What is International Law?

Definition: o Restatement: International law consists of rules and principles of general application dealing with the conduct of states and of international organizations and with their relationships inter se, as well as with some of their relationships with persons, whether natural or juridical. o Brierly, The Law of Nations: The body of rules and principles which are binding upon civilized states in their relations with one another. IL Consists of: o ICJ, Art. 38: o International conventions, whether general or particular, establishing rules expressly recognized by the contesting states; o International custom, as evidence of a general practice accepted as law o The general principles of law recognized by civilized nations o Judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law. o Restatement Section 102: o A rule of international law is one that has been accepted as such by the international community of states  In the form of customary law  By international agreement, OR  By derivation from general principles common to the major legal systems of the world. o Customary Law: results from a general and consistent practice of states followed by them from a sense of legal obligation. Opinio juris: sense of obligation to comply.  Counter: Tends to be unclear, making cooperation and coordination by custom relatively fragile. o International Agreements: Create law for the parties thereto and may create customary international law when such agreements are intended for adherence by states generally and are in fact widely accepted.  In the US: Art. VI of the Constitution expressly makes treaties the “supreme law of the land.” But there is a question of self-executing, non-self executing. o Principles common to the major legal systems, even if not incorporated or reflected in customary law or international agreements, may be invoked as supplementary rules of IL where appropriate.  Dissent: This is being challenged in recent years. So called 3rd World Countries have gained a numerical majority in the UN General Assembly, and while they have little bite enforcement wise they have enacted several declarations (Declaration on the Granting of Independence to Colonial Countries and Peoples) that could have an effect on the global legal order. Changes in IL: o Creation and evolution of various and regional entities has been paralleled by substantial changes in international law. o (1) the individual has become a recognized actor along with states and international organizations o (2) national, regional, and international tribunals have become much more active and effective in enforcing international legal norms. Enforcement Mechanisms of International Law/Reasons to Follow Rule:

o Reciprocity: A country will often comply with the well-accepted international norms protecting o
embassies and diplomats because the country realizes that it wants its own embassies and diplomats to be protected by other countries. Intl Reputation: US vessels and rockets in the Persian Gulf. Intl rules of neutratlity have attained a high degree of recognized legitimacy and must not be violated lightly . They are well understood, enjoy a long pedigree and are part of a consistent framework of rules governing and restaining the use of force in conflicts. To violate a set of rules of such widely recognized legitimacy would transform the US posture in the gulf from that of netural to belligerent. Coud affect role as an honet broker seeking to promote peace negotiations. It would also undermine the carefully crafted historic rules of the game applicable to wars. “Court of World Opinion” International Courts: Proliferation of regional and international courts. Often they only have jurisdiction to those who submit to their jurisdiction, and their procedural mechanisms are slow, expensive and cumbersome. Often not respected completely internationally. Do these help develop customary and/or interntional common law? Sense of Community: Legitimizing requirement of rule integrity assumes that each person is as worthy as any other, that each much be treated with equal concern according to some coherent conception of what that means.

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Why do States follow international law? o Instrumentalist Approach: States use international rules as a means to attain their interests in wealth, power and the like. o Liberal: Compliance depends on whether the state can be characterized as “liberal.” That is having a form of representative government, guarantees of civil and political rights, and a judicial system dedicated to the rule of law. Liberal democracies are more likely to do law with one another while relations between liberal and illiberal states will more likely transpire in a zone of politics. o Constructivists: States and their interests are socially constructed by commonly held philosophic principles, identities, norms and behaviors. Norms as playing a critical role in shaping state identity. States obey international rules not just because of sophisticated calculations about how compliance or noncompliance will affect their interests, but because a repeated habit of obedience remakes their interests so that they come to value rule compliance. States follow rules because they have a long term interest in the maintenance of law-impregnated international community. o Transnational Legal Process: (1) One or more transnational actors provokes an interaction with another, which forces an interpretation or enunciation of the global norm applicable to the situation. The moving party seeks not simply to coerce the other party, but to internalize the new interpretation of the international norm into the other party’s internal normative system. The aim is to bind that other party to obey the interpretation. o NGOs: Highly influential in this process by creating internal factions. International Relations Theory: o Realists: States are principal actors in international politics. They interact in an environment of anarchy. Defined as the absence of any central government able to keep peace or enforce agreements. Security is their overriding goal, and self-help their guiding principle. Rules and institutions have little if any independent effect on state behavior. Might is right. o Institutionalists: Much the same as realists, but they see states as mere fictions that aggragate the interests of their citizens. o Liberals: View individuals and private groups as the fundamental actors in international politics. But their preferences are determined by domestic politics rather than assumed interests or material factors like relative power. Requires attention to the domestic politics and constitutional structures of individual states – a daunting prospect for analysis of international relations. o Transnational Liberals: would reject doctrines that limit law creation to states. Asserting that the domestic-international distinction has broken down, they would urge

