INTERNATIONAL LAWFALL 1996

What is International Law?

¥ Gassama - law is congealed politics; politics we want to make permanent.¥ Historically IL develops from consistency of conduct

eventually we call it law and it stands until people/states refuse to abide by it.

¥ No different than domestic law in its methods and actions, only differences in degree, terms for processes, differences in enforcement.¥ re: US foreign policy - traditionally led by lawyers

Poly Sci people hate IL, the notion that laws are bindingKissinger age crushed the notion that I Laws should be binding.

¥ Governments like IL:gives them legitimacyprotects their control and authorityis used to justify their actions

Definitions of International Law

Brierly: ÒInternational law is the body of rules and principles of action which are binding upon civilized states in their relations with one another.Ó

¥ Problems: the word ÒbindingÓ - source of much criticismNot discuss the relationship between individuals (to include

corporations and ngos) and states in IL.

Restatement ¤ 101:Ò International law ... consists of rules and principles of general application dealing with the conduct of states and of international organizations with their relations inter se, as well as with some of their relations with persons, whether natural or juridical.Ó

¥ modern def.¥ Problem: does not address role of Individuals v. Individuals in IL.

Jessup:Ò International law or the law of nations must be defined as law applicable to states in their mutual relations and to individuals in their relations with states. International law may also, under this hypothesis, be applicable to certain interrelationships of

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individuals themselves, where such interrelationships involve matters of international concern.Ó

Ò The inescapable fact is that the world is today organized on the basis of the coexistence of states and that fundamental change will take place only through state action, whether affirmative or negative.Ó Also IL only binding through exercise of their will.

Chen Type Definition:A comprehensive process of international rules where authoritative decision making and control come together.

¥ Beyond merely rules to include:Process of authorityStructure of controlArsenal of techniques.

Sources of International Law

Statute of the International Court of Justice Article 38 [p. 18]The court ... shall apply:

a) international conventions b) international customc) the general principles of law recognized by civilized nationsd) judicial decisions and the teachings of the most highly qualified publicists of the various nations.

Restatement ¤ 102 [p. 18-19]1) A rule of IL is one that has been accepted as such by intÕl community:

a) in form of customary lawb) by international agreementc) by derivation from general principles common to major legal systems of the world.

2) Customary IL results from general and consistent practices of states by them from a sense of legal obligation.4) General principles ... may be invoked as supplementary rules ... where appropriate.

Treaties:¥ Agreements between nations expressing consent to be bound. Party must sign then ratify the treaty.¥ General agreement that Treaty is Law. Terms may be variable, but there are terms.

International Custom:¥ Implied agreements resulting from conduct.

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¥ By its behavior, it is implied that a nation agrees to be bound..

2 Main Sources are Treaties and Custom:¥ Courts will look to see if either exists.¥ In theory there is no hierarchy between the two, in practice, yes, treaty higher.

Progressives - support as equal treaties and customConservatives - say only treaties are binding

Sub-sources of IL:¥General Principles of Law:

principles found in all judicial systems. Due to generality they are found applicable to IL.

¥Judicial Decisions and Teachings of highly educated sourcesPrecedent and Theory.

International Law Jurisprudential Perspectives:

Brierly: [p. 20]¥ Traditional approach in that looks only at relations between nation states.¥ Saw obligation of state not based on the will of the state, but on need for Òorder.Ó

Ò The ultimate expl. of the binding force of all law is that man, [whether individual or state] is constrained [because he is a reasonable being] to believe that order and not chaos is the governing principle of the world in which he has to live.Ó

Jessup:¥ Must move basis of IL away from nation-states to look also at relations between organizations/individuals and nation-states (sometimes indiv to indiv. as well.)¥ Recognition that IL still depends greatly on will of the state to comply or grant consent. ¥ Attacks: Idea that the nation state is absolutely sovereign with a life of its own.

States are institutions created by people to serve a purpose.Nationalism is the lowest expression that a nation-state has life

of its own.N-State has consequences - separates world between ÔusÕ and

ÔthemÕN-S is a relatively modern concept and probably wonÕt stay too

long. ¥ Argues for: World community focused on the individual

reduce the power of the sovereign state to have total control over internal affairs.

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Must continue development of organization of mankind, development of IL (rules of behavior).

New Haven School: (p. 22) Critical Theorists - Contextual Perspective of IL

¥ Sees laws as static, stagnant rules without body and soul that are not sufficiently dynamic, flexible or connected to people and humanity.¥ Decisions are not made by neutral people; laws themselves are not neutral; the decisions made are not neutral

everything is founded on the context of the situation.¥ Critique:

All relativist, can equate everything, good and bad.

Historical Perspective:¥ Looks at development of history and IL - sees as a fluid process.¥ Historical Points/examples:

First Civilizations - Sumerians =/- 4,000 BCFirst real IL around 1600 as a tool to suppress, control, congeal

power.Peace of Westphalia - development of Nation States.Grotius - 1625 formulation of IL in book.Took 5,000 years of civilization for IL to even become

formulated - not based on explicit power, reflects attitudes of time/culturesee Hobbs - thinking based on world of nation statessee Machiavelli - thinking based on world of city states.

¥ IL is contextual and developed according to context of Western Europe.

the seductiveness of IL is such that the weak states have bought into it.

Feminist Perspective: (p. 53)¥ IL makes a structural distinction between public and private conduct

public conduct traditionally male realmprivate conduct is realm where women are more concerned and

involved.result is that issues important to women are ignored; IL is

unbalanced in approaching range of problems in world. IL has privileged the spheres where men are dominant and

ignored the spheres where women are dominant or impact women the most.¥ Areas where this is manifested:

IL looks at states, not individuals (or internal to states).IL accepts and defends existence of the family, but does not

inquire into the family.Decries state sponsored/organized torture by public officials,

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but ignores spheres (rape, types of crime, omissions by states to protect people) that are forms of abuse in the home or even random acts.

