v.
not the individuals. 4. The Law of Nations (1955) – Sources/origins of IL: 1) Doct of fundamental rights – essentially the doctrine of natural rights applied to states. the nationstate.8 Certain human rights universally guaranteed to aliens as general principles of law: respect for life and physical integrity.. • Not actually a binding principle III. Commentaries on Conflict of Laws (1834): Comity is not binding rule of mutual good will. and General Principles o John Austin defined law as command of a sovereign to its subjects which can be enforced by coercion. Mexico owed indemnity) o US brought claim under convention of 1923.. Couldn’t compel the State to share damages with them. even when outside legal obligations. o Arrest ok: aliens “obliged to submit to proceedings properly instituted against them in conformity w/ local laws” o No GPIL on acceptable length of detention. Under this definition. so GPIL doesn’t require state to restore alien to pre-injury position. Joseph Story. attributes conduct to State. • US (on behalf of Harry Roberts) v. Liability for Breaches of International Law • Basic state responsibilities under international law are today codified (non-binding) in Responsibility of States for Internationally Wrongful Acts (Int’l Law Commission 2001) Outlines when State has committed internationally wrongful act. respect. bc law can be self-imposed rules and enforced by coercion of coequals. but loss of trust occurs when no compensation is given. The rights were rights of national states.. Mexico (General Claims Commission 1926) (Harry Roberts arrested for assault on a house. Basic rules and principles that are valid independent of anybody’s consent. This def is to narrow. Part One: Classical View: Custom. international law is not law bc there are only co-equal states. [example of the separation of IL and private law in trad regime?] Real injury is the mistrust and lack of safety felt by other foreigners similarly situated (loss of commity?). Law: A. in jail for 19 months and was subject to rude and cruel treatment. so looked to domestic law and saw it violated MX law. make full o 5. Still state-state Westphalian order at this time.. which doesn’t . 2) Positivism: international law is sum of rules to which states have consented to be bound (treaty or through customary int’l law). (loose summary below) • Blueprint for later international convention by the UN • States are responsible for acts or omissions that violate IL or breach an int obligation • Breach/violation determined in regard to Int law. 5 trad accepted rights: self-preservation. offer assurances not to repeat. • Can invoke/request/argue for comity in a court of law. not states domestic law where it might be legal • Conduct will be attributed to state if done by state or agents or by instruction • States must cease act. independence. o Under the GPIL: Aliens can’t require State to take action to vindicate loss. Treaties. Prevailing view since Grotius. o Harry Roberts has no legal claim to the money. and intercourse. equality. • Important because international system has little law and most things have to be done on a cooperative (comity) basis.indicating violation of IL o Standard of treatment fell below “ordinary standards of civilization” even though treated same way as Mexican prisoners so violated international law. provides for remedy. • Widespread nature of these bilateral agreements they became GPIL.. o Brierly. resident aliens have reasonable public duties. Addendum: Comity Commity: Altruistic practice of extending good-will among sovereigns. Standard basically arises from customary international law. It is a minimalist approach. because things just work better than when countries ruthlessly pursue immediate self-interests. not the individual must make the claim. personal and spiritual liberty w/in socially bearable limits.
as evidence of a general practice accepted as law.. but are still enforced. the general principles of law recognized by civilized nations. Restatement 3d (Foreign Relations) Law § 102: Sources of International Law (not binding law) 1) Rules of international law that has been accepted by international community: o Customary law o International agreement o Derivation from general principles common to major legal systems of the world. California (1993) (Scalia dissent relies on Restatement (Third).bc the authors add their own flavor in some cases proposing “better” laws rather than what current state is.so to use. 2.. as subsidiary means for the determination of rules of law. judicial decisions and the teachings of the most highly qualified publicists of the various nations. d. international custom. Legislation is also not on the list: no legislator or governing body. 2003) (3rd restatement is a treaties or commentary – it is not a primary source which judges can rely solely on for propositions of customary law. Key elements of formation: (art 38) Custom is “‘evidence of a gen practice accepted as law’. The Traditional Catalog *****READ CAREFULLY**** Statute of International Court of Justice..9 explain the fact that there are some rules of IL that not every country has consented to. Its not made by legis or by cts. Article 38 1. establishing rules expressly recognized by the contesting states. and 2) methodology in establishing customary international law: evidence of a general practice accepted as law. if the parties agree thereto. o [my Q: since it is work of leading scholars – can it be relied upon as evidence under 38?] ii. because in this case he believes it accurately reflects the applicable principle) o US v. v. shall apply: a. Yousef (2d Cir. subject to the provisions of Article 59. whether general or particular. b. Historically. The Court. one must prove the rule/custom has been: o 1) followed as a gen practice Considered objective inquiry – look to see if states really: a) followed.. whose function is to decide in accordance with international law such disputes as are submitted to it. i. 2) Customary international law resulting from general and consistent practice of states followed by sense of legal obligation 3) International agreements that create law for the states that may lead to creation of customary international law 4) General principles common to major legal systems Restatement 3d (Foreign Relations) Law § 103: Evidence of International Law • Judgments and opinions of international judicial and arbitral tribunals • Judgments and opinions of national judicial tribunals • Writings of scholars • Pronouncements by states that undertake to state rule of international law when not seriously challenged by other states Precedent is not part of these lists because no authoritative single court or court system that everyone agrees to be subject to. c. There is a debate over weight to give restatement [what’s the takeaway of this section?] o Hartford Fire Insurance Co. b) Consistently? c) Long enough period? o 2) accepted as law More subjective determination – determine why practice has been followed? Bc states feel an obligation? or merely out of courtesy/covenienc – must be accepted and conceived of as an obligation The Paquete Habana (1900) [ (1) How does USSC ascertain CIL? (2) what effect does it have on the rule?] . but rather by consent of international community (formal enactment not required) o CIL is source of signal strength and flexibility that allows formation of rules by behavior w/o difficult formal process Issues/challenges: 1) interpretation. system was based on civil law system. international conventions. which doesn’t recognize the theory of precedent. This provision shall not prejudice the power of the Court to decide a case ex aequo et bono. Customary International Law CIL is unique to IL.
Such works are resorted to by judicial tribunals. bc the process of claims and counter-claims is one recognized method by which states communicate their understanding of Int. o Britain looked at the practice like a rule of comity: BUT Court says Britain eventually agreed to the law too.. • Court found consistent state practice (doesn’t mean without breach) through looking at actions...final establishment in our own country and generally in civilized world] • where there is no treaty and no controlling executive or legislative act or judicial decision. o Even though SC found customary international law. consistently. clearly. it is not binding on any other nations’ courts (more power if were an ICJ opinion). • Minority view: mere claims as opposed to actual physical acts are not state practice.so in that sense they are physical acts. not for the speculations of their authors concerning what the law ought to be. and gradually ripening into a rule of international law. • Shaw Rejects minority view: claims and conventions of stases should be evidence of state practice.” o . from capture as prize of war. • Customary international law is very hard to establish. • Newly emerging states must abide by the customary international law that exists when it is created.” • States’ behavior in practice is basis of customary int’l law. and experience have made themselves peculiarly well acquainted with the subjects of which they treat. Sold at auction. coast fishing vessels. with their cargoes and crews. spastic. • Hard to pinpoint when the it becomes part of IL. [traced the history of the rule from earliest sources through increasing recognition. Treaties (The most important source of public international law): DEF: VCLT “an international agreement is one ‘concluded between states in written form and governed by int law. • Practice of international organizations may be evidence of customary int’l law with reference to states’ relations to the org. and. iii. and to give effect to. • Ct also looks to eminent scholars as evidence • This rule of international law is one which prize courts administering the law of nations are bound to take judicial notice of. • Default consent system created: you have to say actively that you do not want to be part of the customary international law that seems to be developing: loudly. military manuals. independently of any treaty. • Need more than just comity: need to find that states are doing something as a matter of law: out of a sense of obligation rather than moral or political grounds (opinio juris) • “International law is part of our law and must be ascertained and administered by the courts of justice” (customary international law is binding on us) • Big players play a big role in international customary international law. o Recognizes that not all acts/claims have same weight o What about torture? See pg. beginning centuries ago. Looked at scholarly works from all over (impartial writers): used as evidence of consent of civilized nations and an established rule: these opinions not binding but all agreed. Opinion Juris necessary: state believes that its activity is legally obligatory – not merely a moral commitment or curtesy. Rules and norms. as evidence of these. found through looking at activity of all its actors (executive/legis/judicial) using a variety of sources (newspapers/historical records). • Customary international law: by consent of civilized nations of the world. • By an ancient usage among civilized nations. can also look at international resolutions.. Change is rarely smooth. cannot opt out.. Looked at treaties from the 1400s. 99. to the works of jurists and commentators who by years of labor. have been recognized as exempt. but for trustworthy evidence of what the law really is. research. resort must be had to the customs and usages of eivilized nations. Spanish owners want money). in the absence of any treaty or other public act of their own government in relation to the matter.norm. James Shaw (2003) [what is state practice?] • “State practice covers any act or statements by a state from which views about customary law are inferred. etc. pursuing their vocation of catching and bringing in fresh fish. diplomatic practice.10 (2 Spanish fishing boats seized by US off coast of Havana.
Does not amount to consent to be bound yet. (2) fundamental rules in Vienna convention. Modern Treaty Law and Practice (2000) : • Parties 1st negotiate terms of treaty... but not good basis for trying to categorize. Obligation not to de. 82). Art 9 (classic rule) All states must consent Since WWII – normally only req agree of specified maj states unless bilateral treaty – “now. • International agreements that are not technically treaties: executive agreements and contracts (governed by private law). have to update them when things change • David Bederman.. a.). Multilateral – only sensible distinction: • Treaty-making process o Anthony Aust.. 84): Treaty becomes in force when the treaty terms say it does: generally for multilateral treaties there is a number of ratifications needed to come alive. Entering into Force (VCLT 24. • Advantages: Rules are in written form. Adoption(text final) (VCLT 9): negotiating states express agreement with the form and content of text Negotiating states a.if no express provision – enters into force when all negotiating states have consented to be bound (ratified) States who join later are entering into a treaty that is in force already. Not same as treaty becoming legally binding. What’s important is that the treaty rules are followed: look at the substance of the agreement. 81).obligation last until a state makes it clear it no longer intends to become a party. declarations. • Disadvantages: have to make an investment to write the treaty.rarely does Bilateral v. Article 18: international law obligation not to defeat the object and purpose of the treaty unless state has made clear it no longer intends to become a party to the treaty. limited in scope: can’t do much beyond what it purports to do. and for those states that have consented to be bound by it (ratified it). Does not mean State finds it binding yet or is bound to ratify..unless there is unnecessary delay for entry into force.. protocols. 3rd. Means a treaty is generally in force. b. Signature by representative of state with full powers (VCLT 18.. etc. 4. in force in 1980) Most countries are members (US not party. Only applies to parties to the treaty. adoption becomes binding through this process (VCLT 11. they adopt the text (negotiating states). States will start their internal process that will make the treaty binding.. Codifying CIL – new legis: tries to explain if it will gain Internat. Vienna Convention on the Law of Treaties (1969. Necessary: bc other states might need time to give consent to be bound. Negotiation of Treaty 2. clearly binding b/c of consent. Rights and obligations prior to entry into force a. (3) Treaty interpretation • Treaties that are governed by international law are among states and governed by the Vienna Convention.feat the object and purpose of a treaty prior to its entry into force: (art 18) . just intent to make the treaty binding.. pacts. 2nd. Attempted distinctions: Legislation-contract duality has important consequences. d. Support. but tends to agree that VCLT reflects customary international law) • Preamble: Written with principles of international law embodied in Charter of UN in mind: o . Might need (1) internal legislation. Ratification –act where states consent to be bound on international plane (not a constitutional process) 1. can be made by governments when a need arises. Ratify treaty:”the international act where States establish on international plane consent to be bound. International Law Frameworks (2006): The labels on a treaty don’t matter much (conventions. unanimity rule is now restricted to the adoption of bilateral treaties” Is consent of all states needed? 3. 5.11 Chapter focus: (1) treaty making process. so are clearer. 6. No legal effect. Consistes of: signature and either: (1) exchange of signature w/ other state (bilateral) or ledging with the depositary (multilateral) c. (2) parliamentary approval (3) or just time to consider implications of treaty. Really just signals end of negotiation. Certain obligations may arise during interim period if treaty provides b.
version in non-authenticated language only controls if so specified. agreements btwn states and other subjects.12 • Equal rights and self-determination of peoples. and relevant rules of international law. • Art 33 interp if in 2 languages. terms presumed to have same meaning in all languages. (1980 on) • 5 – applies to treaties constituting international orgs + treaties adopted within initernational orgs. • Article 27: Parties may not invoke the provisions of its internal law as justification for its failure to perform a treaty.. term by a state particularly affected by breach. prohibition of threat or use of force and universal respect for. between States.MUST give 12 months notice.Not retro active. How different from art 5? • 4 . non-interference into domestic affairs of States. UNLESS restriction made known to other states • Treaty void if: 48 (Error regarding a fact or situation assumed to exist can invalidate: not of own fault. sovereign equality and independence of all States. 50 (corruption of representative directly or indirectly by another negotiating State). any party if breach affects essential nature of treaty) Termination or suspension of operation as a consequence of material breach: repudiation of the treaty that is not sanctioned or violation of provisions essential to accomplishment of the object or purpose of the treaty. • Article 60: Material Breach . 53 (if conflicts with preemptory norm of general international law (jus cogens)). 49 (Fraud by other state induced signing). • 61 – impossibility from permanent disappearance or destruction of an object indispensable to treaty.both languages equal unless otherwise specified. • 62 . Temp impossibility only ground for suspension – not termination. Customary law continues to govern questions not addressed. change radically transforms the obligations. • Article 31: Treaties should be interpreted in good faith in accordance with the ordinary meaning given the terms in context and in light of its object and purpose – can look at preambles and annexes... or Not in writing.(bilateral – is sufficient to terminate in part or whole) (multilateral – sufficient to terminate w/ unanimous agree of other parties. unless: 2/3 maj vote for adoption or 2/3 vote for diff process. INVALIDITY OF TREATY • 46 – can’t claim consent to be bound invalid bc it violated internal (constitutional) laws regarding competence to make treaties UNLESS violation was manifest and concerned an internal rule of fundamental importance Example?? o 47 – can’t claim consent invalid bc rep was subject to a restriction. practices. • 9 adoption – occurs when all states consent.. that are governed by international law (Article 1 &2) • Article 3 – international agreements NOT covered: int. related agreements. • . or default when all negotiating states consent to be bound (ratify) • Article 26: Parties must perform treaties in good faith. Purpose: promote purposes of UN: maintain international peace and security and develop friendly relations and achievement of cooperation among nations. Error in wording of treaty not sufficient 79). 52 (Coercion of state). Can’t cause impossibility yourself by breach. terminate w/ regard to defaulting state. o o Applies to: written. TERMINATION/SUSPNESION OF TREATY • Article 54: can terminate or withdraw from treaties in conformity with provisions of the treaty or by consent of all the parties. Fund change not sufficient if: treaty sets boundary or occurs from breach of party. international agreements. human rights.Fundamental change in circumstances – NOT BASIS FOR WITHDRAWL UNLESS: circumstances were essential basis for treaty. 56 – if no provision – can’t withdraw or renounce unless: you establish parties intended possibility of withdraw/renounce OR right to denounce can be implied from treaty. and observance of. Also interpret in light of subsequent agreements. 51 (coercion of representative ). • 24 entry into force – occurs when and in manner provided by treaty itself.