the significance of transnational norms created by private actors and governmental units, as well as domestic norms. Is IL really law? o No: IL is highly indeterminative and unenforceable. Not really law because international society is not really a society, the world of nations is a collection of sovereign states, not an effective body politic which can support effective law. There is no effective law-making body, and new laws cannot be imposed on any state. Even old law cannot survive is rejected by a few powerful states. Theres no judicial to clarify and develop the law, to resolve disputes impartially, and to impel nations to observe the law. The courts that do exist are wholly inadequate. Further, there is no executive to enforce the law. Nations only follow the rules when they wish to do so. International law then is wholly voluntary. o Counter: The unenforcement side focuses far too narrowly on the use of force, a relatively small sphere of IL. o Yes: It’s a question of does IL have a pulling force on people and decision making? IL is often followed due to ideas of reciprocity. Some simply because the law is seen as legitimate and therefore should be obeyed (liberalist viewpoint.) Even without centralized adjudications and enforcement agencies such as through arbitration or unilateral “self-help” retaliatory measures. Law includes the structures of governments, and the schemes under which they operate, not just police and judges. Includes status of people/states. Even though there is no international government, there is an international society. IL provides the structure of that society, its institutions, forms, and procedures, the status and rights of the bodies that make it up. The idea of “statehood” and that being the building block of international relations is a legal concept. The laws that govern this are often taken for granted because they very rarely break down. Internal sovereignty is fundamental and often observed. Without a binding recognition to treaties and agreements as legal documents there could be no international relations. Nations that try to escape these agreements invoke legal principles to do so. Even if its difficult to make, it is made. It grows even. While the courts decisions are few, they are respected. No executive is met by horizontal enforcement. Why is IL law binding? o Fundamental Rights: Takes the idea of natural rights and imposes it onto states. Simply the fact that you are a state grants you some natural rights. Those being: self-preservation, independence, equality, respect, and intercourse. o Posner: IL emerges from states pursuing their interests to achieve mutually beneficial outcomes, and it is sustained to the degree to which it continues to serve those interests. o Positivists: IL is the sum of the rules by which states have consented to be bond, and that nothing can be law to which they have not consented. This consent may be given expressly, as in a treaty, or it may be implied by a state acquiescing in a customary rule. Counter: New nations simply don’t consent to IL, they don’t have much choice. o Precedent: Case of the S.S. Lotus (1927): Ships that collided. French crew prosecuted in Turkey. H: First and foremost restriction imposed by international law upon a state is that – failing the existence of a permissive rule to the contrary – it may not exercise its power in any form in the territory of another state. Jurisdiction is territorial, it cannot be excercised outside a state except from a rule or customary law. They can however, exercise jurisdiction within their own border in respect to any case that has taken place abroad. o Brierly: Ultimate explanation of the binding force of alllaw is that man, whether he is a single individual or whether he is associated with other men in a state, is constrained, in so far as he is a reasonable being, to believe that order and not chaos is the governing principle of the world in which he has to live. Rule Legitimacy:

o Determinancy: The ability of the text to convey a clear message, to appear transparent in the
sense that one can through the language to the meaning. Indeterminancy has costs. It is more likely to be complied with if people know how to comply. Also, makes it harder to justify noncompliance. States will only follow a rule if they determine it sufficiently clear to expect compliance by others In the future. Symbolic Validation: When a signal is used as a cut to elicit compliance with a command. Reinforces relationship with the state. Serves to legitimize rules. Ritual: Pedigree: Seeks to religitimize compliance by stressing the historical foundations of a rule. Must be applied coherently.

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Use of Force
Arguments for Use of Force: o Pro: o Art. 42: UN may take actions by military force. Strat: Consider if this will get vetoed. Strat: Look for a recommendation from the general assembly. Art. 51: Collective self-defense in the event of an armed attack. Requires less imminence than under unilateral action according to the Chayes article.  Interpretations: Some interpret “armed attack” broadly to cover a large range of threats, thus permitting anticipatory self-defense. Others say that “inherent right” of self-defense extends beyond cases of armed attack. Art. 52: Regional arrangements could deal with such matters relating to the maintenant of peace and security as are appropriate for regional action. Security Council Resolutions: Ultimately you really wish to base any military expedition on previous UN resolutions.  Strat: If deadlocked, there is some support for the idea that regional bodies should take over to prevent the security council from hindering peace keeping. (Chayes) General Assembly Recommendation Regional Body Support The Caroline: The “Oh Canada” case. Prime example of opinion juris and CL. Anticipatory Self-Defense:  BoP: On the aggressor.  Duration: The strictest possible time, and strictly confined within the narrowest limits imposed by that necessity.  Necessity of self-defense. Instant. Present and inevitable. • Judging Imminent: o Subjective: A nation, “in good faith” thought an attack was inevitable. Too hard to police. o Some Process: i,e. UN Security Council. Too slow. o Objective: Reasonableness standard. How defined?  Over-whelming.  No choice of means  AND no moment for deliberation. • Must be shown: Day light could not be waited for. That they could not possibly have negotiated with those on the Caroline. • That the Canadians did nothing unreasonable or excessive – force implied must be in relation to the necessity.

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o Monroe Doctrine: Might try to justify something with acquiescence to a doctrine like the
Monroe doctrine, but its undoubtedly weak.  Policy Args: If you don’t go with war you undermine the UN altogether. o Con: o Art. 2(3-4) of UN Charter

 Counter: Use of self-defense in armed attack. o Art. 53: Possibly trumps collective self-defense.  Strat: Chayes says that there is support for the idea that if the regional body’s o
decision is recommendatory, but not mandatory it cannot be considered “enforcement action.” From the ICJ opinion Certain Expenses of the UN. Preamble of UN: “Armed force shall not be used, save in the common interest,” “to unite our strength to maintain international peace.”  Policy: If you go with war w/o express authorization you undermine the international legal system. Also, you want other nations to not resort to such means in the future, so you don’t want to set a precedent. Kellogg-Briand Pact: Extremely non-binding treaty that condemned war (Art. I), and pledged to use peaceful means to settle their international disputes (Art. II).  Realists: Say that is hodge-podge bullshit with little or no force.  Brianists: It is in the very least something that might make a country think twice. “Court of World Opinion”

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UN Enforcement Mechanisms: o Art. 5: Can suspend any member state from the rights as a member if they are the subject of Security Council Action. o Art. 19: Can renig your right to vote if you fail to pay dues. o Art. 41: Security Council can resort to economic sanctions. Interruption of rail, air, sea, postal, telegraphic, radio, and other means of communication, and severance of diplomatic relations. o Waxman’s Arg For Guantanamo: For a decade Al-Qaeda had been at war with the US at a lvl before only known to states. If such had been state action nobody would have argued that they were in a state of war. During war you take prisoners and you don’t release them until the war is over.

o Law as Constraint: Whethre law operate as a constreaint, in the sense of narrowing choice or
excluding certain courses of action. Obedience to law is most often perceived as response to an external constraint, but as the affirmation of valued and desired objectives. Even if it violates the law the law may in fact constrain the degree to which it is violated. Law simply acts to restrain choice and make cost/risk analyses. Is this soft law? o Application to CMC: Legal consideration influenced the outcome through the perspective of the players. Aldai, Bobby Kennedy, etc. Kennedy wanted a blockade because it was the moral thing to do given our nations history. Law as Justification: Nay sayers cry that the law is simply an excuse, way of making the bad look good in retrospect of a decision made previously and justified later. But, the requirement of justification imposes the discipline and check of the necessity to formulate its decision in terms of the set legal rules and procedures within which the case is presented for determination. While this can never determine right/wrong, it can distinguish a good faith attempt from a trivial one. It therefore provides an important substantive check on the legality of action and ultimately on the responsibility of the decision-making process. Helps to legitimize the actions. Legal norms express values common to most men, and are therefore an excellent source of justification. It’s a checks and balances system on the international level to have to persuade multiple countries to your view point.

