Restitutio in integrum: restoration to status quo ante
Jus cogens: peremptory norm
Customary international law: non-codified norms considered to be law. Requires state practice and opinio juris
Opinio juris: the belief that something is a legal obligation
The Vienna Convention
Paraguay v. United States (I.C.J. 9 April 1998)
Facts: Paraguay sued US for violating Article 36. Virginia arrested Breard, a Paraguayan national, for murder. He was convicted and sentenced to death. He was not informed of his right to request consular assistance, nor did Virginia inform the Paraguayan consulate that Breard was in custody. Paraguay and US both parties to the Optional Protocol, so jurisdiction compulsory in the ICJ.
Breard sought habeas on these grounds, but didn’t get it because he hadn’t raised it earlier. He sought cert. Paraguay also sought relief through the federal courts, but was denied on the ground that the several states had sovereign immunity. Paraguay sought cert. Both cert requests pending.
Declaration that US violated Vienna Convention
Restitutio in integrum: restoration to status quo ante, basically.
Declaration that US can’t apply doctrines of its internal law to preclude exercise of Vienna Convention rights.
Order that the US carry out future proceedings in compliance w/Vienna Convention.
US argued that this was not material error. Also noted the inability of the executive branch to stop the execution—only SupCt and Gov. of VA can do so. US also argued that there’s no ground in the Convention for throwing out a verdict that came about as the result of proceedings in which a foreign national was not informed of his rights.
Court has jurisdiction. There is a controversy over the “interpretation or application” of the statute, and therefore they have a right to become involved.
US should take all measures to halt the execution of Breard while claims in SupCt are pending
Breard v. Green (U.S. Supt. Ct. 14 April 1998)
Was the lower court correct in finding that Breard procedurally defaulted his Vienna Convention, Art. 36, claim by failing to raise it in state court?
VC states that the rights in part (1) must be exercised in accordance with the law of the receiving nation, provided that law gives them full effect. This expresses the principle in international law that, absent clear statement to the contrary, procedural rules of the forum state govern the implementation of treaties in that jurisdiction.
Thus, Breard failed to raise his claim in state court; this failure was procedural default under US law, and therefore he lost the claim.
Is the Vienna Convention “the supreme law of the land”?
Treaties are supreme law of the land, but so is the Constitution, and claims under the Constitution are subject to procedural default rules.
US law holds that if a treaty and a statute conflict, the last in time controls. In this case, AEDPA, which establishes procedural default for evidentiary hearing requests in federal court by petitioners who claim they are held in violation of the treaties of the United States.
Was this prejudicial error?
No. Breard’s claim that he would have pleaded guilt and forgone the death penalty is highly speculative.
Does the VC create a private right of action for Paraguay to seek dismissal of the suit?
No. Nothing in the text provides a foundation for this.
Furthermore, 11th Amendment grants immunity to the several states from lawsuits by foreign nations unless ongoing violation of federal law exists.
May the Consul-General sue under § 1983?
No. Protects the rgiths of individuals w/in the jurisdiction of the United States. Paraguay is not w/in the juris of the US; Consul-General is acting only in his official capacity as representative of Paraguay.
Request for habeas corpus and petition for certiorari DENIED.
Sanchez-Llamas v. Oregon (U.S. Sup. Ct. 28 June 2006)
Facts:Sanchez-Llamas moved to suppress incriminating statements made post-arrest on the ground that he hadn’t been apprised of his Article 36 rights. Oregon Sup. Ct. held that Art. 36 does not create rights that can be judicially enforced. Bustillo argued post-appeal that his Art. 36 rights were violated because he was not apprised of his right to contact his consulate. VA Sup. Ct. held that this was procedurally barred.
Suppression is not the appropriate remedy for violation of Art. 36 rights
States may apply their regular procedural default rules to VC claims.
Reasoning: Remedies for Art. 36 violations: suppression of evidence?
The Court will strictly construe the treaty text, and if it does not designate a remedy, the Court will not create one. P assumes that treaty text requires some judicial remedy, but in fact most states do not provide one through their criminal justice system.
Convention does not prescribe remedies for Art. 36 violations. Convention provisions are “to be exercised in conformity with the laws and regulations of the receiving state”. Suppression is a matter of domestic law.
