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THE NATURE OF INTERNATIONAL LAW

I. International and Comparative Law a. Comparative Law – Law of other nations; not binding on U.S., but persuasive authority

i. Supreme Court engaged comparative law in 3 controversial areas (affirmative action, death penalty, and same sex marriages) - looked at the European Court of human rights.

b. International Law – These are laws that are binding (like treaties, etc.)i. Public - law governing foreign transactions of individuals and corporations

ii. Private - legal relation between statesiii. Misleading - foreign transactions highly in the public sector, and states to state transactions highly

privateII. Sources of International Law - Article 38 of the Statute of the International Court of Justice defines the sources of

international law. Look at them in order (hierarchy), to find the law.a. Treaties and other bilateral/multinational agreements to which sovereigns are signatories, and which govern

the issue.b. Customary international law (CIL) .

i. General practices of states, accepted as if they were law.ii. Followed not out of habit or expediency, but because considered law.

c. General principles - Broad concepts that can be applied (like estoppel, good faith in negotiations, etc.)i. Principles that reoccur anywhere in the world, and is accepted by any jurisdiction that care about the

principles of international law. d. Judicial Decisions - Judicial decisions don’t create a binding precedent, so looked at in a cautious way. Past

decisions considered, but not in a binding way like in the U.S.e. Jurist Publications - Publications like law review not binding, but can be persuasive

III. Enforcement of International Law a. Ways to settle Disputes

i. Set up an independent arbitration panel (other than ICJ)1. Countries of the world would set up an agreement to enforce all arbitration agreements. So if

one state doesn’t want to abide by decision, its assets can be frozen by other countries seeking to enforce the arbitration agreement

ii. Most international disputes are settled through negotiations or arbitration (meditation)iii. In addition to ICJ, there's the international criminal court, European court of human rights, etc. (ad hoc

tribunals)iv. Also sometimes domestic courts

b. Outside Enforcement - sanctions, diplomacy, politics, shame, refusal to trade (economic sanctions), military intervention

i. Different effect in different parts of the world - The more powerful you are, the more likely you are to not abide by international law

1. Less pressure on US to take treaty seriously (smaller, weaker countries cant really hurt US by not trading, etc, so no deterrence for US)

ii. Most states abide by international law most of the timec. Long Term interest in abiding by International law:

i. Fear of isolationii. To have legitimacy and persuasiveness

1. More powerful states can take a bigger hit to legitimacy without compromising poweriii. Self-interest - in terms of long-term outlook to present itself as a law-abiding society

1. Interest state has in good reputation, maintaining a sense of identityd. Short-term interest in abiding int'l law

i. Rule of law needed for organization in society

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ii. Reciprocity (self-interest also) - If you break your agreements, no one will enter into agreements with you. Agreements are mutually beneficial

iii. Also to have a right for our citizens, we need to give the same right to other nation's citizensiv. Normative: Right/moral thing to do

IV. European Convention on Human Rights: a. McCann v. United Kingdom (pg. 3)

i. Facts : 3 known Irish terrorists were in Spain. UK authorities were alerted to their presence, and they were killed during a confrontation. The estates of the deceased brought an inquest against soldiers and govt, believing it was a wrongful killing, to the ECHR.

ii. Analysis : UK Court only requires a killing to be justified, but Court looks at Article 2 para. 2 of the European Human Rights Convention (treaty), which requires that deadly force be absolutely necessary for it to be lawful. Although the soldiers were justified, the court must use the int’l law, and says the killing was not absolutely necessary (there was negligence and incompetence in the operation).

iii. Damages : Although UK very powerful, they still had to pay the terrorists’ families compensation, - they still have to abide by the int’l tribunal.

iv. Notes: European Convention of Human Rights – product of post-WWII politics, in wake of Nazi atrocities. Countries get together to enforce human rights. This is a court of last resort, meaning you must exhaust domestic remedies first before coming here.

V. The 1789 Alien Tort Claims Act : US enforcement of foreign violations of international lawa. Filartiga v. Pena-Irala (pg 17)

i. Facts : Filartiga’s son was tortured & killed by Pena, an official (all parties from Paraguay, and event took places in Paraguay), in retaliation for father’s political beliefs. They could get no justice in Paraguayan courts (lawyer arrested etc.). So, they sue in U.S., but they’re dismissed for lack of jurisdiction. Issue of jurisdiction of U.S. courts is on appeal.

ii. The suit is between 2 foreign nationals, so how does the U.S. have jurisdiction? 1. Under the Alien Tort Statute, U.S. has jurisdiction to hear tort claims brought by an alien where

there has been a tort “committed in violation of the law of nations or a treaty of the United States.” Torture was clearly a violation of int’l law (aka "the law of nations"), and the U.S. did have jurisdiction over the case since the claim was lodged when both parties were inside the U.S.

2. This case interpreted that the Alien Tort Statute to granted the U.S. jurisdiction to enforce human rights law domestically.

a. Very controversial. Should U.S. be a world police by trying foreign citizens in the U.S.? - Well, the idea is that if you commit such a heinous crime, then any tribunal should be able to try you b/c the whole world would agree how bad the crime is (jus cogens). U.S. court enforces int’l law, not domestic law.

iii. Now, there is a convention on torture, but there wasn’t at time of this case. How does U.S. evaluate this without a clear cut prohibition on torture? Court looks at:

1. Law professors determinations of the law2. Public law3. General usage4. United nations charter5. Universal Declaration of human rights (not binding– aspirational only but shows custom)6. Declaration on torture - not binding, but evidence of how custom would evolve7. European convention outlaws torture8. Inter-American convention on human rights (again, custom)9. Domestic laws - many countries have banned torture

iv. Outcome/Enforcement : U.S. courts awarded Filartiga $10mm. But problem with enforcement – Pena left U.S. This is still a problem with int’l law. U.S. won’t send troops to Paraguay to make them pay. Still a victory – legal recognition of torture being wrong (political statement).

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THE LAW OF TREATIES

I. Treaties, Generally : International agreements are governed by the Vienna Convention on Treaty Law. Under it, states can do anything they want to agree to, unless it violates a peremptory norm.

a. Many countries don’t have governments that work. But, presuming there is a government that works, one country can make an agreement with another government.

b. Treaties and contracts are analogous (but not perfectly so)i. A K can have 2 provisions that say different things

ii. So, a treaty can too (ex. Part I is self-executing, while Part II not)II. Vienna Convention on the Law of treaties (1980)

a. Addresses international problem on how to deal with treaties. A treaty on treaties.b. It codified the pre-existing customary int’l law on treaties, with some necessary gap-filling and clarifications.

i. Before this, int’l customary law was used. Now a more precise roadmap to guide jurisdictions on how to write and apply treaties.

c. Applies only to treaties between states (doesn’t include international organizations)d. US has signed it, but not ratified it. But since it is customary international law, US can be bound based on that.

This is highly persuasive in US, and around the world.III. What is a treaty according to the Vienna Convention (p. 926 Art II)

a. Art 2 (a) "treaty" means an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation;

b. Art 2 (b) "ratification," "acceptance," "approval," and "accession" mean in each case the international act so named whereby a State establishes on the international plane its consent to be bound by the treaty;

IV. When is a treaty binding? a. There is a gap of when its signed, and when it comes into force (when it’s ratified)

i. The process for ratification can be in the treaty itself, or the usual process is that it's signed by certain parties, like in U.S., sent to Congress to ratify.

ii. Art 18 - once a treaty is signed, only obligation you have it to not defeat the purpose of the treaty, but there is no affirmative duty until it's ratified.

b. No world legislature, so states only bound to treaties which we agree to be bound toc. Some international agreements not binding because they lack consent; based on consent to be boundd. Intent to be bound – not aspirational

i. Sometimes writings not treaties because they are aspirational writings, which the parties did not intend to be bound to. But like a plan for what they want to do in the future, intentions, without specific obligations. So a treaty not only has to be a written document, but the parties must have intended to be bound, and not only setting down some aspirational goals.

ii. A treaty that says “the parties agree to …” is binding. A treaty that says “the parties intend to …” is not binding.

V. Multilateral and Bilateral Treaties a. A multilateral treaty has several parties, and establishes rights and obligations between each party and every

other party.b. Bilateral treaties by contrast are negotiated between a limited number of states, most commonly only two,

establishing legal rights and obligations between those two states only. It is possible however for a bilateral treaty to have more than two parties.

VI. What are treaty reservations a. The Reservations to the Genocide Convention Case (pg 56) – UN general assembly adopted this resolution in

regards to disputes of the reservations to the Genocide Conventioni. Basic principles of treaties:

1. A state cannot be bound to a treaty without its consent.

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2. Once agreement is made, the parties to it cannot change it, or make other agreements that go against it.

3. A reservation is a modification of terms the participating state has included with their acceptance of a treaty.

ii. Whether or not to allow reservations?1. Reservations can't contravene the general purpose of the treaty, especially in regards to

human rights treaties2. We want as many states as possible to sign on, and if there were no reservations allowed, a lot

of states wouldn’t sign on. And on the other side, we don’t want to sacrifice important aspects b/c we want more states to join.

1. So if minor issues (like jurisdiction) then allow it, to get more states2. But if too many minor reservations, it can change the purpose of the treaty

3. Dissent: No flexibility. "It would be better to lose a state which insists in face of objections on a modification of the terms of the Convention, then to permit it to become a party against the wish of a state(s) which have irrevocably and unconditionally accepted all the obligations of the Convention."

b. While some treaties still expressly forbid any reservations (Ex: he Law of the Sea Convention), they are now generally permitted to the extent that they are not inconsistent with the goals and purposes of the treaty. Some reservations are permissible, but would be objectionable to the other signatory states.

c. They are only binding on the other parties if the other parties accept the reservation. i. Common practice is that you have to object to the reservation, otherwise you accept

1. Often, the practice of objections, etc., are stipulated in the treaty (the procedural mechanisms)d. Reservations have the effect of turning one agreement into many different agreements,

i. Suppose there is a treaty signed by countries A, B, C, and D. A makes a reservation on one part of it, say Article III.