• Looks at domestic law of 5 countries.Stevens-thinks it regards all cross-boarder movements of criminals.maybe Islamic law... Stevens.. treaty interpretation rules o Look at object and purpose [express or implied] – Maj(Rehnquist)-thinks only pertains to extradition(procedure for o extradition).. and if they wanted to exclude this then they could have written this into the treaty.GPIL: “countries cannot violate another countries sovereignty” abduction clearly violates MX sovereignty. some far east countries (japan/china). Violates territorial integrity of a country and Mexico said would prosecute. o MX:treaty that allows abduction flies in face of GPIL – you shouldn’t interp it in this way o Rehnq-says still doesn’t violate the extradition treaty.. o History of negotiation and practice: Mexico was on notice that US abducted people.background rule should be. would need to repair violation which would be the return of D in this case) • • • I: whether abduction breached the treaty H: No R: look to V.not even close to looking at the civilized nations..makes our interp look as lopsided as • • • Art 38 .. Is case really applicable? Cause not done explicitly by the US govt agents Doesn’t treaty supercede. S... ALVAREZ -Claims violation of extradition treaty (if we violated treaty. • Gen principles – how general • What are the civilized nations o Drafted while colonization existed. o Should have cast net more broadly. Mexicans should have known this. General Principles of Law (rare) broad principle of domestic law o Originally intended to look to o CTs have also used Int law they think are broadly excepted..If new norm of IL emerges – conflicting treaties are voided. o Dissent: this reading defeats the purpose of the Extradition Treaty.13 • o 63 – severance of diplo – only sufficient ground if diplo/consular relations is indispensable for application of treaty. EX pg 113 VCLT only applies to treaties where both or all parties have consented to it.C. previous precedent? Still how do we fill the gaps – VCTL-stevens...most treaties withstand tremendous turmoil and upheavals • Don’t know how much Iran and Iraq each mined.can’t look at all of the naitions. Renquist counter – Cites 100yr old decision that says forcible abduction doesn’t hinder prosecution. • If 11 years.basically ignores presumption that treaties are among friends.. Question of whether D can be indicted/tried in US court given US-Mexican Extradition Treaty... • 64.. Venezuala – • 31 years is past limit for every country – didn’t have to decide. .BUT SHOULD HAVE LOOKED AT IRAN LAW to make sure GP applied here is in accord with IRAN’s GP. then GP wouldn’t really have helped bc so many nations would be on both sides Oil Platforms • Treaty between sha and US o Revolution – but treaty still stands..jus cogens ... o No customary international law that speaks to abductions in this case.. since then its broken down – now 193 nations in UN that are co-equal sovereigns o How do you deal with this vast cultural differences? Italy v. so should have made an explicit term in treaty if didn’t want it. and that all such movements should be by extradition... Does not disallow other manners of bringing someone to court from another country. Should not allow abductions. Not violation of treaty) o Plain meaning of treaty: Applies when extraditing someone. Alvarez-Machan (1992) (abduction (paid by Feds) of Mexican doctor that helped in torturing DEA head. Am..much more int law friendly Rehnq.GP law recognized by civilized nations • What type of law? iv.. Treaty-interpretation: • US v.
which Equity demands/not arbitrary • Provides order for nations • Helps ensure evidence still reliable • No hardship on Plaintiff The Case Concerning Oil Platforms (Iran v.. Canada. even when parties don’t want to litigate issue in ct. Reiterating fundamental precepts of int law.. rather means to determine its rules. Every country has some form of prescription (statute of limitations). Judicial Decisions I: Should the ICJ issue an advisory opinion.. Examples: good faith. Can’t say civilized nations anymore. Germany. swiss] Found: All countries apply in very consistent manner • Seems like a fair principle – greater injustice would be not compensating injury at all • Issue – how many countries needed to establish consensus/consent? Need to look more broadly to find a general principle: should look beyond 5 Western countries.. Gap-filling function. Jud decis: Not actually sources of law. An affirmation of natural law concepts • 2. and can Iran be held respnble for indivisible harm caused by both [is joint and Sev liab a GPIL?] • H: Simma’s separate opinion: tortfeasors are jointly and fully liable for the damage qualifies as GPIL under Art 38. • R:Considered common law of: [US.. which have already been set out in treaty and customary law • 4. o Art 38: Apply judicial dicisions. Various opinions on section • 1. Prescription has universal application. Venezuela (Mixed Claims Commission 1903) (Italian citizen sues Venezuela money damages for property rights violation 31 years after injury) o I: is suit proscribed by passage of time? • H: Yes. but longest anywhere is 30 years.but technically not “precedent” and Not Binding.. Sub-heading under treaty and customary law – incapable of adding anything new to international law unless it reflects consent of states • 3. Mostly see uncontested general principles. Italy v. as subsidiary means for determining rules of law.. Consent fictitious otherwise. • Reasons: o Consistency o Predictability Teachings of leading books. france. . estoppel.14 GPL – relevant where there is no law covering the point – more likely to arise in Int law bc system is relatively undeveloped • Fewer decided cases • No method for legislation to provide rules for new situations o Article 38 Provision – The General principles of law recognized by civilized nations • Is a source of law to close gaps. subject to Art 59. US) (ICJ 2003) (Iran and Iraq laid mines. • Basically use previous decisions as precedent. and not clear how generally or widely shared the principles have to be. but fairly limited in scope Does not have to be international law.. MOST – accept GP Do constitute new source of law. but Iran-US have 1955 bilateral treaty saying that they would not impede commerce) • I:can Iran be held responsible even if Iraq can’t.. v.
but have researched and summarized international law that is out there. Anthony D’Amato... (2d Cir. ONLY USE as secordary source as evidence of establish practices of states Flores v.” which are based on case authority or become legitimate through citations in judicial opinions. No stare decisis in international law. International law tests look for a general statement of an international norm. is not binding No state can prevent adv. 2003): the writings of leading publicists themselves. not binding..” • No democratic legitimacy.” “decisions. The Statue of the International Court of Justice: Int Law: in theory – precedent not binding. so lack of consent does not matter. such as the State's own “declarations. Yousef (2d Cir. they shed light on a particular question of international law only when “recourse must also be had” beyond the “opinions. Southern Peru Copper Corp. 2) ofetre refers to previous decisions/reasoning – even advisory opinions with diff parties In reality.” and “acts” of States.” • Used to ascertain the law. Op. stability and consistency. • Advisory opinion doesn’t bind anybody.not objective • • . 2003) (Court did not give expert affidavits evidentiary weight) • These affidavits more like supplemental briefs: advocating for a position (partisan) – not the type of writings that should be considered. 38(1)(d) of ICJ: look to scholars as evidence of what the law is. precedent is used. 2) practical: international court could bind the rest of the world with its views. binding only between the parties in particular case.. Andreas Zimmermann.” “laws. Reasons for this: • Judgments are logical application of legal norms to given facts o Must ensure consistency to provide predictability o It’s a necessity that earlier case law is respected vi. 3) Historical: international law was shaped by Western civil law countries where judicial decisions aren’t binding in the official sense. Rely on objectivity of scholars. They are neutral. The writers are more like a judge: use thousands of events to come up with consistent doctrine to explain them. US v. Legal Consequences of the construction of a Wall in the Occupied Palestinian Territory (ICJ 2004) (I: Can ICJ give advisory opinion [ especially when parties don’t consent to juris]) H:Advisory opinion of ICJ: cites its earlier decisions to say that an advisory opinion is ok to give such an opinion: R: looking at 1950 decision o Lack of consent no bearing on ICJ’s juris in giving advisory opinions [even where legal question pending] bc as adv op. Reasons: 1) theoretical: international law is based on consent of the parties.15 Article 59: “decisions of ICJ are not precedent. o Doesn’t necessarily constitute strong evidence of state of law RATHER. no stare dicis o Reality: ICJ: 1) hesitates to overrule decisions. which UN wants bc ICJ is organ of UN which is entiteled to request • Are circumstance where might refuse o Actual dispute existing not sufficient reason for IJC to decline • ICJ has contentious jurisdiction and has ability to render advisory opinions (organs of UN can request these). publicists' writings are not true “sources” of international law. though they may be useful in explicating or clarifying an established legal principle or body of law. Teaching of the Most Highly Qualified Publicists (top scholars of the world) Is it an actual source of law???? ICJ: “teaching of most highly qualified scholars is subsidiary means for determing rules of Int law [not true source of law] o Writings are considered valid on their own.if not objective not highly respected Not sources of law in technical sense. disinterested and objective.. not on basis of sources like domestic treaties. Collected Legal Papers III (1995): Different from US treaties and “authorities. and only then “to a lesser degree” than to more authoritative evidence. Legal systems must abide by prior decisions for predictability.
would have to go to war to recover. o The Permanent Court of Arbitration under Hague Convention (1899): not a permanent court. reliable and trustworthy. who then chose neutral third or fifth member o The Alabama Arbitration (British allowed Confederates to take Alabama out of their port) • US & Brt set up arbitration tribune of 5 reps. • .) Ad Hoc Arbitration (legal mechanism to resolve issues – other than war) There really is no enforcement mechanism. well-defined objective 4. 1 US. IV. Voluntary Law of Nations doesn’t disallow war: solemn war is ok (just cause and conducted in particular way). o Originally no formal institution. by sovereigns . 3 selected by neutral countries. can only negotiate. if that fails. just cause – war must be based on valid legal claim [strictly objective question – since only 1 side could have valid claim. • Selected rules to govern arbitration (int law). 2. only institutional framework and mechanism for setting up arbitration tribunals. The Rights of War and Peace (1625): Law of nature: favors war in case of necessity. US could go to UN.As more recognized. Among Sovereign States • A) War o The Melian Dialogue. for right intent (must be waged out of love/to enlighten. • No pre-fabricated institution to resolve issues. • Constrains war to some degree. appealed to good will. but experiencing a revival of sorts. . US could have put diplomatic and political pressure.didn’t end role of custamory law • 80’s – explosion of treaties Process would be impossible w/o gen principles jumpstarting process of Int law formation. Also. some crystallized rules became customary • 1970’s .. • In absence of international law.. waged by lay men (no damage to civilians) 3.distinctly given 2ndary role. revenge = unacceptable). 1BR. Dispute Resolution: A. Integrating the Sources Important to understand how sources of law evolve and intereact o Example: environmental law 1920’s no law whatsoever – cts had to look to domestic law to derive rules • Eventually sufficient # states recognized as GPIL • 1950’s . Commerce and Navigation (Jay’s Treaty) (1794): agreed to settle questions by joint commissions: 1-2 representatives chosen by each country. A refused and destroyed X.Codification occurred by one body. even war not solemn is not condemned. war cannot be just on both sides.in defense of others. • Even with pre-fabricated system. would have to rely on other side’s good will.. • B) “Just War” o Hugo Grotius. do nothing/war. War and Law of Nations (2005): midevil theologians constructed just war theory w 5 criteria: 1. • Fell into disuse. • Experts must be neutral. May have to repel force by force and to repel violence and wrong. who select a 5th.. • No enforcement mechanism: To enforce. only papacy between catholic states occasionly o Origin of modern international arbitration: US and UK concluded Treaty of Amity. etc.16 • Scholarly works are not speculation of what law ought to be but are evidence of what the law really is . No guaranteed enforcement. • vii. war could not be just if alternative peaceful solution existed] and 5. • War must be between states however and is not per se wrong. not out of hate)(subjective – what are personal reasons? Glory. although Brt said not actually accepting as its version of int law – just abiding by for this Arb.. o Neff. C. • each party selects 2 members. Part One: Classic View: The Ad Hoc Approach i. Thucydides ( • Athens tried to get X to surrender with show of force • X asked to remain friends/allies on terms favorable to A.. Today. or Britain just would look bad.
J.now there has been a revival of private arbitration in international commercial law ] • Cases often same day Gave merchant til Monday to find 6 people that the wine is his Hilton v. the cause of action/claim for relief cannot be repugnant to the public policy of this state.Among Private Parties • Harold Berman.17 ii. The states took over with the consolidation of power in 18th century. o Applies to final and conclusive foreign judgments o Recognizes: foreign j which awards $. where assets are located. due process met (under the laws of that State). o Disadvantages: P’s problem if D won’t pay judgment and leaves the country. except no reciprocity needed. Court has jurisdiction under their laws.S. F. Ps must win in other courts too. be absent of fraud. which was not met here. Law and Revolution: Used to have specialized courts for merchant class that • • characterized by: 1) Procedural speed and 2) efficiency. based on domestic law. if court system is generally recognized as trustworthy. They took all property out of France. states have adopted this act. US will recognize judgment: if certain conditions are fulfilled: voluntary appearance. cannot conflict with another final and conclusive judgment. procedure and rules. Dispute resolution . and the foreign court was not seriously inconvenient forum for the trial of action. Not enforced) o Advantages of suing in state court: have state enforcement behind the judgment and an established court system. Uniform Foreign Money Judgments Recognition Act 1962: Most U. • Court finds reciprocity in works by US scholars. foreign authors and from practice of the majority of European countries. 3) equity. o Dissent: should apply principle of res judicata. Were sued in French commercial court. judgment against.. just ask if there is due diligence on the judgment and then accepts them. Requires: personal and subject matter jurisdiction in system that provides impartial tribunals and procedures compatible with requirements of due process of law. Hilton codified. o BUT there is also a reciprocity requirement. 3) informal – stark contrast from formal royal cts. Enforcement power limited to the state. Guyot (1895) (Americans did business in Paris. • • • • Now: enforcement of foreign judgments depends on state law. Should also give notice.. but privately administered. Frenchmen wanted US to enforce judgment. says that in principle. o were they private or state? – private? Procedural [sorta quasi – state backed up. Maybe like a general principle. is enforcible in same manner as in that state – granted full faith/cred o Not conclusive if: • Granted by non-impartial tribunal or no due process • Granted by tribunal w/ no P or SMJuris o Deny recognition if: • No meaningful notice to D • Fraud • COA is against pub policy • Conflicts w/ another final + conclusive J • Proceedings contrary to agreement btwn parties • Juris based on personal service + forum very inconvenient. no fraud or prejudice. . customary international law that governs enforcement of judgments. State courts decide if there has to be reciprocity: usually not. o But comity.. cannot be contrary to an agreement between the parties. o No treaties.
. cannot be permitted. disenters were more correct – now.. in an action brought in this country upon the judgment. Where do you take your dispute? • P goes to French Ct here – no international ct to go to. after due citation or voluntary appearance of the defendant. or fraud in procuring the judgment. Where does it rank in comparison to domestic law? Dualism – [IL – between states. Today 1. upon the mere assertion of the party that the judgment was erroneous in law or in fact.. Important that it is a Uniform act – American statute – domestic law We use our own interp of what to respect.. not even dealing with Fed law. the merits of the case should not. upon 2 stages of questions to think about: 1. The defendants. and there is nothing to show either prejudice in the court..basically codifies Hilton “will accept unless defective” attitude remains. No reciprocity required. Doesn’t mention/req reciprocity 2.... bc one will have a home field adv. or in the system of laws under which it was sitting.. Hilton ct – we are wiling to recognize judgments based on commity – • Agreements: o There must be due process – though doesn’t have to be ful extent here in US • Disagreements o Maj Gray – commity is a mutuality principle o Dissent We determine whether to accept foreign judgements based on domestic law. it’s a matter of V..Maj of Hilton lost this debate. as on a new trial or an appeal. • Lays foundation of recognition of judgment – particularly money Js • Issue of US fed ct: o Can it go to the merits of the case?. Domestic Effects: ..or simply recognize the judgment and give it res judicata o Maj and Dis – agree on treating as res judicata Disagree about: what are the conditions to approve the judgment: • What body of law do you look at to determine if we will enforce: o Maj: Commity – consults international practice – what are other nations doing? o Dissent: bases on domestic law? o Presumption in favor of enforcement “where there has been opportunity for a full and fair trial abroad before a court of competent jurisdiction. Basic principle: will treat it like FF/C clause.applies only to international – Whats diff from Hilton? 1. and under a system of jurisprudence likely to secure an impartial administration of justice between the citizens of its own country and those of other countries.. conducting the trial upon regular proceedings..we don’t need commity o In long run.only other alternative is American ct... Now we think in terms of state law. 3. therefore.. be tried afresh. o Not ideal. State law is applied (domestic) 2. Separate or not? 2.... or any other special reason why the comity of this nation should not allow it full effect.. DL – within state] • must consider: o mutual influence between the two o the possible incorporation of IL into Dom law o Rank of IL compared to DL – different kinds of Domestic Law • Must distinguish between Customary and Treaties.18 • • • UFMJRA.