¥ IL response to this critique:beginning to look at the issues raised ex: rape in war now

recognized as an individual crime and can be prosecuted as such.¥ Human Rights and Feminists have come together to push IL into a more private sphere - torture etc. ¥ Dangers of IL moving into the private sphere:

Plays on the paranoia of a ÒWorld OrderÓ - big brother. Raises the question/distinction between Pervasive IL and International Governance.

What if the international body begins to control other aspects of private life?

With a communal oriented perspective by IL - many communal environments are oppressive to women based on religion, culture etc. and raises questions of traditional ways, respect for diverse cultures etc.

Kennedy/Trimble - Critical Legal Studies: (p.58; 61) Modern Legal Realists

¥ Look to underlying assumptions to see basis for way things are.things donÕt have to be the way they are.

¥ Key areas to examine [various ÒdiscoursesÓ:Sources Discourse: definitions, interrelationships and

hierarchial authority of diff types of IL.Process Discourse: who participates in enterprise and the

boundaries of their authority. Substance Discourse: substantive standards of behavior.

¥ It is really a means of analysis, not substantive framing of IL¥ Discourses center around analysis/support for opposing arguments

Sovereignty v. InterdependenceConsent v. Non-consent

Boyle p. 64 - Typical Leftists Approach¥ Current IL is result of a society that has developed a certain way for certain reasons following a certain ideology.¥ Should remember that IL has to do with people, living things in the real world. ¥ DonÕt get caught in ideologies, or false categorizations that constrain our thinking. ¥ Rejection of purely abstract realm of IL. ¥Ò There is something demeaning, something evil about blindly obeying the imagined dictates of some social construct....Ó¥Ò Part of the answer consists of thinking of methods of getting ourselves away from the objectified fantasy world of state sovereignty, and towards the actual human beings whose lives our abstractions affect.Ó

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¥Ò Part of the answer consists in realizing that one should not divide oneÕs life into tiny discrete boxes.Ó

Franck p. 67 Traditional Legal Theorist. ¥ IL is a complex mixture of law and power with conflict between autonomy v. community in the world. ¥ Focuses on the strength of the compliance pull, not on simple yes/no is there compliance. ¥ Elements that help us decide if a particular policy/rule will gain acceptance or legitimacy in IL realm:

determinacy - ability of text to convey a clear message, to appear transparent in sense that one can see through language to real meaning.

Symbolic validation - cultural and anthropological dimension of legitimacy; occurs when a signals such as recognition, ritual and respect are used as a cue to elicit compliance by others with a rule.

Coherency - the greater plan that any particular rule is to fit in. Adherence - will/do states follow the laws.

Tesson p. 74¥ Normative Individualism - focus on individuals, people, not states.¥ Principles:

International bill of human rights and mechanisms to protect these.

Subdivide international community into very discrete units, nation-states where people share same individual culture.

War and intervention are prohibited with one exception - when it is indispensable for the defense of human rights.

¥ Crit: Too extreme. World consists not just of individual, but also of people existing in community.

Falk p. 79 End of World Order¥ Must change the way world conceives of system.¥ Elements/steps

adopt skeptical look at state as a modelpositive belief in capacities of other types of collectivitiess -

communes, cities, regions, associations etc.bias towards decentralization of wisdom, authority and

capabilitystructural critique of present organization of power and wealthprocessive view of future in our activitiessubstitution of ÒjusticeÓ for ÒorderÓ as the primary test of

adequacy of any arrangement.refusal to blueprint the future in a manner that precludes

creativity within the eventual setting that will give rise to the possibility of revolution

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¥ The state system is not an immovable form - economic, political, technological and sociological forces are everywhere.

Treaties and Customary Law

Treaty: Vienna Convention on Treaties Article 2¥Ò treatyÓ means an international agreement concluded between States in written form and governed by international law.¥ Only states can conclude treaties.¥ A ÒpartyÓ to a treaty means a State which has consented to be bound by the treaty; usually requires both signing and ratifying.

Vienna Convention on Treaties: key Articles

Article 26: Pacta Sunt Servanda p. 120¥ Every treaty in force is binding upon the parties to it and must be performed in good faith.

Article 46: Competence to Conclude treaties¥ CanÕt get out of a treaty by saying it is in violation of internal law (especially one passed by legislature after treaty is in effect ) unless the Òviolation was manifest and concerned a rule of its internal law of fundamental importance (read: violation of the stateÕs constitution.)¥ Treaty invalid if it is manifestly obvious that the treaty is in violation of the normal practice of the state.

Article 49: Fraud¥ State may invoke error if another negotiating state has committed fraud. However, state has right to keep terms of treaty.

Article 50: Corruption¥ Error may be invoked if negotiating representative was corrupted by other negotiating state.

Article 51: Coercion of Representative¥ Expression of state consent without legal effect if representative was coerced through acts or threats directed v. him. Automatically void (no option as in fraud).

Article 52: Coercion of State¥ Treaty void if procured under threat or use of force. Note, this does not negate treaties signed by losers of war.

Threat must be of physical force (some now argue for econ. too)Must be in violation of UN Standards

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Peremptory Norms: Jus Cogens¥ A norm that has become so fundamental that no one has the right to violate it, nor consent to violate it. ex: human rights; pacta sunt servanda; Article 2 (4) of UN Charter (via ICJ determination).¥ Tells states what they absolutely should not do.

Article 53: Treaties Conflict with Peremptory Norm (Jus Cogens)¥ A treaty is void if it conflicts with jus cogens.

Article 64: Emergence of a New Peremptory Norm ¥ Any existing treaty in conflict with new peremptory norm becomes void and terminates. ¥ TodayÕs values over ride previous agreements. ¥ Actuality of process - new norms donÕt just ÒariseÓ, they evolve over years of agreements etc.

Breaches:

Article 60+: Breach of Treaty - termination or suspension p. 133¥¤ 2 - of a multilateral treaty - complicated resolution

most treaties - even if 1 party violates, others want to keep going

special cases - ex: war type; a violation by one party will effectively end the treaty.

¥¤ 2a - can unanimously suspend treaty in whole or part; or terminate between that party, some or all parties.