1. B is okay with it. Fine, there is a treaty between A & B, including the reservation2. C opposes the reservation. There is no agreement between A & C as to Article III. There’s only

a partial agreement.3. D says the reservation is intolerable, and that A is not a party as far as D is concerned. There is

no agreement at all between A & D.4. Between B, C, and D, there is an agreement.

ii. B/c of the mess this creates, the trend has been to forbid reservations in multilateral agreements (like for torture or genocide).

e. Vienna Convention on reservations - Section 2: Reservations - Art 19-21VII. How can we interpret treaties?

a. Eastern Airlines, Inc. v. Floyd (pg 64)i. Facts : Airline flight thought they would crash, told passengers this. They were able to restart engine

and landed safely. Passengers sued for mental distress. Court looks at Article 17 of the Warsaw Convention to determine whether mental distress alone was compensable. This was written in French, and court has to decide what was meant by the term "lesion corporelle."

ii. Because of the ambiguity of the term “lesion corporelle,” court turns to different sources: 1. Dictionary – to assess the plain text2. French definitions and interpretations in French law courts3. How other courts interpreted the text – only one other court interpreted it to include mental

distress alone4. Historical context – Intent of the drafters and negotiating history of Warsaw convention

1. Purpose behind drafting – what were they seeking to do?1. They would want airlines to prosper, so to expand the scope of liability would

not be in their intentions.2. Also, the fact that a remedy for emotional injury alone was unknown in many

jurisdictions at the time of the Warsaw convention.5. Treaties & scholarly writings

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b. Vienna Convention – Art 31: General Rules of Interpretation i. In addition to the text, look at any other agreements relating to the treaty

ii. Take account of (in addition to the context):1. any subsequent agreement between the parties regarding the interpretation of the treaty or

the application of its provisions;2. any subsequent practice in the application of the treaty which establishes the agreement of

the parties regarding its interpretation; 3. any relevant rules of international law applicable in the relations between the parties.

c. Vienna Convention – Art 32: Supplementary means of Interpretation i. Recourse may be had to supplementary means of interpretation, including the preparatory work of the

treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31:

1. leaves the meaning ambiguous or obscure; or 2. leads to a result which is manifestly absurd or unreasonable.

VIII. How do we assess whether or not a treaty is valid a. Case Concerning the Gabcikovo-Nagymaros Project (pg 74)

i. Regarding a treaty entered into by Hungary and Czechoslovakia in 1977. The Court stated that both sides breached their obligation and that the 1977 Budapest Treaty is still valid.

ii. ICJ - Is the treaty still valid? 1. Doctrine of necessity for grounds for breaching the treaty – because there were ecological

concerns1. Court says ecological concerns didn’t arise to an imminent peril, so the breach was not

warranted. There were other possibilities in addressing this concern rather than breach.

2. Impossibility 1. the object of the treaty changed; the opportunity disappeared. Tthe joint nature

ceased to exist. But, court doesn’t accept this3. Fundamental change of circumstances:

1. Political change - Czech split up into 2 countries, affects the feasibility of the project2. Court says no - the changes have to affect the core of the project. The changes

presented did not change Hungary's ability to construct the dam4. Czech breached; which may be a reason to terminate a treaty, but Hungary denounced the

treaty before Czech breachediii. Court says these are not broad loopholes to count yourself out of the treaty. The defenses are very

narrow. You can’t just opt out of a treaty, the treaty has provisions on dealing with these types of issues that may obstruct the carrying out of duties under the treaty.

IX. Unwritten Treaties – General Principles of International Lawa. Vienna Convention says treaties must be in writing. But what about oral treaties made before 1980?b. The Eastern Greenland Case (pg 84)

i. Facts : Dispute about who has possession of lands in Greenland btwn Norway & Denmark. Norwegian Minister orally said that Norway wouldn’t make any difficulties in the settlement of this question, when Denmark asked if they would object to Denmark extending their interests to Greenland.

ii. Vienna Convention asks treaty to be in writing, but this is before that. This is an oral agreement. iii. Court says statement meant that Norway would refrain from contesting Danish sovereignty over

Greenland, so therefore, this meant they would restrain from occupying it (although this doesn’t mean that Norway recognized Danish Sovereignty).

iv. Court looked at surrounding circumstances to determine the intent (the attitude of the parties in the exchange) – shows intent to be bound – this is the nature of the consent.

v. General Principles – Can’t say that oral agreements can’t be enforced, but from evidentiary perspective may be hard. Even if not enforceable treaty, can use estoppel here (good faith).

vi. Norway says Minister not allowed to bind the country – int’l law says internal laws don’t matter.X. How do treaties relate general principles of law?

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a. Treaty provisions need to be interpreted and, if treaty interpretations are not to be pure discretion, some guidance from other forms of law is called for.

b. Treaties never bind all states, and there need to be some rules of more general application.

CUSTOMARY INTERNATIONAL LAW

I. Customary international law (CIL) is something done as a general practice — not because it is expedient or convenient, but because it is considered law, out of a sense of legal obligation.

a. Persistent objectioni. In international customary law, if you are a persistent objector, not bound to that customary law

ii. Natural law rights (super norms - like for human rights, genocide)1. Even if you are a persistent objector, you are still bound

II. The Paquete Habana (pg 92)a. Facts : Cuban fishing vessels captured by US navy & claimed as prizes of war. Nothing that showed they had

anything to do with war. International custom/tradition that exempted fishing vessels from being captured as prizes of war, dating back to Henry VI.

b. First question: Whether or not there is CIL? When does custom ripen to law?i. Two factors to ascertain a particular practice has ripened into CIL

1. The objective requirement - Practice of statesa. States must be acting a certain way to be custom

2. The subjective requirement - opinion juris (reason/psychology)a. States are acting a particular way because they feel compelled by law

c. Evidence to find these factors i. Objectively

1. Scholarship2. Treaties of other nations (bilateral treaties)3. Court also noted the lack of competing principles4. Proclamations - the members of the country are proclaiming the practice

ii. Subjectively 1. by acting in a certain way (abiding by treaty), they are acting this way because they are

compelled by lawd. Court said that int’l law is part of our law, and when there is no treaty or other governing force, we must look

at the customs and usages of civilized nations. Court also noted that it was the "general policy of the govt to conduct the war in accordance with the principles of int’l law." By looking at the sources of the evidence, court finds sufficient to enforce the custom

III. The Asylum Case (pg 102)a. Facts : Failed military rebellion leader in Peru sought political asylum in Columbia, but Peru refused to allow

him to leave. Dispute goes to ICJ, and since there’s no treaty concerning this, ICJ looks at CIL.b. Not enough evidence to establish CIL

i. One of the treaties raised, Peru didn’t sign ontoii. Another signed on to by a limited number of states

iii. Peru has not acted in a way that showed they practiced this custom iv. No evidence of consent to the custom

1. The persistent objector - If Peru objects persistently, even if custom is very common, they still wouldn’t be bound (unless it was a natural right)

2. You have to be a vocal objector; silence = consent; consent is implied unless you objectc. To invoke CIL, you have to prove it has been used fairly often, and adopted by many states. Also, you cannot

bind a state to a treaty to which it did not ratify (consent to). IV. The Lotus Case (pg 104)

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a. Facts : Collision btwn French (Lotus) & Turkish vessels, and some Turkish nationals die. 2 French nationals arrested by Turkish police for criminal prosecution of manslaughter, w/o notifying French consul, then sentenced & imprisoned. French govt protested, saying Turkey had no jurisdiction, and goes to ICJ (b/c parties agreed to go - consent).

b. Only obligation Turkey has is to not overstep the limits if int’l law. France has burden to prove there’s CIL rule against Turkey’s jurisdiction.

c. France has 3 arguments:i. A state can’t exercise jurisdiction just b/c victim is a national of that state (passive personality – some

states recognize it as basis for jurisdiction while others don’t)1. ICJ says doesn’t apply here b/c incident took place on Turkish vessel, so there is a territoriality

claim. ii. Since the collision occurred on the high seas, France claimed that only the state whose flag the vessel

flew had exclusive jurisdiction over the matter. 1. Offense took place on Turkish vessel flying Turkish flag.

iii. A state can’t extend jurisdiction beyond its borders.1. French did it all the time & had always done so.

d. France failed to establish a violation of CIL. Turkey did not overstep limits of int’l law & has jurisdiction.e. Legal positivism – int’l laws come from states’ consent. Contrast with natural law theories, where even though

law isn't written down explicitly, they should still be followed.i. States can create laws through actions or customs, but still made through actions. Doesn’t just arise

from purely moral reasons like natural law.V. Public Int’l Law vs. Private Int’l Law

a. The Texaco/Libya Arbitration (pg 117)i. Facts : 2 oil companies (corporations) doing business in Libya. K btwn corps and Libya. Libyan govt then

passes a Nationalization Law, where taking all private companies and makes them Libyan governed (under state law). The rights under the K (deeds) being breached – Libyan has taken away these rights. Arbitration clause.

ii. Libya says there’s new int’l law that justifies their actions – UN General Assembly resolutions. 1. UN GA resolutions are not binding law, but can be expressive of existing & emerging custom.

Not a court, doesn’t resolve disputes. More like a legislature – provide guidelines on where UN wants to go – aspirational.

iii. 2nd & 3rd resolutions – nationalization governed by domestic law1. These give Libya exclusive rights – this is what Libya using as justification2. Arbitrator doesn’t find that 2nd & 3rd resolutions are binding CIL

a. Not all countries signed on. All developed countries didn’t sign on, very opposed. No consensus to find CIL.

iv. 1st resolution – explicitly mentions that nationalization is governed by CIL1. Enough consensus that arbitrator will use this, but it will be in opposition to Libya's case. 2. So deeds (K) then are binding.

b. Policy Issues i. Should we give GA resolutions weight when they are not meant to be binding?

1. Soft-law: non-binding law - If we have a lot of soft-law, it might ripen to hard lawii. What if there was consensus for 2nd and 3rd resolution? Would that be enough evidence of CIL?