VC unlikely to require suppression: “Fruit of the tainted tree” doctrine unique in the international community.
Even if the suppression remedy were appropriate, it is applied sparingly in the United States. This is a vastly disproportionate remedy for an Art. 36 violation.
Reasoning: Procedural default and Article 36
P argues that his case is distinguished from Breard because:
in that case the evidence was unnecessary to the result: court doesn’t buy it.
ICJ has since interpreted the VC to preclude the application of procedural default rules to Art. 36 claims.
Court: ICJ’s interpretation of VC as barring application of procedural default rules is not binding authority.
In the US, determining the meaning and interpretation of laws is vested by the Constitution in the Article III courts.
Nothing in the ICJ’s organic act suggests that its decisions are supposed to have precedential effect, even on the ICJ itself.
US has since withdrawn from the Optional Protocol, removing the ICJ’s jurisdiction over Art. 36 disputes. Unlikely that US courts should afford controlling authority to the interpretation of a court that no longer has jurisdiction.
Thus ICJ is persuasive authority, but it can’t outweigh the court’s reasoning in Breard about the application of procedural default. In an inquisitorial system like that in most ICJ countries, failure to raise evidence at the proper time is, in part, the fault of the court itself. Here is is a necessary element in a system that depends on the parties to raise claims.
Class comment: ICJ is not a democratic institution: bear this in mind. Judges elected by states in a “sordid” political process. No explicit connection to an organization democratic political system. So there’s an anxiety when ICJ deals with questions that have a moral character. In a purely state-to-state model, that’s fine. But in a global governance model, it’s not.
Global aspirations: basic tension bw a liberal view of universal human rights/disregard of national identity and idea of continuing to value nationality. Dynamic of the death penalty cases is interesting bw the liberals end up on the consular-relations bandwagon.
The Domestic System and International Law
Roper v. Simmons
The Disaggregated State
Loewen (NAFTA 26 June 2003)
Take Away: Exhaustion of local remedies
Facts: Loewen a Canadian company doing business in Mississippi. They lost a lawsuit in a MS and $400 million in punitive damages were awarded. They were unable to appeal the judgement due to a state req. that they post a 125% appeal bond. They subsequently settled with the plaintiff for $175 million, but then brought a claim at ICSID for violation of Articles 1102, 1105, and 1110 of NAFTA.
1102: National treatment—investors of another party shall be treated by the first party no less favorable than domestic investors. Extends to states (1102.3)
1105: Minimum standard of treatment—must be treated “in accordance with international law, including fair and equitable treatment and full protection and security”
Thus, though the trial court’s actions violated Art. 1105, there is no remedy here (ripeness)
This is not a strict or formalistic requirement: the duty extends only to remedies that are appropriate and available.
Methanex (NAFTA 3 August 2005)
Facts: MTBE found to contaminate state drinking water. California banned the additive. The Canadian manufacturer of a component of the additive brought a NAFTA claim. Amended claim to include accusations of corruption (basically, that ADM bribed CA into banning the chemical), though stipulated that they did not rise to the criminal.
Tribunal lacks jurisdiction
Even if it did, the claims are dismissed
See Evans p. 727 for summary of info below
Relationship b/w ICC and Security Council.
SC can refer cases to the ICC for investigation. They’ve done this once—Darfur. US supported the referral to the ICC in this case. This is striking b/c the policy of the US, until recently, was actively to oppose the ICC (not just to say that the US wasn’t subject to ICC jurisdiction).
US would have preferred an ad hoc tribunal, like ICTY and Rwanda. Easier to control the reach/scope of investigations.
Current US stance: it’s there, so the US supports it, but there’s a major effort to make sure that it can’t reach US nationals or contractors.
Jurisdiction of ICC
Over nationals of states parties.
Over crimes committed in the territory of states parties.
Territorial element that concerns the US.
Limits on jurisdicion
SC resolution: 1422, no one engaged in a UN-authorized action will be subject to jurisdiction. US liked this, but it expired and wasn’t renewed. Kofi Annan was against it. Here we see the crucial importance of the decision rule: US had to get an affirmative vote in the SC.