¤ 2b - party specifically affected can choose to suspend treaty between it and violator.

Article 62: Fundamental Change of Circumstances¥ Fundamental change of circumstances unforeseen by parties may not be invoked unless:

existence of circumstances constituted an essential basis of consent

the change radically transforms the extent of obligations still to be performed under the treaty.

Interpreting:

Article 31: General Rule of Interpretation¥ 1] Shall be interpreted in good faith and given ordinary meaning to terms, in their context and in light of the treatyÕs object and purpose. ¥ 2] Context to be determined by preamble and annexes and:

agreements relating to and in connection with conclusion of

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treaty.instrument made by one or more parties and accepted by all

other parties as an instrument of the treaty.¥ 3] Can take into account

subsequent agreements - re: meanings of languagesubsequent practicerelevant rules of IL

Article 32: Supplementary Means of Interpretation¥ Recourse to supplementary means of interpretation only when, after applying Article 31:

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

Customary IL:¥ Can be binding under Article 38 of the Statute of the ICJ¥ Vienna Convention Article 38 (yes same number)

Nothing in Arts 34 - 37 prevent rules set forth in a treaty from becoming binding upon a third state as a customary rule of international law recognized as such.

¥ Customary International Law is not binding on a country that has Òpersistently and continuouslyÓ objected to a customary law/treaty/declaration.

Customary Law - 2 Aspects p. 143¥ Material Aspect: there must be a recurrence or repetition of acts to give birth to a customary rule (a single act doesnÕt do it)¥ Psychological Aspect (opinio juris): a mutual understanding and belief that such conduct is binding.

Customary Law¥ Often eventually winds up written into a treaty; codified.¥ Despite intellectual debate, treaties are actually superior if not legally superior.

UN Resolutions:¥ Certain resolutions can be seen as evidence of custom.¥ Resolutions are not law.¥ ICJ has ruled that Security Council decisions are law.

Paquet Habana: p. 246 : coastal fishing boat taken and sold as war booty¥Ò Where there is no treaty and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations.Ó¥Ò International law is part of our lawÓ and must be appropriately

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applied.¥ Recognizing customary law of IL that Òcoast fishing vessels, pursuing their vocation of catching and bringing in fresh fish, have been recognized as exempt, with their cargoes and crews, form capture as prizes of war.Ó

General Principles of Law Recognized Among Civilized Nations:

¥ Act as gapfillers, for cts to resolve issues that have not been addressed by treaty or custom.¥ Ct can use principles adopted by many/most countries.¥ Rarely/Never the sole source of IL - usually used in conjunction with custom or treaties.¥ Smaller/Newer countries - donÕt trust this, prefer treaties; have not had time to evolve their principles.

STATES

What is a State:

Montevedio Convention of 1933: p. 457 (further refined under restatement ¤ 201)

¥ 1) Permanent Population - significant and permanent¥ 2) Defined Territory - can have a boundary or some territory in dispute.¥ 3) Government - authority exercising gov. functions and represent govÕt.

also question if govÕt is being challenged (ex. taliban now)¥ 4) Capacity to enter into relations with other states. - constitutional, political, technical and financial means to do so.

also key is - do other governments recognize you?

Situations:

Vatican: pope is govÕt, representative is Holy See (political side of catholic church)

Puerto Rico: all criteria except ties too close to US, it doesnÕt want independence

therefore it becomes a trust territory

Taiwan: Yes under IL but - in many ways lacks recognition, however in others it has

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Capacities, Rights and Duties of a State - Restatement ¤ 206: p. 463

1) Sovereignty over its own territory and general authority over its nationals2) Status as a legal person with capacity to own acquire and transfer property, enter into K and enter into intÕl agreements to become members of intÕl organizations and to pursue and be subject to legal remedies;3) Capacity to join with other states to make international law, as customary law or by international agreement.

Types of Recognition:

1] Declaratory - a state that meets ¤201 criteria is a state and any recognition by another state is merely declaratory confirming the intention to treat new state as such.

2] Constitutive - an entity is not a state in international law unless it is generally recognized as such by other states. (some debate whether a state must be recognized if meet R ¤ 201

Recognition of Foreign Governments: p. 466

1] Traditional Approach: (flexible and pragmatic) must determine if -¥ govÕt is in defacto control of the territory and in possession of machinery of state¥ whether government has the consent of the people without substantial resistance.¥ whether new govÕt has indicated its willingness to comply with its obligations under treaties and international law.

2] Estrada Doctrine: looks at state and ignores issue of govÕt - automatically recognized.

¥ Only new States are recognized, when a new government comes to power either through constitutional means or otherwise, its relations with outside states remains unchanged.

3] Tobar or Betancourt Doctrine: encourages democracy¥ Attempts to encourage democratic and constitutional governments by refusing to recognize any govÕt that comes to power through extra-constitutional means until a free election is held and new leaders elected

4] TodayÕs Reality: If you exercise control over your country (no matter how short or long) so long as you do not have wide spread revolt in the streets, you will be recognized by the rest of the world

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Treatment of GovÕts: Under IL, even if you do not recognize a government, you must treat the acting government as a state. ex: US and Cuba.

Restatement ¤ 205 - consequences of recognition in US p. 469

¥ 1] entity not recognized as a state or govÕt is denied access to US courts.¥ 2] regime not recognized is not entitled to property belonging to that state located in the US¥ 3] courts in US will give effect to acts of a regime (recognized or not) if acts apply to territory under the control of that regime and related to domestic matters only.

Restatement ¤ 209 State Succession: State Property and Contracts p. 4791] Property

a] acquired territoryb] absorbed statec] separate state

2] Responsibility for public debt and rights/oblig. under K remain unlessa] debt of acquired territory transf. to acquiring stateb] absorbed stateÕs debt/K obl. transfer to absorbing statec] separate state - public debt and K relating to that territory passes to new state.

Applies absent an express agreement between states.