1. Maybe if US was persistent objector, can’t use it as CIL2. Look at state practice - the resolutions are aspirational, but maybe hasn’t manifested in

practice yet. So, if not yet practicing yet, then there are no grounds to establish CIL (the objective requirement where a custom becomes CIL)

iii. There may be a provision in the K to accommodate for a new int'l law, so we would look there first, if any exists

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GENERAL PRINCIPLES OF INTERNATIONAL LAW

I. General principles - Broad concepts that can be applied (like estoppel, good faith in negotiations, etc.)a. Principles that reoccur anywhere in the world, and is accepted by any jurisdiction that care about the

principles of international law.II. The AM & S Case (pg 128)

a. Facts : This case was dealing with an antitrust offense. Applicant asked to produce docs, and some were not, on the basis that they are entitled to legal confidentiality, where these rights are protected by an attorney-client privilege. (European Court of Justice – Supreme Court of EU)

b. No treaty provision on this subject, so court looks at general principles of int’l law. c. Look at other countries: how do they handle this?

i. There is a preponderance of countries using the confidentiality privilege1. At the very least, we must recognize this principle among the EU states, to extend this privilege

to non-in-house counsel representing defense cases.d. To be able to come up with a general principle of law, they looked at how member countries (ECJ – EU) dealt

with this, and agreed that there was an attorney-client privilege. However, they did not extend this to nations not member of the European community (now EU).

III. Distinction Between CIL and General Principles a. The 2 principles overlap, we're looking or patterns in both

i. General principles - principles of legal reasoning that cut across many legal topics1. Estoppel2. Equity3. Good faith4. Procedural rules like privileges in the discovery process

ii. Customary Int’l Law1. We have the subjective view (psychological - opinion juris), which doesn’t exist in determining

general principles2. CIL is more specific (narrower in scope), while general principles are more broad, and discuss

legal issuesb. Why recognize general principles of international law?

i. Int'l law is still developing, so we need the gap fillersii. There is implied consent - b/c they are so widespread, so they should be implicitly regarded as the

background conditions of a treatyc. Difference in Evidence for each:

i. CIL - looks to assembly resolutions, and agreements, treaties, proclamationsii. General Principles look at patterns in the individual municipal systems

1. Not disputed as much as CIL

JUS COGENS – PEREMPTORY NORM

I. Jus Cogens and peremptory norms - Where does this fit into CIL?a. Super-customs - so universally accepted. You cannot justify certain things.b. When there's an odd country violating it, there's no objection defense

c. There is no clear agreement regarding precisely which norms are jus cogens, but it is generally accepted that jus cogens includes the prohibition of genocide, piracy, torture, and crimes against humanity.

d. Unlike CIL, which requires consent & can be altered by agreement, peremptory norms are always binding even w/o consent, and cannot be conflicted with. The Vienna Convention of the Law of Treaties says if it does, treaty is void.

II. United States v. Smith (pg 138)

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a. Facts : Smith & others aboard a vessel, mutinied, confined their officer, left the vessel, and then seized another vessel. Then they plundered and robbed a Spanish vessel.

b. Piracy is jus cogens, cut court needs to find out if actions were piracy. To define piracy, court looks at if the crime of piracy is defined by the law of nations to a reasonable certainty.

i. Look at works of juristsii. general usage and practice of nations

iii. Judicial decisions recognizing and enforcing that lawc. All define piracy as a robbery upon the sea. Therefore, it is defined by the law of nations as such.

III. Forbidden Treaties in International Law (Alfred Von Verdross, 1937) (pg 142)a. States, in general, are free to conclude treaties on any subject. However, there are exceptions - these are jus

cogens. i. Treaty binding a state to reduce its police or its organization of courts

ii. Treaty binding a state to reduce its army in such a way to render it defenseless against external attackiii. Binding a state to close its hospitals or schools…or in other ways to expose its population to distress.

IV. Prosecutor v. Furundzija (pg 148)a. The prohibition of torture is imposed upon all states, by a peremptory norm

i. Prohibition designed to produce a deterrent effect - tells all states that this is an absolute value from which no state can deviate

ii. Also serves to de-legitimize any type of state legislation that authorizes tortureb. There is a universal jurisdiction over torture.

i. Individuals that commit torture on behalf of their nation, can be held criminally responsible for torture, either in a foreign state, or in their own (if under a subsequent regime).

ii. Any state is entitled to "investigate, prosecute, and punish or extradite individuals accused of torture, who are present in a territory under their jurisdiction."

iii. Rationale for this:1. b/c the character of the crime is so universally condemned, every state has a right to

prosecute and punish those who participated in their commission2. Very controversial proposition, which is being debated

V. Burden of proof in deciding if peremptory norms exist - The Michael Domingues Case (pg 150)a. Facts: Michael Domingues had been convicted and sentenced to death in U.S. for two murders committed

when he was 16 years old. Domingues brought the case in front of the Inter-American Commission of Human Rights which delivered a non-legally binding report.

i. Inter-American Commission on Human Rights (court of last resort; after SC denied him. US signed onto this)

b. Commission's holdingi. The Commission concluded that there was a "jus cogens norm not to impose capital punishment on

individuals who committed their crimes when they had not yet reached 18 years of age."ii. Even though US defense is of their persistent objection, b/c it's a preemptive norm, that defense is no

goodc. How did they decide that juvenile death penalty is a preemptory norm?

i. UN Convention on the Rights of a Child 1. All but 2 countries had adopted the resolution of Human Rights agreement2. US only 1 of 7 countries who had a practice on record of juvenile death penalty3. US signed this, but didn’t ratify. This means they don’t have to take affirmative steps, but can't

do anything to oppose it.ii. Also looked at American Convention on Human Rights

iii. ICCPR - US lodged a reservation to use juvenile death penalty 1. But many countries lodged an objection to this reservation - This proves CIL.

iv. Geneva Conventionv. Practice - not only did countries sign on to these agreements, this is one thing that countries of the

world are following. Since this time, all the other 6 countries had publicly disavowed juvenile death penalty.

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d. This case not binding, but caused a lot of controversy, and in next case of this sort, US Supreme court uses int'l law as persuasive (Roper v. Simmons).

e. Is the evidence enough to establish a norm?i. Critics may say this is going far, considering what other norms are about. Does juvenile death penalty

rise to the same level? This commission says yes, b/c all nations are signing on.f. How do we raise it to the level of a preemptory norm?

i. Maybe this type of debate should be brought to a broader int'l community, b/c taken into context of a universal norm.

g. Possible Arguments for U.S. to not have juvenile death penalty:i. US has an obligation b/c of jus cogens

1. Although can't yet be enforced, we can say US has this obligationii. Foreign developments can and should be persuasive

1. US constitution defines cruel & unusual vaguely, so we should look outsideiii. Only look within (domestic law)

1. b/c it should be worked out in the American democratic process

TREATIES IN DOMESTIC COURTS

I. When to invoke treaties in U.S. Courts (domestically)a. When it is self-executing

i. Ex.: Treaty says, “all state parties shall cease using death as a punishment for criminal offenses."ii. If language is specific, mandatory, and doesn’t require further affirmative action by Congress, then it is

most likely self-executing.iii. If treaty implicates the supremacy clause, then it is self-executing

b. If not self-executing, but congress has taken additional steps and implemented lawsc. Use treaties as evidence of CILd. How do we differentiate btwn self-executing and non-self-executing treaties?

i. Intentii. Was the treaty urging in nature? Was it just setting goals for states to implement?iii. Whether or not the treaty requires affirmative implementation.

1. if so, can’t rely on treaty, you have to wait for laws to be implemented by the gov't2. Look at treaty & see if it specifically mentions a ratification process

II. Provisions within the US constitution that address treaty makinga. Article VI of the Constitution: Supremacy Clause

i. The Supremacy Clause establishes the Constitution, Federal Statutes, and U.S. treaties as "the supreme law of the land." All states are bound by the supreme law. *If self-executing

ii. However, doesn’t give a hierarchy - which trumps which btwn US constitution, treaty law, and legislation?

b. Article II (§2) - gives executive power to enter treaties, with the advise and consent of the senatec. Article III (§2) - gives courts the power to enforce treaty lawd. Article I (§1) - forbids states from entering into treaties

III. A treaty is Self-Executing when it operates of itself without the aid of legislation. a. Foster & Elam v. Neilson (pg 180) *Landmark case

i. Facts : Treaty btwn U.S. & Spain alleged to give the King of Spain power to grant title to land even after U.S. took control. Language says that such a grant “shall be ratified and confirmed.” Pl says therefore, the land in dispute in LA is his.

ii. [now called self-executing treaties] - A treaty operates of itself without the aid of any legislation, state or national; and it will be applied and given authoritative effect by the courts.

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iii. This is not a self-executing treaty b/c the text of the treaty specifically mentions the ratification process. Therefore, Pl can’t rely on it until it’s ratified and implemented by Congress.

iv. Dualist system of law 1. In the int’l realm of law - where US has made an agreement with Spain

a. May be brought in int’l court if treaty provisions say this, and state consented2. On the other hand, in the domestic realm - domestically, the treaty doesn’t become law until

it is ratified and implemented domestically.IV. A treaty trumps state law because of US constitution Art. VI (2), supremacy clause

a. Asakura v. City of Seattle (pg 183)i. Facts : Asakura, Japanese, working as a pawnbroker. City passes an ordinance that requires

pawnbrokers to have a license, & that to get the license, you must be U.S. citizen. This violated a treaty btwn Japan & U.S. that said Japanese citizens could run businesses in the US, or anything else necessary for trade upon the same terms as native citizens, and that they shall receive protection.

ii. Treaty trumps state law because of US constitution Art. VI (2), supremacy clause, which says that treaties made by U.S. “shall be the supreme law of the land.”

1. *Only if treaty is self-executing.a. Test: the treaty has effect without congress needing to pass legislation, because it only

asks that we refrain from discriminating. It doesn’t require for congress to take any additional steps to affirm it. Therefore, treaty executes itself.

V. A treaty does not automatically supersede local laws which are inconsistent with it unless the treaty provisions are self-executing.

a. Sei Fuji v. California (pg 186)i. Facts : Fuji, Japanese, bought land that escheated to the state of CA (CA alien land law aimed at

preventing ownership of land by Asian nationals). Fuji says CA alien land law is trumped by the UN Charter (treaty).

ii. A treaty does not automatically supersede local laws which are inconsistent with it unless the treaty provisions are self-executing.

1. In determining whether a treaty is self-executing, courts look at:a. The intent of the signatory parties as manifested by the language of the instrumentb. If instrument is uncertain, look at circumstances surrounding its execution.