Bilateral agreements under Art. 98: Reciprocal agreements that neither of the states parties will turn over nationals of the other to the ICC. Thus limiting the ability of other states to change policy. Temporal effect of law.
How does a state that made a bilateral treaty end up arresting an American?
Policy change (this is why US favors treaties)
Disaggregated state: a different ministry or local-level government may want to arrest even when the central government said it wouldn’t.
National democracy: public may resist making these agreements. Authoritarian states have been more willing to do it.
Transnational networks: lots of transnational groups in favor of the ICC, often supply material to the prosecutor. Counter-network, however, in the form of international links in the intelligence and security communities.
Global aspirations: desire to express a value that these crimes are not acceptable, on a global level. Desire to transfer intl law from state responsibility to individual responsibility.
Torture and Anti-Terrorism
AC v. Secretary of State (Law Lords 2005)
Holding: It is a violation of international law to use evidence that is the product of torture in a UK criminal prosecution.
Source of Law: Convention Against Torture, Art. 15
“Each State Party shall ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings.”
Judges disagree on whether or not evidence suspected to be the fruit of torture should be excluded. Some say they should shift the burden of proof (force the govt. to prove it isn’t); others want judicial inquiry, etc.
The International Court of Justice
Ratione personae: personal jurisdiction
Ratione temporae: jurisdiction during the appropriate time period
Ratione materiae: subject-matter jurisdiction
Forum prorogatum: tacit consent to jurisdiction by going along w/a proceeding.
Uti possidetis: the principle under which former colonies retain the territories that they had under imperial control.
Erga omnes: An erga omnes right is a right held against all, as opposed to a right that exists between two states.
Diplomatic protection: assertion of rights by a state on behalf of its national.
Procedural default: US municipal law procedural principle holding that claims not asserted by a particular phase of the proceedings are “defaulted”. The argument in favor of a procedural default rule is that it furthers finality and that, in an adversarial system like the US one, it desireably requires parties to zealously prosecute their claims.
Exhaustion of local remedies: Requirement that all available and appropriate remedies under municipal law be pursued to the fullest before an international tribunal may hear a claim.
Reciprocity: Requirement that states be equally obligated. Thus, in the case of reservations, as between two parties, the “narrowest” reservation will define the scope of the obligation.
Necessary parties: Those parties whose legal rights and interests must be determined in the course of a proceeding. The ICJ will not admit a case in the absence of a necessary party.
Subsidiarity: Principle that legal matters should be handled by the “smallest” competent authority.
Provisional measures: The equivalent of a preliminary injunction, PM are intended to preserve the rights of parties while an adjudication proceeds.
Travaux preparatoire: The equivalent of legislative history.
Security Council members each get a judge of their own nationality on the ICJ, though this reflects the appointments process and isn’t a law.
Four national members of the Permanent Court of Arbitration get to decide whom will be nominated to the ICJ; government may or may not control it.
Then General Assembly and SC vote, and both must approve.
Nine-year term w/re-election allowed. So some degree of independence, but they’re still courting re-election. Thus, they may be more restrained than expected.
ICJ is successor to the Permanent Court of International Justice, post WW-I body affiliated w/the League of Nations.
Continued in 1945-46 as part of the UN Charter System.
Statute is basically the same as PICJ. Sources of law clause, frex, unchanged since 1920.
State-to-state (foreign office) model.
Jurisdiction & Admissibility
Contentious cases (state v. state): Decisions are binding on the parties, but not on third states. No binding precedent. Will usually, but not always, follow logic of previous decisions. No stare decisis.
Must satisfy requirements of jurisdiction:
Does jurisdiction apply to this state (ratione personae)?
Was there jurisdiction at the right time period (ratione temporae)?
Is there jurisdiction over this subject matter (ratione materiae)?
Members of the UN are all parties to ICJ statute. Only states can be parties.
Fact that they are parties does not grant ICJ jurisdiction in the particular case—not plenary competence.
Jurisdiction over states depends on consent of the states in question.
How is consent given?
Special agreement: we’re going to refer this case! Will define the issue, and possibly even the law in question.