Restatement ¤ 210 State Succession: International Agreements p. 479

¥ 1] when territory becomes part of another country, agreements dissolve.¥ 2] when state is absorbed, absorbed states agreements are terminated and absorbing stateÕs agreements apply to all.¥ 3] new state is formed - does not succeed to intÕl agreements of predecessor state unless expressly or implicitly accepts such agreements.¥ 4] Pre-existing boundaries and other territorial agreements continue to be binding despite 1 - 3.

Review page 17 notes, front - Israel notes on statehood

UNITED NATIONS:

United Nations: The Forum for International Communication and Action¥ 184+ members; $ 10 B/yr.

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Six Principal Organs: p. 500+¥ General Assembly¥ Security Council¥ Economic and Social Council¥ Trusteeship Council¥ International Court of Justice - principal judicial organ¥ Secretariat

Intergovernmental Organizations Related to the United Nations: p. 508

¥ ILO, FAO, UNESCO, WHO, IBRD, IDA, IFC, MIGA, IMF, ICAO, UPU, ITU, WMO, IMO, WIPO, IFAD, UNIDO, IAEA.

Good UN has done:¥ WHO and small pocks¥ ICAO (IntÕl Civil Aviation Organization) - uniform air traffic rules.¥ Humanitarian relief efforts

United Nations Charter: sp. 2¥ Binding on all its members

Article 1: Purposes of UN¥ 1] maintain intÕl peace and security¥ 2] develop friendly rel bet states¥ 3] achieve intÕl cooperation - esp econ and human rights¥ 4] center to achieve these ends

Article 2: Members shall act accordingly:¥ 1] sovereign equality of all members¥ 3] members will settle intÕl disputes peaceful means¥ 4] members shall refrain from the threat or use of force against other states.¥ 7] Un not authorized to intervene in Òessentially domestic matters.Ó

Chapter II - Membership

Article 4 - open to all peace loving states, GA assembly upon SC recommendation

Chapter III - Organs

Article 7: Principal organs¥ GA, SC, Economic and Social Council, Trusteeship Council, ICJ, Secretariat

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Chapter IV The General Assembly

Article 10: GA may discuss questions , make recommendations to members or SC

Article 11: GA may consider general principles of cooperation re: intÕl peace, discuss questions to same and make recommendations to SC

Article 12: While SC is exercising in respect of any dispute, GA shall not make recommendations regarding that dispute unless SC so requests.

Article 17: Members shall pay expenses

Chapter V: The Security Council sp. 8¥ When SC acts it is the ultimate power of the world.¥ ICJ states once the SC acts, it is the law, even if it goes v. tradition.

Article 24: SC has primary responsibility for maint of intÕl peace and security.

Article 25: GA members agree to accept and carry out SC decisions.

Chapter VI: Pacific Settlement of Disputes:

Article 33: Parties in dispute will first seek negotiated resolution.

Article 36: SC can take recognition of any dispute and recommend proper solution.

Chapter VII: Action wrt Threats to the Peace, Breach of Peace and Acts of Aggression

Article 39: SC shall determine existence of threats, and make recommendations

Article 41: First SC measures shall not involve use of armed force. May include econ rel, communications and severance of diplomatic rel.

Article 42: Only after try Art 41 can SC take use of force.

Article 43: All members shall make mil. forces avail to SC

Article 47: Military staff committee - never gone into effect.

Article 51: Inherent right of individual or collective self defense.

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Chapter XIV: ICJ

Article 92: ICJ is the principal judicial organ of UN

Article 94: 1] members will comply with ICJ decisions 2] if not can go to SC

International Court of Justice: sp. 29

Chapter II Competence of the Court: sp. 36

Article 34: Only states may be parties, Ct may request public intÕl org. for info.

Article 35: Ct open to parties of the statute and States under provisions by SC

Article 36: Jurisdiction over all parties; parties may declare they recognize jurisdiction ipso facto and without special agreement

¥ interpretation of treaty¥ question of IL¥ existence of fact that may establish obligation under IL¥Ò the nature or extent of the reparations to be made for breach of IntÕl oblig.

Article 38: Sources of International Law p. 37¥ International Conventions; IntÕl Custom; General Principle of Law; Judicial Decisions and the teachings of the most highly qualified publicists.

Article 41: Ct. may provisional measures to be taken to protect rights of either party.

Article 52: Court may receive proof and evidence.

Article 59: Decisions have no binding force except between parties and in respect of that particular case.

Chapter IV. Advisory Opinions

INTERNATIONAL ORGANIZATIONS

International Monetary Fund:¥ Purpose is to create economic stability

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¥ helps regulate intÕl economic situation by protecting and regulating currencies.¥ provides short term loans for balance of payment problems to stabilize economies.¥ Often requires extreme ÒconditionsÓ for short term loans, cutting back $ in public funding (education, health, govÕt jobs)¥ Voting based on proportional GNP¥ Head usually European

World Bank:¥ Development entity, often works with IMF¥ Helps development thru long term loans for infrastructure projects. ¥ To be a member of WB must be IMF member.¥ Head always an American¥ Bank of last resort, when canÕt get commercial loans.

World Band Group: p. 530¥International Development Association (IDA) - provides low interest loans¥International Fiance Corporation (IFC) - Loans to private enterprises, often in conjunction with infrastructure projects.¥Multilateral Investment Guarantee Agency (MIGA) - provides protection of investments from non-commercial risks (for private investment into other countries). ¥Consultative Group on International Agricultural Research (CGIAR) - funds international agricultural research centers and programs¥International Center for the Settlement of Investment Disputes (ICSID) - provides voluntary mechanism for settling disputes bet. govts. and foreign investors.

General Agreement on Tarriffs and Trade: GATT + WTO p. 535¥ goal is free trade throughout the world by removing trade barriers.¥ GATT has made capital, goods, technology and know how mobile throughout the world.

however, people canÕt move as freely as ÒjobsÓ and in effect we are creating barriers to human mobility

¥ Power resides in hands of multinational corporations.¥ Becoming the dominant ideology in the world.¥ Membership: sp. 178 Art. 12 - State or separate customs territory possessing full autonomy in conduct of external commercial relations. Ex: Puerto Rico

General Principles:¥ DonÕt discriminate against goods coming from anywhere in the world.