2. UN Charter not self-executing - it is merely aspirational, forward-looking in nature. Therefore, it doesn’t trump CA alien land law.

iii. However, the CA alien land law was found invalid b/c it violated the 14 amendment.VI. A treaty cannot violate the Constitution

a. Missouri v. Holland (pg 191)i. Facts : This case is regarding the ability to enforce the Migratory Bird Treaty, which protects certain

species of endangered birds. The State of Missouri brought the suit to prevent its enforcement b/c it would be in violation of the 10th Amendment which says, "The powers not delegated to the US by the Constitution, nor prohibited by it to the states, are reserved to the states."

ii. A treaty cannot violate the Constitution (We imply that constitution is highest law in the land)1. Missouri says birds are in state’s possession, so they have a right to regulate them. SC

previously said the state has exclusive domain over the birds. So, 10th amendment kicks in. iii. But, what’s changed now is that there is a treaty, and the treaty trumps. How?

1. Birds are transitory, so no one state has possession as state claims. a. There is a national interest in protection of the birds, and it is not sufficient to rely on

the states – the U.S. has to come in.2. Supremacy Clause gives power for treaties to trump state laws.

iv. Executive branch has authority under Constitution to execute treaties (Art 2, Sec 2)1. Critique – If fed wants to trump state law, all they have to do is create a treaty. But not that

easy.a. Executive branch doesn’t have unlimited power to enter into treaties. Only when it

does have the power to enact treaties, then the treaty will trump state law.

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VII. Congress has the power to preempt state law, either by an express of implied provision for preemption. a. Crosby v. National Foreign Trade Council (pg 194)

i. Facts : MA enacts an act that bars state entities from buying goods & services from any person doing business with Burma. Then, Congress passed a statute of the same nature, but with conflicting terms (imposes sanctions, but conditional, in order to compel Burma to improve human rights practices – not as harsh). Corporation says MA law invalid b/c it conflicts with fed law, and fed law trumps state law.

ii. Congress has the power to preempt state law, either by an express of implied provision for preemption.

1. Express preemption – where provision explicitly states that it preempts state law2. Implicit preemption – state must still yield to fed in 2 circumstances:

a. When congress intends to occupy/monopolize the entire fieldb. State law is naturally preempted to the extent of any conflict with a federal statute.

iii. Court said Congress said that the MA law undermined the intended purpose and 'natural effect' of at provisions of the federal Act. State act stands in the way of Congress’ objectives

VIII. In the case of a conflict btwn a federal statute and a treaty, the one last in date will control a. Whitney v. Robertson (pg 202)

i. Facts : Treaty btwn US and San Domingo provided that San Domingo gets most favored nation treatment to imports. Most favored was treaty btwn US & Hawaii, where certain goods exempts from duty-collection. Merchants made to pay duty on the goods, and the collector at the port argued he treated the goods as dutiable under the acts of Congress.

b. Both self-executing treaties and acts of Congress are considered supreme laws of the land, and both should have effect. When they conflict with each other, "the one last in date will control the other." Since the acts of Congress were dated last, they control. If the country with which the treaty is made is dissatisfied with the action of the US legislative dept, then they may present a complaint to the executive head of the govt.

c. Dualism – domestic vs. international obligationsi. Domestically, we care about checks and balances, that treaty no longer has any effect

ii. But in international realm, this is a problem, b/c we are not honoring the treaty with Dominican Republic. Breaching treaty - can be taken to ICJ, etc.

IX. Power over foreign affairs is exclusive to the federal government (especially executive branch) a. United States v. Belmont (pg 204)

i. Facts : Russian corp deposited money with NY bank. Soviet nationalized corp assets, and then wanted that money from the bank, but banker refused (illegitimate confiscation against NY public policy). Executive agreement btwn US and Soviet, where Soviet will not enforce any claims against US nationals, and US will handle issues. Banker says it would be contrary to NY public policy to enforce.

ii. Fed law trumps state law; the govt has exclusive power over foreign affairs.iii. Here it was an executive agreement (President only). Court is interpreting “treaties” in the supremacy

clause to include executive agreements.1. This is diff from other cases, which had to do with Art II treaties (w/ congressional advice &

consent).b. United States v. Curtiss-Wright (pg 208)

i. Facts : Curtiss conspired to sell arms of war to Bolivia (involved in Chaco War), in violation of the Joint Resolution of Congress that gave President broad authority in prohibiting this. Curtiss argued that it’s unconstitutional b/c Congress has power to regulate commerce, and they can’t delegate that power to the Pres in such broad discretion.

ii. Constitution implicitly grants power to President to conduct foreign affairs. Executive has power to conduct foreign affairs in a way that Congress can’t.

1. Non-delegation doctrine (stems from separation of powers) – it doesn’t apply here b/c this is a matter of foreign affairs.

2. Public Policy – we need on unified voice for foreign affairs, so better for executive to do that, rather than senate, who represent the states. Also custom in our country for Pres to do this.

c. Dames & Moore v. Regan (pg 215)

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i. Facts : Terrorist activities in Iran against U.S. embassy & citizens held hostage. Dames later files suit against Iranian govt, corps, & banks for a business contract breach, and gets a judgment. American hostages released pursuant to an agreement w/ Iran that nullified rights to Iranian assets & suspended all claims, preventing enforcement of Dames’ judgment, and he tries to prevent it, saying Pres doesn’t have this authority.

ii. The Youngstown case limited the power of the President to seize private property in the absence of either specifically enumerated authority under Art II of the Constitution or statutory authority conferred on him by Congress. 3 prong test to determine if Pres’ actions constitutional:

1. Pres & Congress in agreement - If yes, then strong presumption that Pres’ actions are constitutional

2. Congress is silent - muddy. Court may look at practice. 3. Disagreement - Pres may have overstepped his authority; Pres has burden to prove otherwise

iii. Court held that the executive agreement was valid 1. The IEEPA (Int’l Emergency Economic Powers Act) authorized the President to nullify rights to

Iranian assets & to transfer Iranian assets.a. Falls under Youngstown’s 1st category – Pres & Congress in agreement. b. Therefore, there’s a heavy presumption that the exec agreement is valid.

2. IEEPA does not speak about issue of termination of litigation/arbitrationa. Congress is silent here (2nd category)

i. Looks at practice - has Congress been a persistent objector? No. President has done this in the past and Congress has acquiesced (agree to something passively). Implicit consent here.

CUSTOMARY INT’L LAW IN DOMESTIC COURTS

I. Law of Nations & Domestic Courtsa. Law of Nations is a contested term. Now we use CIL and General principles, and jus cogens.

II. Respublica v. De Longchamps (pg 227)a. Facts: Longchamps, French national charged with violating the int’l law protecting diplomats, by insulting and

assaulting (by hitting his cane) the French consul-general in his residence. b. Court says we need to look at the law of nations (not domestic law):

i. Int’l law on diplomats - Foreign diplomats have immunity and certain rights I. Protection of minister is very important. Longchamps violated the law of nations.

c. French govt asks U.S. for Longchamps to be brought to France for trial, and court, looking at law of nations says we won’t send him back to France.

i. Punishment has to be inflicted in the same country he is tried inii. But, U.S. says they won’t imprison him unless France says it’s ok.

III. Amerada Hess v. Argentine Republic (pg 232)a. Facts : War btwn UK & Argentina, so to protect U.S. interests, they were given a list of neutral vessels passing

through the area, so they wouldn’t be attacked. Hess gets attacked by Argentine aircraft, & vessel is destroyed. Pl sues for the destroyed vessel in U.S. court.

b. U.S. Jurisdiction over Argentina – via Alien Tort Statute (for tort civil action in violation of law of nations)c. Court says Argentina violated international law. Very strong evidence of CIL here.

i. Elements of CIL - Practice (objective) & Opinion juris (subjective; psychological)I. Declaration of Paris (1856)

II. Geneva Convention of the High Seas (1958)III. Law of Sea Convention (1982) - Argentina signed on

ii. 2 statutes (Alien tort statute & Foreign Sovereign Immunities Act) incorporate CIL IV. United States v. Alvarez-Machain (pg 236)

a. Facts: Machain (Mexican) was allegedly involved in murder of U.S. DEA agent by prolonging his life so others could torture him. After Mexico denied U.S. extradition, they kidnapped him from Mexico to Texas for trial.

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b. Machain says kidnapping violates the Extradition Treaty btwn U.S. & Mexico. It doesn’t. i. Treaty silent on parties’ obligations to refrain from abducting ppl or consequences of it. All treaty says

is that neither party is bound to deliver upon the other its own nationals – at each country’s discretion.c. Machain says this is in violation of CIL (U.S. says kidnapping was legal)

i. Court ignores CIL. Says abduction may be shocking & violate CIL, but we have to go by the treaty.d. What does this case say about relevance of CIL?

i. Debate on whether CIL should be incorporated into domestic law, and effect of treaties.ii. Maybe use CIL as a gap-filler here, where the treaty was silent on this issue.

COMPARATIVE & INT’L LAW AS PERSUASIVE AUTHORITY

I. Should US courts ever cite int'l and comparative law as persuasive sources? If so, when?a. When there’s a gap in our domestic lawb. Text/purpose of the provision (the reasoning behind it)c. To assess assumptions

II. How should U.S. use int’l law as persuasive authority?a. As persuasive authority (not binding)b. Look at the reasoning/logic behind it. If reasoning is persuasive, it's a stronger argument to use int'l lawc. Consensus among UK & other Peers – makes sense to use this, b/c law is similar

i. Also look at states that are culturally different (an overlapping consensus makes it more persuasive)III. Sosa v. Alvarez-Machain (details above) (pg 245)

a. Overview : Court refused to look at CIL; looked at treaty only. So when can we look at CIL? b. Court takes CIL into consideration b/c ATS says to do this.

i. ATS says "the courts shall gave original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the US."

1. Court looks at legislative history, and it’s pretty clear drafters intended it to have immediate substantive effect, not just procedural. But it will only be applied substantively to a limited, narrow set of claims.

c. So what violations of CIL should be covered by ATS?i. ATS not limited to only piracy, torture, etc., but they will open the door to new claims very narrowly.

ii. TEST: We think courts should require any claim based on the present-day law of nations rest on a norm of international character accepted by the civilized world and defined with specificity comparable to the features of the 18th century.

d. Alvarez's abduction doesn’t satisfy this test there has to be specificity, & abduction doesn’t have that specificity. Court looks at treatises, what other countries are doing, etc. Want to see if norm is specific enough. It's not.