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o Application to CMC: The decision to go to the OAS. o Law as Organization: The law is now formed by an explosion of international organizations.
These often act independently of the nations they represent, even if their ambassadors have explicit instructions. The fact that they are there can shape how a country acts. They can express a common regional idea of the law. To simply ignore such organizations can mock the talk of big powers. The orgs can make it more efficient to formulate policy and to rally support. It can birth a declaration in the public spotlight through deliberation, thereby giving it moral force. They express political (and therefore legal) wills. Can help unify and produce specific, effective language. Can also foster information sharing. Can provide the doctrinal basis for the legal analysis.

o CMC: Votes of the OAS gave it the legal authority. Missile placement in itself was not
an attack in the legal sense. Could it be considered imminent? Russian had a legal streak going, so we had to match it. They decided to do a “quarantine” not a “blockade.” Is this soft law? Argument that it was Illegal: US resorted to unilateral military action that cannot be reconciled with its obligations under the UN Charter to settle internatiuonal disputes by peaceful means and to refrain from the use of force (Art. 2, 3-4), except for individual or collective self-defense against armed attack (Art. 51), under authority of the UN (ar.t 24, 39), or on invitation of the state where the force is to be used (art. 2, 1).

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Kosovo (Humanitarian Intervention) o Lessons Learned  Threats are possibly against the charters dedication to peaceful resolution of conflict.  Without an ultimate use of force threats are worthless  Russia’s veto power forced NATO to act w/o mandate  Mixed signals impeded effective diplomacy  Illegal, but legitimate • Beneficial: This has some benefit in that it pushes the idea forward that this should have been deemed illegal and promotes change o Dangerous: Undermines adherence to the UN system.

Argument: Serbs ignored and defied international law. Massive civilian casualties. Diplomacy had failed. Taken w/ regret in order to save lives. Main: Every means short of force has been tried to avert this situation. In these circumstances, and as an exceptional measure on the grounds of overwhelming humanitarian necessity, military intervention is legally justifiable. The force employed is necessary to prevent that crisis, and is the minimum judged necessary. • Against: Its an internal matter, and should be resolved among the parties concerned. o China simply trying to avoid similar future arguments over Tibet.

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Official Argument  1441 Authorized serious consequences. • If UN doesn’t act = obscurity  His willingness to act is shown by gassing of Kurds  He authorized his commanders to use them, showing intent  Council recognized he was a threat to international peace and security.  Unless act now the future can be even worse

Foreign Relations Power
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Little v. Barreme (US 1804) F: Danish vessel captured under law allowing capture of American ships going to France with cargo for France. Capt received a communication from his superiors that he was to seize all ships, whether American or apparently American, going to or from a French port. I: Is the Capt liable for violating the act as laid out by Congress, or is he excused based on prexy’s words. H: There is a legislative intent to seize ships going to France, not coming from France. He is liable. o D: Hes a military man. He has a duty to obey the orders that come down to him. While they may not justify his actions, it should excuse him. o P: The instructions cannot change the nature of the transaction, or legalize an act which without those instructions would have been a plain trespass.  Exec Powers at Issue: Commander-in-chief, power to make sure the laws are faithfully executed  Congress: Regulate commerce and authority to make rules concerning capture on land an water  Depends on how you interpret the silence of “from.” Curtiss-Wright F: Congress made a law saying that if prexy decided that selling arms to Bolivia was illegal, it would become illegal. Prexy did so, and Curtiss-Wright company challenged its constitutionality. I: Assuming that the challenged delegation, if it were confined to internal affairs, would be invalid, may it nevertheless be sustained on the ground that its exclusive aim is to afford a remedy for a hurtful condition within foreign territory? H: The legislation is upheld, Congress shouldn’t with prexy in intl affairs. o Reasoning: That fed govt can exercise no powers except those specifically enumerated in the Constitution, and such implied powers as are necessary and proper to carry into effect the enumerated powers is true only in regards to domestic affairs. These powers were carved from the states. And since the states never had international powers, such powers could not have been carved from the mass of state powers but obviously wee transmitted to the US from some other source. Intl powers were transferred from the crown to the collective body.

o “The president is the sole organ of the nation in its external relations, and its sole
representative with foreign nations.”  Counter: Taken in full context including “does not require as a basis for its exercise an act of Congress…” this is dicta, because there was such an act.  Normative: Interference by congress would diminish the negotiation capacity of the prexy, and impair the security of the nation. Requires caution and unity of design, and secrecy and dispatch. Speed of decision making. He has the better means to know what is happening abroad (legions of diplomats). Allowing Congress to 2nd guess would hamper future negotiations. o This is not just a power granted to the Prexy from Congress, but such a power plus the very exclusive, plenary and sole power of prexy in international affairs. Congressional legislation which is to be made effective through negotiation and inquiry within the international field must often accord to Prexy a degree of latitude. Youngstown H: Indispensability of steel led the prez to determine that the stoppage would affect our national defense (Korean War). He decided to seize the mills. Congress has taken no action. I: Whether the Prexy was acting within his constitutional power when he issued an order directing the Secretary to take possession of an operate most of the Nation’s steel mills. o P: This amounts to an act of law making, and the constitution clearly gives that power to Congress.  Reasoning: Prez’s power must come from an act of Congress or the Constitution itself. In fact Congress rejected such seizures in previous legislation. CIC power does not justify. He has expanded powers in theatres of war, but seizing private property is for Congress. His executive function in itself refutes the idea that he is to be lawmaker. Nothing is plainer than that the war power is entrusted in Congress. But the prez should not be able to master internal affairs with his command of external wars. Congress supplies the military. Only Congress can provide the army. Prez cant quarter troops domestically (3rd Amend.). Perhaps could do so if turned inward due to rebellion. o D: He was acting in his aggregate powers as the Nation’s Chief Exec and the Commander in Chief.  Reasoning: C.C. power is to wage war effectively , and war needs vigorous decisive action, especially in modern industrialized warfare. Closing the steel mills hampered the prexy in doing that so he was right to interfere. o Black’s Boxes:

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Box 1: When the prez acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate. In these circumstances, and in these only, may he be said to personify the federal sovereignty. If unconstitutional it basically means feds lack that power. (Curtiss Wright) Box 2: When the Prez acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. Therefore Congressional inertia, indifference may sometimes enable, if not invite, independent prez measures. • Cant let Prez just tell Congress to pass a new statute if they disagree with his interp. That would give him an extra Prez veto. o We want Congress to speak clearly in time of war. Box 3: When the Prez takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of

Congress over the matter. Here it must be scrutinized with caution. (Steel Seizure/Barreme). • ?: Does “lowest ebb” and “incompatible” suggest that he still has powers? Normative Concerns: o Perhaps it is good thing for an agile, decisive president having more power since world now has quick threats. Supported by Fed #70 o Maybe at least require exec decision to be out in the open? o Doesn’t this disadvantage the prez’s ability to keep secrets? o What if we are in Blackmun’s 3rd Box? o Even at lowest ebb prez power is sufficiently strong to overcome  Prez should have to rely on veto and expend political capital • But, Congress can act w/o loss of political capital, Prez cant. o Congress better represents public opinion. o But public opinion swings widely, perhaps its better to have a solid policy stance. o Congress must have the chance to participate in the policy decision process, or else those decisions cant be called the policies of the United States o He has speed, secrecy, flexibility, and efficiency that no other govt institution can match. o Courts should not abstain from deciding these issues because what is at stake is the equilibrium of our constitiutional system. o Counter: Perhaps it’s a political question best left up to the other branches. (Jackson’s concurrence in Youngstown is good for this, read again) Why Does the President Always Win? o Executive Initiative: Circumvention of legislative restraint. Included with his going around the War Powers Resolution. Congress is structurally poor for initiative with its bicameral structure, the presidency is ideal for such. He has speed, secrecy, flexibility, and efficiency that no other govt institution can match. Generation after FDR grew up believing in a muscular prexy in international affairs. Changing structure of intl org/diplomacy and swift action problems like terrorism make an active prexy needed. New image that prexy must act swiftly and forcefully has inevitably led to an active presidency.  Counter: Shift of power to exec and his underlings facilitated swift and secret action, it sacrificed the technical expertise, institutional judgment, bureaucratic support, and bipartisan political approval that comes from consultative inter- and intrabranch decision making. o Congressional Acquiesence: Internal politics of congress lead them to be unable to build the consensus for action, and even then the supermajorities to overcome filibusters often are narrowly focused to known policy defects. Then, even if passed, bad drafting can impede its effectiveness. Consulting “in every possible instance,” or consulting with “Congress” gives prexy large latitude to interpret. Congress also lacks adequate tools. Reporting and consultation reqs are easily dodged. Oversight is often post-facto. They could have used legislative vetoes or appropriations cut offs, but INS v. Chadha denied the veto. The more broad the language the better the prexy can argue that it’s hard to interpret, the more narrow the better his arg that its unconstitutional. Prez can also go around Congress by private companies and money. Lastly, a critical number of legislatures has been unwilling to take initiative, preferring to leave the decision and the blame on the prexy. For instance, appropriations cut offs leave the legs responsible for leaving soldiers stranded in the field.  Effective Counters: Disapproving by a joint resolution or by voting an unambiguous and complete denial of appropriated finds for the disfavored program. Still need to override an inevitable veto. o Judicial Tolerance: Would think less success given the few presidential powers specifically enumerated in Art. II. But he owes success to Curtiss Wright’s “sole organ of the national in

external affairs.” Prez now uses it fairly exclusively to justify anything. Plus, their statutory interp for foreign affairs: (1) ignores the legislative history and construes pro-president, (2) broadly construe it despite its impact on individual rights, and (3) rely on absence of express congressional disapproval, long history of prez deference to elevate to Box 1. Under Dames & Moore congressional inaction can be construed express approval. Yet to disapprove under Chadha they must have a supermajority, effectively allowing the Courts to move any action from Box 2 or 3 to Box 1. Then of course there is justiciability issues. o Counter: The new judicial framework applies a special deference to executive acts in foreign affairs, a requirement that Jackson himself rejected in Youngstown.

Treaty Power
Alternative Ways to Make a Treaty:

o Art. II Treaty: Senate gives advice and consent. o Function: It is the Prez, not the Senate that ratifies and makes treaties. The Senate advice
and consent function can be plain advice or active participation in the negotiations, but its usually de minimus.  Common Art II: Things that are enumerated under Art I. Commerce, or declaring war. Military alliances, common to war/peace, human rights. Executive-Congressional Agreements: (NAFTA) Not passed by 2/3, but still has domestic effect. (Passed as a statute).  Common: Trade/Finance Executive Agreement: Prez acts on own w/o regard to congressional approval. Prez agrees to give warships in exchange for bases. o Counter: Hard to justify if the power is fully enumerated in Art. I only.

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Common: Things fully under Art II powers, Military Bases, Settling disputes over property. Normative: • Isnt this good since we have more treaties these days? • Isnt this unchecked expansion of exec power?

Restrictions on Treaties: o Govt can only work under the Constitution, it always trumps Treaties. Levels of Treaties: o Treaty of IL: Any agreement between states. o Brian: If purely concerned with intl affairs Prexy should have serious power. o Legislative/Constitutional Treaty: Gives treaty Art. V binding power. o Brian: If dealing with something of domestic importance, then Congress should have some serious say. Founding Fathers Intent: o Wanted to make it hard to become entagled in foreign affairs. o Inefficient yes, but wasn’t it supposed to be? o Idea backing up a power to make foreign laws, and to make domestic laws is seen in Locke, and Montesquieu o The Brits also saw the treaty making power as to be vested in the sovereign (crown) in order to make it binding on all. o Concerns in Power: o Secrecy. Dispatch. Inefficiency of multiple parties having the power. RUDS

o Reservations: Change US obligations w/o necessarily changing the text, and they require the
acceptance of the other party.

o Understandings: Interpretive statements that clarify or elaborate provisions but do not alter them. o Declarations: Statements expressing the Senate’s positions or opinion on matters relating to issues
raised by the treaty rather than to specific provisions. Constitutional Sources: o Art II: Prez shall have power with the advice and consent of the senate to make treaties with a 2/3 of the senators concurring.