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Achieved thru Most Favored Nation Status¥National Treatment Obligation Principle: DonÕt discriminate in favor of goods produced in own country. ¥ All barriers must be reduced to tariff barriers only (obligation to remove all non-tariff barriers). (if must have barriers at all! - goal is 0% tariff barr.)

Non-tariff barriers: health and safety inspections; environmental requirements; employee $/benefits/conditions requirements

Exceptions: National Security; domestic health and safety; morality.

World Trade Organization - WTO¥ Move towards global governing entity.¥ Dispute resolution process that is not as flexible as prior courts. ¥ Now WTO decisions are binding and has power to enforce. ex: GATT response to US tuna fishing laws.

GATT and Human Rights¥ GATT ignores issues such as HR and Env! To succeed in future it will have to eventually have to deal with this (beyond economics).

Problems/Dichotomies and the world:¥ Movement from Public/Private to Political/Economic structuring of the world.¥ Governments have less and less ability to use their own resources and to help its people. In order to be ÒdemocraticÓ today, a state must have a free market.¥ If we cannot provide for equity and democracy in the market place, how long will political democracy last? As the free market system fails, fascism arises.

G-7 Group of Seven: p. 543¥ Primary interest is on econ. stability, coordination of econ. policies¥ other issue areas have emerged, ex: env. in 1989

Members: Canada, FR, Ger., Italy, Japan, UK and US

OECD - Organization for Economic Cooperation and Development¥ Organization that espouses economic interests of developed nations. ¥ Includes more states than just G-7

G-77 Group of Seventy Seven: p. 545 ¥ Coalition of 120+ states to coordinate efforts to protect interest in developing nations - third world economic unity.¥ Not necessarily friendly with each other - but share common experience that they are not the prime movers of their own destinies.

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NIEO - New International Economic Order - document calls for¥ CountryÕs right to expropriate property subject only to own domestic laws.¥ Less protection for patent, copyrights and IP¥ Greater protection for prices of raw materials.¥ Special tariff treatment by developed countries for developing countryÕs prods¥ Call for greater South-South cooperation.

UNCTAD - United Nations Conference on Trade and Development¥ Conference addressing economic concerns of third world¥ Espouses a code of conduct for multinational corps.

REGIONAL INSTITUTIONS

European Union: p. 547¥ First Supranational Entity in World¥ Now 15 states: p 547

Four Freedoms:¥ free movement of goods¥ free movement of capital¥ freedom of movement of persons¥ right of establishment and to provide services.

Constitution of EU - Six Treaties that formed basis of EU p. 549¥ European Coal and Steel Treaty (Community) - ECSC¥ Treaty on Nuclear Energy - Euratom¥ Rome Treaty of 1957 - created European Economic Union¥ Merger treaties (brought all three together) 1967¥ Single European Act of 1986 - amended 3 treaties in Merger T.¥ Maastrict Treaty of 1991 - Created EU p. 550

Maastrict Treaty: move towards federalism, 5 key points¥ 1] set goal of 1999 for common currency¥ 2] established EU citizenship, can live anywhere and vote in local and european elections¥ 3] EC greater authority to regulate: education, env., health and consumer protection.¥ 4] European Parliament powers expanded¥ 5] Provisions for

Common Foreign and Security Policy (CFSP) - to include defense

Justice and Home Affairs institution - cooperation on issues such

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as immigration and terrorism.

EU Government Structure: p. 550+¥Commission: ÒThe EuropeansÓ - not identify selves with a nation - core institution of the EU

1] Formulate proposals for new EU policies2] mediate between member states3] coordinate national policies4] oversees execution of existing union policies.Carries out much of work of EU

¥Council of Ministers: most powerful bodyMinisters from each state, forms and reforms acc. to topicStaff is permanent, participants change ex: Ag. = Ag. ministers.Meetings held in private with no records of proceedingsCOREPER - Committee of Permanent Representatives: in fact,

but not in law, part of COM, these are permanent reps. at lower than ministers that do much negotiation.

Uses Weighted voting and req. qualified Majority p. 555¥European Parliament: Weakest of all the bodies.

Powers: Co-decision; appoint the Commission; final say on most non-agricultural budget; dismiss the Commission by 2/3 vote; approves accession of new members; approves intÕl agreements; prepares reports.

¥European Council: Heads of all of StatesConferences at regular intervals.Practice - when dealing with EU matters, will take only general

political decisions with details to be worked out in Council of Ministers. ¥European Court of Justice:

Doctrine of Supremacy clause has not been challengedEU law supersedes national law.

Article 189 EEC: Acts that can be adopted by Council or Commission: p. 557

¥ 1] Regulations¥ 2] Directives¥ 3] Decisions¥ 4] Recommendations¥ 5] Opinions

Key issue right now is Broadening v. Deepening:¥ Broadening - more countries¥ Deepening - closer federation (moving closer to US type)

NATO - North Atlantic Treaty Organization: p. 574¥ 16 full members, originally designed to protect Western Europe.¥ 1994 Outlined Changes:

1] engage EE nations in Partnership for Peace (PFP)

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2] Separable but not separate European defense capability (europeans able to act on own for purely European issues

3] Capability for NATO to deal with Òout of areaÓ problems.4] Protection v. proliferation of weapons of mass destruction as

an emphasis for future.

OSCE - Organization on Security and Cooperation in Europe:¥ formerly Conference - CSCE¥ Started as a way to promote dialog between E and W

ASEAN - Association of Southeast Asian Nations: p. 580¥ Indonesia, Malaysia, Philippines, Singapore, Thailand and Brunei¥ Establishes:

General principles for relationsstrengthen national security and resiliencypreserve respective national identitiesprocedures for settling disputes

¥ Economic matters have been elevated to be equal to those of political and social concerns.