Compromissory clauses: Optional Protocol to the Vienna Convention, for example. These are not case-specific.
Declaration under the optional clause: Art. 36, we accept that states under this subject can bring cases against us.
About 50-something states have done this. UK is the only SC member who has.
Forum prorogatum: When one state wants to bring a case, there’s no basis for ICJ jurisdiction, but other state says okay. Only significant case: UK v. Albania, Corfu Channel case (late 1940s).
Advisory jurisdiction: Moves away from FO model. Advisory opinions are given at the request of international organizations. ECOSOC, frex, can request an opinion. Power to decide who can request opinions is controlled by the GA and limited to UN bodies. Advisory opinions binding only in special situations (we’ll see at end of Unit 2)
Take Away: The Court will not decide disputes that would require it to determine the rights of a state not party to the controversy. Jurisdiction or admissibility? Not clear.
Take Away: The Court does not have jurisdiction over a case until domestic remedies have been exhausted. Note that this is an admissibility claim, technically, not a jurisdiction one.
US v. Nicaragua
Take Away: The US declaration was insufficient to terminate the compulsory jurisdiction of the ICJ because it did not constitute reasonable notice. The six-month limit wasn’t required since the Nicaraguan declaration wasn’t similarly phrased, but reasonable notice was required.
The court would not hold the fact that other affected states had not joined to be a bar to admissibility.
The fact that the Security Council is considering this matter does not constitute a bar to admissibility, as no text suggests that limit.
The Contadora Process is not a “regional process” of the type contemplated in precedents to allow ongoing controversies to be reserved until the outcome of such processes was known.
Serbia and Montenegro v. France
Take Away: Successor states do not necessarily continue the legal personality of their forebearers and therefore are not automatically states parties to the ICJ treaty.
Facts: Serbia & Montenegro brought France and other NATO countries to the ICJ over the bombings during the war in Yugoslavia. The Court found that S&M did not continue the legal personality of Yugoslavia, and therefore was not a member of the UN or a party to the ICJ statute at the time.
Provisional Measures, Judicial Remedies, and National Law
LaGrand (Germany v. US)
Provisional measures ordered by the ICJ have binding effect.
Article 36 creates judicially enforceable rights for individuals.
Procedural default should not be allowed to bar individuals from pursuing Art. 36 claims.
Facts: Germany charged US with violation of the Vienna Convention on Consular Relations for failing to inform two German citizens, after arrest, of their right to consular assistance. Jurisdiction was based on the Optional Protocol. Germany also asked for provisional measures and the Court ordered them and also on diplomatic protection: Germany acted on its own behalf and on behalf of the LaGrands. Note that Germany only pursued this case after one of the LaGrands had been executed.
Provisional measures are binding.
Article 36 creates a right of states that is judicially enforceable.
Article 36 creates individually rights that are judicially enforceable.
Avena (Mexico v. US)
Take Away: The Court will not mandate the overturn of sentences where Art. 36 rights have been violated.
Necessary Parties to Contentious Cases
East Timor (Portugal v. Australia)
Take Away: The Court will not admit cases in which a party whose legal rights must be decided has not been haled before the court, even if the rights alleged to be violated are erga omnes.
Facts: Portugal challenged Australia’s treaty with Indonesia, under which Indonesia carried out mineral exploration in the continental shelf of East Timor. Portugal was the administering power of E. Timor. Portugal challenged the treaty as violation of the self-determination of East Timor and of the rights of Portugal. Indonesia had invaded in 1975. Australia had recognized the incorporation of E. Timor into Indonesia in 1978 and in 1989 concluded a treaty defining the maritime boundary.
Nuclear Weapons Advisory Opinion (ICJ 1996)
The Court may issue advisory opinions upon request of states or UN organs.
The use of any particular weapon, other than those specifically banned under applicable conventions, cannot be found to constitute a violation of international law.
Sources of International Law: Custom & Treaty
Pacta sunt servanda: “The pact must be served”—idea that the purpose of the treaty must be given effect in good faith.
Acquiescence: Equivalent of collateral estoppel. When a state has accepted something by practice, it cannot subsequently challenged it as a violation of international law. However, doesn’t require detrimental reliance.