Treaty Interpretation: o o Ask if there were any reservations. o If ambiguous turn to existing doctrines and cases. El Al Israel Airlines v. Tseng (US 1999) o Responsibility to give the specific words of the treaty a meaning consistent with the shared expectations of the contracting parties. o Consider as aids to interpretation the negotiating and drafting history and the postratification understanding of the contracting parties. o Respect is generally due to reasonable views of the executive branch

Application: Purpose was to achieve uniformity of rules governing claims arising from international air transportation. Recognized the advantage of regulating in a uniform manner the conditions of the liability of the carrier. Given its comprehensive scheme of liability rules and its emphasis on uniformity, would be hard pressed to declare they meant the signers to be liable to unique rules of each country. Its like workmens’ comp, they are restricted in amount to recover and how to recover, but airlines cant contract out. This would expose airlines to unlimited liability, but not allow them to K out of it. History shows they narrowed the claims that could be brought. Improbable they would have narrowed it

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Cooper Memo/ABM Interp: o Prexy has dual role. (1) to negotiate the treaties. (2) To make sure they are faithfully executed, in doing this he is responsible for enforcing and executing international agreements, which means to interpret what the treaty means.  Express Conditions: When the Senate imposes express conditions the Prez can either resubmit or ratify. But if he ratifies with the conditions they are considered to be part of the US position in ratifying and binding.  Statements in the Ratification Record: With exception to the representations from the committee reports, hearings, and debates we believe there is little probative value entitled in subsequent interpretations of the treaty. These are Ks between countries and they should be interpreted to give the meaning most in line with the with the shared expectations at the time of K. Best evidence of this is the express language of the treaties and the language reflected in the negotiating record. Absent express interpretative statements the Senate does not participate in the negotiating process. Cannot amend treaties based on statements by Senators not transmitted to the other party. Statements made by the exec to the Senate during the process should have serious weight. Much like the leg record is useful in stat interp. Should give weight to current Exec interp, other wise you undermine his ability to shape policy by binding to statements of previous exec officials. • Counter: If the prez makes an express statement that the Senate finds important and relies upon in voting then that would estop the prez from changing the provision. Otherwise you destroy their advisory role. • Factors for Weight Given to Exec Statement: Formality of the statement, identity and position of the Exec making the statement, level of attention and interest focused on the meaning of the relevant treaty provision, and the consistency which members of the Exec branch adhered at the time to the view. These reflect the weight to which the Senate could have reasonably relied upon the statement. • Biden Amendment: Pg 45

Treaty Termination – Can always argue changed circumstances to terminate. o Goldwater v. Carter (DC Circuit 1979) – Ultimately Considered Not Jusiticiable o Reasoning: Treaty contained a provision to terminate on one year’s notice. Senate reserved no role for itself by amendment, reservation, or condition in the effectuation of this provision.  Arg for Senate Role: Art. II, Sec. 2: Since the Prez clearly cannot enter a treaty w/o consent of the Senate, the inference is inescapable that he must in all circumstances seek the same senatorial consent to terminate that treaty. (2) Treaties, being supreme law of the land, can only be terminated by a subsequent statute. Maybe judges are better at interp than exec. Plus, the exec isn’t good at checking itself (there is a post-facto political check.) We don’t our entire foreign policy to change with every administration. Is this Box 3? Power to remove exec officials cant be compared to the power to this, it’s a power to remove “purely executive officers” and completely unrelated to the legislative or judicial power. Treaty power has a substantial role in congress. He may be the sole organ of communication, but he is not the sole maker of foreign policy. • Counter: If that is so then the prez would need senate confirmation to fire those they approve by his appointment, but the SC has held that is not so. Also never been so for ambassadors in foreign affairs. (2) Supremacy clause only is relation to state law, it does not mean such laws must be undone only in the way they are made. Extending the consultation of the Senate is an exceptional check on the Prez and

should not be extended judicially by implication. Making a treaty is an entangling alliance, it does not follow that terminating a treaty should be considered as such. Powers in Art. I are specific and enumerated, while the powers in Art. II are general and undefined. External powers would have been granted even if never mentioned, and prez is the rep to external affairs. Senate consent does not oblige him to go forward, so if he can refuse to enter he can terminate. To hold other wise would lock us into treaties even if the Prez and 2/3-1 of the Senate wanted out. “Sole organ” is not confined to prez as a channel of communication, but embraces an active policy determination as to the conduct of the US in regard to a treaty in response to numerous problems and circumstances as they arise. Maintaining diplomatic relationships is the substance of diplomacy and that is a Prez power. BOX 1 – Express Senate consent to 1 year termination. Framers made it hard to get into treaties, so probly would want it easy to get out. o Distinguish: Treaty making as an international act and the consequences which flow domestically from such act. o SC Reasoning:

Justiciability: Not ripe for judicial review until Congress and the Exec has taken action asserting its constitutional authority. If Congress choose not to confront the Prex, its not the Court’s role to do so. But it could possibly be considered. • Considerations for Justiciability: o Does the issue involve resolution of the questions committed by the text of the Constitution to a coordinate branch of Government?  Application: No express provision in the Constitution. o Would resolution of the question demand that a court move beyond areas of judicial expertise? o Do prudential considerations counsel against judicial intervention?

International Law in US Courts
o Moravcsik - US Exceptionalism o US is oldest constitutional system protecting a written bill of rights. Large public support
for such laws, yet we are practically alone among Western nations in not signing onto treaties to promote these rights. We are unwilling to impose on the US general interational rules that the US govt accepts in principle as just.  Stipulate that most treaties aren’t self-executing  Refuse to accept the jurisdiction of international tribunals Why Not?