APEC - Asia-Pacific Economic Cooperation: p. 582¥ Goals:

Fight global protectionismIncrease regional economic cooperationPreserve worldÕs liberal trading system

OAS - Organization of American States: p. 583¥ Allows countries of Western Hemisphere to collective pursue:

economic cooperationhuman developmenthemispheric security

¥ Some recent progress re: Human Rights

OAU - Organization of African Unity: p. 585¥ Loose association of African States, but lacks disciplinary powers.¥ Principles:

sovereignty and territorial integritypeaceful settlement of disputescondemnation of assassination and subversiondedication to emancipation of dependent African territoriespolicy of nonalignment.

LEGAL AUTHORITY AMONG STATES:

JURISDICTION:

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Prescriptive Jurisdiction: p. 728 - the right to prescribe and limit conduct¥ 5 bases of prescriptive J.

1] territory - J by state over property, persons and acts occurring within that stateÕs territory. Generally accepted by IL. Traditional basis.

a] Subjective territorial principle: J to prosecute and punish crimes commenced w/in territory, but completed in territory of another state.b] Objective territorial principle: J over acts commenced in another state and i) completed within J state or ii) producing gravely harmful consequences to social or economic order inside their territory [effects doctrine].

2] nationality - exercise J. over all nationals of a state. Generally recognized by IL. Traditional basis.

3] protective - crimes against a stateÕs security, integrity and economic interests.

4] passive personality - assumed by state of person suffering injury is a national.

5] universal - some offenses are universal, able to prescribe and enforce by anyone, anywhere ex: piracy, war crimes.

6] Effects principle - if it has an effect in the country (see 1b above)

GassamaÕs Breakdown of the above:

Traditional: 1} Territorial Jurisdictionsub: *Protective *Effects Principle

2} Nationality Jurisdictionsub: *Passive Personality

Modern/new: Universal Jurisdiction

Restatement ¤ 402: Bases of J. to Prescribe: p. 736¥ 1] a - conduct wholly or in substantial part in the territory b - persons present in territory c - conduct outside territory intended to have substantial effect in

terr.¥ 2] activities of nationals within or outside territory¥ 3] conduct outside the territory directed v. security of the state. ¥ Comment f: protective principle (p 777) IntÕl L recognizes right of a state to punish a limited class of offenses committed outside its territory by persons not its nationals - offenses directed v. security of the state [espionage, counterfeiting of $ or documents; perjury;

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immigration or customs laws]. Can be seen as an extension of effects principle, or treated as independent basis of jurisdiction.¥ Comment g: Passive Personality outside territory - generally not accepted for torts or crimes but, increasingly accepted re: terrorist and other organized attacks v. stateÕs nationals, or assassination of diplomats etc. (p. 782)

Restatement ¤ 403: Limits on Jurisdiction to Prescribe p. 738¥ 1] Even with ¤402, state cannot exercise Jurisdiction when such exercise is unreasonable. ¥ 2] Lists factors in evaluating reasonableness. a-h.

Restatement ¤ 404: Universal Jurisdiction to Define and Punish Certain Offenses p. 788

¥ Crimes of Universal concern: piracy, slave trade, hijacking or attacks on aircraft, genocide, war crimes and certain acts of terrorism.

Corporate Nationality:¥ US has broadest rules on corporate nationality

Can base on: HQ; Incorporated in US; Owned by Americans; or have American ownership control over Company - US will deem it has jurisdiction over the corporation.

¥ Europeans prefer territorial bases (domicile state), not like US approach.

Hartford Fire Insurance Co. v. California p. 740 - Sherman Act apply to Br. Co.Majority - Yes, applies Jurisdiction based on Effects Doctrine

¥ Long arm reach of J. and type of J. is an act of comity, not law, US has flexibility as to type of J. ¥ Britain permitted acts of industry, but did not prescribe acts, therefore not violating Br. laws (there is no Br. law on matter).¥ Intent of London firms was to effect US economy in violation of US laws, this outweighed possible jurisdictional conflict.

Min - Scalia - Several Arguments¥ Violates 2 cannons of construction

Unless contrary intent explicitly appears, US laws are meant to apply only within territorial Jurisdiction of US

An act of congress ought never to be construed to violate the law of a nation if any other possible construction remains.

¥ Due to prescriptive comity, we should defer to Britain¥ Cites Restatement ¤ 403 reasonableness factors.

Freuehof - French subsidiary, remove US heads to sell to Soviets.What to do in this type of conflict

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¥ Appeal to won government. ¥ Work on bilateral treaty on this.

Sale v. Haitian Centers Council p. 749: Return of Haitian refugees from high seas

¥ US SCT interpretation using Vienna Convention - convoluted.Ct goes directly to factors other than plain lang (Art 31 says

look first to plain language)Said treaty not apply because Haitians not in US territory yet.

(treaty bans ÒreturnÓ of refugees)¥ Reinforces GassamaÕs view that the Supreme Court (US courts) will basically do what the Executive wants on international matters.

Blackmer v. US p. 760 - 1932 - failure to respond to DC subpoena when living in Fr.

¥ Applies Nationality Jurisdiction - should have responded. When your country calls you to appear in court, you must.

US v. Romero-Galue p. 777 - drug runners on boatsp. 780 - Even absent a treaty or arrangement, the US could under the Òprotective principleÓ of IL, prosecute foreign nationals on foreign vessels on high seas for possession of narcotics.

US v. Columbia-Collela p. 782 - stolen private car recovered in Mexico¥ Ct cannot apply Protective Principle because it is limited to protecting the US state.¥ Passive Personality principle is quite limited to severe actions.¥ Objective territorial theory - must have intent to have impact within US, here man unknowingly bought stolen US car, he wasnÕt part of a conspiracy.

Enforcement Jurisdiction: p. 790¥ Enforcement J is said to be territorial and the limits seem much more strictly observed than is the case with prescriptive jurisdiction. ¥ Not supposed to have Enforcement Jurisdiction if you do not have jurisdiction to prescribe.

However, US cts will generally try you if youÕre available, no matter how you got there.