Opinio juris: The belief that an obligation is legally binding. Customary international law may be determined in the presence of state practice and opinio juris.
Opposability: Application of a law as between parties.
Persistent objector rule:
Innocent passage: The right of a vessel to transit the territorial waters of another state (within the 12-mile limit). See Arts. 17, 45
Baselines: The line from which the twelve-mile limit is drawn. See Part II of the LOTS Convention.
Exclusive flag state jurisdiction: the right of a vessel’s flag state to exercise exclusive jurisdiction over crimes committed aboard the vessel.
Lege lata: the law as it is
Lege ferenda: the law in the process of being written
Rebus sic stantibus: the principle that an agreement will only hold so long as no fundamental change in circumstance occurs.
Law of the Sea: Formation of Customary Law of the Continental Shelf
The North Sea Cases (ICJ 1969)
The equidistance method was not customary international law.
Facts: Disputes between Denmark, Germany, and the Netherlands over the delimitation of the continental shelf in the North Sea. Court asked to determine the applicable law, not the boundaries themselves. DK and ND argued that the Geneva Conventions had codified the equidistance principle as customary international law or had trigger a norm-creating process via which it became CIL. It was necessary to argue this as FRG was not party to the treaty.
The Geneva Conventions didn’t codify customary international law.
The Geneva Conventions did not trigger a norm-creating process that subsequently made the equidistance principle international law.
A judgment like this one that reflects general criteria may be opposable as against all.
Facts: British fishermen refrained from fishing in Norwegian coastal waters for about 300 years. In early 1900s, British fishermen began to reenter Norwegian waters. Various controversies, interrupted by war, followed. In 1933, the UK claimed that Norway had made use of unjustifiable baselines in delimiting its territorial waters. Post-WWII, the controversy resurfaced and was eventually brought to the ICJ by the UK in 1951.
Holdings: Norway’s baselines are acceptable on the merits and on ground of acquiescence. They reflect “general criteria” and are therefore opposable against all comers.
The Persistent Objector Rule
Ordinary doctrine says that when a new rule of custom emerges, a state that persistently objects can keep the new rule from applying against it. It does this by arguing, basically, that the old rule should apply.
How does this work in practice?
Not very well.
Case of Japan and the territorial sea limits. Japan didn’t want the EEZ to come into being. During negotiations on the relevant conventions, Japan strongly opposed this. There may be an emerging custom, but it’s not good against us. We object! Other nations: It is so good against you.
Japan was in a position in which it would have to send its fishing vessels to test these boundaries and then have them get arrested by the CGs and navies of other countries. Govt. compensated them.
Another layer: highly migratory species rule. US was down w/EEZ, except for with regard to these fish. Esp. tuna. It’s a fugatious resource!
Japan didn’t have many supporters in this situation. Most states w/a fishing industry also have a long coastline, and were more concerned about protecting that than in protecting their distant water rights.
In the end, Japan used this as a bargaining chip: because we’re entitled to object to this rule, you have to give us something in order to get us to respect your boundaries.
So they were powerful enough to do that, but not powerful enough to prevent this from becoming customary intl. law, enforceable against them.
Typically, persistent objectors end up dropping their objections—at a price.
Innocent Passage: The Black Sea Affair
Take Away: Innocent passage for warships is controversial.
Facts: US military ships entered the Black Sea. Soviet Union was peeved. Declared that innocent passage of warships was only allowed in designated areas. Both the US and the USSR actually wanted innocent passage for warships, a concept that was in debate at the time. Disaggregated state problem: coastal defense didn’t get the message.
The Deep Sea Bed
More on Customary Law: Law of War (The High Command Case)
Test for custom in this case has high stakes. What is the court’s test for custom?
They don’t really state a test for custom. They find that the conventions state certain rules of international law, and they start there. They’re only willing to toss things out if there’s clearly conflicting practice (the prisoners in combat zones bit). Contrast to the North Sea case, which was only willing to find custom when clear and ambiguous practice existed.
So maybe the usefulness of the treaty here is as a statement of custom. The more detailed bits, perhaps, are the things for which the treaty is making law.