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Rights Culture of the US: Long standing cultural values about procedural legitimacy render international norms intrinsically unattractive to Americans. These are popular sovereignty, local government, constitutional patriotism, nationalism and libertarianism.

o Cons: US relativism obstructs the UN’s resolve to promote
• universal respect for human rights. International obligations violate a widespread reverence toward the US Constitution and political institutions as sacred symbols among US legal elites and citizens. o Pros: Americans think our legal system, especially our constitution, provides a model that other countries would be well advised to emulate. Americans are apt to be far less comfortable with the notion that when it comes to justice, we may have something to learn from other nations. This could be because lacking a distinct ethnocentral identity we identify ourselves to a liberal-democratic creed more than other nations. o Counters to This: The public has generally viewed intl human rights treaties more positively than do decision makers. Our policy is directed more by elites than the public. The ABA is pro-intl treaties like these, yet our politicians are not, suggesting that elite legal opinion is not the only driving force. Its more a fact that that introduction of such norms into our judicial system would be a problem for the conservative agenda and so they attempt to fight against it, they fear them not because they are international, but because they are courts. Long-standing American belief in popular sovereignty and local government predisposes Americans to oppose centralized judicial norms o Pros: Contrast the dangers of unelected bureaucrats in international organizations with the legitimate role of constitutionally elected representative. There is neither a subjective sense of an international polity nor working global representative institutions, and thus there cannot be democratic accountability. o Counter: Strange because European countries are closer to this ideal in function and they are more accepting of the treaties. Plus, the US is often seen the classic example of courts over coming popular bias to administer justice in the US. Courts have high respect in the US, and are often linked to individual rights and freedom. Plus, there are other countries in the world with substantial commitment to local governance, that don’t act as the US. A popular American rights culture of negative liberties rooted in an individualist worldview is incompatible with international human rights obligations. o Pros: Points to the absence of a true socialist party and to extensive social welfare institutions present in nearly all other industrial countries. Says US rejects global human rights norms because they embody a different philosophical conception of rights. We stress liberty, they stress equality. We don’t like socioeconomic rights. US rejects intl standards because they would undermine the high levels of exitsting protection afforded to particular individual rights by the more libertarian US system. o Counter: With the exception of the Universal Declaration – which is wholly unenforceable – all treaties have separated socioeconomic rights and human rights. We could if we

wished ignore socioeconomic rights and enforce the others. Intl norms rarely undermine existing protections because they are almost always floors, and because they recognize the need to make a difference between state policies and intl ones. Pluralist Arguments • Pros: Opposition to domestic application of multilateral norms is less likely in countries that possess strong unilateral bargaining power abroad, stable democratic institutions at home, preferences about substantive rights that diverge from the international consensus, and decentralized political institutions that empower small veto groups. o Superpower Status of the US in World Affairs: Straight forward realist argument. The more you can act unilaterally to get what you want, the less willing you will be to sacrifice sovereignty to work multilaterally. Human rights norms are generally enforced through courts, where the powerful can loose sway, while things based on intl legislative forums allow the US a degree of bullying power.  Counter: If this were really so true any US administration could simply ratify these treaties and then nonetheless pursue a unilateral human rights policy. This also fails to explain why the heated debate internally? They are often more concerned with the domestic implications than the foreign ones. o Stability of Democratic Governance w/in Our Borders: While often linked towards liberal democracies, these established democracies have always been the countries most AGAINST enforceable intl norms. One reason is that they gain little at home from such treaties. And no national govt likes to see its discretion limited through external constraints imposed by a judicial tribunal.  Counter: Strange, since human rights are often linked to stable liberal democracies. Also, while they gain little at home, they can give a big boost to fledgling countries that may need the boost. Fact that we have an established ex post judicial review process undermines our desire to take it outside our courts, or for our courts to implement it at their own cost. o Concentration of a Small Conservative Minority: Oppose an expansion and enforcement of many individual rights. Since human rights norm protect neither property rights nor a right to education, and the right of religion is already widely recognized in the West, there is little incentive absent a fear of protecting domestic concerns. Also, the human rights promoted are often associated with egalitarian principles objected to by the right. They often been seen as attempts to impose liberal federal standards on the southern states. o The Fragmented Nature of American Political Institutions: American system stands out in comparative perspective for its extreme commitment to the madisonian schema of separation for powers and checks and balances. And the more “veto players” the more difficult it is for a national government to accept international obligations. US system is exceptionally decentralized in this regard. For instance, the supermajority in

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the Senate lets 1/3 dissent in Senate block such treaties. Also need to get support of the Foregin Relations Committee chair. The federal system imposing burdens on the states is an incentive for conservative senators to block approval. There is supposedly concern that people could seek judicial help before US courts, or we would be forced to prosecute our GIs at home to prevent prosecution abroad. US is only advanced industrial democracy that possesses all of (external power, democratic stability, conservative minorities, and veto-group politics). NORMATIVE CONCERNS Consequences of the Paradox: • Encourages other countries to violate the norms. Ratification in the States would significantly legitimize these standards. It would also aid citizens in violent countries to raise such issues. The failure of the US to be seen as a country that protects human rights has undermined national security goals. o Counter: HR norms have spread widely w/o US backing. Tho some countries do cite American non-compliance there is little evidence that it is anything more than justification for policy decision based on other things. Anti-Americanism may even inflame moves towards these standards.