IV. Lawrence v. Texas (not in casebook)a. Facts : Pl found having homosexual sex, and found guilty in violation of a Texas sodomy law. Pl saying statute is

unconstitutional.b. Supreme Court finds that the law is unconstitutional b/c it violates liberty (a constitutional right) and

substantive due process. Individuals have liberty for what they do in private. Legislature doesn’t have a right to trump that liberty. All gov't offered was a morality issue. This morality does not trump liberty. Overruled previous decision (Bowers) that upheld the constitutionality of sodomy laws.

c. How did it cite foreign int'l law?i. Cited European court of human rights

1. Holding was authoritative in Europe - 45 nationsii. Cited a recommendation to British Parliament rejecting Bowers

iii. Countries more broadly have rejected the norm in Bowers1. Shows a trend from invading personal sexual lives & allowing them to do whatever they want

within the privacy of their own homes.

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V. Roper v. Simmons (not in casebook)a. Facts : Simmons committed murder when he was 17 , found guilty.b. Majority decides juvenile death penalty is unconstitutional.

i. How does the court determine whether a punishment is cruel or unusual?1. "Evolving standards of decency"

a. We’re now recognizing the comparative immaturity and irresponsibility of adolescents (we don’t allow them to vote, etc.). More vulnerable to outside pressure, and have less control.

2. To determine this, look at pattern among Nat'l jurisdictions. a. Nat’l consensus – trend that U.S. states are abolishing it

3. Also looked to theories of punishment, including principle of proportionalityii. What role did int'l law play here?

1. Only country that still executes juveniles. What role does this play in the opinion?a. Looking abroad confirms court's conclusion on what is decent and what is not.b. Look at UK - shared history & law derived from theirs, so particularly persuasivec. Majority opinion looks at broad patterns, cites treaties.

iii. Should we cite int'l courts? 1. Other nations cite Supreme Court, so a policy argument made that we should in return.

c. Dissent (Scalia)i. Saying it’s ok to cite int’l law, but the manner in which court is citing the persuasive authority is

problematic. He questioned the relevance of foreign law, as well as accusing court of only invoking the laws that are in support of what they believe. Also says we don’t have a consistent pattern of when to look abroad. If we did we would have to overturn American law that’s diff from the rest of the world.

ii. Cruel & unusual - Is it specific to our country or is it something common to humanity more broadly. Some issues are uniquely American. Can we actually answer this question of uniquely American norms, by looking at int'l patterns?

VI. Foreign Law and the Modern Ius Gentium , Jeremy Waldron (not in casebook)a. Should judges ever cite int'l law as persuasive authority? [opinion question]

i. Judges may want to so they can adhere to int'l standardsii. Maybe if the reasoning is very logical, and makes a lot of sense

iii. Very beneficial to look outside - they may have more modern ideas. iv. Jeremy Waldron's analogy - talks about scientists dealing with experiments. If another lab has

conducted an experiment, why not use the results? Will help develop new things, like new drugs, or treatments.

v. Waldron points out - justices disagree, and neither party has offered a very comprehensive theory as to why they are correct. There’s a lot of scholarship, but no conclusion.

INT’L HUMAN RIGHTS LAW

I. BackgroundI. Philosophy from long time ago

II. Rapid development after WWII - to prevent atrocities of the warII. Human Rights Institutions, etc .

I. Universal Declaration on Human Rights (UDHR)i. Non-binding, aspirational declaration. Very universal declaration.

ii. U.S. signed it, and states started implementing binding treaties to bind the goals.iii. There are 2 optional protocols (states start implemented these as binding):

1. International Convention on Civil and Political Rights (ICCPR)2. International Covenant on Economic, Social and Cultural Rights (ICESCR)

II. UN Institutions

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i. UN Human Rights Council 1. Criticized - their opinions too short, brief (lacking authority; not persuasive).

a. Not very widely followed. 2. Quasi-political body that addresses human rights violations

a. Representatives allocated among the statesb. Get together and deliberate on public policy issuesc. Issue reports of regional problemsd. Now more checks and balances, so states with bad human rights don’t get power

3. Special Rapporteurs - Experts hired as volunteers (professors) who are tasked with fact-finding and writing reports

ii. Human Rights treaty bodies (one of which is the Human Rights Committee)1. The human rights treaty bodies are committees of independent experts that monitor

implementation of the core international human rights treaties. 2. The treaty bodies perform a number of functions in accordance with the provisions of the

treaties that created them.3. Decisions; Periodic reports4. Commentators have given more respect to treaty bodies5. UN quasi-judicial body with impartial juries that are experts in applying the law

a. Tribunal of last resort6. Committee is tasked with interpreting the ICCPR and issuing judgments (goals much narrower

in scope than council). 7. Art 41 of ICCPR gave committee jurisdiction to hear claims brought btwn states

a. However, this has never happened. No state has ever brought a claim against another state

iii. High Commissioner on human rights (OHCHR)1. Principle Human rights official of UN2. Oversees work of UNHRC and treaty bodies

III. Cultural relativism I. Norms are culturally specific, so laws that deal with norms should also be culturally specific

II. Issues dealing with cultural relativism:i. Female circumcision - (Africa)

ii. Women under Sharia (Islamic law)iii. Communitarianism in Confucian societies - philosophy that put community before the individual

III. Defense - very culturally important as a tradition, and these cultures should be free to practice their traditionsi. How can we have universal human rights, if cultures are so different?

ii. However, there some values that transcend cultural boundaries - jus cogensIV. The Normative and Institutional Evolution of Int'l Human Rights , Thomas Buergenthal (pg 378)

I. Introduction – UN Charter laid foundation for modern int’l human rights lawII. Stage One: The normative foundation

i. Begins with UN charter and continues to 1966 (int'l covenants on human rights)ii. States got together and drafted docs that enshrined the normative ideas

III. Stage two: Institution Buildingi. During this time UN:

1. Focused on nature and scope of human rights obligations imposed on member states2. Then begins to create institutions and mechanisms to enforce

IV. Stage Three: Implementation in the Post Cold War Erai. Progress to enforce; institutions becoming stronger

ii. How do we implement these institutions? How do we make them work?V. Damian Thomas v. Jamaica (pg 381)

I. Facts : Thomas was 15 when he was arrested for 2 murders, put in jail among adults, not represented by counsel, and brutalized by wardens.

II. Goes to UN Human Rights Committee – Treaty is the ICCPR, optional protocol 1

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i. Since Jamaica had signed on to the optional protocol, they recognized that the Committee was competent to determine whether there was a violation of the covenant (which there was).

III. Jamaica has since denounced the optional protocol of the ICCPR.i. Troublesome - fear that other countries in the Caribbean will also do this

VI. The Sunday Times Case (pg 390)I. Facts : Sedative given to pregnant women discovered to lead to deformities in fetus, taken off the market;

there were lawsuits. Sunday Times wanted to publish negative articles about the company. Injunction against publishing finally granted b/c it would prejudice the tribunal, and justice (lawsuit active).

II. ECHR found that the injunction constituted a breach of Art 10 of the Convention - right to freedom of speech w/o interference by public authorities. Court said that although injunction prescribed by law and for the purpose of maintaining the authority of the judiciary, the restriction was not justified by a 'pressing social need' and could not therefore be regarded as 'necessary' within the meaning of Article 10(2).

III. Criticism of UK ceding its authority to ECHR - saying ECHR went too far.IV. Why do you think the ECHR has evolved in this fashion while ICCPR has not? More persuasive?

VII. The Soering Case (pg 403)I. Facts: German national living in U.S. commits murder in U.S., and flees to England. U.S. sought extradition, on

basis of a treaty.II. Soering says extradition would violate ECHR b/c no assurances that death penalty won’t be carried out

(conditions on death row violates Art 3). Soering had also filed a claim with the ECHR on same thing. III. The Commission held that the wait on death row was unacceptable. Confinement itself is bad enough, but the

psychological effects and contact with other death-row types would be too degrading for this kid, so the U.K. was not required to extradite him to the U.S. On these factors, they decided it was a disproportionate punishment

IV. Court agrees extradition can violate Art 3, but disagrees on these facts. Soering was ultimately tried in Virginia, but not given death penalty (jury recommended he serve 2 life terms)

INT’L CRIMINAL LAW

I. Major substantive crimes prosecuted at int'l level (outlined in Nuremberg Trials) (pg 418)a. War crimesb. Crimes against humanityc. Genocide - sometimes lumped with crimes against humanity

i. In Rome statute, it is separated d. Torturee. Crimes against peace / aggression

i. Aggression - ICC currently doesn’t deal with it - ppl who drafted Rome Statute has not yet come up for a definition for aggression

II. Rome Treaty – Established the ICC (int criminal court)a. US did not join, they lobbied to amend the proposed treaty in order to reduce the power of the ICCb. ICC has jurisd only over the most serious crimes of concern to the int community as a wholec. Why the ICC?

Why would you go to ICC? Why not?Lack of domestic infrastructure Local legitimacyExpertise of int'l jurists Better understanding of facts in local contextLegitimacy Reinforce sovereignty & show world that you have a strong rule of law systemAvoiding "Victor's justice"

d. Basis of jurisdiction for ICCi. Who can refer cases to ICC?

1. State parties

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2. Independent prosecutor3. UN security council

ii. Subject needs to pass certain tests:1. Nationality of member states2. Territoriality of occurrence must be of a member state

e. ICC and the USi. Will the ICC ever be acceptable to the US?

1. Rome statute - US signed on but acknowledged that there are problems with ita. ICC is an institution of unchecked power b. Threatens the sovereignty of the USc. ICC will complicate US military cooperation with friends and allies

ii. What would you look at if advising in regards to US membership to Rome Statute:1. Consent - we didn’t consent to court so why should we be prosecuted in court if on a party

state's territorya. One of the principle objections to the ICC is that is it empowered to exercise jurisd

over US nationals even thought the US has not become a party to the Rome Treaty 2. Unbridled jurisdiction of the Chief Prosecutor (He’s not accountable to anyone)

a. Pre-trial jurisdictionb. Test for a reasonable basis

i. Substantive due process rightsii. Procedural due process rights

c. Exercise self-restrainti. Body is not going to go around picking political fights for no reason

d. Prosecutor can be removed by majority votei. Offers more assurance; procedural check

e. Complementarity i. ICC may only exercise jurisdiction if a good faith prosecution not carried out by

the accused state. May solve territoriality issue.f. Security council

i. Can exercise a check saying don’t pursue thisiii. How would you amend and improve the Rome statute?