Restatement ¤ 431 Jurisdiction to Enforce: p. 7901] State may employ judicial or non judicial measures to induce or compel compliance, or punish non-compliance2] Enforcement measures must be reasonably related to the laws3] State may employ enforcement measures v. person loc! outside the territory a)-c).

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Comments:a) Relation of jurisdiction to enforce to j. to prescribe and adjudicate:

¥ State may not exercise authority to enforce laws it has no jurisdiction to prescribe under IL¥ A state that has j. to prescribe may enforce its laws through courts if it also has J. to adjudicate

b) Judicial Enforcement Measures¥ imposition of criminal sanctions¥ decree ordering a person to act or refrain from acting¥ freeze assets

Restatement ¤ 432 Measures in Aid of Enforcement of Criminal Law p. 7932) A stateÕs law enforcement officers may exercise their functions in the territory of another state only with consent of the other state

Restatement ¤ 433 External measures in aid of Enforcement of Criminal Law: Law of the United States 1) Law enforcement officials may operate in other state with permission2) In compliance with laws of both the US and of the other state.

US v. Alvarez-Machain p. 794, 1992 - Mexican kidnapped by private persons and brought to US and DEA.

¥ Affirms the intellectual bankruptcy of US Judiciary in International Affairs when the Executive demands action. ¥ Issues:

Did an extradition treaty bar using outside forces to get individual?

Absent a treaty, can a state try a person forcibly abducted from another country?

¥ CtTreaty does not apply, abduction is not extradition so treaty not

violated. (Straight textural reading of treaty - not purposeful or contextual reading of treaty) [What of purpose of treaty? to provide proper methods of transfer of persons so as to not need to use forcible abduction?]

Executive should show reasonableness in abducting foreign nationals to try in US, but even if unreasonable, ct will hear case.

¥ The Lotus Principle: Every country has a presumption of jurisdiction and those in opposition to the application of jurisdiction have the burden of proof for violations of jurisdiction. ¥ International Reaction to the case:

Breach of ILWould violate their domestic lawsWould violate extradition treaties with them.

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US Law: 1989 Law re Law Enforcement Agencies¥ Legal for FBI etc to apprehend individuals who are accused of violating US criminal law; to detect, prosecute and make arrests without geographic limitations.¥ This clearly violates the common understanding of existing customary international law. p. 811

Extradition p. 813¥ No obligation to extradite unless there is a treaty prescribing extradition.

Non extradition can be an exercise of a SovereignÕs powersModern trend is to not grant extradition without a treaty, even if

individual is a fugitive.

Common Exception to all Extradition requests - thru treaty or otherwiseThe Political Exception2 Types:

¥ Purely Political - treason, speaking out v. leaders etc.¥ Relative Political - murder committed thru political motivation and committed during a revolt.

Both are usually excepted from extradition.

Other Exceptions:¥ 1] If prosecution is time barred in the requesting state¥ 2] Dual Criminality - offense charged must be a crime in both requesting and requested states or no extradition.¥ 3] If fugitive is being concurrently prosecuted, then extradition may be delayed until end of trial in requested state.

Jurisdiction to Adjudicate: p. 818

Restatement ¤ 421 J. to Adjudicate¥ 1] State may exercise J. if its relationship to person or thing is such that exercise of jurisdiction is reasonable. ¥ 2] Lists criteria to establish reasonableness a) - k)¥ 3] If D. appears and includes challenge other than solely v. jurisdiction - then defense of lack of jurisdiction is generally waived.

BOSNIA ELECTION NOTES:

Conflict Myths:¥ This is a centuries old problem and they can never live together.

1980Õs - 40% intermarriage.Ethnicity didnÕt define the people there

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Ethnicity is a currently exploited concept.¥ Myth that each side was equally at fault.¥ This is an internal conflict of not international proportions/significance.¥ This war doesnÕt have much to do with our every day lives.

Election Myths:¥ It would be well organized, personnel well trained.¥ Elections would be free and fair

no freedom of movement, press, true opposition candidates.¥ Peace in Bosnia was true goal of elections¥ There would be accountability

Election Supervisors v. Observers¥ Supervisor - can intervene to correct irregularities as best as can during elections, just as a local elections official can correct.¥ Observers - can only just watch and report violations, problems.

COLLECTIVE SECURITY AND THE USE OF FORCE

Kellogg-Briand Pact of 1928 General Treaty for the Renunciation of War p. 1298

¥ 1st renunciation of use of war/armed force as a means to resolve conflict.

UN Charter¥ Art. 1 - Principle Purpose

1] maintain intÕl peace and security3] achieve intÕl cooperationresponse to Human Rights issuesestablish mechanisms to enforce

¥ Art. 2 -A 2(4) - reaffirm that all members will refrain from threat or use

of forceA 2(7) - Nothing in charter will allow UN to intervene in internal

affairs. ¥ Art. 25 - Members accept and agree to carry out SC orders

legally bound to do so, but only for Security CouncilNot for: GA resolutions/declarations; ICJ opinion unless goes to

SC for enforcement. ¥ Ch. VI - Peaceful Settlement Arts 33 - 38

Security council is the forum to resolve disputes.¥ Art. 33 - SC can look at disputes, the continuance of which can

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endanger intÕl peace and security.¥ Art. 36 - SC can recommend measures to halt disputes¥ Chapter VII - Action with respect to threats to peace etc.¥ Art. 39 - If SC speaks, it can determine threat to peace, acts of aggression and can act under 41 and 42¥ Art. 41 - Non-forceful means such as sanctions. Must be tried first.¥ Art. 42 - If Art 41 is inadequate, then may use force.

ICJ - has held that when Security Council Acts, it is of total authority.

Customary Law - still exists to limit SC actions¥ Especially norms of jus cogens - even security council canÕt ignore these norms and act inconsistently with them.