”shall be confirmed” • NOW: Does the senate say? Orpresident? Does the treaty say legis approval needed? Is language specific enough to directly apply? Is the matter politically sensitive − If yes – cts will shy away for calling it self-executing • Ie: int.Art 94 (only applies to customary law) • German: customary international law: monist. • Dutch: Monist and ranked on constitutional level..traditional for British based countries o • South African: like British • Argentine: monist w.t human rights treaties.. which are of constitutional rank.. The treaty did not affirm the titles.Based on principle that only parliament can make laws . These are ideal types: don’t exist in purity in the real world. covenant on civil and political rights..19 A.others • SPLITS US VIEW INTO BOTH MONO AND DUALIST IN REGARD TO TREATIES o HOW DO YOU TELL SELF EXECTING V.and the senate will explicitly • Senate usually states outright if a treaty is self-executing or not when ratifying. not clear about other international laws o Applies Euro convention . Very often the treaty will say so. ii.. doesn’t speak to treaties (but dualist) • Britain: Treaties: dualist (transformation: need act of Parliament).. The Traditional Dichotomy • Monism: international and domestic law are part of one unified system of law... o International law is between states. • But must be self-executing (most are not).t... human rights treaties. o International law can be directly applied and is automatically a part of your own law...needs approval even though executive sets it up.. “binding (become domestic law) . .here: not “is confirmed” .. • Foster v. but said the states shall: not self-executing. • Bosnia and Herzegovina: European Convention: monist w. 2. • US: sounds monist [based on the text of Const – is monolist – FOR TREATIES – wanted to give treaties direct effect . not actually changing it or creating any new rights.. just not in federal court. thus wrote in monist language. o Distinguishing self-executing and non-self execting • Marshal looks at trteaties as mainly contractual.between states.... o Literature says US in practice is more dualist. o This treaty was more like a contract: promise to change the law.. o o Art. NON? • Marshall says . • Dualism: international and domestic law are in 2 separate systems.... Had not) o Treaty language said that it had to be ratified and confirmed by act of legislation.. Part One: Classic View: Monism and Dualism i. o Laws cannot be integrated automatically and need an act of legislature to implement.r. customary international law: monist (doctrine of incorporation) o [Treaties] ... o Default: international law is part of our law unless it conflicts.. o Conscious decision to be different from Britain. • International law doesn’t prevail over Constitution (treaties or customary international law) o Paquete Habana: international law is part of our law (as long as firmly established customary int’l law). − Same are mixed with portion that are self executiong and othtres that are not. o Strong emphasis on human rights – Give select (enumerated) treaties direct effect. Neilson (1829) (Dispute over land: whether title to land was confirmed by treaty between US and Spain.because as a young nation we wanted to make a lot of treaties that would help protect us.r. • Self-executing treaties can immediately be put in force (monism) • Non-self-executing treaties cannot and must be implemented to domestic order (dualism) o But still enforceable between states. domestic law is within states.. § 2: Treaties are “supreme law of land”: monist.
probably it still wins out over customary international law. Statute imposing duty beat out treaty) o Last in time between federal statute and treaty holds. • VCLT 27: can’t use domestic law as excuse for failure to perform a treaty. Covert (1957) (Constitution trumps treaties) o If a treaty is unconstitutional. Charming Betsy (1904): An Act of Congress should never be construed to violate international law. • Dicta: this case was about a “national interest of very nearly the first magnitude.” which means on level with federal law and prevails over state law. o Treaty-making power is broader than statute-making power: Article 6 says laws pursuant to the Constitution.. but may not create a cause of action: binding by acquiescence though.. Yousef dicta: Restatement (Third)’s saying that customary international law might trump prior inconsistent statutory law is without merit or foundation. there was no invisible radiation of the 10th Amendment that was violated.20 • • Politically sensitive treaties are less likely to be self-executing. Robertson (1888) (Treaty with DR saying that imports should be treated as favorably as similar items from other States.. • Issue 1 –can president + senate make treaties that are squarely in states realm of power? • Missouri v. Alternative Forms of International Agreements .. • If federal law is earlier.but doesn’t necessarily invalidate our obligations to other nations. BUT treaties under the authority of US. then bound outside. y and with the advice and consent of the senate to make treaties.bc CIL is weaker than treaties.. but not internally. importer from DR was. Some treaties are partially self-executing. • Customary International Law • Clear that customary international law if ascertained and recognized. and (2) here. • Earlier customary international law loses to later federal law. then statute is valid as proper and necessary... is on par with federal law and trumps state law. treaty still binding in international sphere. Shows did not consent to the customary international law.” o Probably just means that the treaty must involve an international subject. o Consequence: in violation of treaty. • iii. if it can be construed otherwise • “in cases of doubt – we will read domestic law so that not in conflict) • Whitney v. • Can CIL override fed statutes? Not sure. just not in domestic sphere.. provided that 2/3rds of the senators present consent.” o President makes treaties – but they only become binding with 2/3rds approval of Senate. • Lose political credibility but treaty is not really enforceable. Holland (1920) (Missouri says that a statute enforcing treaty is unconstitutional under 10th Amendment. Judicial Decisions (see Part Two) Very problematic though • o TREATY MAKING POWER IN US • Art 2 §2 – “the president shal have power.. • Treaty-making power is authorized in Constitution. • Murray v. • Reid v. Held: is constitutional) • if treaty valid... B. Customary international law is no doubt directly applicable (Paquete Habana). o So can make treaties about things that Congress may not be able to do directly through law-making (they are limited to Article I enumerated powers). (gets into courts more directly) o Default rule we follow • But where does it rank? Gen Principles: We don’t know. The Rank of International Law in the United States • Treaties (if self-executing) • Constitution says treaties are “supreme law of the land. • Limits: (1) can’t be expressly prohibited by the Constitution. Treaties – even if self executing – cannot violate the constitution − No enforcement domestically as statute. Hawaii not charged duty on molasses.
governed by international law). o Validity in principle is accepted. o Binds US internationally o Subject to the enumerated powers: can't go beyond Article I.21 • Congressional Executive Agreement: President and passed by both houses of congress by simple majority (just like a statute). o Probably ranked above state law. o Avoids blockages in Senate. • These are not treaties in the domestic sense. ensures more broadly based majority support in the legislature. . Allows executive to move quickly. • Sole Executive Agreement: made by President alone (no congressional involvement). o Has to be covered by sole executive power or authorized by delegation of Congress. but are in the international sense usually (usually in writing.
36 prejudiced the Ds. but then was dismissed without decision on merits awaiting outcome of Medellin’s petitions to state court. ICJ wouldn’t accept clemency as remedy (too discretionary): needs to be remedied through judicial process. 36 in conformity with laws and regulations of receive State. so obviously optional. Art. then would render Supreme Court case moot) o Sanchez-Llamas v. • Dissent: should examine the record more fully. If won. 36(2) conformity clause (Convention applied in conformity with local law) and because the AEDPA was passed after the treaty (1996): last in time rule. ICJ again issued provisions measure to stay executions) o Case Concerning Avena and other Mexican Nationals (Mexico v. ICJ issued provisional order to US stating that US should take all measures to ensure Breard was not executed) • Procedural default rule wins out: ICJ’s interpretation of an international treaty is given only respectful consideration (not binding) Convention does not trump procedural default rule due to Art. no real effect on the outcome: Breard did not plea guilty and instead testified against attorney advice. 36 obligation vis-à-vis Germany and the LaGrand brothers. Oregon (2006) (Sanchez-Llamas was not a part of the Avena case. the US withdrew from the Optional Protocol (promissory clause giving ICJ jurisdiction) • Under Vienna Convention on Law of Treaties: can withdraw if implied by nature of the treaty (ICJ jurisdiction: default is over states who consent. Applied only when Art. Also. Also breached obligations under Art. 36 is self-executing with regard to rights of individual and consulate. US) (ICJ 2001) (Mexico had over 50 nationals on death row) • Those that did not exhaust all remedies yet still had time for review and reconsideration of conviction and sentence. taking into account violation of rights set forth in the Convention. Part Two: Modern View: The Blurring of Lines • The Modern Interplay Between International and Domestic Law • US was member of Vienna Convention of Consular Relations of 1963. 36(2): did not permit review and reconsideration of conviction of German nationals who were not informed of their rights. • Affects US: US has most citizens abroad at any one time: US can’t sue other countries for violations of Vienna Convention • Round Four: Implementing Avena? o Medellin v. • Round Three: The Avena Group (Mexico brought suit in ICJ in 2003.22 C.) • The ICJ’s decisions in Avena did not overturn Breard: Procedural default rule still remains law of the land. one of the convicts on death row covered by Avena was granted certiorari by Supreme Court. Remedy: US must reopen the state and federal law procedures to allow review and reconsideration: whether the violation of Art. Greene (1998) (Breard convicted of murder in jury trial. o After this decision. • Those whose convictions and sentences were final: US had breached obligations toward them. so did not discuss them. • ICJ decision is not binding precedent: . arguments could have merit: should give more time for briefing. but must enable full effect to given purposes for which the rights accorded under this article are intended. Dretke (2004) (Medellin. • The Second Round: The Brothers LaGrand o La Grand case (ICJ 2001): ICJ found US had breached Art. US should allow review and reconsideration. Was not allowed to bring up Vienna Convention violation in habeas motion b/c had been procedurally defaulted when did not raise in state court. but usually 12 months notice must be given). US also was member of the Optional Protocol that gave jurisdiction to the ICJ for matters arising out of the Convention. 36 violation was a consequence/fault of the State. • Setting the Stage: The Case of Angel Breard o Breard v. 36(2) conformity clause: exercise Art.
even on itself (Art. and the UN Charter Art. which provides only a non-judicial remedy. back in Supreme Court: Named person in Avena) • Avena does not apply: Medellin was not a party in front of the ICJ: only states can be parties. Guyot): good faith if meets standards • Charming Betsy model: can read federal statutes in manner consistent with international law obligations. • Procedural default rule still holds b/c Art. but didn’t (filibuster). 94 says that nations will undertake to comply with ICJ decisions: that’s binding language. But US has started programs to get federal and states to comply: nearly 90% compliance now. No congressional acquiescence to allow this. Guyot treatment: at least binding between the parties to the judgment. can only ask state courts to follow ICJ decisions for comity reasons. I CJ provides expertise and uniformity in treaty interpretation. 59). Texas said Bush did not have constitutional authority to tell state courts what to do: violation of separation of powers doctrine. and the Optional Protocol: US submitted to ICJ jurisdiction: doesn’t make sense to make a self-executing promise. The Blending of Public and Private Elements in International Law • .23 Treaty interpretation is the province of the judicial department of the US. 94 of UN Charter is to seek recourse with the Security Council (US would veto sanctions or remedies). − Dissent: But Medellin is sort of a party: Vienna Convention creates individual rights. o Germany Constitutional Court: prefer interpretations of international law by international tribunals over other possible readings. Missing the point of the Vienna Convention. 36(2) says that Convention is applied in conformity with local law • Ginsburg concurrence: Bustillos’ lawyer knew of the Vienna Convention and yet did not raise it: that is not fault of the State. • Arbitration model: NY Convention requires recognition of international tribunal judgments • Foreign judgment model (Hilton v. US is bound by international law. State Department also turned to ICJ to provide binding resolution of disputes under the Vienna convention. Only asks to override procedural default rule when it was the failure of the US or a state to inform a D of their Vienna convention rights. 2004) (concurrence: Should give full faith and credit to Avena decision. Congress could have amended the death penalty act. The Avena judgment is not binding domestic law: The remedy for non-compliance with ICJ decisions under Art. • Medellin v. 94 is not self-executing so the ICJ judgment is not self-executing.): Only Congress can unilaterally make a non-self-executing treaty into a self-executing one. but agreed to support future federal court review of claims of prejudice by persons subject to Avena resulting from failure of consular notification. States can decide how to deal with ICJ decisions. Ct. US further withdrew from optional protocol. • Breyer dissent: Vienna Convention is self-executing. without understanding of the adversarial system. Mexico was suing on his behalf too. Optional Protocol gave ICJ jurisdiction. 36 in civil law manner. Give deference in treaty interpretation to Executive Branch and Senate who ratified treaty. o Torres v. which is a prerequisite to reconsideration in Avena. ICJ interpretations are not binding. Further. even if Germany was not a party to the proceedings before the ICJ. o Bush wrote a memo stating the US would discharge international obligation under Avena by giving effect to decision after the first time Medellin was brought to Supreme Court. headed by the Supreme Court. o Medellin v. promise to accept ICJ judgment and then say the judgment is not self-executing. Must look at Vienna Convention claims on the merits to give fair and just review to Torres’ case). Art. so res judicata does not apply. Senate would have expressed if they wanted ICJ decisions to have direct effect. App. Should at minimum give Hilton v. Texas did not follow Avena ruling and executing Medellin. − Dissent: But the Vienna Convention is self-executing. Oklahoma (Okla. Crim. so does not recognize ICJ jurisdiction. − Dicta: ICJ interprets Art. Texas (2008) (Medellin: lost in Texas state court. • Coda: The End of the Long Road • States win: do not have to abandon procedural default rules. Texas (cont. o 4 options for Supreme Court: continuum of deference: • Full faith and credit model: gives to ICSID tribunal awards. President does not have this power under Article II. President cannot commandeer the courts.
• Law of Nations applies to individuals for piracy and slave-trading (not torture). Texas (2003): Kennedy looked at foreign laws to overturn Bowers: European Convention on Human Rights proscribing homosexual conduct were invalid. • Reason-borrowing Not used • Moral fact-finding: No constitutional backing for this use: finds that Western Europe thinks that something is wrong. o Substantive: what the substantive content of a constitutional rule is or ought to be. UK. International and Comparative Law Arguments in US Courts • Lawrence v.J. sold to Ford Werke for forced unpaid labor. 2 were dependent on her for support. o Court did have subject matter jurisdiction: ATCA creates subject matter jurisdiction and private cause of action. German SoL: 3 years. Such prohibitions rejected elsewhere. Eighth Amendment most susceptible to international perspectives: “unusual” needs probably a world-wide perspective. Sued both Ford and Ford Werke under ATCA and unjust enrichment) o 12(b)(6): claims were non-justiciable and international comity required dismissal (dismissed with prejudice) • 4 treaties post WWII: reparations owed the allied powers. • Larsen. She was mentally ill. Defer reparations until regained financial health. Ford Motor Company and Ford Werke (D. Looks abroad to see what the effect of the proposed rule might be and to ascertain whether the effect will comply with constitutional principle the Court derived through domestic sources: use in Glucksberg of example of Netherlands where physician-assisted suicide is allowed. Immigration Act does not expressly incorporate International Convention on the Rights of the Child) • . Was denied exemption for humanitarian and compassionate reasons. Also deferred claims by nationals. etc. • Forced labor violates the law of nations: slavery is an erga omnes violation.1999) (Iwanowa was taken by Nazis from Russia. • House of Representatives Resolution proposed in 2004: keep foreign and international law out of courts.24 • Iwanowa v.C. o Empirical: derives general rule of decisions from domestic sources. • Justice O’Connor: promotes foreign and international law use by Courts: look at how foreign courts or legislatures have reasoned to reach a rule. • Yalta and Potsdam: US. fads or fashions on Americans. Doesn’t really matter though because Ford Werke was de facto state actor: like an agent of the German Reich. Looks at foreign and international cases. No problems with this use. • Two-Plus-Four Treaty: Final settlement of the problem of reparations. Canada (1999) (Jamaican citizen entered Canada on visitor visa and remained illegally. Left claims by nonrepatriable individuals open (not Iwanowa) • Halt of reparations • Transition Agreement: state bankruptcy: deferred payment of share of reparations until later date • London Debt Agreement: Enable Germany to rebuild without worrying about reparations. so it should be unconstitutional in the US. Had 4 children. o Claims against Ford (US) (private law: unjust enrichment) barred by statute of limitations: time began running from the Two-Plus-Four Treaty in 1991. Was supposed to satisfy any and all claims held by a nation or its nationals against Germany or German companies. Importing Constitutional Norms from a “Wider Civilization”: Lawrence and the Rehnquist Court’s Use of Foreign and International Law in Domestic Constitutional Interpretation (2004) o Uses of foreign law in actual opinions o Expository: to contrast and thereby explain a domestic constitutional rule. o International comity: German government has taken position that foreign citizens may not assert direct claims for war-time forced labor against private companies.N. Supreme Court is accused of cherry-picking. and USSR met and agreed that Germany must pay losses caused to allied nations during course of war. No problem with this use. US: 7 years o Nonjusticiable claim: cannot sit as ultimate judge on foreign policy issues: better left to executive branch. o Scalia dissent: court should not impose foreign moods. Could wait for the legislature to incorporate foreign and international law: but they don’t do it. • Paris Reparations Treat: Distribution of reparations between nations who were not part of Potsdam Conference. • Baker v.