1. Condition: say that we don’t like this territoriality principle; we won’t sign on unless the rest of the world gets rid of that basis for jurisdiction

2. Gary Solis argues that there already are checks & balances in placef. Amnesty - solution to the problem of mass atrocities; justice is traded for peace

i. Principle justifications:1. Societies eager to end a conflict2. In mass cases, it is unclear whether imposing individual responsibility is a viable strategy

ii. Legal issue - many people think it’s illegal for int'l, legal for intranationaliii. Usually its conditional - like speak the truthiv. Can be good and quick for healing when combined with truth commissions

1. Another mechanism for pursuing accountability for atrocities2. Quasi-judicial body established to investigate atrocities

INT’L ENVIRONMENTAL LAW

I. State Responsibility and the Development of Int'l Environmental Law a. The Trail Smelter Case (pg 623)

i. Facts : Smelter in Canada; US alleged the fumes from smelter caused nuisance in Washington state. Tribunal set up to try the case, which exists per U.S.-Canada Convention, to resolve disputes.

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ii. Relevant Law here – CIL and U.S. law1. Tribunal relied heavily on US law.

a. No relevant CIL decisions (no other cases like it in an int’l tribunal)b. b/c of the US-Canadian conventionc. US law is particularly fitting - many analogous cases (intrastate cases)

2. Also looked at Stockholm declaration and Rio declaration (below)iii. Smelter found liable for nuisance. Now what?

1. Figure out damages. How much would Smelter owe for pollution.2. Going forward, can there be some type of injunction. If they know of these risks and

conditions, Trail Smelter has to refrain from these activities3. Tribunal established checks on what Trail Smelter was doing

iv. Very seminal case - established basic principle of int'l law1. State has right to use resources how it wants, but has to stop when it starts infringing on rights

of other states to use the environment.II. Examples of “soft-law” – these declarations are not legally binding (but still is CIL)

a. Stockholm Declaration of the United Nations Conference on the Human Environment (pg 632)i. discharge of toxic substances will be done in a way so that they are harmless to the environment

ii. States can do whatever they want with their environmental policies, as long as they don’t damage other states or any natural areas outside of the boundaries of the state

iii. states will cooperate to further int'l environmental lawb. Rio Declaration on Environment and Development (pg 632)

i. humans are #1 priority, and entitled to live healthy and w/ natureii. States can do whatever they want with their environmental policies, as long as they don’t damage

other states or any natural areas outside of the boundaries of the stateiii. states will cooperate to further int'l environmental law & develop own national environmental lawiv. states should discourage and prevent activities & substances that are harmful to healthv. States should notify int'l community of natural disasters/emergencies that might affect other states

vi. states should tell others states info about things that might harm other states (transboundary environmental effect)

III. More on International Environmental Law a. Request for an Examination of the Situation in the Nuclear Tests Case (pg 635)

i. Facts : New Zealand asked the ICJ to rule on the legality of French underground nuclear testing on islands in the Pacific. CJ said no jurisdiction.

ii. Dissent – Says court has a duty to listen. Discusses principles of Stockholm Declaration - that int'l community is responsible for making sure there are no harmful things being placed into the environment.

1. State responsibility (like in Trail Smelter case)2. Precautionary principle

a. There is a big emphasis in int'l law on preventing pollution, rather than letting it happen then trying to stop it

b. Burden is placed when there is a significant risk of pollution, on party that wants to engage in the dangerous activity, to assess how much damage would occur, and to prove that it is justified.

3. Procedural guaranteesa. Like impact assessment - a burden on sharing information, and assessing

environmental damage to preventb. Protection of the Stratospheric Ozone Layer and the Structure of Int'l Environmental Lawmaking , David D.

Caron (pg 643)i. Ozone depletion

1. Vienna - Framework principle - sets the framework by establishing the fundamental principles, and nebulous abstract goals

2. Montreal - More specific, by setting up Deduction rate, timetable, and a secretariat

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3. London - Even more specific, with phase out of all CFC'sii. Challenges to Int'l env law

1. Conditions and technology always evolving. How do lawmakers take this into consideration when creating treaties?

a. Write in provisions that deal with changes that they foresaw (Montreal)b. Amendments - Usually to change a treaty, you go through an amendment processc. Adjustments - Give a legislative status to the regime d. (Montreal) set up scientific, periodic meetings, where scientists would assess the

situationiii. How do we monitor compliance?

1. "Carrots and sticks"2. Giving money and technology to states who comply3. Elimination of trade to people trading CFC. If there is a critical mass of ppl who wont take the

CFCs there's no point in trying to sell them by exporting them4. Shame5. Developing countries - provide technological assistance, and delays to allow longer periods for

complianceIV. Treaty Regimes and the Protection of the Environment

a. The Shrimp Turtle Case (pg. 654) i. Facts: U.S. imposed ban on shrimp harvested in ways that could damage sea turtles. Some countries

challenged U.S.'s policy before a panel established under the WTO's (World Trade Org) Dispute Settlement Understanding, arguing that it violated the General Agreement on Tariffs and Trade (GATT 1994).

ii. Why does the WTO have jurisdiction? 1. Countries signed on to it2. WTO developed from agreement, GATT3. This is a trade issue, so it makes sense for WTO to deal with it. Not just any trade issue goes to

WTO, but these state consented to WTO, so they have jurisdictioniii. Background on how WTO works as a dispute resolution

1. 1st step: consultation - States agreed to get together and discuss the dispute be4 bringing in 3rd parties. If that fails, they go to step 2. Like an arbitration

2. 2nd step: go to panel of experts - If either party doesn’t like it, go to step 33. 3rd step: appellate body - Like a Court of final appeals for the WTO4. 4th step: Dispute settlement body - Enforcement body; If party doesn’t comply with appellate

body decision, they will impose economic sanctions on the offending party. b/c if this, they have good complying rates b/c of the enforcement.

iv. U.S. defense in Shrimp Turtle Case – if falls under GATT exception “exhaustible natural resources”1. WTO uses 2 part analysis

a. 1st - if it falls within one of the exceptions - for exhaustible natural resourcesb. 2nd - does the US's restriction satisfy the preamble for the exception?

2. Analyzing the 2nd part of the analysisa. Even if a law, on its face, is neutral, it can still be discriminatory, and you can find this

out when applying itb. Unjustified, b/c not closely related to goal of conservationc. Boats were using environmentally safe procedures, but still penalizedd. Arbitrary - There wasn’t a process

i. States were not given a process to challenge US's qualification. There was no way for countries to say that they were using safe methods of catching shrimp

3. US ended up modifying its laws, creating a more nuanced law dealing with sea turtles, and helped countries to comply

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PRINCIPLES OF JURISDICTION

I. Principles of jurisdiction a. Territoriality

i. Objective Territoriality - where did the case begin?ii. Subjective Territoriality (another name for effects jurisdiction) – where did the effects occur?

iii. Status as an alien doesn’t affect the territoriality except if you're a diplomat etc.b. Nationality

i. May also be referred to as personality jurisdictionii. Sometimes thought of as 2 types of personality jurisdiction

1. Active – plaintiff2. Passive – victim

c. Protective (pg 780) - related to effects jurisdictioni. If there is some fact pattern that has grave consequences for a country’s interests, then they have this

jurisdiction under a protective principle. Similar to effects principle, b/c of spatial interest. But an interest doesn’t necessarily have to e within the "space" of that country.

ii. Not as settled as areas of law as territoriality and nationalityd. Universal

i. Jus cogens, like piracy. It can be dealt with anywhere. ii. rises to a level where any tribunal court can exercise jurisdiction, because it’s so universally applied

iii. Highly controversial. iv. What narrow set of cases should it be applied to?

1. Some countries that are members of ICC, so individual actors of these countries commit grave acts against int'l principle, who should here these cases?

v. Not as settled as areas of law as territoriality and nationalitye. Territoriality and nationality and effects are all very much accepted in the US and as general principles of

international law. Universal jurisdiction and protection principle are not widely accepted. II. Territoriality Principle

a. American Banana Co. v. United Fruit Co . (pg 768)i. Facts: Pl, a U.S. citizen, has banana plantation in Panama. Df monopolizing the banana trade,

interferes w/ Pl’s business, driving him out of business with wrongful conspiracy.1. Law allegedly broken – Sherman Antitrust Act (Df trying to monopolize banana trade)

ii. No jurisdiction for U.S. court: Territoriality principle – where did this happen? In Panama1. Although the acts were illegal in the United States, they were permitted by the local law in the

foreign jurisdiction at issue.iii. *Predates jurisprudence on effects jurisdiction - now may go the other way b/c of effects jurisdiction

III. Nationality Principle a. Blackmer v. United States (pg 772)

i. Facts : Blackmer, U.S. citizen, resident of France. Found guilty of contempt of court in US by refusing to appear as a witness in US crim trial, and fined. He challenges the fine under due process clause of 5th amendment.

ii. US says there's a nationality principle.1. But there are some situations where we wouldn’t extend nationality2. But here, US says there are overriding principles, why US can extend its jurisprudential arm to

elsewhereiii. Doesn’t violate due process b/c he has notice etc. Fine affirmed.iv. Why nationality? – Blackmer was as a witness. If he was a Df in crim proceeding in US, there would be

a diff basis for jurisdiction – territoriality if he committed crime in USIV. The Effects Principle (Subjective Territoriality)

a. United States v. Aluminum Co. of America (pg 774)i. Issue : Sherman antitrust – Aluminium monopolizing industry.

ii. What is the test that famous Judge Learned Hand used?

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1. 1st - did congress intend to regulate activity beyond its borders (that doesn’t satisfy territoriality). Learned Hand said, that in passing the Sherman Act, Congress intended that even when not taking place in US, ...

2. Effects testa. b/c imports to US, then it has effects in the USb. The activity abroad had significant economic effects on US

V. Party Choice - Let parties choose where dispute will be settled and the applicable law.a. The Bremen v. Zapata Off-Shore Co . (pg 781)

i. Facts : German & U.S. corps contracted to transport an oil rig. Rig damaged & towed to Florida. U.S. sues in U.S. German corp argues there’s a forum-selection clause that says England

ii. Court holds forum selection clause valid1. Freedom to contract2. Globalization - Involves something being transported from one part of the world to another.