Considering Foreign Law in US Cases (Normative Considertions): o Pros: Enrich our own decisions. Also creates that all-important good impression. When US courts are seen to be cognizant of other judicial systems, our ability to act as a rule-of-law model for other nations will be enhanced. The SC has done this since the founding, and they are not binding decisions but are entitled to the respect of wise men who thought it over. Our system was emulated everywhere, they are our constitutional offspring, how they decide can reflect on our system. When interpreting treaties its useful to look at foreign interpretations since the whole point is to make an intl deal. To ever increasing extent foreign countries have been democratizing, and sought to protect basic human. They often involved human beings deciding similar questions under similar statutes. We have to rely on counsel to find relevant citations, and judicial integrity to decide when a case is being picked purely to meet ends. o Cons: Its illegitimate, the constitution should be read under an originalist approach. Foreign rulings cannot help in that endevaour. Foreign judges are not accountable to the American people, and their decision should have no sway. You can find anything you want with foreign law, they could pick and choose to support their claims. Possible Functions of Foreign Law in the US o Interpret like terms. “Due Process” in treaties, etc. o Examining empirical effects. o Establishing community norms. (Such as “cruel and unsual”) Application of Foreign Law to US Cases o Lawerence v. Texas o Kennedy: Other Judeo-Christian nations have ruled against prohibiting homosexual conduct as well. The European Court of Human Rights held that law proscribing the conduct were invalid under the European Convention of Human Rights. Shows that reasoning in the previous case was rejected elsewhere. These rights have been accepted as integral parts of human freedom in many other countries. No showing that in this country the govt interest in circumscribing personal choice is somehow more legitimate or urgent. o Scalia: Constitutional entitlements do not spring into existence because some States choose to lessen or eliminate criminal sanctions on certain behavior. Much less when

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other nations criminalize such behavior. The court should not impose foreign moods, fads, or fashions on Americans. Roper v. Simmons: o Kennedy: D argues that when the US signed the International Covenant on Civil and Political Rights we did so subject to a reservation to a section that prohibited capital punishment for juveniles, showing it should be legally accepted here. The fact that US is the only country in the world that continues to give official sanction to death for juveniles supports the view that it should be abolished. We have pointed to foreign decisions for years to define cruel and unusual. Art. 37 of the Convention on the Rights of the Child contains an express prohibition on capital punishment for crimes committed by juveniles under 18. The opinion of the world community, while not controlling our outcome, does provide respected and significant confirmation for our own conclusions. It does not lessen our fidelity to the Constitution or our pride in its origins to acknowledge that the express affirmation of certain fundamental rights by other nations and peoples simply underscores the centrality of those same rights w/in our own heritage of freedom. o O’Connor: Does not believe that a genuine national consensus against the juvenile death penalty has yet developed, and because I do not believe the Court’s moral proportionality supports a constitutional rule, can assign not belief to the role that international consensus described by the Court. o Scalia: The court is not the one with the power to join and ratify treaties on behalf of the US. Art. II gives that power to the prexy and the Senate. Court fails to look at how many foreign countries adhere to these rules, and how many have mandatory death penalties for other crimes, a power we cannot accept. Many foreign laws are different (right to trial by jury, ECHR ruling that illegally seized evidence does not violate fair trials.)

Foreign Suits in US Courts o Filartiga o Exec Brief: Sec. 1350 encompasses the law of nations as that body of law may evolve, not as the law of nations may have existed in 1789. Before entertaining a suit alleging a violation of human rights, a court must first conclude that three is a consensus in the international community, that the right is protected and that there is a widely shared understanding of the scope of this protection. Norm: A refusal to recognize these suits may damage the credibility of our commitment to the protection of human rights. Customary international law is federal law, to be enunciated authoritatively by the federal courts. An action for tort under international law is therefore a case arising under the law of the US w/in Art. III. o 2nd Circuit: Relied on intl agreements, declarations, and state policy and practice as evidence that the law of nations prohibits torture. ATCA does not grant new rights to aliens, it simply allows them to enforce rights already recognized by international law. Because the customary international law norm against torture was definable, obligagtory, and universal it constituted an actionable “tort in violation of the law of nations” for purposes of the staute. o Sosa – Slightly Alters Filartiga o 3 Questions a Court Should Ask (current approach/revised Filartiga approach)

1. Assess whether the asserted claim constitutes a violation of the present day law of nations, not the law of nations as it existed in 1789. • Application: Where there is no treaty, and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations; and, as evidence of these, to the works of jurists and commentators. 2. Determine whether the asserted violation of the law of nations is accepted by the civilized world and defined with specificity comparable to the features of the

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18th century paradigms we have recognized as existing at the time of the enactment. • Application: Must be defined to the level of piracy, violations of safe conduct, and offenses against ambassadors.  3. Whether an ATCA claim is judicially enforceable must account for the collateral consequences of recognizing such an action, particularly the foreign policy implications of permitting a judicial remedy for such a claim. • Application: Even though many national constitutions revealed that many countries prohibit arbitrary detention, the consensus about this prohibition was at a high level of generality. But the claim of temporary arbitrary arrest did not rise to the level of specificity or acceptance of the acknowledged arrest did not rise to the level of specificity or acceptance of the acknowledged human rights prohibition against prolonged arbitrary detention. Arguments Against these Claims (Rejected by SC in Sosa)

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Nonjustiticable Political Questions: If courts are simply construing an enacted statute, and the words being interpreted are the words “torts in violation of law of nations,” it is hard to see why constuing those words should not be quintessential judicial task.  Origanlist Approach: That is, claims could only be heard under ATCA if they existed at the time of its creation in the 18th century. This would ban a claim for genocide, even though the international law has long expanded to incorporate such bans.  Nationalist Perspective: Courts should recognize no cause of action unless the political branches expressly consent by enacting such claims into positive law. If there is not implementing act by the political branches, then intl law has no status in the US, or must be construed as some species of state law. They based this on Eerie which said that federal common law decision making was against State rights. But, if you’re interpreting customary intl law, which operates outside the realm of State powers, there is no such problem. Transnational Public Law Litigation o Expanding effort by state and individual Ps to fuse intl legal rights w/ domestic judicial remedies. This is characterized by:  A transnational party structure, in which states and nonstate entities equally participate.  A transnational claim structure in which violations of domestic and intl, private, and public law are all alleged in a single action  A prospective focus directed as much upon obtaining judicial declaration of transnational norms as upon resolving past disputes  The litigants’ strategic awareness of the transportability of those norms to other domestic and international for a for use in judicial interpretation or political bargaining, AND  Subsequent process of institutional dialogue among various domestic and international, judicial and political fora to achieve ultimate settlement. Norms Considerations for Such Cases: Enunciates the clearly established intl human rights norms, gets compensation, detterence, and denial of a safe haven to the HR violator D. Transnational Legal Process: The transsubstantive process whereby states and other transnational private actors use the blend of domestic and international legal process to internalize international legal norms into domestic law. An agent triggers an interaction at the intl level, works together with other agents of internalization to force an interpretation of the international legal norm in an interpretive forum, and then continues to work with those agents to persuade a resisting nation-