Gives executive power to bind citizens without the necessity of involving the legislative branch. the values reflected help inform contextual approach to statutory interpretation and judicial review. Truman had fleet patrol the Taiwan Straits to prevent attacks from either government on the other. may consider foreign law. not part of UN. non-intervention. Japan in 1951 during the Peace Treaty renounced all claim to Taiwan. o Stefan Talman (2004): Constitutive theory (as opposed to Montevideo Convention view): a state is only a State with recognition. 1949: Republic of China’s forces retreated to Taiwan: not “puppet” but genuine revolutionary government. Guidelines issued by Minister recognize the Convention’s approach: humanitarian and compassionate considerations o Dissent: Convention not implemented. o Taiwan • History: Became part of Chinese Empire in 1683. restored to Republic of China in 1945 in the Cairo Declaration (1943) by the Allies (affirmed by Potsdam Proclamation of 1945). 1928 civil war in China. Non-recognition has status-preventing effect. But states are natural-born and should not be relative subjects of international law treated by existing States: at odds with sovereign equality. Part Two: Modern View: State Clubs and Non-State Players i. can enter into treaties. territory and government (democratically elected). Rise of new states : • State recognition: o Why does it matter: • Get protections of being a State: UN collective security. China was not part of WTO at the time and does not have veto vote . naming Taiwan as part of China. − WTO has allowed Taiwan as a member (beneficial to members: can trade with Taiwan with low tariffs. but sovereign equality). even if not recognized. South African Constitution: MUST consider international law. • Problem with constitutive theory is that it makes statehood relative. − Not clear that Taiwan can enter into foreign agreements: Can’t with China. States have international responsibilities. US won’t either. o • B. Republic of China signed Mutual Defence Treaty with US (1954). • Under Montevideo Convention Taiwan has permanent population (23 million). Positivist view based on idea of consensual system of legal relations. ceded to Japan in 1895 under Treaty of Shimonoseki. International legal personality of a State and its rights and obligations depend on ability to satisfy criteria for statehood. During Korean War (1950). • Convention shows importance of rights and best interests of children. UN Declaration of the Rights of Child also shows this principle. Affects balance of Parliamentary tradition.25 Supreme Court of Canada said that although Convention has not been implemented by Parliament. Legislature is presumed to respect the values and principles enshrined in international law. so should not have to take best interest of child as primary consideration under the Immigration Act. Less than ¼ of the world gives Taiwan an embassy (relatively powerless states. Recognition is just evidence of statehood.
addressing UN Secretary-General. codified in 2 treaties: • 1978 Vienna Convention on Succession of States in respect of Treaties Localized treaties that impose obligations and confer rights with regard to specific territories: these attach to a specific territory. All rights and obligations persist. applied as new members of UN by 1972. Taiwan maintains full diplomatic relations with the Holy See and 23 States Members of the UN. (Czech Republic) • Entirely new state: clean slate. Non-localized treaties: − Newly independent States (successor States that was a dependent territory on predecessor State): clean slate principle: not bound by treaties in force for the territory at the date of succession (anti-colonialist) − Other States: continuity: binding on successor State. It was the largest in size of the remaining countries. etc. El Salvador. Same for State archives. Seceding part may acquire international statehood. as successor States. But had to adjust its rights and obligations due to territorial changes (loss of coastline. − − − • State Succession o Cassese (2005): • Revolutionary changes in government do not bear on identity of a State: international acts performed by a government are binding on the State. Archives and Debts (not yet in force) If public assets. UN General Assembly request for Taiwanese representation in UN: Belize. − Break up: all apply for membership. Not a very impressive group. etc. If continuation. or incorporation. Membership in international organizations: − Merger: apply for admission as new State (but in practice. Burkina Faso. Russia also retained membership of international orgs. decided each would pay a fair share of the debt. Subjective: Russia was treated as the same state. (Russia) • Less clear when a State replaces another one on a territory: whether rights and obligations of the former State are transferred to the other international subject. . and right to fair share of property. admission into UN. also maintained some rights and responsibilities: through Treaty on Succession. Azerbijan. and subjective criteria: size of the State and the history Objective: Letter to UN from Permanent Representatives of the USSR consenting. o USSR: • Russia claimed that it was the continuing state of USSR. (US) o Customary law. Armenia. (Iran) • Changes in territory may affect legal personality Dismemberment. so are not affected by mere fact of State succession (binding on new entity). consent by other states. Implied that Russia assumed all treaty and other international obligations of USSR. the State that holds control over the territory where assets are located succeeds the previous territorial State with regard to ownership. etc. Continuity depends on objective criteria: geography. but WTO calls Taiwan part of a customs territory. − Secession: apply for admission as new State. with some adjustments. • China can veto Taiwan’s entry into the UN. so not really saying Taiwan is a separate state. • Accepted in UN as such: prevented fighting over Security Council seat. rights and obligations will persist. Latvia and Lithuania were admitted as new members to UN in 1991. • 1983 Vienna Convention on Succession of States in respect of State property. with adjustments. etc.26 there anyway). but Taiwan supports these countries and thus asks for political support in return. except for if one is a continuation of the old State. Estonia. but under a different name and shrunken in size.) Other republics. merger. Human rights treaties: must be respected by successor State (individuals should continue to be protected). but assumption is that it takes on the rights and obligations in principle. how they view themselves. Public debt: if a State break up: State debt passes to successor States in an equitable proportion. no admission required). Visa applications to Taiwan not provided by Chinese embassy. Russia behaved as the continuing State and the other Commonwealth states supported Russia’s continuance.
establishment of central organ (Security Council): 5 permanent members with veto power. • They have legal personality. o League of Nations in 1920: established international platform to diffuse conflict on the scale of WWI. Completely hortatory: what they hope States will do: statement of political. UK. • Can send peace-keeping troops. but compromised by peace-loving nations. British plan: world council umbrella over regional councils to safeguard world security. International Labor Organization (ILO). to resolve int’l problems that individual governments cannot solve by themselves. 1). France. etc. economic goals supported by numerical majority of nations of the world. and prevalence of obligations under UN charter over conflicting obligations. maintain colonial empires. Transparency problems. o UN (foster peace and security for member states) • Kant (1795): Promoted idea of states entering into a civil constitution for security reasons (need a league of peace to end all wars forever). procedures. etc. • Decisions: affirmative vote (or abstention) of the 5 permanent members (veto power). but there were bad starting conditions (US refused to participate: Senate. major role to powerful allies. Work through mutual promise not to tolerate the use of violence by any member: the rest of the members would collectively stop that member. • Structure: founded on treaties that sets up organs. NATO. borders. foster economic and social cooperation. • Other decisions by simple majority. . • Purpose: To facilitate cooperation. • Seems like legislature. • One of main issues: question of political legitimacy: making decisions that impact lives of individuals around the world. admission of new members. • Important decisions decided by 2/3 majority of members present: recommendations for maintenance of int’l peace and security. provisions on colonial matters. etc. Can be legally binding. Law of Nature: sovereign states act in their own self interest which is uncontrolled and leads to war. and finally presented in San Francisco in 1945: 50 nations joined: multinational treaty. others elected every 2 years by GA. US won out: more powerful. had to adjust. provision on domestic jurisdiction (along with non-interference). General Assembly. Started drafting in 1941 by US and Britain. Purpose: **maintain peace and security** (Art. − Security Council: 15 members (Big Five: China. Now 251 IGOs (from123). Key provisions: amendments required 2/3 majority. few in number. promote economic and social cooperation. and promote respect for human rights and fundamental freedoms. Economic and Social Council (ECOSOC) became principal organ. airspace). • Member states join IGOs as a measure against internal problems. 2: settle or adjust international disputes by peaceful means. etc. o Costs: considerable overhead to maintain representatives. • Resolutions not legally binding per se. Also gives internal legitimacy for difficult policies. Russia. • Post-WWII: European Union. Intergovernmental Organization (IGOs) • First IGOs: mid to late 19th century: narrowly circumscribed in purpose. WTO. and how to ratify. Broke down in face of German and Japanese aggression. • Founding documents are (usually multilateral) treaties: agreements between states governed by international law. but does not make law. dismantle colonial empires. develop friendly relations among nations based on respect for principle of equal rights and self-determination of peoples. rise of totalitarianism in Europe). removal of traditional system of unilateral action. − Adjustments: since some treaties. rights. obligations and treaties. • Cassese (2005): History behind structure of UN US plan: resort to military force in international relations banned. election of SC members. “Limited” competence: maintenance of peace and security. right to individual and collective self-defense. depended on territory (coastlines. and US).27 Inherited all prior debt. give up some measure of sovereignty. Art. Organization − General Assembly: each State having one vote on matters within the province of the Organization. ii.
.28 Make recommendations or decide what measures shall be taken to maintain or restore int’l peace and security.) to foster free flow of goods around the world. − Even as international person. o WTO (reduction of trade barriers (tariffs. Council for Trade-Related Aspects of Intellectual Property Rights (TRIPS). • Ministerial Conference as main organ (meets at least once every 2 years). has other organs though (Secretary-General. etc. • START HERE • Reparations for Injuries Suffered in the Service of the UN (ICJ 1949) (UN has capacity to bring international claim as international person: textual argument: it has organs and special tasks. to raise standards of living. etc. but not about the internal power allocation rules) • The Cold War hampered the effectiveness of the UN for a while. Defendant State does not have to be UN member (first crack in the idea that int’l law is purely consent-based). − Economic and Social Council (ECOSOC): mainly advisory function. iii. • Certain Expenses of the UN (ICJ 1962) (Advisory opinion: GA had the requisite power to deploy peace-keeping forces and member states had to pay their fair share of the expenses. o Article 71 of UN Charter: NGOs serve a consultative role for UN (although specifically refers to ECOSOC) • In order to do so. and the Security Council does not have its own troops. Pragmatic argument: the UN has to be able to provide adequate protection in order to do what it is set up to do (like necessary and proper clause)) If UN were not found to be an international person. ensure full employment. • Can be an international or national NGO • . people were not paying dues. o WTO permits amicus briefs (although not really in practice).) • States may request to be members. − Secretariat + Secretary General: negotiators between parties but no official job description. and the UN is a subject of international law and capable of possessing int’l rights and duties.958 in 1999. Structures and Powers of IGOs o OECD (maintain sustainable economic growth for member states. but only the power granted it under the charter. it can enter agreements with host states. members have obligations. no rule-making powers − Trusteeship Council: for only colonial matters (don’t need anymore) − ICJ: 15 members elected by S. foster economic development) • States may join by invitation only. contains supremacy provisions. • The Purposes. etc. etc. binding on all Members (if execute under constitiutional procedure of each state). but relationship with the individual and NGO is voluntary. Member states could only argue that an activity was ultra vires (beyond the scope the Charter). Council for Trade in Goods. General Council. o Rarely has ability to initiate cases: no legal personality in international law. Non-Governmental Organizations (NGOs) • Risen from 832 in 1951 to 43. o Self-actuated nature: formed by groups of persons to pursue an interest in matters that cross or transcend national borders are not profit seeking. and influence must be earned.) • Unanimous decision-making: maintains more sovereignty (everyone has a veto). • Has legal personality. o ICJ allows NGOs to submit statements or documents in an advisory proceeding. • UN charter written like a Constitution: states can opt in or out. dispute resolution body. then only the agent’s home country could bring a claim.C. o Have moral authority rather than legal authority. • No judicial organ. Council for Trade in Services. must be of recognized standing w/in particular field or of representative character. UN’s and home country’s claims co-exist. etc. Can issue advisory opinions and hear contentious cases. • Characteristics: o Composed of individuals. • Decision-making by unanimity (usually with a lot of arm-twisting b/c there are 150 states). Like a treaty: require ratification and signature. UN does not have the presumption of power like a State has.
Started as purely “soft law” but has turned into Hard Law through treaties (At least the civil and political rights have come to be recognized as human rights norms in customary international law or in other multilateral instruments. Hathaway: Goal: To require vanquished states to respect the human dignity of resident ethnic and religious minorities in order to avoid future international conflict (so were made to advance interest of states). o NGOs can be the voice of the individual. raises quality of policy deliberations so that choices available are better understood.29 NGO must have a democratically adopted constitution. o Keohane and Nye say that NGO representation in international governance institutions can help maintain their legit. − But only applied to states that were forced to accept these provisions as terms of peace. Formal standing not granted. • BUT now there are transparency requirements: funding. handing over authority of important issues to institutions that are not representative. • Problems: o There is distrust of NGOs influence over governments (pressure of interest groups) • Most are rooted in West b/c NGOs require resources and money from voluntary donations of members. − Weakened state sovereignty: states could no longer do what they wanted with own citizens. 3 page max. League of Nations served as guarantor of human right obligations. • Otherwise. Welfare of individual was recognized as legitimate matter of international attention. etc. o NGO advocacy allows “2nd bite at the apple”: allows 1 side to reargue their position in both domestic and then international fora. description of applicant: funding. o Legitimacy based on: state consent. • Human rights are now a fully recognized subfield in the international order. which protects stateless persons). o Costly to consult with NGOs. procedural fairness. but could provide information to enforce interstate obligations. Individuals • Individuals have rights and responsibilities under international law (most importantly in international human rights regime. and educational institutions. which is what they pretend to do. Brief: 20 page max. Step beyond international aliens’ law that set standards for treatment abroad of a state’s own nationals. problems. Civil and political rights: access to public employment. o Rights • Origins: Minority Treaties of early 20th Century after WWI (Versailles Treaty of 1919). etc. also in refugee and asylum law and rules of nationality. only legal arguments) iv. to make them aware of the people’s interest. UN Universal Declaration of Human Rights (General Assembly 1948) (Eleanor Roosevelt’s brainchild) • . Set new procedural ground: created international system of collectivized responsibility for enforcement of human rights. and substantive outcomes (Bodansky). members. cultural. etc. • European Communities – Measures Affecting Asbestos and Asbestos-Containing Products (WTO 2000) (Appeal procedures: NGOs must apply for leave to file brief when not party or 3rd party to the dispute: specify nature of interest. − States are still the only parties. and equitable share of public funding. and must have accountability to its members who exercise effective control. may also change outcomes for good and for bad (lead gov’ts to impractical agreements) • Benefits: o NGOs allow for a more open and inclusive process of decision making to help overcome democratic legit. • NGOs help input legitimacy: promote accountability by monitoring governments. right to distinct social. BUT depends on their independence and integrity and whether consultation process assures fair balance of NGOs from different parts of the world.. they fill the more appropriate role of being single-minded advocates. members. language rights. be written. • NGOs also give output legitimacy: give specialized expertise to ensure informed decisions. In democratic domestic setting. o NGO cannot fill in lack of democratic legitimacy in international setting. Minorities Treaties gave external scrutiny of relationship between foreign citizens and own government.
17) and anti-discrimination clause of Art. so this was an easy case for the HRC. Created in response to Europe’s destruction due to war. social security. defendants’ rights. comity • “Soft law” can turn into hard law over time: 1940 was not the right time to push a binding document on the world. provides guilt. Other part of the world pushes for socioeconomic rights: that alone gives security and human dignity. • The HRC provides findings. Covenant of Civil and Political Rights (ICCPR) (1966. from cruel and inhuman treatment. Individuals can apply and the Court has jurisdiction regarding the interpretation or application of the Convention (quasi-Constitutional review of human rights): but must chose between European Court and UN Human Rights Committee. Optional Protocol to the ICCPR (1976) (To achieve purposes of ICCPR) (US not part. in force 1953) − History: regional regime post-WWII created by the Council of Europe (independent body that has larger membership than EU). freedom from slavery. when the State does not agree European Convention for the Protection of Human Rights and Fundamental Freedoms (1950. No remedies provided (no enforcement mechanism). Most cases are harder for HRC. 2. About half the States make the ICCPR truly binding. − Rights: life. equal protection. have ICCPR as domestically binding but otherwise. US) − Treaty: binding on states that ratify. − Ratification means that the HRC may look into human rights violations brought by individuals. − Toonen v. but not self-executing (otherwise many states would not have signed) • Mostly monist countries. etc. • Despite no enforcement power. rest and leisure. ½ ICCPR members) − Binding only on states that have ratified both the ICCPR and the Protocol (separate treaty). Britain has been in trouble the most (harsh reaction to terrorism and civil war). not really enforceable. • Provides remedy for an individual: the first time an individual is empowered to bring a complaint about the actions of a state to an international body. • Socioeconomic rights: work. not a treaty. and is clearly aspirational. − Format looks legislative. After the Iron Curtain fell. in force 1976) (almost all states members. etc. privacy. Australia (1994) (Action against Australia. Gives standing and right to seek review. Tasmania passed anti-discrimination protections that included sexual orientation. para. challenging Tasmanian laws that ban homosexual acts under the Optional Protocol of ICCPR) • HRC found violation of privacy rights (Art.30 − Not binding: no legal force. 1. etc. (basically same as first half of the UN Declaration) − Establishes Human Rights Committee: 18 members to review State reports on measures adopted to protect these rights. security. education. Central and Eastern European countries are part. Results in splitting of rights. like Argentina. − Treaty: binding and establishes European Court of Human Rights. • Moral statements have force: shaming device. • HRC recommended the repeal of the Tasmanian laws. • Reimann: Australia was behind HRC recommendations (Wanted Tasmania to change outdated laws). − Provides rights: • Traditional civil rights: life. but there is no real enforcement mechanism: rely on good will of states. − Still like “soft law”: individuals must exhaust domestic avenues first. countries had to sign onto the convention in order to be able to join EU (+ had to show general good record of human rights). standard of living. . • US/capitalist world: wants to limit the rights to civil rights. includes a procedure and an enforcement mechanism. liberty. No one would have signed. but is moral statement. it is hard for a government not to follow the recommendation: shaming mechanism.