So, there are so many jurisdictions that may have a claima. It wouldn’t be fair to enforce jurisdiction anywhere in the world a claim may arise.

May not want a claim to be settled in countries with different laws3. Public policy argument –we don’t want companies not doing business with U.S. if we don’t

uphold our contracts4. We're not looking for the most convenient, but there is a presumption established with the

forum selection clause b. Scherk v. Alberto-Culver Co . (pg 789)

i. Facts : Breach of K btwn parties. There was an forum selection clause which stipulated that any dispute would be brought in Int’l arbitration panel in Paris, but would apply Illinois law. Claim brought in IL.

ii. Forum Selection clause is enforced (although theywould have been hesitant to do so in domestic case)1. Int'l vs. domestic - Why are domestic transactions diff from int'l transactions?

a. Easier to apply the law. Less of disincentive for businesses to enter into agreementsb. But in int'l, more multiple laws, etc. more uncertainty of what law or forum to be

utilized may be a disincentive to enter into business agreements, so important to uphold the forum selection clauses, so that parties will enter into agreements more readily if they know exactly the forum and the law

2. Especially strong claim for enforcement, b/c it was an arbitration panela. More neutrality, not tied to a particular govtb. Parties may have a role in choosing the arbitratorsc. More incentive for parties to engage in transactions too

3. Freedom of Ka. Also important that this was negotiatedb. Court not so much persuaded by this, and instead goes further and looks at public

policies, etc.

INDIVIDUALS AND INT’L LAW

I. Individuals as objects vs subjects of Int'l Law a. 19th & early 20t century - individuals viewed as objects of int'l law, not subjects of int'l law (and so had neither

int'l legal rights nor duties). i. So, there was state protection and responsibility for individuals. 3 limitations to this:

1. (Nottebohm) - individuals may only be protected by their national states2. (Barcelona Traction) When notion of national links is extended to corporations, even more

confusion can result

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3. Most importantly, the objective view of individuals leaves nationals open to abuse by their own states, since it is impractical to conceive of a state protecting its own nationals against itself in int'l law

b. Subjective - responsible for yourself as an individuali. Individual can bring claims, etc.

ii. Individuals have responsibilities and rightsc. Objective - your country is responsible for you

i. Only be an object of the state, individuals cannot bring claims, and also cannot themselves bring claimsii. States have power over

iii. Positivist theory (vs natural law theory) - Positivist law - states make law, and citizens are objects that states are making agreements about

d. First look at:i. Whether the law you're looking at (treaty), who are the actors? Are you looking at individual claims, or

only giving legal responsibilities to states, then which states?II. Individuals as objects of Int'l Law

a. The Nottebohm Case (pg 340)i. Facts: Nottebohm, German citizen, living in Guatemala for a long time, has prosperous business. Then

he becomes citizen of Liechtenstein (too easily). Tries to return to Guatemala, they refuse to let him in. Goes to ICJ.

ii. Here, an individual cannot bring the claim himself (objective view), so Liechtenstein wants to step in and Guatemala doesn’t recognize his citizenship.

iii. ICJ says his citizenship is fine under Liechtenstein’s laws, but under int’l laws, he is not a citizen.1. ICJ looking for real links in Lichtenstein. Must show there is a real connection before

Lichtenstein can act on your behalf.a. Reasoning - What sources of law were looked at?

i. Arbitration and judicial decisionsii. Opinions of writers

2. Nationality is a legal bond having as its basis a social fact of attachment, a genuine connection of existence, interests and sentiments, together with the existence of reciprocal rights and duties.

iv. Problem: Which state will represent him? Guatemala won't. So now that's why individuals are given the right for individuals to bring rights on their own.

b. The Barcelona Traction Case (pg 350)i. Facts: Barcelona corp that controls utilities in Spain, but incorporated in Canada. Belgians hold

majority of the shares of stock. Business bankrupted in Spain. Issue settled without Belgians involved, and Belgian gov't seeks reparation

ii. The connection of the company with Belgium very strong, but court still decided that Belgium gov't cannot submit claims on behalf of its citizens.

iii. The case is important as it demonstrates how the concept of diplomatic protection under international law can apply equally to corporations as to individuals.

III. Individuals as subjects of Int'l Law a. Mark W. Janis, "Individuals as Subjects of Int'l Law" (pg 363)

i. Positivism view int'l law as a set of rules with states as its subjects. Municipal law is thought of as pertaining to individuals who are subjects of a single state.

b. The Nuremberg Judgment (pg 370)i. How does the tribunal explain where it gets its authority from?

1. Created a charter to create this tribunal - Germans consented to this power2. Kellogg-Briand Pact. This is ex-post facto law enforcement (law came up after the fact)

a. Winner of war is making new laws now, and enforcing them retroactivelyb. Kellogg-Briand Pact - signed by nations. Aspirational and not binding - CIL

i. Recognized a limitation on who can start wars. WWII not a just war.

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c. Kellogg-Briand Pact is between the states, so why being held against individuals. It's the individuals who start wars.

ii. Crimes that come within jurisdiction of the tribunal where there is individual responsibility1. Crimes against peace2. War crimes3. Crimes against humanity - Enslavement, extermination, etc.

iii. Why individual? Ppl will say they acted on behalf of the state. This is not good b/c it’s hard to hold govt responsible (change in regime, etc.). Makes more sense to hold individuals responsible for their actions.

iv. This started the whole movement of treating individuals as having responsibilities

U.S. EXCERCISING EXTRATERRITORIAL JURISDICTION

I. Resolving Conflicts of Jurisdiction: The Balancing Test a. Timberlane Lumber Co. v. Bank of America (pg 797)

i. Facts: U.S. corp has lumber business in Honduras (with Honduran subsidiaries). Dfs conspire against Pl, violating the Sherman Antitrust Act.

ii. Court decides there is a legitimate claim to jurisdiction. Court uses a 3-part test to decide when an antitrust issue is one where U.S. needs to get involved:

1. There must be some effect – actual or intended – on American foreign commerce2. Showing that the effect has substantial injury to the Pl3. Whether the links (interests to US) are sufficiently strong to justify assertion of extraterritorial

authority. If you have 1st 2 tests satisfied, then go here, and use this balancing test. These are the elements to be weighed – looking at totality of the circumstances:

a. Degree of conflict with foreign law or policyb. The nationality or allegiance of the parties (or businesses) c. Extent that enforcement by either state can be expected to achieve complianced. The relative significance of effects on the U.S. as compared with those elsewheree. The extent to which there is explicit purpose to harm or affect American commerce,

the foreseeability of such effect, - and-f. The relative importance to the violations charged of conduct with the U.S. as

compared with conduct abroad.4. A court balancing these factors should identify the potential degree of conflict if American

authority is asserteda. Difference in law or policyb. Nationality (own nationals more important than foreign nationals)

iii. Conclusion: The allegation was that Dfs intended to, and did, affect U.S. foreign commerce, so they are within U.S.'s jurisdiction of the fed courts under the Sherman Antitrust Act.

iv. Comity Issue – here, no conflict of law or policy with Hondurasv. Balancing Factors : 5 considerations U.S. courts taken into account when deciding whether to apply

U.S. law extraterritorially1. The legislative intent of the Congress2. The presumptive "reach" of the statute3. The limits imposed by international law4. Judicial doctrines of discretion (like comity)5. U.S. Constitution

II. Resolving Conflicts of Jurisdiction: International Comity a. What is Comity?

i. Hilton v. Guyot [pp. 802]

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1. The extent to which one nation shall be allowed to operate within the dominion of another nation, depends upon the "comity of nations."

2. Comity is a respect of reciprocity between jurisdictionsa. Respect - we will not demean the laws and policies of other countries, b/c we expect

other countries to respect ours as wellb. It’s a voluntary act - neither an absolute obligation, nor mere courtesy and good will. c. Inadmissible when contrary to policy, or prejudicial to interests of nation. d. Promotes justice, and produces friendly intercourse btwn sovereignties

b. Hartford Fire Insurance Co. v. California [pg 803]i. Facts: The Pls (U.S. states) allege that both domestic and foreign Dfs violated the Sherman Act by

engaging in various conspiracies to affect the American insurance market. ii. Majority - Souter – Conflict of Law test

1. When U.S. has extraterritoriality jurisdiction (based on the Sherman Antitrust Act), the test to decide whether U.S. should exercise that jurisdiction is by balancing the substantial nature of the effect on U.S. commerce with the conflict of law and policy with the other nation.

a. No conflict of law exists where a person subject to regulation by two states can comply with the laws of both (the question to ask is whether the person is able to comply with both laws).

b. The majority opinion ha s been highly criticized.iii. Dissent – Scalia – Reasonableness Test

1. He uses a reasonableness test, and concludes that there is a conflict of law (similar to Timberlane’s balancing test and the totality of circumstances test)

2. There is a conflict of law because it is unreasonablea. UK has such strong interests in having a stake in this case, it weighs in favor of UKb. UK has a heavy interest in regulating the insurance activityc. Comity - if we took on jurisdiction, we would really be disrespecting UK law

c. More on comity i. Comity is a complex & elusive concept –b/c it varies according the factual circumstances

ii. Central precept of comity - when possible, the decisions of foreign tribunals should be given effect in domestic courts, since recognition fosters int'l cooperation and encourages reciprocity, thereby promoting predictability and stability through satisfaction of mutual expectations.

1. The interests of both forums are advanced2. The foreign court b/c its law and policies have been vindicated3. The domestic country b/c int'l cooperation ties have been strengthened

iii. Necessary outgrowth of globalization. With the movement among nations, national interests cross borders. So every nation must often rely on other countries to achieve its regulatory expectations.

iv. Limitations to the application of comity1. When the foreign act is inherently inconsistent with the policies underlying comity, domestic

recognition of those policies defeats the goals of comity. Therefore, no nation is obligated to enforce foreign interests which are prejudicial to those of the domestic forum. Comity expires when the strong public policies of the forum are impaired by the foreign act.

v. Criticism of Souter's test as used in this case - basically, that means that US forums would give more deference to the laws of nations that have substantially different laws than our own (like favoring monopolistic practices) instead of giving deferential treatment to laws of nations who have the same goals we do, but just not as strict laws. This doesn’t make sense though.

1. Also doesn’t really get along with globalization. We need a more outward-looking and cooperative economic policy so we should more often defer to foreign states, and not make an assumption that our laws are the best.