state to internalize that interpretation into domestic law. Through these repeated process international norms are taken into domestic law. o Application: The US called Filartiga a demonstration of its commitment to torture, in response several UN bodies and other human rights orgs have cited Filartiga, and its been cited by intl courts. Foreign domestic courts have also incorporated elements of FIlartiga into their domestic approaches. This theory shows international law development being internalized absent a central Leviathan. o Filartiga v. Pena-Irala o H: Deliberate torture perpetrated under color of official authority violates universally accepted norms of the international law of human rights, regardless of the nationality of the parties.  Evidence of International Law: Numerous intl agreements, and renunciation of torture as an instrument of official policy by virtually all of the nations of the world. Works of jurists, writing professedly on intl law, or by the general usage and practices of nations, or by judicial decisions recognizing and enforcing that law. But, the requirement that the rule have the general assent of civilized nations to become binding upon them all is a stringent one. Otherwise courts of one nation could impose idiosyncratic rules on antoher. • Application: Torture is in the Universal Declaration, and that states to be basic principles of intl law. Because of these declarations nations can no longer claim to not know what they have signed onto.  Norms: • Pros: US must have the power to vindicate the rights of foreigners in this country to protect our reputation as a country that deals justice to all. Sosa o H: Courts should require any claim based on the present-day law of nations to rest on a norm of international character accepted by the civilized world and defined with a specificity comparable to the features of the 18th century paradigms we have recognized.  Reasons for Judicial Caution: Prevailing conception of common law has changed greatly since the founding. Also, there is no federal common law, and the courts are bound tightly on what sorts of federal law they can make. Would also pose a potential problem for the legislative and executive branches in maintaining foreign relations. US courts must be very cautious before imposing a ruling that effectively limits a foreign nations domestic powers. Fifth, Congress has done nothing as a body to promote further causes of action. o Determining an International Norm: Where there is not treaty, and no controlling executive or legislative act or judicial decision, resort myst be had to the customs and usages of civilized nations, and, as evidecen of these, to the work of jurists and commentators. Executive opinions on the foreign relations consequences is due great weight. Footnote 21. BUT, it is not controlling. Separation of powers requires the court to do an independent inquiry (Khulumani).  Treaty: Here he cited a treaty, but the court says it was signed with the reservation that it was not self-executing, so therefore it cannot be a basis for judicial decisions (minus some showing of enacting legislation.) So they turn to customary international law.  Customary IL: • Norm Concerns: His argument would create a cause of action for ANY arrest, anywhere in the world, not under the jurisdiction of the place it took place w/o regard to the circumstances. His argument exceeds any binding customary rule having the specificity we require.

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Khlumani o Courts are free to deny a remedy to a breach of an international law, regardless of whether it is recognized as international law. But, to assure itself that it has jurisdiction it must establish that there is such an international recognition. Whether or not a treaty is self-executing is evidence of whether or not that norm is sufficiently accepted by the intl community, but simply because a treaty is not self-executing does not make it of no value in that determination. o Hall: Federal courts must turn to intl law to divine standards of primary liability under ATCA. But to derive a standard of accessorial liability a federal court should consult the federal common law. Intl law does not define the means of its domestic enforcement. These means encompass at least some aiding and abetting issues. o Dissent: Judicial acquiescence to the executive on foreign relation questions has been established under the political question doctrine. Creation of aiding and abetting liability is a legislative act, removed from creating causes of action. Because there is criminal aiding and abetting in international law does not mean that there is civil aiding and abetting liability as well. There should be a presumption against the extraterritorial projection of US law on foreign nations. The original ATS was meants to avoid conflict with foreign nations, not provoke it, it was originally intended to redress harms to foreign ambassadors ON American soil, not injuries originating outside the states.  Factors for Dismissing based On Foreign Opinion: Degree to which the interests of a foreign sovereign are legitimately affronted by the conduct of litigation in a US forum, steps the foreign sovereign may have taken to address the issues in the litigation, and the extent of our own interest in the underlying issues. Also, whether it’s a democratically govt w/ independent judiciary. (perhaps most important.) Is there a legit chance they can seek fair redress in their own courts? o Concerns of Foreign Governments: US Foreign Relations Considerations: This promotes law suits challenging the conduct of foreign governments toward their own citizens in their own countries, charges they would normally be immune from, by naming as Ds those companies that legally did business with them. This leads to tensions between the US and the other govt. Should be especially cautious about pronouncing limitations to what foreign govts can do in their own territories and when those countries have gone out of bounds. Aiding and abetting means you have to have a principal that was committing illegal activities. So you are putting South Africa’s official conduct on trial. This seriously undermines the political branches ability to conduct foreign policy. This will deter US companies from making investment in developing countries, thus hurting our interest in helping them develop. This will also affect the govt’s ability to use the fiull range of options available to change foreign policies.  UK: Such litigation interferes with national sovereignty, creates legal uncertainty and costs,and risks damaging international relations. This treats the ATS to extend US jurisdiction far beyond the limits recognized by IL. This will subject these companies to confusion and risk of conflicting legal standards.  South Africa: This will intrude upon and disrupt SA’s own attempts at reconciliation. They have chosen a no finger pointing approach, and this litigation threatens to undermind that. Matters central to the future of domestic SA affairs should not be adjudicated in foreign countries. The democratically elected govt of SA is charged with a mandate to deal with Apartheid, not US courts. It remains an issue for the court of SA to define reparations. This will discourage direct foreign investment in SA. This directly infringes on SA sovereignty. Limitations on ATS: (1) Forum non-conviens. (2) Foreign Sovereign Immunity Norms for ATS

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Pros: (1) Hold people accountable, (2) provide victims w/ acknowledgement reparations, (3) promote awareness of abuses, (4) contribute in international norms (transnational legal process), (5) catalyze foreign efforts to prosecute, (6) prevent US as safe haven, and (7) determinancy. Cons: (1) Interfere w/ foreign policy, (2) effective?, (3) reciprocity, and (4) US as Court of 1st Pesort

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