UK (European Court of Human Rights 2000) (British Air Force members dismissed after investigations into their homosexual status. o Had UK proved that homosexuals would damage effectiveness of armed forces. • • • o . − European Court has a huge backlog of cases. US not a member. the inquiry should have stopped there (procedural issue). − Produce reports. • European Court provides just satisfaction if State’s domestic law only allows partial reparation (41) − Prohibition against torture. Responsibilities • Criminal and civil responsibility for breaches of certain core norms of international law. • Began with criminal responsibilities under the Nuremberg Charter (1945). o Damages of American magnitude and costs. o In addition. etc. o No punitive damages but seems to be punitive element. privacy. allows for some element of political discretion AND proportionality: all interference must be made with maximum restraint and should be proportional to need Inter-American Human Rights System (1969): regional institutions and documents which safeguard human rights under auspices of the Organization of American States (OAS). Commission had jurisdiction to monitor US observance of American Declaration. That impact outweighed the reasons given by UK for interference (survey mainly showed that people don’t like homosexuals and don’t want to work with them: not ok in democratic modern society) • Ms. They filed claims that UK violated their right to privacy under Article 8 of European Convention) • Intrusive questioning into the personal lives of claimants violated Article 8 rights. request info from governments and receive complaints from individuals and orgs. − Other regions don’t put together such regional regimes b/c of costs (3rd world focus on clean water. − Smith and Grady v.000 pounds pecuniary damages.000 pounds nonpecuniary.) or b/c don’t want to give up sovereignty. − 1981: American Declaration had binding force on US under OAS Charter. This list of rights if pretty usual now.. non-discrimination. o The enforcement mechanism is effective: not a single case of open defiance. − European Court decisions: lots of facts (strong common law influence). Creates a longer process (supra-constitutional court): substantial systemic and transaction costs: cases extended another 5 years. − Inter-American Commission and Inter-American Court.000 and 19. Direct individual responsibility in cases of piracy and slavery: guilty of crime against international society punishable by international tribunals or by any state. oversees American Declaration on the Rights and Duties of Man (1948). Smith awarded 59.000. etc. Final judgments are binding (46). Judgments are final. the UK did not provide concrete evidence to substantiate the alleged damage to the military to justify the interference (substantive issue): did not show was necessary. rights to free trial. balancing 2 characteristics: not margin of appreciation: using super strict scrutiny. May give advisory opinions. o BUT once the claimants admitted to being homosexual. Mr. then reason would not have been arbitrary and interference could be justified (legitimate aim of UK). Individuals may not petition the Court directly. impact on claimants was substantial (grave interference): they lost their jobs and could not find jobs easily outside of the military.000 pounds for litigation costs. • UK’s interference of Article 8 rights was not justified: o There was legal basis for the interference (cannot be by executive fiat but by legislative order): here. • Other countries had stopped such policies in the military. Grady: 40. Committee of Ministers supervises the execution of the judgments. family life.31 Domestic remedies still need to be exhausted. under Army and Air Force Acts 1955 and Naval Discipline Act 1957. investigation was exceptionally intrusive. UK had to pay 32. − Court’s jurisdiction limited to states that voluntarily appear before the court. Also. Also. 19. Political consequences would be huge: could be kicked out of EU.
Torture and summary execution carried out by Bosnian-Serb military forces brought an ATCA and Torture Victim Protection Act (TVPA) claim against Karadzic. enslavement. France and USSR). • But treaty governs individuals. as victims of rape. Genocide Convention 1948 International Convention on Suppression and Punishment of Crime of Apartheid 1973 1949 Geneva Red Cross Conventions and 1977 Additional Protocols I and II (armed conflict): penal sanctions for individuals that committed or ordered breaches (willful killing. etc. Can be tried in absentia (12). torture or inhuman treatment. citizen of Bosnia-Herzegovina and President of self-proclaimed Sprska.32 Treaty of Versailles 1919: individuals accused of crimes against the laws and customs of war brought before military tribunals and individual responsibility of the Kaiser. Protocol I: making civilian population object of attack. preparing. 1995) (Croat and Muslim citizens of Bosnia-Herzegovina. etc. − Certain forms of conduct violate the law of nations whether undertaken by those acting under the auspices of a state or only as private individuals. − Not permanent.) and crimes against humanity (murder. − ICC: permanent institution. International Law Commission in 1994: Draft Statute for an International Criminal Court: Adopted in Rome Statute 1998 (in force 2002. Kadic v. and injunctive relief) OK to serve Karadzic with process when he was visiting UN in NY. not ad hoc (different from Nuremberg Tribunal) (1) and has international legal personality (4). persecution. etc. − No mitigation for officials (no state immunity) (7). fees. Karadzic (2d Cir. Only a few trials. UK.). war crimes (violations of laws or customs of war: murder. etc. deportation to slave labor. contributes (intentional). forced impregnation. cooperates with UN but created by separate international treaty. crime against UN and associated personnel and war crimes. Both individuals and superiors liable. • ICC has jurisdiction over individuals (25): orders. Establishes birth of international criminal law.). ATCA recognized by executive branch as holding individuals liable for violations of customary international law. Security Council condemned breaches of humanitarian law in response to Somali situation in early 90s. crime against humanity. Following orders may mitigate punishment. intiating. not US). forced prostitution. • ICC has jurisdiction if either or both the accused is a citizen of a Member State and the crime happened on the territory of a member state (12). − Kind of like a treaty: agreement between 4 States (US. deportation. General Assembly in 1946 affirmed these principles. etc. 60 ratifications. even if not under color of law. or waging war of aggression or war in violation of international treaties. war crimes and aggression. Asked for compensatory and punitive damages. etc. Yugoslav and Rwandan War crimes tribunals under UN Security Council. slave trade and certain war crimes are examples where acts of private individuals violate international law. superior also responsible. • . Private individuals can be held civilly liable in int’l law under tort law. International Law Commission in 1991: Draft Code of Crimes Against the Peace and Security of Mankind (revised in 1996): individual criminal responsibility with regard to aggression. but does not involve consent of the State to which the charter applied (Germany not a party) and no ratification. ad hoc tribunal − Imposes individual liability: does not matter if acts were legal under domestic law where the acts were committed or if committed on own soil. • No excuse for carrying out an order (28). aids or abets. genocide. not Germany as a State. extermination. but not excuse (8). • No sovereign immunity (27). − ICC jurisdiction: most serious crimes of concern to international community as a whole: genocide. • Prohibition against piracy. Nuremberg Charter 1945: individual responsibility for crimes against peace (planning. Genocide also crime under international law bearing individual responsibility. crimes against humanity (directed at civilian population). − Rome Statute: treaty: free-standing international organization.).
− UN Universal Declaration of Human Rights and ICCPR: Declaration is not binding and does not impose obligations. 12(b)(6): no applicable treaty. own currency. piracy (personal liability for these causes of action). International Business Entities (became more international post-WWII) • Rights o Treaties gave international business entities own rights. • US was nervous about application of ATCA: brought against individuals and corporations. Light and Power Co. − Causes of action under the ATCA are limited to those firmly established claims that were of the kind the drafters had in mind in 1789: offenses against ambassadors. no judicial activism: legislature can make causes of action and collateral consequences that may have implications for foreign relations: should be left to executive. would be many more cases under ATCA. (ICJ 1970) (Barcelona Traction incorp. b/c he was the wrong person) Action dismissed under 12(b)(6). State is a male construct in an international sense. • Reimann: But ATCA does not say “violation of international law that is selfexecuting. operations in Spain. ATCA gives jurisdiction but does not create a cause of action. Public and private spheres hold woman’s rights in possession of male dominance. • If allowed cause of action on US conduct post abduction. but ICC doesn’t give private cause of action. − No customary international law against arbitrary arrest (not arguing about the abduction in this case). but got recognition of the crimes. (2d Cir. so binds US internationally but not in domestic courts. • Catherine MacKinnon: Kadic as step for human rights for women (at least in US). Court was just trying to get out of the problem. such as piracy. has government. Ps won $275M compensatory damages and $480M in punitive damages in default judgment. etc. − Enforcement issue: won’t actually get this money. Enough question whether Sprska satisfies the criteria for a state. reaching too far. war crimes. Caused illness and genetic damage. for purposes of international law violations that require state action: it controlled defined territory and populations. could bring cause of action in ICC. and genocide. Besides. did not show customary international law: cause of action not defined with necessary degree of specificity) v. went bankrupt. Spain did not allow transfer of money from Canada.33 Restatement 3rd of Foreign Relations Law (1986): individuals may be held liable for offenses against international law. • Kadic case would still have come out the same: genocide and war crimes are sufficiently hard core.” That logic only works if had sued under ICCPR. who had been hired to abduct him. Karadzic acted under color of law by working in concert with the former Yugoslavia. ICCPR is not self-executing. − Private individuals cannot be held liable for torture and unlawful killing (state action required): these crimes are defined by being done under color of law (also as defined under TVPA). saying use of poisoned weapons and causation of unnecessary suffering in war violated international norms. o Case Concerning the Barcelona Traction. day in court. violations of safe conduct. the doctor that the US had abducted for torture of a DEA agent. − Courts should require any claim based on present-day law of nations to rest on a norm of international character accepted by the civilized world and defined with specificity comparable to 18th century causes. 2008) (US military used Agent Orange during Vietnam War to clear jungle. etc. • Sosa v. On remand. Dow Chemical Co. • Restraint. Sued US corporations under ATCA in US federal district court. under the ATCA. Courts have given effect to the “state” action of unrecognized states. and HQ in Canada. Alvarez-Machain (2004) (Alvarez-Machan. Today. are protected. less dependent on state protection. State stays out of private sphere: domestic violence. and entered into agreements with other governments. • Vietnam Association for Victims of Agent Orange v. Payment suspended on bonds payable in Spain during Spanish Civil War. sued the DEA and Sosa. Belgium sued Spain in ICJ on behalf of Belgian shareholders) • .
Rape. through statutes. UNOCAL (9th Cir. slavery. murder. Annual report on how company is following the principles of the compact. using rules under UN Commission on International trade Law (UNICITRAL). and slavery are jus cogens violations of international law. no arbitrary or discriminatory measures (2) Give effective means of asserting claims and enforcing rights (2) Expropriation protection clause: No nationalization without proper compensation (4) Free flow of capital in and free flow of profits out (5) Dispute resolution mechanism: first try to consult and negotiate and can take to domestic court. rape and torture when constructing a gas pipeline there. etc. o Doe v. regulations. o Corporations acquire rights under various treaties. genocide. rape and torture did not require state action here b/c occurred in furtherance of forced labor. Forced labor. Corporations and Human Rights (2001) • Corporations starting to be held liable for their activities that violate human rights law. International Center for Settlement of Investment Disputes (ICSID). If doesn’t work: binding arbitration. Arbitral award: binding and final. (7) Benefit for Argentina: attracts foreign investments through provision of protection of investments. to nationals or to other countries. 2002) (Villagers in Myanmar sued UNOCAL under ATCA for indirectly subjecting them to forced labor. including Bilateral Investment Treaties (BITs) • Treaty between US and Argentine Republic Concerning Reciprocal Encouragement and Protection of Investment (1991) (some articles were self executing. NGO monitoring. Any other outcome would create confusion and insecurity in international economic relations. • UNOCAL can be found to have aided and abetted (no active participant requirement): • • . war crimes. Responsibilities o Ratner. some not) Most favored treatment clause: no less favorable than that according like investments. policy directives (sanctions or litigation). does not require state action. States sometimes don’t have the resources to control them. and through treaties. Rio Declaration on Environment and Development and UN Convention Against Corruption. • Responsibilities enforced through self-regulation. corporations had to ask sovereigns to bring cause of action. Forced labor. International Labour Organization (ILO)’s Declaration on Fundamental Principles and Rights at Work. soft international law. torture and summary execution does not need state action when committed in pursuit of genocide or war crimes. would do so if faced penalty. Corporations have power over individuals. and corporations have grown independent of state control. Only shaming mechanism.34 Protections of law offered to foreign investors (subject of diplomatic protections) are not absolute or unqualified (not erga omnes like laws against genocide. as modern day slavery. Myanmar Military provided security for the pipeline and committed these crimes) • UNOCAL can be liable as private actor Torture. Obligations that State owes a company are not same as those owed shareholders (Canada could bring claim) − Like privity of contract: duties only apply between specific parties. could use corporations resources in its own abuse of human rights. no legal obligation and no enforcement. Economic power of some corporations erode the power of the State. and racial discrimination). is a violation of law of nations. o UN Global Compact (1999): UN and transnational business community to promote good corporate practices in human rights. • Derive 10 principles from Universal Declaration of Human Right. if in best position to prevent violation of HR. − Murder. Voluntary. • ICJ recognizes the importance of corporations as potential victims and indirect claimants in int’l law. − States either won’t or cannot monitor corporate behavior. such as corporate-initiated codes of conduct. • Creates deterrence: corporation. labor and environment. as modern day slavery. murder. (2) Fair and equitable treatment. foreign investments have increased. State action is not necessary for ATCA liability to attach in cases of slave trading. Before BITs.
Two trends in last half century: 1) Sovereignty no longer absolute states accept limits on their sovereign freedom. B.) • • Part Two: Evolution: The Complexities of the Modern Order o Traditional order falls apart in 20th century with WWI and WWII: End of colonial empires Dissolution of USSR in 1980s. powerless. o Blurring of lines between public and private int’l law and int’l and domestic law. but diverse. and can’t agree not to be bound. − UNOCAL knew that hiring the Myanmar Military to guard the pipeline would have a substantial effect on the perpetration of forced labor (likely to happen). global. The Rights of Refugees under International Law (2005): − Jus cogens establishes an outer limit to the range of subjects on which states may legitimately contract. o Horizontal expansion of international law to incorporate new states outside European tradition More states (almost 200. Classic states are in minority and need cooperation of these smaller states: equality among nations rises in importance. regulatory matter. principles in quasi-Restatement form by public and private institutions. Borrow aiding and abetting standard from Int’l Criminal Tribunals for Yugoslavia and Rwanda: mens rea requirement is that of actual or constructive knowledge that the accomplice’s actions would assist the perp in the commission of the crime. money. • Some norms of international law that are non-derogable: stronger. . Actus reus: UNOCAL profited from what the military did: encouragement on part of UNOCAL. Greater number of dispute resolution mechanisms: international tribunals. − Not source of law: rather hierarchical designation (higher law). reliable source. guidelines. higher rank) Vienna Convention on the Law of Treaties (1969. but not enough in record to show that there was torture.35 UNOCAL was aware of Myanmar’s history of imposing forced labor on its citizens. higher and more powerful. Private international law rising in importance: globalization Sources of international law diversified: multilateral treaties. Hathaway. Erosion of traditional notion of state sovereignty: relinquish some sovereignty to supranational bodies and weakening of complete sovereign immunity. non-binding sources (“soft law”): UN Declarations. Similar as in tort law (Restatement). investors. Same for murder and rape. relatively poor. etc. Expansion of extraterritorial jurisdiction: regulate more and more matters beyond their boundaries. − Use of international criminal law standard: most neutral. o Bound by certain fundamental norms of international law (preemptory and universal norms) • Jus Cogens (binding law that is inescapable: no consent needed. individuals and business enterprises o Vertical expansion to regulate new fields of international activity. or else would have to choose which country’s domestic law to use. gives greater enforceability to these norms • Acquire status of universal law by operation of general principles or custom. in force 1990): Article 53: treaty is void if conflicts with a peremptory norm of general international law. for both states and int’l orgs and private actors. UNOCAL settled: they were in deep trouble after this decision (PR. and then of Yugoslavia. State clubs: international organizations Non-state actors: NGOs. Part Two: Modern View: Authority: The Erosion of Sovereignty and the Expansion of Jurisdictional Claims i. so knew might happen. about 3x increase from 60) • Nature of actors now: relatively small in terms of population. which may lead to clashes between competing jurisdictional claims. After Sosa case.