III. Resolving Conflicts of Jurisdiction: Forum Non Conveniens a. Piper Aircraft Co. v. Reyno [pp. 814]

i. Facts: Plane crashes in Scotland; Scots sue in US b/c law more favorable.Df wants forum non conveniens and wants to go to Scotland.

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ii. Test for non conveniens - The jurisdiction's oppressiveness and vexation have to be outweighs the inconvenience.

iii. Gilbert Test - Factors (fact based analysis - as opposed to Souter's test which is a comparison of laws) Public Private

US

Trial in PA using both US & Scottish law would be very confusing for jury

Some evidence here, but nothing so major that a trial in Scotland would be unfair (the design - plane made in PA)US courts not familiar with Scottish law

Not enough US interest to justify spending time & judicial resources trying this case

Scotland

Wanting Scotland to see justice done with their citizens

More convenient, b/c witnesses and evidence is in Scotland

Best to resolve local disputes in a local forum Possible 3rd party Dfs in Scotland

iv. Court decides Scotland forum more convenient.v. U.S. case law - principle is that we usually defer to the Pls choice of venue

1. But here, the Pl is foreign. Are they really asking this because it's more convenient? No, it's b/c US law is more convenient.

2. Court wants to discourage forum shopping - and flood U.S. courtsb. The Doctrine of Forum Non Conveniens and the Bhopal Case , Mark W. Janis [pp. 824]

i. Facts : Bad industrial accident in India, involving chemical gases that killed & injured a lot of ppl. Indian govt decided to sue on behalf of the Indian victims in U.S. courts (Indian govt believes US courts preferable to their own). Df says forum non conveniens.

ii. Jurisdiction – US has it b/c US company involved. But should they exercise their jurisdiction?iii. In deciding whether to grant forum non conveniens, court first looks to see if there is another

adequate forum available (if there isn’t then US court will deny forum non conveniens & take it)1. Court says India’s court system is an adequate forum (tort law derived from British, etc.

iv. If there is an adequate forum available, then court weigh public & private interests of both parties1. Private – all private interests point to India (accident happened there, etc.)2. Public – also weighed heavily in support of India

a. India has greater interest in adjudicating claims of its own citizens

FOREIGN SOVEREIGN IMMUNITY

I. Foreign sovereigns are shielded in various ways by national courts, so as to not upset relations btwn the states.II. Foreign Sovereign Immunity Doctrine as Absolute

a. The Schooner Exchange v. McFaddon (pg 830)i. Facts: Vessel, owned by an U.S. citizen, was violently and forcibly seized by Napoleon of France. The

vessel sailed into an American port and the citizens filed a libel action to reclaim it. Court says claim dismissed.

ii. Foreign Sovereign Immunity Doctrine 1. France, a foreign sovereign, owned the boat. Court notes that Emperor took custody of the vessel,

albeit improperly, they still took custody of it2. Court will waive the territorial jurisdiction b/c of this principle.

iii. Napoleon using it as an official armed ship for military purposesiv. Court holds that in cases like this, there is immunity, and jurisdiction is waived.

1. This is during War of 1812. U.S. at war with UK, France is our ally. Perhaps court didn’t want to upset diplomatic affairs.

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v. Policy rationale - an int'l principle that has been long respected by countries of the world1. Reciprocity - b/c we recognize each other's sovereignty there is implied consent to the principle of

foreign sovereign immunityvi. Schooner established the basic doctrine that was absolute in the beginning, but has been limited since

then1. If it becomes absolute, there may be injustice2. Later court & congress want states to be more accountable for their actions. Especially b/c of

globalization3. Balance btwn state maintaining a sovereignty and being accountable to the int'l community

III. Foreign Sovereign Immunity Doctrine: No longer absolute a. Victory Transport, Inc. v. Comisaria General [pp. 834]

i. Facts: Owner of a cargo ship wants to sue the Spanish Ministry of Commerce in U.S. court. Govt of Spain says that because of foreign sovereign immunity, it cannot be sued in a U.S. court without its consent, and it declines that.

ii. RULE: The modern trend is to use the restrictive theory of immunity, recognizing immunity for a foreign state's public or sovereign acts (jure imperii), but denying immunity to a foreign state's private or commercial acts (jure gestionis).

iii. Reason court gives for absoluteness of it no longer apply:1. Originally for personal sovereignty (like King) who could do no wrong, so if you excersized

authority over a sovereign, it indicated hostility or superiority. No longer the case b/c now it’s a public function.

2. Modern trend is the restrictive theory, basically limiting immunity (court discusses several treaties). int'l /comparative developments. Shift in social reality. More int'l transactions.

iv. Restrictive Theory: recognizing it for public functions, but not for private.1. Purpose – accommodate individuals doing business (globalization), but we don’t want to

undermine foreign govts freedom to perform political actsIV. The Foreign Sovereign Immunities Act of 1976 [pp. 839] - Congress decides to codify the restricted theory of foreign

sovereign immunitya. Subject to other int'l agreement, foreign state is immune from jurisdiction, except:

i. If immunity is waived explicitly or implicitlyii. Commercial activity that has affect on U.S.

iii. Property rights in connection with U.S.iv. Money damages sought for tortious conduct of foreign states, if tort occurs in U.S.

1. Except: if claim is based on (or failure to) perform a discretionary function2. Except: any claim arising out of malicious prosecution, abuse of process, libel, slander,

misrepresentation, deceit, or interference with k rightsv. If concerning a legal relationship, either agreed or not (specifically arbitration)

vi. For tort damages from an act of torture, extrajudicial killing, aircraft sabotage, hostage taking. 1. This only applies if the foreign state has been designated a state sponsor of terrorism by the U.S.

secretary of state and if the claimant or victim was a national of the U.S. when the act occurred.2. Unlike the other exceptions, this one permits state-owned property unrelated to the claim to be

executed against to satisfy a judgment based on its terms.b. Deciding claims of foreign sovereign immunity involves using material evidences from 3 sources: case law,

international law, and statute.c. §1604 - presumes immunity unless private Pl can show otherwise (using the exceptions)d. How is this different from Victory transport?

i. Now, we have a presumption of immunity unless one of the above are presentii. Now the focus of defining if it’s a commercial activity is on the actual transaction, and not the purpose.

V. Interpreting the FSIA a. Texas Trading & Milling Corp. v. Federal Republic of Nigeria [pp. 843]

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i. Facts: Nigeria repudiated K with US cement suppliers when they realized they bought too much, and cargos were dangerously overloading their docks. Nigeria's argues that it's a govt action b/c they were buying for the govt, not a commercial transaction. Goals were public policy oriented.

ii. Court says we must apply the FSIA (The Foreign Sovereign Immunities Act of 1976) here.1. FSIA defines commercial activity in terms of course of transaction, not purpose.2. So is transaction commercial in nature? Act doesn’t give guidance so court looks at other sources:

a. Legislative history – says if it’s a purchase or sale of goods; or, if it’s an activity in which a private person could engage in, then its commercial

b. U.S. case law which existed upon the passage of FSIA. Uses restrictive theory - public acts immune, private (incl commercial) not immune.

c. Current standards of int'l law concerning sovereign immunity – follows restrictive theory as well

iii. Court concludes: Under each of these standards (sources), Nigeria's activity qualified as "commercial activity," and in nature of a private K transaction. Purpose is irrelevant.

b. Argentine Republic v. Amerada Hess Shipping Corp. [pp. 851]i. Facts: Liberian corp chartered oil tanker to Hess. Vessel destroyed by Argentine aircraft b/c of

armed conflict btwn Argentina & UK, even though Argentina given list of neutral ships. Liberians suing Argentina (invoking Alien Tort Act).

ii. Says that Congress' intent when creating the FSIA was that it be the sole basis for jurisdiction over a foreign state in our courts. FSIA trumps ATCA. Presumption of immunity and Pl has burden to prove otherwise.

1. Immune per FSIA b/c it was a public act (doesn’t fall within exceptions of FSIA)

ACT OF STATE DOCTRINE

I. The Act of State Doctrine [pp.859]a. Serves as a principle of choice of law, instructing a court to apply the law of a foreign state respecting an act

made by the foreign govt in its own territory.b. Doesn’t have notion of comity; does not provide jurisdictional immunityc. To invoke the act of state doctrine you have to show 2 things?

i. A foreign state was actingii. That the events took place in the foreign state

iii. Also a presumption that it was legal in the foreign stated. How did this emerge?

i. Int'l reason - like comity; if state is acting within their own laws, we should respect thatii. Domestic - U.S. can still advocate on behalf of its own citizens, but b/c there's a separation of power,

judiciary branch shouldn’t deal with this, but the other 2 branches shouldII. Underhill v. Hernandez [pp. 860]

a. Facts : Revolution in Venezuela. Underhill, U.S. citizen lived there, and asks to leave country. New leader, Hernandez refuses at first, but ultimately lets him. Underhill suing to recover damages for his detention.

b. Court will not let case proceed in U.S., per the Act of State Doctrinei. Use the int'l reasoning - we should judge another country's actions if they have justification for it

within their own laws.ii. Hernandez acting in official state capacity on behalf of Venezuela. Therefore we should apply their

law.III. Banco Nacional De Cuba v. Sabbatino [pp. 862]

a. Facts: Cuba nationalized its sugar industry. A large number of Americans who had invested in those companies lost their investments without compensation when the Cuban government assumed control.

b. Act of state doctrine applies here – we are respecting Cuba’s laws.

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i. When foreign party has a law that can be applied, judicial branch won’t get involved. ii. The executive branch has the exclusive authority here, b/c it’s about foreign affairs. We care about

separation of powers.IV. W.S. Kirkpatrick & Co. v. Environmental Tectonics Corp. International [pp. 870]

a. Facts : Kirkpatrick contracted with Nigerian govt to construct an aeromedical center. There was bribery involved in this agreement, and Kirkpatrick’s competitor finds out and tells Nigerian & US embassy.

b. The court held that the act-of-state doctrine had no application to the case because the validity of a foreign sovereign act was not at issue.

c. The act of state doctrine does not establish an exception for cases and controversies that may embarrass foreign govts, but merely requires that, in the process of deciding, the acts of foreign sovereigns take within their own jurisdictions shall be deemed valid. That doctrine has not application in this case because the validity of no foreign sovereign act is at issue.