Note that the logic of war will be different for belligerents who chose to engage in asymmetric warfare
Laws of war strengthen the terms of civilian-military relations
On one hand, they’re a way for the civilians to control the military
On the other hand, they’re a way for the military to argue that it’s controlling itself.
Laws of war are a pre-commitment: they’re made in peacetime. Madison: it’s hopeless trying to make good rules in times of passion. Make the rules you need to make during times of peace.
Can be a good way to control and privilege your own technology and delegitimize other technologies.
So one of the reasons for the discrimination requirement could be that you actually have technology that can do that.
More on Customary International Law: The Alien Tort Claims Act
Background: Origins of the Alien Tort Statute (Alien Tort Claims Act) uncertain: conveyed exclusive jurisdiction on the federal courts to hear tort claims brought by aliens alleging violations of US law or “the law of nations”, but not clear if it was a jurisdictional statute or if it actually created a cause of action.
Filártiga v. Peña-Irala: Filártiga was an opponent of Stroessner in Paraguay. In retaliation, his seventeen year-old soon was kidnapped and tortured to death by the IG of Police, Peña-Irala. Subsequently Filartiga’s daughter Dolly sought asylum in the US. It turned out that Peña-Irala was in the US too! She sued him on her and her father’s behalf, with the help of the CCR, for compensatory and punitive damages under wrongful death statues, UN Charter, UDHR, UN D against Torture, lots of other stuff.
Complaint alleged that these treaties demonstrated the “customary law of human rights and the law of nations.”
Jurisdiction asserted under the ATS.
The torture of a detained individual by a state official was a clear violation of international law cognizable under the ATS. Finding something that all civilized nations agree on is a high bar, but the prohibition on torture meets it. The statue “open[s] the federal courts for adjudication of the rights already recognized by international law.”
The Tel-Oren Case: brought in the DC Circuit in 1984. Claim was that PLO members, trained by Libya, landed in Israel and attacked vehicles on the road to Haifa. Survivors sued in the DC Circuit: Δs were the PLO, US organizations alleged to support it, and Libya. FSIA excluded Libya from liability. Claims against US orgs dismissed.
In the end, the claim was dismissed for lack of s-mj and stat. of limitations problems.
Kaufmman argued that while the logic of Filártiga was good, Tel-Oren was distinguished by the fact that these were not acts of state-mandated torture. Torture by individuals is not a violation of international law (or of federal law? I don’t get this).
Bork argued that § 1350 of ATCA doesn’t create a cause of action, and that a cause of action must be found in the federal law.
Flores v. Southern Peru Copper: Plaintiffs proposed to rest on the UDHR, Convention on Economic and Social Rights, etc. as sources of international law. Court held that these weren’t evidence of customary international law such that they should qualify as “the law of nations”: practice must be clear and unambiguous, which isn’t the case here.
Doe v. Unocal: Burmese military forcing laborers to do this on behalf of Unocal. Torture, rape, abuse of civilians, etc. Allegation was that the oil companies (Unocal and TotalFinaElf) were part of a joint enterprise that was doing these things.
“Torture, murder, and slavery are jus cogens violations and thus violations of the law of nations.” Certain violations of the law of nations do not require state action; these fall within that set.
Sosa v. Alvarez-Machain (U.S. Sup. Ct. 2004): Was Alvarez-Machain’s abduction a violation of FTCA and did it lead to jurisdiction under ATS?
Alvarez sued the US under FTCA and Sosa (responsible for coordinating the kidnapping operation) under ATS. His primary claim is false arrest (arbitrary arrest seems to be his intl law phrasing).
FTCA claim: FTCA was intended to make the United States liable in tort “as a private person would be” under most circumstances.
Exceptions to this waiver of liability: claims arising in foreign countries is most prominent. App. ct. had proceeded on the “headquarters doctrine”, which focused on the place where the decision or omission occurred that led to a tortious act in another country. SCOTUS rejects this on grounds that the act must be the “exclusive proximate cause” and occur on foreign soil.