so careful about what is labeled erga omnes. • o . not clear what other obligations there are in the penumbra. May use force only with Security Council authorization or in self-defense if armed attack occurs (51). • Jus cogens and erga omnes move us from the classic Westphalian regime that is based on consent (paradigm shift). genocide. Plaintiffs make broad jus cogens claims. Does the UN Charter Provide an Adequate Legal Basis for Individual or Collective Responses to Violations of Obligations erga omnes? (1993) − Erga omnes obligations would presuppose universal agreement on certain values: enforcement then not up to discretion of individual states. • Scholars don’t make international law. US (ICJ 1986) (prohibition of the use of force is a rule of international law having the character of jus cogens. murder. 2: agreed by both parties) Kadic and UNOCAL: said that torture. which create erga omnes obligations) Barcelona Traction case: Court decided that norms that protect foreign investments are not erga omnes. 39 and take action. but many times in domestic courts. slavery and racial discrimination. but may be informative. − Purpose of Charter system: prevent or suppress dangerous regional powers from militarizing and challenging the authority of the Great Powers. respect for human rights and a few others. VI (but only if consented to by the host State). 41) and military response (Art. − Enforcement action: Security Council may declare violation of Charter Art. but this rarely comes up in international courts (ICJ). norms of int’l law. are more difficult to change.36 NOT through character defined approach: cannot depend on political or ideological traditions (must be accepted by all) • NOT through majority vote of General Assembly: these are not binding. supremacy. Bruno Simma. as embodied in UN Charter Art. Erga omnes obligations reflect a common core of norms essential for the protection of communal values and interests. which transcend bilateralism and parochial State concerns dominating traditional int’l law. making it worse. refrain from threat or use of force. and slavery violated jus cogens. Jus cogens are rarely violated. instead of what “is” − Main problem: not clear what obligations are erga omnes: they are not agreed upon. but rather between parties (inter partes). David Bederman: Key to UN’s collective security regime is the Security Council: backs up prohibition by allowing immediate economic sanctions (Art. − In practice however. the erga omnes obligations are still what “ought” to be followed. Like Constitutional law: higher b/c contain fundamental/basic rights. − Cold War deadlock: General Assembly was able to use UN peacekeeping forces under Chap. 2. but doesn’t promote negotiation. − UN Charter is like erga omnes law. Tribunals decide if laws are jus cogens. Bind themselves to regimes under which their sovereignty is curtailed (delegation of sovereign powers) • Waging War: The UN System of Collective Security (give up right to wage war for system of collective security) Art. 42). Ds resist these claims: says that you made most egregious kind of violation: knew violating fundamental norm. §§ 3-4: settle international disputes by peaceful means. and does not require consent (more like natural law) − Other than prohibition of use of force. Articles on Responsibility of States for International Wrongful Acts (ILC 2001): States have an international responsibility when seriously breach an obligation arising from a peremptory norm. Such obligations would give universal standing. Nicaragua v. − Problems: UN peacekeeping force used as buffer. Examples of erga omnes obligations: refrain from acts of aggression. • Erga Omnes (universal) obligations (jus cogens. but only affects a small part of international law.
− Humanitarian intervention: non-intervention principle cannot stop interceding in case of genocide (erga omnes violation). France and Russia vetoed further decisions/actions. 60: material breach of treaty allows for suspending the operation of the treaty in whole or in part. • UN Security Council Resolution 687 (4/3/91): formal cease-fire. 12 of 1441 different from past resolutions: did not require decision by Security Council • Preemptive strikes for self defense are justified. • There was no imminent threat of armed attack. There is responsibility to protect. stating that they would meet again to consider the situation. Only Security Council can say that the case fire was over: use of force is only valid as a last resort and with prior. use of force allowed under 678 was in order to liberate Kuwait (diff. but US began Operation Iraqi Freedom with an air strike) − History: Iraq invasion of Kuwait • UN Security Council Resolution 660 (8/2/90): condemning Iraqi action. • . − US action not justified (Franck): • 1441 stated that the Security Council would consider the situation again. demanding withdrawal • UN Security Council Resolution 678 (11/29/90): Iraq did not comply. o Para. or leaving no choice of means and no moment of deliberation) 2004 Report by UN: challenges and change: − Preventive military action (preemptive self-defense) should be put to the Security Council: risk to global order and norm of non-intervention too great to allow unilateral preemptive action. Preemptive strikes are dangerous: not clear where line should be drawn. restoring authorization under 678 to use all necessary means to restore int’l peace and security in the area. 2 countries automatically extend to all GATT members.37 2003 Invasion on Iraq (11/8/02: Security Council adopted Resolution 1441: Iraq in material breach of obligations under previous resolutions and gave Iraq final opportunity to comply with disarmament obligations. They could take action b/c they are a specially affected state as most prominent target of terrorism. thus Resolution 1441 used language of VCLT Art. • US still under obligation of UN Charter Art. History: General Agreement on Tariffs and Trade (GATT) (1948): ban quotas and force members to consolidate all trade restrictions into a tariff. 687 was international agreement between UN and Iraq: individual members of UN were not the parties. Carolene Incident (1842) (British set US steamship on fire that helped Canadian rebels fight against them. situation). US could not act before this happened. but exercised by Security Council. − Security Council is full empowered to address full range of security threats. Security Council did not pass resolution for further action. − National treatment requirement: imported products treated on = basis with domesticallyproduced goods WTO (Uruguay Round: 1986-1994). US Secretary of State Daniel Webster rejected the claim: necessity was not instant. o There was a reason thy 1441’s language mirrored 678. 2. one final opportunity. including Dispute Settlement Body (binding decisions): umbrella organization administering series of treaties: GATT and other treaties regulating trade. Regulating Trade: The WTO (give up deciding how States run their trade policies) Objective: reduce barriers to international trade on multilateral basis. explicit authorization from the Council. overwhelming. Iraq must destroy WMD − US justification (Taft and Buchwald): • Security Council resolutions are like treaties. parties to regional trade organizations. and developing countries. British claimed self-defense. − Most favored nation mechanism: any tariff negotiated btwn. XX. Exceptions: GATT Art. Inspectors found Iraq was not meeting disarmament obligations. o US says that Iraq’s material breach suspended cease fire in 687. so not self-defense. authorized Member States to use all necessary means to uphold and implement resolution 660. • Further.
Pakistan and Thailand brought complaint against US on importation of shrimp and shrimp products. Amsterdam (1997). − Costa v. Relationship between EC/EU law and state law: − Van Gend & Loos v. and Nice (2000): created quasi-constitutional character. − Limit: no common foreign policy nor command common military force. US had import ban on shrimp harvested with commercial fishing technology which may adversely affect sea turtles. but no enforcement mechanism. − Political union: common consumer protection. even over national laws that were last in time. Creating community law. o Did not consider other measures to reach same protection (unilateral action). National Courts are bound to apply rules of Community law directly. Implicitly followed VCLT. and monetary matters. which requires equal effect throughout the Community: more than just a treaty. not determined by national constitutional law. 2) Should examine ordinary meaning of words of treaty • US measure was justified under XX(g): sea turtles are an exhaustible natural resource. Dispute Resolution Body can’t award damages. o Looked at WTO Agreement preamble: objective of sustainable development. environmental policies. Claimants win right to retaliate to amount of the value of exports lost. instead of Article XX. European Parliament: shares legislative power with Council of Ministers. treaties of Maastricht (1992). interpretation of statues of bodies (not appellate). o Big change: usually individual members can decide whether there is direct effect. o US measure was narrowly focused. establish cooperation to prevent another war: 6 members. European Court of Justice: limited jurisdiction: interpretation of Treaty of Rome. validity and interpretations of acts of institutions. Making Law: The EU (regional delegation of law-making power over vast areas) History: European Economic Community (EEC) founded under Treaty of Rome (1957): create common market. 12: can’t raise tariffs) • EEC Treaty has direct effect in member States (matter of EEC treaty interpretation. Netherlands (ECJ 1960) (Brought claim against Netherlands for increasing import duty. GATT 1947 panel reports: fish were an exhaustible natural resource. XX.38 General Agreement on Trade in Services (GATS): Most favored nation clause and national treatment Shrimp-Turtles case (WTO Appellate Body 1998) (India. long. thus giving ECJ jurisdiction). ENEL (ECJ 1962) (Italy nationalized electric energy distribution company) − • . not in light of Article XX. 3) In light of object and purpose • US measure is arbitrary and unjustifiable discrimination under chapeau of GATT Art. general principles of international law (good faith) and customary international law. which would violate EEC Treaty Art. Just focused on the design of the measure. • Article 12 is self-executing and creates individual rights/obligations that can be directly invoked. Became European Community (1987): 27 members. Convention on Int’l Trade in Endangered Species of Wild Fauna and Flora (US is not a party). conclusory. o Unequal treatment of countries (phased in requirements and provided materials to some) o Arbitrary: did not provide reasons for not certifying countries and no appeal: must have procedural fairness under WTO and GATT (good faith). − Organs: Council of Ministers: major policy-making body. otherwise countries could buy out of obligations. − Increasing delegation of law-making power from member states to the Community. unless harvesting nations were certified. ECJ: French style decisions-making: short in facts. − Single European Act (1987). o The Community constitutes a new legal order of international law for the benefit of which states have limited their sovereign rights. Commission: executive-political branch ensure member states’ compliance with EU law. past precedent (ICJ and own). Used overly broad inquiry: object and purpose of whole GATT and WTO Agreement. EU established in 1994. Panel found that US violated Article XI of GATT and was not justified under Article XX of GATT) − Panel did not follow steps of applying customary rules of interpretation of public int’l law. Malaysia.
denied motions to dismiss under FSIA). European Council Regulation 44/2001 (2000): regulations are binding in entirety and directly applicable in all Member States. EEC Treaty law conflict w/ subsequent nat’l law) • EEC law can be enforced by all national courts. not immunity from jurisdiction. − Brussels Convention on Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters (1968) (Procedure to secure recognition and enforcement of judgments. directives has. but international organizations govern individuals’ lives without a vote. not the purpose (didn’t matter if Argentina had to issue debt due to economic instability). only from judicial scrutiny: on the merits. States are no longer willing to grant each other complete immunity in their courts (Limitations on Sovereign Immunity) • Foreign Sovereign Immunity (US: Foreign Sovereign Immunities Act of 1976. Weltover (1992) (Respondents. o States cannot overcome the permanent limitation on their sovereign rights under the Treaty through unilateral action. • Look at the nature of the activity. FSIA: poorly drafted. perhaps create an ombudsman to hear citizen complaints. Not immune if makes counterclaim. if regime change. These areas are in political terrain. Republic of Argentina v. Applies only to civil and commercial matters). waiver. and Swiss bank. • The Act-of-State Doctrine (US and few other countries: domestic law (case law). Banco Nacional de Cuba v. private entities if majority owned by government. App. • The Delegation of Sovereign Powers and Democratic Legitimacy Legitimacy comes from popular vote. Doesn’t have to be substantial or foreseeable. refused to allow Argentina to reschedule payment for bonds that it backed. Also not clear whether positive obligations are directly enforceable. o EEC Treaty has direct effect and becomes part of national legal system. SDNY and Ct. Suggests increasing transparency. acting not as regulator of market but in manner of private player. No constitutional or legislative backing. − No sovereign immunity because fell in exception to FSIA: Argentina was engaged in a commercial activity.39 EEC law wins over domestic law. world is more democratized: conflict between these changes. • Further. − Foreign State: political subdivision or agency: all public organs. difficult to understand. waiver. International Integration and Democracy (2001): Int’l Organizations are getting more powerful (states delegating more power). Eric Stein. − Undecided whether EC law trumps national constitution. − Amministrazione delle Finanze dello Stato v. Sabbatino (1964) (US commodities broker had contract with CAV. perhaps when acts are commercial. such as having NGOs as watchdogs. they remade contract with Cuba. No exceptions for violations of fundamental rights or jus cogens rights. and it also has higher rank (supremacy) over domestic law. there was direct effect on the US (link): NY was the chosen place of performance. not just the constitutional court (Decentralized judicial review). o Every nation must apply Community law in its entirety to protect individuals’ rights. Evolution of European Regime of Civil Jurisdiction and Judgments Recognition: like full faith and credit. also customary int’l law) End result: court lacks subject matter jurisdiction. and whether EC law has direct effect between private parties (horizontal effect) or what effect EC law in form of regulations. Panamanian corp. just an immediate consequence. even if subsequent national law. − Nobody has tried to get out of EC: would have huge political consequences. Respondents asked for full payment and brought breach-of-contract action in NY. Exceptions (1605): commercial activities of States are not immune. Simmenthal (ECJ 1978) (Italy placed veterinary and public health fees on imported beef under their laws. must set aside national laws which conflict with it. but • o . which was nationalized by Cuban government. Not immune to arbitration. avoids stepping on toes) Limits: treaty provisions.
Serious international crimes can’t be official acts. • Concurrence: but need to balance interest of keeping immunity with detriment of international community and ability to act freely. affirmed by ICJ) Diplomatic and consular immunity: Vienna Convention on Diplomatic Relations of 1961 and VC on Consular Relations 1963. • 2) Jurisdictional claims have expanded beyond the territoriality and personality principle (Expansion of Jurisdictional Claims) o Restatement (Third) of Foreign Relations Law § 402 (1986) (territoriality. so has little effect in practice. Immunity should be recognized with restraint. − DRC v. Judiciary is not equipped to do this work. Ex Parte Pinochet (House of Lords 1999) (Spain tried to extradite Pinochet from England for crimes committed as head of state in Chile under Extradition Act 1989: torture and crimes against humanity. international criminal tribunals legal documents and case law: no exceptions found. Limited: incorporated in Canada owned Alcoa. . a Pennsylvania corporation. War Crimes Tribunal. in domestic court. or if international criminal courts have jurisdiction o Immunity ratione personae: Immunity continues as long as in office: gives immunity when traveling. 1945) (Foreign companies formed international aluminum cartel. effects. Cuba used Sabbatino for the money. but when torture rises to that of international crime (crime against humanity as defined by International Tribunal of Rwanda). Immunity of civil servants of IGOs: convention on Privileges and Immunities of the UN 1946. Belgium (ICJ 2002) (Belgium issued international arrest warrant on sitting Foreign Minister of Congo under its criminal law for violation of jus cogens rights: made speeches inciting racial hatred) • Foreign Minister protected under personal immunity: customary international law (Vienna Conventions don’t specifically define immunities of Foreign Ministers): granted to ensure effective performance of their functions o Court looked at State practice: found no exceptions to immunity. Aluminum Co. if waive immunity. that loses immunity under customary int’l law. nationality and protective) o The Effects Doctrine (most widely recognized: requires intentional effects) • US v. Only exceptions: can be liable under domestic law. Sabbatino argued that the expropriation was not legal) − Under Act-of-State doctrine. only Torture Convention applies. of America (Alcoa) (2d Cir. etc. o Immune for acts done in official capacity. after office. In present case. But this immunity ends as your office ends. which is eroding as well. Can’t give immunity for act that int’l law says is not legal. But has been narrowly construed by courts to only apply to expropriation of personal property later physically present in US. but even there: immunity is not waived. Foreign Ministers should not be afforded same protections as heads of state. Tokyo Tribunal. Overrules American Banana) Jurisdiction found: There was intent to regulated importation of aluminum into US AND was actual effect. not just merely international wrongs in front of international criminal tribunals: Nuremberg. assumed the expropriation was valid: Supreme Court refused to scrutinize the validity of Cuba’s actions. Doesn’t stop the litigation. Head-of-State Immunity (customary international law. − Lord 2: under customary international law: head of state will be liable if involved in serious international crimes. − Lord 3: agrees with Lord 2. The Torture Convention 1988 (Chile and UK members) gave universal jurisdiction: eroded/eliminated immunity for acts of torture or similar acts. Pinochet was there for medical treatment) − Lord 1: No immunity ratione personae and not acts in official capacity: torture is not a state function. − Second Hickenlooper Amendment: Foreign Assistance Act amended by Congress: tried to address cases where the claim or right to property is asserted.40 paid CAV’s appointed receiver (Sabbatino). • Constitutional origins of the doctrine: separation of powers: leave this politically sensitive work to the executive.
Some say can apply to other violations of law of nations. Comity Limitations on the Exercise of Jurisdiction • Timberlane v.): shows that universal jurisdiction attaches. 2003) (Yousef conspired to bomb World Trade Center. relative importance to violations charged of conduct w/in US as compared with conduct abroad. jurisdiction applies. Thus. and certain acts of terrorism. • Most countries that have the passive personality principle extradite if the act was a crime on the territory where it was committed. etc. which is a governmental function. Hitler’s architect of the Holocaust. when perpetrate crimes unanimously condemned by universal community. fled US. Montreal. US and other countries have steered away from passive personality principle. o In this case. extent to which there is explicit purpose to harm or affect American commerce. It is settled law that any state may impose liabilities for conduct outside its borders that has consequences within its borders which the state reprehends. Customary international law and on treaty level: universal jurisdiction over airplane hijackings. • Restatement (3d) of Foreign Relations Law § 404: Has jurisdiction over offenses recognized by community of nations as of universal concern: piracy. Universal jurisdiction should apply to crimes against humanity. no conflict of law or policy with Honduran government.) Jurisdiction found: while have avoided passive personality principle. Affirmed. at least when taking hostages. each state should exercise restraint in good faith. Captured in Pakistan) Jurisdiction found: protective principle allows State to assume jurisdiction over non-nationals for acts done abroad that affect the security of the State. • US v. 1976) (Antitrust suit: officials of Bank of America in US and Honduras conspired to prevent Timberlane from milling lumber in Honduras and exporting to US. • Restatement (3d) of Foreign Relations §403: State may not exercise jurisdiction when would be unreasonable. substantial and reasonably foreseeable effect on trade or commerce. o The Passive Personality Principle • Israel v. the nationality or allegiance of parties and locations of principal places of businesses or corporations. executed the plan. . so prosecution is not unexpected.41 Effect was intentional and real (not mere ripple effects). and flew him to Israel for crimes against humanity during Holocaust) Jurisdiction found: Jewish people connected to State of Israel. war crimes. Bank of America (9th Cir.) o Jurisdiction found: the actions were intended to affect American foreign commerce. Yunis (DDC 1988) Aircraft piracy and hostage taking are internationally condemned (looked at various conventions: Tokyo. attacks on or hijacking of aircraft. it was sufficiently large an effect to be cognizable injury and the link to the US is strong: magnitude of effect on American foreign commerce to justify assertion of extraterritorial authority. List of factors: link of activity to territory of regulating state (actual activity or effects). Yousef (2d Cir. genocide. DCC did not exercise jurisdiction under comity reasons. Plot to destroy the US commercial aircraft was to influence US foreign policy. Like erga omnes effect on jus cogens norms) • Israel v. they are aware of illegality of their actions. o The Universality Principle (anyone who gets a hold of perpetrator can try them. so satisfies the passive personality principle. plot to bomb US airline. Hague. extent to which enforcement by either state can be expected to achieve compliance. Eichmann (Supreme Court Israel 1962) (Israeli Secret Service abducted Eichmann. Now codified in § 6(a) of Sherman Act (1982): Sherman Act applies only when conduct has direct. foreseeability of that effect. o Balance the effects on US commerce with comity and fairness: Conflict of Law in Restatement (2d) of Foreign Relations § 40: when 2 states have jurisdiction. o The Protective Principle (fight against terrorism: protect State from influence over a governmental function) • Allows jurisdiction at an earlier stage that using the effects doctrine: before harm has occurred. ii. slave trade. the relative significance of effects on US as compared to elsewhere. • US v. • Elements to consider: degree of conflict with foreign law or policy. Tested bombs while in Philippines. o On remand. etc. • US v. Yunis (DDC 1988) (Hijacking of Jordanian civil aircraft with several American citizens on board. Eichmann (Supreme Court Israel 1962) Universally acknowledged that piracy gives rise to jurisdiction.
US law says can’t take the action. and human rights. Hartford Insurance Co. Empagran (2004) (Price fixing of vitamin sellers that led to higher prices in US and other nations) o No jurisdiction over claims of foreign purchasers: 6(a) only applies to harm caused in US. violating Art. No plausible violation of int’l law (Lotus principle) Wood Pulp case (ECJ 1988) (alleged int’l conspiracy of US. Canadian. just allowed for it. This conduct was implemented in EC. monetary policy. • World-Wide Multi-Party Conventions o Convention on Prevention and Punishment of the Crime of Genocide (1948. 85. • • • B. The New Generation of Treaties (grown from 86 Post-Westphalia. California (1993) (19 States + private Ps filed complaint under Sherman Act against insurers for conspiracies to force other companies to change their terms to match their own. Multilateral treaty with global scope/ambition: unanimous adoption of this convention.42 connections of parties to regulating state. . ICJ deals w/ interpretation. When conflict of laws: each state should evaluate its and other state’s interest in exercising jurisdiction and defer to other state if their interest is clearly greater. US antitrust laws don’t force the companies to act in violation of UK law. Finnish and Swedish firms that export wood pulp to European Community: created export associations that were exempt from antitrust laws in US.) Hoffman-La Roche v. sell to purchasers in Community. o Dissent: If analyze the situation under Timberlane factors. • Congressional did not show intent for jurisdiction to reach outside of territory (legislatures exercise comity when enacting laws by limiting the reach of their laws) • Shouldn’t construe act of Congress to violate law of nations if another construction remains (Charming Betsy) o Reimann: could have jurisdiction under effects doctrine. application and fulfillment questions • Plays more of a moral role than a practical role until recently. which is purely consent-based (want that specified) (not fatal to the treaty) and Art. comity clearly applies. XII: some states didn’t want the convention to expand to other trust territories. environmental degradation. as interpreted by the US. Congress would not have intended to draft this law so broadly (taking Scalia Hartford dissent approach. • Not like Westphalian bilateral treaties that were like contracts between states to limit powers visà-vis each other. • Genocide is a crime under international law that should be prevented and punished in tribunal of State where act was committed or by international penal tribunal. Charged with price-fixing. intent and effect of restricting competition w/in meaning of Art. v. Charming Betsy). 85 of Treaty of Rome) o Jurisdiction found: although main source of supply of wood pulp outside Community. in force 1951) (not self-executing) • First major post-UN charter substantive int’l treaty. character of activity to be regulated. IX: clause giving jurisdiction to ICJ. to 1700 in last 20 year period of last century) • Treaty practice has moved to multilateral regulatory agreements addressing complex economic. resource management. Part Two: Modern View: The Diversification of Sources and the Rise of International Private Law i. US reservation #2: that the convention does not require legislation or other action by US that is prohibited by the Constitution of the US. etc. security. political and social problems that require cooperative action among states over time: trade. UK law allowed insurers to act this way) o Jurisdiction found: no real conflict of laws. (does not apply Timberlane). Blueprint • The Complexity of Multilateral Agreements o Declarations and Reservations to the Genocide Convention (US ratified in 1988) • Main reservations: Art. Had to limit jurisdiction to some extent: says is exercise of comity: foreign nation should be able to independently regulate its own commercial affairs. UK law doesn’t say have to take the action. • Conditions for exercise of comity were not satisfied: no contradiction between conduct required by US and that required by Community (like Hartford Insurance Co. • Comity rule applies when it is not possible for a party to comply with both laws.
o Enzo Cannizzaro and Paolo Palchetti. Pena-Irala (2d Cir. so countries say that US is going against international principle of treaty interpretation. the structure of the international system. o Reservations to the Convention on the Prevention and Punishment of Crime of Genocide (ICJ 1951) (Reservations are allowed. or stay parties to the old treaty. US (ICJ 1986) (US support of rebels from Honduras in Nicaragua. • Art. Had Pena served while in INS detention. • Art. o Nicaragua v. Reimann: you have to find a rule first and then say that it is jus cogens (that’s a rank not a rule itself) • There is international consensus so state practice doesn’t matter (There wouldn’t be any rules if state practice were determinative) • Reimann: could have said it was a general principal. o VCLT Amendment and Modification of Treaties • Art. Both parties agreed. UN Charter. General Assembly declarations − These are not binding but show opinio juris: proof of a legal rule. Court did not look for consistent state practice (they wouldn’t have found it) • Non-aggression is also jus cogens: its an absolutely essential element of our legal order and nonderogable. States would not sign. but the Article at issue is removed from the treaty as between those 2 parties. • Now continental shelf jurisdiction is in a convention and is accepted as customary international law. ICJ does not have general jurisdiction under UN charter: could not adjudicate rights under the Charter (noninterference). but state consent is not enough to make customary international law. If did not allow reservations. Not clear then if this reservation would hold up in court. . shared by civilized nations (but internal laws don’t have a non-aggression principle). 27 states that you can’t invoke internal law to override the provisions of a treaty. The Changing Face of Customary International Law • New Modes of Customary International Making? o Truman Proclamation on the Continental Shelf (1945): President Truman stated that US had jurisdiction over the continental shelf under the seas surrounding the US. 3) opinion juris of actors of international law. Sued under ATCA. • Customary International Law in American Courts o Filartiga v. or a combination of principles and values in the legal order. treaty is still in force between those 2 parties. • Something like customary international law in this example emerged quickly: legal claim preceded practice. Purpose and goal of the Genocide Convention is to get universal condemnation (want all States to sign). But what the court found should not have been called customary international law: but ICJ Art. 21: If accepted: reservation applies to both sides. Became universally accepted: others wanted jurisdiction over the continental shelf around them and the proclamation stated that boundary problems would be resolved between States. 1980) (The Filartiga’s son/brother was kidnapped and tortured to death by Pena in retaliation for his father’s political activities and beliefs. then the treaty does not hold between them. 20: default is to accept the reservation: must object in 12 months. or if it is incompatible with the object and purpose of the treaty. if treaty only allows specific reservations. 38 states that it will follow only the named traditional sources. wrongful death statutes. 39: Can amend by agreement between the parties • Multiparty treaties: Art. Found through declaration by states. reservations cannot go against the object and purpose of the treaty) o Vienna Convention on the Law of Treaties (1969) (codifies ICJ decision) • Art. If a State objects and says the reservation defeats the object and purpose of the treaty and doesn’t accept other State as signatory to treaty. unlike in Paquete Habana analysis (practice over long period of time ratified the rule). thus had to rely on customary international law) • Customary international law: non-aggression. However. 40: all parties must be notified (collective action problem). Universal Declaration of • ii. If objects to the reservation alone. 2) claims of certain actors: Truman proclamation.43 Objections to the reservations: Main objection to US reservation #2: VCLT Art. • Organ that sponsored the treaty can present a new version: states can sign onto the treaty as amended. Customary International Law on the Use of Force (2005) • Different kind of customary international law: 1) slow emergence: Paquete Habana w/ state practice over time and opinion juris. 19: reservations allowed unless prohibited by the treaty. Creates 2 different regimes.
• International life-Saving Appliance Code iv. 2003): Courts are recognizing natural laws: like that against torture. already. which is not self-executing and does not specifically address environmental pollution. Flores relies on right to life and health to bring ATCA claim) • No customary international law against intrastate pollution: not clear like in case of torture prohibition that pollution violates right to life and health. The Emergence of Global Administrative Law (2005) o Regulations can be implemented directly against private parties or through implementing in domestic law.) in the Courts o Flores v. o Brownlie. The delegated authority creates regulations that are binding. Non-binding Sources: “Soft Law”? (No force of law. Multinational declarations are also just statements of policy: not usually meant to be legally binding. (2d Cir. which is not binding or selfexecuting shows court is giving outcome-driven reasoning. environmental regulation. distributed administration by national regulators under treaties. no need to interfere.r. (2d Cir. UN Declaration Against Torture. • International Convention for the Safety of Life at Sea (SOLAS (1974): Lifeboat regulations. The Rights of Refugees under International Law (2005): Shouldn’t leave human rights to customary international law. also informal cooperation by transnational networks. etc. Principles of Int’l Law (6th ed. definite and unambiguous. specialized regimes. with the goal that . Krisch. consumers are affected but don’t get a way. • Right to live and health are not established as customary international law: The principles stated in declarations and covenants w. • Benedict Kingsburg. o Advocates use these declarations to show that the position has foundation and that the claim should be taken seriously. practices and supporting social understandings that promote or otherwise affect the accountability of global administrative bodies: to fill in accountability deficit due to emergence of these global administrative regimes. customary international law of human rights and law of nations) • No treaty law showing torture is violation of international law. found expression in international treaties and accords: UN Charter. iii. are not clear.t. unlike in Filartiga: Flores could have brought suit in Peru: there was law governing this situation already. o Economic regulation. o Hathaway. right to life and health are too abstract. American Declaration of Rights and Duties of Man. and private bodies. − Reimann: slippery slope when looking at what States say instead of actually do: States may stop signing such declarations/conventions if they will be bound by what they say. • Problems of legitimacy and transparency: no democratic oversight. The regulations are either binding on the states or more likely implemented/adopted by the states. principles. international security regimes. so had to look for customary international law. Soft law does not win the case. Only treat relied on Ps that was ratified by US was ICCPR. Southern Peru Copper corp. etc. Can’t base customary international law on these sources. Administrative Regulations (issued by international organizations) • Derive force not from state consent (treaties) or consistent state practice (customary international law) but from the authority of the bodies which issue them: usually governmental organizations created through international agreements or agencies of existing governmental organizations (like UN). Should make hard-nosed conventions and then really enforce them. Reimann: Court’s use of Declaration of Human Rights. o Main administrative actors: administration by formal international organizations: UN. 2003): UN General Assembly resolutions are not binding so not proper sources of customary international law: aspirational. Peru Copper was fined by government. created pollution. Although still state practice to torture.. IGOs make substantive treaties. hybrid IGO-private administrations. • How it works: states create IGOS. Stewart. General Assembly is not law-making body. • International Principles of Private Law o Some say that the international principles created in various areas of private law stem from the lex mercatoria and are like Restatements (blackletter rules organized in a quasi-code. 2003) (Cooper Corp.44 Human Rights. Can only rely on treaties that are binding. the condemnation of torture is consistent. Southern Peru Copper Corp. o Global administrative law: mechanisms. but often invoked by advocates and considered by tribunals) • The Use of UN-Declarations (etc. etc. o Flores v. • Torture is outlawed under customary international law: renounced in modern usage and in practice of nations.
choice of law. 6): in US. who will then transmit it to the Central Authority to the other State. They will send a certificate saying that process has been served. served amended complaint to VWoA as VWAG’s agent: under Illinois state law. • Art. o Volkswagenwerk v. The Rise of Private Law • Public international law: law of nations • Private International Law (“Conflict of Laws”: rules about international civil jurisdiction. self-executing. Problem with the decision: allows any country to avoid the convention through domestic service. on level of federal law: trumps UCC) • Covers only contract formation and obligations under breach. . when it should be mandatory. Not binding. • Authority or judicial officer competent under the law of the State (any lawyer) can forward the document to be served to the Central Authority. • Is now a model for national and international legislators. Political costs. weakens parol evidence rule. as are most important US trading partners. applied by each country for itself. warranty. • Differences with US law: no Statute of Frauds. rules are enshrined in international conventions: Hague Conference for Private International Law (1893: now over 60 members) o Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (1965) (US is a party. v. etc. but hope to guide decisionsmakers. Consequence: US citizens will have less protection when involved in litigation abroad. o Arbitration Institute of Stockholm Chamber of Commerce SCC Institute Award (2005): Arbitrator awarded damages in accordance with UNIDROIT principles: UNIDROIT is a neutral law and it helps to fill in gaps: easier to go by in international law. Schlunk (1988) (Schlunk served complaint on VW America and added VW Germany. was v. no consideration necessary. but D had principal warehouse. Convention creates a way to serve process abroad. if required to do so. then they will serve under domestic law rules. VWoA was an involuntary agent for service of process for VWAG. and procedural issues arising in international case) o Private international law used to be a matter of domestic law. o UN Convention on Limitation Period in International Sale of Goods (1994) (US party) o Asante Technologies. o Should normally advise clients to follow both domestic law and UNIDROIT principles. • Applies when parties have agreed that their contract be governed by them. property rights. as long as find everything in order. P and D were Delaware corporations. selfexecuting) • Federal Rules of Civil Procedure Rule 4 incorporates the convention too. but a couple conventions on international sales o United Nations Convention on Contracts for the International Sale of Goods (1980) (ratified by over 70 countries. • Parties may also exclude application of the CISG (Art. avoidance of excessive advantage. Ps face consequences: internal law may have required service abroad. • Reimann: Court should probably have looked to see how States applied the convention (VCLT).45 these principles be accepted internationally and domestically. But now. VWAG said that Schlunk violated the Hague Convention) • Hague Convention does not apply: only applies if internal law of the forum state requires service of process be made apply. VWAG had sufficient notice through VWoA of the service. • Concurrence: Court makes the convention option. 95: can make reservation as to only Art. • For non-member states: must send request for service of process to their consul. Doesn’t cover validity. By not complying with the Convention. Inc.D. (N. PMC-Sierra. • Differences with domestic law: No Statute of Frauds. judgments recognition. judgments may not be enforced abroad. 1(b). rely on comity. not UK or India. requires good faith negotiations. Not clear that courts will allow opting out of national law in this manner. Can reject service if only states that it would violate sovereign’s security or their sovereignty. • International Private Law (Substantive Rules) o Vast majority of private law rules are of purely domestic character. o UNIDROIT Principles of International Commercial Contracts: • UNIDROIT = International Institute for the Unification of Private Law (independent IGO founded in 1926). Inc. default to opt out of CISG: uncertainty b/c international law and far less case law. CA 2001) (Breach of contract suit: question of whether CISG applies.