ATS claim: Sosa argues that ATS only creates jurisdiction, not a cause of action. Court finds that while the ATS does create a cause of action in certain limited circumstances (violations of international law and the common law of nations), it doesn’t support the claim that Alvarez-Machain brings here. History of the statute indicates that this was primarily a jurisdictional provision. However, legal authorities write persuasively that this would create a cause of action in such some customary international law cases because those don’t need to be “activated” by statute—they would have been recognized as part of the common law of the age.
Isn’t limited to the causes of action contemplated that the time (piracy, ambassadorial privilege, safe conduct), but must be very specific.
This isn’t enough to reach the level at which customary international law establishes a prohibition. Doesn’t reach questions about what would qualify as a violation. On the facts, this wasn’t a law of nations violation.
Claims must “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.”
Treaties in International Law
Validity: The Panama Canal Treaty
The Eastern Greenland Case
A declaration by the Foreign Minister of Norway that his country would do nothing to obstruct Denmark’s control over Eastern Greenland, when given in the context of a concession having been offered by Denmark, was legally binding and given on behalf of his government.
The Nuclear Tests Case
A public declaration, if given with intent to be bound, can create a legal obligation even outside the context of an international agreement.
European Union v. USA
Interpretive remarks by a state’s representatives do not constitute a new obligation but rather a clarification of an existing one.
Treaties in US Law
Self-executing and non-self-executing treaties
Asakura v. City of Seattle
Facts: Asakura, a Japanese subject, was a pawnbroker in Seattle. The city passed an ordinance limiting the pawnbroking trade to licensed brokers and then required that brokers be US citizens in ordr to obtain licenses. Asakura argued that the ordinance violated a treaty bw the US and Japan that guaranteed equality of treatment in the commercial sphere. The treaty was held to be self-executing.
People of Saipan v. Dept. of the Interior
Take Away: The determination whether or not a treaty is self-executing, will be determined “by reference to many contextual factors: the purposes of the treat and the objectives of its creators, the existence of domestic procedures and institutions appropriate for direct implementation, the availability and feasibility of alternative enforcement methods, and the immediate and long-range social consequences of self- or non-self-executions.”
U.S. v. Postal
Take Away: Self-executing treaties may operate to strip a court of jurisdiction over a defendant taken in violation of their provisions.
Facts: Cayman-flagged vessel arrested outside the territorial sea. Parties argued that violation of the High Seas Convention destroyed jurisdiction over them and that violations of international law operated differently than violations of national law in Kerr-Frisbie. Court held that the High Seas Convention was not self-executing and that therefore the violation of international law did not defeat jurisdiction over the defendants.
The Geneva Conventions: Hamdan v. Rumsfeld
Constitutional Limits on the Treaty Power
Treaties and States’ Rights
Missouri v. Holland
The Tenth Amendment does not bar the fedgov from making treaties on truly national issues and cannot operate to bar them from working.
Treaties and Individual Rights
Reid v. Covert
Take Away: Treaties may not violate the provisions of the Constitution.
Facts: An executive agreement that granted jurisdiction to courts-martial to try the relatives of US servicemen living on bases in the UK and Japan was held to violate the Constitution.
Made in USA Foundation v. US
Take Away: A treaty need not comply strictly with Art. II procedure in order to have binding effect in the United States.
Facts: Challenge to NAFTA as unconstitutional, since it was not passed in accordance with the formal requirements of the Article II treaty power.
Dames & Moore v. Regan
Take Away: The President may have authority to intervene in the constitutional judicial processes in pursuit of his foreign relations power.
American Ins. Assoc. v. Garamendi
Take Away: State legislation will not be allowed to interfere with the foreign relations power of the President by limiting his negotiation options.
Facts: California passed legislation aimed at forcing insurers to pay out life insurance claims on Holocaust victims.
Air France v. Saks
Take Away: Interpretation according to the definitions of terms under foreign law may be acceptable in a US court where the treaty was drafted in that language by jurists more deeply rooted in that legal tradition.
Facts: A woman suffered a hearing loss after experiencing ear pain during an Air France flight. Case turned on the interpretation of whether an “accident” under the treaty could be her actual injury (which occurred during normal operation of the aircraft).
The Golder Case (ECHR 1975)
Take Away: VCLT Arts. 31-33 codify CIL, and thus can serve as tools for interpretation even in cases where the convention itself does not apply.