o ICJ will not hear cases that are moot. • If want to opt out of CISG. 41). US: Connolly Reservation in 1946 Declaration: would not submit matters w/in domestic jurisdiction of US as determined by US and Vandenburg Amendment: excluded disputes under multilateral treaties unless all members of treaty were parties of the case or US consented. • Most common way for jurisdiction: parties submit to compromis: States submit to jurisdiction. CISG would apply (CA state law trumped by CISG and Canada uses CISG). 36 (subject to reservations of States). D had clause saying that applicable law was that of Canada) • CISG applies: D’s place of business was Canada: P knew that D was in Canada. were there and order was faxed there. Elected by majority vote of UN. Canada. • Reimann: Not clear that contract-writing is really driven by fear of litigation. • UN Charter: Chapter XIV: ICJ: o Art. Reimann: Better argument would be to point out battle of forms: no agreement on the applicable law. • Statute of the ICJ (1945): o UN countries are automatically parties to this statute. have to show clear intent. Comparative Civil Procedure and the Style of Complex Contracts (1987): • Van Hecke’s theory as to why common law countries have longer contracts: perfectionism. more case law and less codification so need to list statutory grounds. and ECOSOC. Litigation Among States: The International Court of Justice (successor of Permanent Court of International Justice 1921) • Most disagreements between states are still settled on the political and diplomatic level. limited to the essential terms.46 in British Columbia. o ICJ can require provisions measures: to protect and ensure equality of parties (Art. 96: Advisory opinions allowed. 94: each member of UN promises to comply with and execute the decision of the ICJ. Part Two: Modern View: Towards a Panoply of Specialized Tribunals? i. under either applicable law clause. etc.r. requiring more explication. International Law Frameworks (2006): o Structure: 15 members: nationals of Security Council members in individual capacity. or other party can seek recourse to the Security Council. 36(1): all matters specifically provided for in the Charter of the UN or in treaties and conventions in force). 59): no stare decisis . contract writers don’t trust the judges (not professional like Germany’s) and juries to make the right interpretation. pre-trial discovery makes litigation costly and drawn out so prefer to write everything into the contract to avoid litigation. Art. • Other ways: through compromissory clauses written into bilateral and multilateral conventions: agree that disputes arising under the treaty will be submitted to the Court (about 300 conventions have this: US through Friendship. not ripe. or if there was failure to exhaust domestic remedies. o Binding only between the parties w. manufacturing. the particular case (Art. and still use force. Common law countries give longer and more prolix documents. o Jurisdiction over State disputes with consent of litigants only. adversarial process is overblown and confusing. • Langbein: American civil procedure is to blame. so default CISG applies. 10: place of business is that which has closest relationship to the contract and its performance. o Civil law countries have shorter contracts.t. Further. It is inefficient. but allows political questions. but works only if reciprocal. International Business Contracts o Parties make their own international private law by writing everything they deem relevant into contracts. federalism means multiplicity of American jurisdictions. P had a clause in the contract saying that the law of the state was the applicable law. o May issue advisory opinions requested by organs of the UN or one of its specialized agencies: UN General Assembly. Commerce and Navigation (FCN treaties): Nicaragua case) • Appellate review of decisions by other bodies through treaties or agreements • “Compulsory jurisdiction”: declare w/o special agreement to submit to ICJ jurisdiction through an “optional clause” declaration under Art. • B. Security Council. Under Art. • Bederman. but will not issue one if propounded by an inappropriate body. o Hears cases in plenary session: majority vote. o Langbein.
who had lived in US since children. • Dissent: should exercise jurisdiction: Zapata’s substantive rights adversely affected. Supreme Court dismissed Germany’s motion to enforce compliance with provisional measure due to jurisdictional barriers under domestic law. started action in London Court Of Justice. etc. to tow their drilling rig with a choice of forum clause stating that any dispute arising would be taken to the London Court of Justice. One brother was executed. Convicted and sentenced to death. Freely negotiated in private international agreement. That was enough. 36. o Germany asked for assurances that US would not violate the Vienna Convention in the future: US committed to ensure implementation of specific measures to ensure performance of obligations: created brochures to be distributed to federal. Had not been informed of rights under Vienna Convention Art. civil law) countries have statutes that regulate forum selection clauses: enforces forum selection agreements. each country decides for itself under domestic law whether it has jurisdiction over the parties: • Jurisdiction by Consent: Choice of Forum Agreements o M/S Bremen v. Supreme Court declined to provide relief: Breard lost his right under Art. (1972) (American co. plus incident happened near District Court. but unsuccessful. ii. state and local law enforcement and judicial officials throughout the US and training programs. so witnesses. only between States Different terminology No discovery for ICJ No appeals o Ad hoc judges are allowed: if don’t have a national on the ICJ. ICJ issued provisions opinion that US should take all measures to ensure Breard was not executed pending final decision. 36. Zapata. Litigation Among Private Parties: Domestic Court Jurisdiction in International Cases • Threshold question: which country’s domestic courts should hear these cases? (no int’l courts to hear the cases) o Traditionally. Antiterrorism and Effective Death Penalty Act of 1996 was later in time so trumped Vienna Convention. 2nd brother was executed) o US acknowledges breach of Art. Storm caused damage to rig. Filed in ICJ and requested provisional measure to suspend second brother’s execution pending ruling. Germany wrote to try to prevent execution of LaGrands in 1999. Zapata appeared to contest jurisdiction and were denied. 36 creates individual rights which may be invoked by the national State of the detained: violated • American procedural default rule as applied violates Art. did not raise this issue in state and federal appeal. and the consular help probably wouldn’t have changed the outcome anyway. 23: forum selection agreements ok. US did not exercise powers to give effect to the Court’s provisional order: SC could have given preliminary stay. 36. Zapata sued in US District Court. are there. German Corp. 2 German brothers. Governor of Arizona did not grant stay even though Arizona Clemency Board recommended a stay. 2 (internal laws and regulations must enable full effect to be given to the purposes of the Vienna Convention): prevented challenging convictions and sentences. lost appeals in state and federal court. Zapata Off-Shore Co. Paraguay filed suit against US in ICJ asking that the conviction be voided and provisional measure be issued to prevent execution: US failed to advise Breard upon arrest of his rights under Vienna Convention on Consular Relations of 1963 Art. US) (ICJ 2000) (In 1984. Tried to raise violation of Vienna Convention in filing habeas corpus. Governor of VA did not stay execution. rejected due to procedural default. contracted with German corp. Sentenced to death.47 Jurisdiction only by consent. o Art. should be given full effect. can ask for one. 41 (provisional measures) has binding effect in light of object and purpose of the Statute. German consular post found out about LaGrands in 1992. 3. 36 by not raising the issue in state court: procedural default. • Art. • Breard cases (Paraguayan citizen arrested for murder in VA.) • Choice of forum clauses are presumptively valid unless enforcement is shown to be unreasonable under the circumstances. were arrested in Arizona for attempted bank robbery where bank manager was murdered. Paraguay withdrew request from ICJ) • La Grand Case (Germany v. o Swiss Federal Statute of Private International law (1987): most foreign (esp. o Not truly adversarial: judges can ask questions. Breard was executed. which prevented Germany and the LaGrands from exercising their rights. o o o o . para. EU members are bound by EC Council Regulation on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters Art.
but normally in prefabricated manner under auspices of private organization providing arbitral services for a fee: International Chamber of Commerce in Paris.48 Hague Convention on Choice of Forum Agreements (2005): not yet in force. Reflections on Judicial Jurisdiction in International Cases (1987): international assertions of jurisdiction call for modification of traditional Due Process standards. tries to be speedier (target of 6 months). no appeal (but State can still look at the arbitrability of the dispute and whether arbitration violates public policy). o . can be more easily enforced (through NY Convention). can be confidential (not per se guaranteed). interim measures harder to obtain and enforce. o Good reasons for treating international cases differently: exercising jurisdiction over foreigners affects foreign relations o Should use caution when asserting long-arm jurisdiction and should require closer connection between forum and D than necessary in domestic cases: comity iii. o Foreign non-recognition and burden of litigation should not really be issues: burden will be borne in international dealings by one of the parties. London Court of Arbitration or American Arbitration Association. less hostile and less disruptive to business relationships. Interest of CA and P in having jurisdiction in CA is slight.) • No jurisdiction: Factors: burden on D. • Jurisdiction by Contacts: Fairness Limitations in International Cases o When parties do not choose a forum. P’s interest in obtaining relief. choice of substantive law. arbitrators have greater business sense. and institution (if using prefabricated arbitration) • The General Framework: The (UN) New York Convention (over 140 parties. Trade-specific arbitration regimes too. Superior Court of California (1987) (Foreign Ds may require special treatment: Accident on motorcycle: products liability action against tube on tire’s manufacturer. most courts will say it is waived) • Cons: Due process is weaker (but arbitrators usually will uphold due process). decide in terms of reference (detailed code on terms of arbitration). they bear the burden. passed under ECOSOD) o Applies to recognition and enforcement of arbitral awards (made in one country and enforced in a different country) between private parties: ad hoc or permanent arbitral body decisions. Only portion of case left after settlements was action for indemnity between Taiwanese company and Asahi. procedurally more flexible. Sometimes ad hoc. who then filed cross-complaint for indemnification from codefendant: tube valve manufacturer. procedural rules. Don’t want to step on toes of other nations who may have jurisdiction: must consider the procedural and substantive policies of other nations whose interest are affected by the assertion of CA jurisdiction. • Gary Born. Judgments based on exclusive forum selection clauses must be enforced. • US: jurisdiction in civil case requires connection between D or dispute and forum and must comply with 14th A due process clause (minimum contacts). • Treaties: like with foreign investment disputes under BITs o Must appoint Tribunal. avoids jury trials. P is not from California. they cost a lot (depends. • Advantages: forum neutral and more specialized. State Arbitration: ad hoc or preexisting framework (Permanent Court of Arbitration in Hague) o International Commercial Arbitration between Private Parties: normally through clause in contract where parties agree to submit disputes to arbitration. US included: executed through Chapter 2 of US Arbitration Act. could be cheaper than litigating). a Japanese company. Burden on Asahi is severe: foreign judicial system. arbitrators may be more partisan than judges. lesser role of public policy. but US first signer. no matter what. jurisdiction in civil and commercial matters usually is based on connection between parties or underlying events and the forum state. a Taiwanese company. discovery may be limited (harder to compel unwilling witnesses). Says that exclusive international forum selection clauses are binding and enforceable (if in commercial context). interest of forum State. with some other limits. • Counterargument: But now if P has to sue in Japan. o Parties can also designate choice of law clause: but may not violate forum’s public policy. o Asahi Metal v. o Arbitration between States and Private Parties: • Arbitration clause in contract: avoids sovereign immunity problems. can usually avoid sovereign immunity problems (if agree to arbitration. International Arbitration: Not Just for States • Overview: Three Forms of International Arbitration o State v. States must agree to enforce arbitration clauses (decline to look at case if not court in arbitration clause) and must enforce arbitration awards (can make reservation stating that it will only enforce with reciprocity and can say only for commercial disputes).
v. Domestic investors were affected too. v. etc. Actions completely altered the business environment under which investment was decided and made: fair and equitable = stable legal and business environment. o In face of these crises. should have stressed that CMS and other investors knew they were entering an unstable environment and were advised of the risks. panel does much fact-finding and write an opinion that looks like a court opinion. Inter-American Court of Human Rights and its Commission. froze tariff rates. African Court of Human and Peoples’ Rights o Criminal Law: International Criminal Court. International Criminal Tribunals for Former Yugoslavia and Rwanda o Economic law: WTO. not just economic change. • Qualities of adjudication: o Fairly adversarial. NAFTA • . Only expropriation if destroy entire value of the investment. Pass report onto Dispute Settlement Body (which can only overturn with unanimity: doesn’t happen b/c all WTO members are in this body). • Clear timetable. During financial crisis in Argentina (inflation damages capacity to export). Led to resurgence of Calvo clauses: a claimant waives the right to apply to his or her government or to another forum for protection if a claim is denied by local authorities (only local authorities can be sought to redress grievances) iv. Dispute Resolution in the WTO: Adjudication or Arbitration? • WTO (1995) set up a new and much more formalized dispute resolution process. o Treaty between US and Argentina Concerning Reciprocal Encouragement and Protection of Investment (1991) • Investment dispute between a Party and a national or company of the other Party. No expropriation: the gas distribution company was still managed by the investors: no real interference with how CMS did business. • In Particular: Foreign Investment Disputes o Treaties of Friendship. allowing for arbitration through World Bank’s ICSID process. The Proliferation of Specialized Tribunals • ICJ: only states can be litigants. solve disputes quickly (should take about one year. CMS took Argentina to ICSID stating that government actions resulted in expropriation (bankrupted their in-country operations). Commerce. discriminated against foreign investors. can be submitted for binding arbitration to the International Centre for the Settlement of Investment Disputes (ICSID) or elsewhere • Dispute of interpretation or application of the Treaty will be submitted to arbitral tribunal for binding decision under arbitration rules of UNCITRAL o CMS Gas Transmission Co. Argentina (ICSID 2005) (Argentina entered into bilateral investment treaties (BITs) that promised fair and equitable treatment and non-discrimination. Actions were not arbitrary or discriminatory • Argentina could not invoke necessity exception: only applies when there is collapse.49 Can refuse to recognize arbitral award if the subject matter is not capable of settlement by arbitration under law of that country or if against public policy. BITs. Now. Further. Tribunals of International Organizations o Regional: European Court of Justice. • Reimann: Argentina should have argued that a government is entitled to do whatever must be done to protect the consumer. world began to reexamine costs of BITs. but they may have taken out loans in pesos. failed to provide fair and equitable treatment. • Major international regional judicial and specialized tribunals o International: International Tribunal for the Law of the Sea. 15 months with appeal) • Understanding on Rules and Procedures Governing the Settlement of Disputes: Panel should make findings to assist the DSB in making recommendations or in giving rulings provided for in the agreement. Asked for $260M + interest) • Argentina breached fair and equitable treatment clause: had to pay back foreign investors using the discounted cash flow methodology. but can’t have their own nationals on the panel. and Navigation would have arbitration clauses. Andean Court of Justice o Human Rights: European Court of Human Rights. • Qualities of arbitration: o Parties set up the panel. but can use sanctions: compliance rate is very high. not dollars. Does not have coercive or executive powers. etc. since providing a public service. and providing further provisions under an umbrella clause: to draw foreign investment. there is an appeals process (only on points of law). government removed peso-dollar 1:1 ratio. No political or economic pressure: judicial independence: panelists serve in individual capacities. and violated the umbrella clause.
. But ICJ is only based on case and only for state-state action.50 Arbitral Tribunals: Permanent Court of International Arbitration. ad hoc tribunals..importance • Meant to be clear right or wrong. Courts should be more deferential to one another’s decisions. Effects of proliferation: o Pros: cross-fertilization: can look at each others’ work (should borrow only from similar cases). states get more used to resolving disputes through law. creates more international case law.. One solution: to make ICJ ultimate appellate court.... ICSID... o Cons: different jurisprudences may destroy unity of international law: differing decisions. • Scores here are very high – o o o • . US-Iran Claims Tribunal. o • PREP FOR MIDTERM – • Incentive to study 1st part of court • Not thing to outline for • Downplaying...
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