Facts: Interpretation in light of object and purpose, intergrative principle, and CIL demonstrated.
The Shrimp/Turtle Case
Take Away: Demonstrates “object and purpose” reading.
Breach of Treaty and State Responsibility
Rainbow Warrior Case
Facts: Hungary had abandoned the damworks, and Czechoslovakia thus suspended the works it had undertaken to construct.
Because Czechoslovakia could have denounced the treaty in response to Hungary’s breach but didn’t, it was then required to comply with the treaty’s provisions itself.
This does not constitute a lawful countermeasure because it was dispropportionate to the harm Czechoslovakia had suffered.
Necessity is not a ground for terminating a treaty, but rather merely “suspends” it until the condition of necessity has passed.
A state may not plead impossibility when it is responsible for creating the condition giving rise to the impossibility.
Thus, Hungary had no legal grounds for terminating the treaty.
Key: “A determination whether a convention is or is not in force, and whether it has or has not been properly suspended or denounced, is to be made pursuant to the law of treaties. On the other hand, an evaluation of the extent to which the suspension or denunciation of a convention, seen as incompatible with the law of treaties, involves the responsibility of the State which proceeded to it, is to be made under the law of State responsibility.”
The VCLT only defines the conditiosn in which a treaty may be lawfully denounced or suspended, which the effects of a denunciation or suspension not meeting those conditions are not w/in the scope of the VCLT.
Air Services Arbitration Case
Corfu Channel Case
Facts: UK ships struck mines in the Corfu Channel and were badly damaged. UK subsequently swept the channel and discovered more mines.
Albania was responsible for the mines due to the exclusive control states are expected to exercise over their territory.
In sweeping the channel, the UK had violated Albanian sovereignty. Self-help argument rejected.
Soering v. UK
Facts: Usual procedure in extradition cases was that the judge would be informed that the UK had extradited the prisoner subject to an assurance that he would not be sentenced to death. No prisoner had been sentenced to death after such a representation had been made.
Holding: The assurances of the US, especially in light of the behavior of the prosecutor, were insufficient to prevent a violation of Article 3 (cruel & inhuman treatment) of the ECHR.
Oil Platforms Case (Iran v. US)
Take Away: US claim that destruction of oil platforms was a legitimate counter-measure defeated by the fact that the US had would only be justified in resorting to force in self-defense, which was not the case here.
Applying the law: Human Rights Treaties
Lovelace v. Canada
Reservations to Human Rights Treaties
Reservations Case (ICJ 1951)
Good discussion of law on reservations.
Derogations to Human Rights Treaties
Brogan v. UK
Interpreting Human Rights Instruments
Toonen v. Australia
Gay Tasmanian ICCPR case: HRC considers this an unlawful interference with privacy and holds that the law violates the convention. The HRC holds that repeal of the law would be an appropriate remedy.
Bankovic v. Belgium et al
NATO bombing case
Rasul v. Bush
Supreme Court ruled that it had jurisdiction to hear habeas petitions from Guantánamo detainees
Refah Partisi v. Turkey
ECHR on Turkish parties
Limits of National Criminal Jurisdiction
Does International Law Set Limits?
Jurisdiction to Adjudicate and Enforce Criminal Law: Extraterritoriality
Ker v. Illinois/Frisbie v. Collins
Regina v. Horseferry Road Magistrates’ Court ex Parte Bennett
International Law and National Jurisdiction in the War on Terror
Universal Jurisdiction in Criminal Law: Recent National Developments
Convention Against Torture
Regina v. Bartle ex parte Pinochet
Universal Jurisdiction and Immunity: The Yerodia Case
Enforcement of International Criminal Law
The ICTY: Prosecutor v. Tadic
The International Criminal Court
Immunity and Act of State in National Courts
The Development of Sovereign Immunity Law in the United States
The FSIA of 1976
Princz v. Germany
Altmann v. Austria
Commercial Activity: Republic of Argentia v. Weltover
Commercial Activity: Nelson v. Saudi Arabia
The Terrorism Exception
Enforcement Problems in Suing Foreign Governments & Instrumentalities
Birch Shipping Corp v. Embassy of the United Republic of Tanzania