Peacekeeping: ¥ Arguably SC gets power for peace keeping thru A 42 or A 26 (none are clear)

Peacekeeping: Carried out with consent of all parties, to help keep a cease fire. p 1393

¥ 1] UN must find under Art. 39 a threat to IntÕl Peace¥ 2] Must get consent of all parties¥ 3] UN will act as broker and stay between parties¥ UN Peacekeepers do not intervene, do not fight back unless directly attacked¥ Question of whether UN clearly explains role of peacekeeping to parties and innocent civilians. ¥ Is not designed to protect people, but to separate people who want to be separated. ¥ See UN Charter Arts. 43 - 48

Peacekeeping problems:¥ Recent situations and new tasks have made traditional peacekeeping problematic.

Being sent into areas of no agreementMission aimed also at protecting vulnerable populations,

delivering humanitarian relief or responding to the collapse of a state.Restoring democracy or helping a nation rebuild.

¥ Often problems attaining essential unity of command and coordination.¥ When sent into a war zone where parties donÕt want to stop, canÕt really fight back. Compare ineffective UNPROFOR to fairly effective IFOR

Peacemaking: Negotiating for peace - includes diplomacy and other activities.

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Peacebuilding: New. Helping with humanitarian, economic and elections aid in order to ensure that a peace remains.

Key Issues in Peacekeeping/making/building: p. 1369; 1393¥ Legitimacy - are powers/missions/demands proper for the organizations/institutions?¥ Effectiveness - can the institutions successfully complete their missions? Within the facilities/parameters/limitations granted?¥ When can UN act on internal affairs issues and Collective Action can be taken.

when a state requests it (Cambodia)when all semblance of authority/civil order vanishes (Somalia)when whole populations are singled out for genocide, ethnic

cleansing and war crimes (Rwanda)interference with delivery of humanitarian relief (Iraq, Somalia)violations of cease-fire agreements

Individual Responsibility: ¥ Most IL conventions will make individuals responsible for their actions

GenocideWar Crimes (Geneva conventions)

¥ Key is to understand various categories of crimes and tie in with jurisdiction.¥ Many crimes are Universal Crimes - can be enforced by anyone, anywhere with no statute of limitations. Ex: genocide¥ Debate surrounding Nuremburg and many smaller tribunals that followed:

Was this simply victorÕs justice or was it the establishment of individual responsibility in international realm? At the time, genocide, aggressive war, and crimes against humanity did not exist.

Tribunal tried to say custom had established these norms, yet US SCT has disagreed.

Gassama - by trying individuals, the world has established a precedent. Just executing them (mere victorÕs justice) there would be no legal precedent. The legal precedent now exists - the law is established.

3 Main Categories of Crimes:¥War Against Peace: Planning and waging aggressive war to solve international disputes is not merely illegal, it is criminal. ¥War Crimes: Violations of the norms of warfare as IL has established them. Geneva Conventions address issues of Proper Military Actions, POWs, Civilians in Warfare, and other issues. p. 1434¥Crimes Against Humanity: Genocide, ethnic cleansing and so on. Convention on this.

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International Crimes:¥ Law is very settled in these 3 areas.¥ You can be tried and executed for any one of these crimes per se.¥ Even a defense that you would have been executed is not a defense. It can only be a factor to mitigate your sentence.

US Law on the Use Of Force:

Neutrality Act: p. 1438 - US citizens are not supposed to try to overthrow governments to which we are at peace.

¥ no one has ever been prosecuted for a violation of this law.

FOREIGN SOVEREIGN IMMUNITY AND THE ACT OF STATE DOCTRINE:

Foreign Sovereign Immunity: p. 587¥ Immunity - party does not have to defend on the merits of the claim.¥ Despite quote below, Gassama says not required by IL, but is rather an act of comity by the court (strongly accepted behavior).

Traditional Foreign Sovereign Immunity: Absolute Immunity¥Ò The immunity of states from the jurisdiction of the courts of another state is an established and undisputed principle of customary international law.Ó¥ CanÕt try a sovereign because donÕt have jurisdiction.

Contemporary Theory - Restrictive Immunity: ¥ Distinction between Public (government) and Private (commercial) Acts

If a state is acting in its public, government role, it cannot be tried

If a state is conducting commercial or private type activities (k, buy, sell, own land, become creditor/debtor) unrelated to its political role as government, it can be tried.

¥ Terms:Sovereign or public acts - jure imperiiPrivate Acts - jure gestionis

Foreign Sovereign Immunities Act of 1976 : p. 614¥ Codifies Restrictive Theory of Sovereign Immunity¥Ò The purpose ... is to promote the functioning of all governments by protecting a state from the burden of defending law suits abroad which are based on its public acts.Ó p. 600

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FSIA ¤ 1330 Actions v. Foreign States¥ District courts shall have original jurisdiction.

State can move to fed ct

FSIA ¤ 1603 Definitions:¥Ò Commercial ActivityÓ - either a regular course of commercial conduct or a particular commercial transaction or act.

¤ 1604: Immunity of a Foreign State From Jurisdiction¥ Subject to existing international agreements ... a foreign state shall be immune from the jurisdiction of the courts of the US except as provided by sections 1605 - 1607.

¤ 1605 General Exceptions: State will not be immune when¥ the foreign state has waived its immunity either explicitly or by implication¥ the action is based on a commercial activity¥ property is taken in violation of international law and is present in the US.¥ others p. 616

¤ 1606 Counterclaims:¥ Some areas where foreign state gives up immunity rights if it makes a counterclaim. Ie - by filing a counterclaim, a foreign state accepts j.

Isbrandtsen Tankers v. Republic of India: 1971; p. 596¥ Ship delay in unloading, seeking $ for lost time. ¥ Recognizes restrictive immunity but... ÒTate LetterÓ

ÒIn situations where State Department has given a formal recommendation, the court does not have to reach questions of this type [govÕt or commercial acts]. The State Dept. is to make this determination in light of the potential consequences as to our own international position. Hence once the State Department has ruled in a matter of this nature the judiciary will not interfere. Ò

Verlinden v. Central Bank of Nigeria :: 1983, p. 601 - cement ship, letters of credit ....

¥ FSIA can allow a foreign pl. to sue a foreign sovereign in courts of US, provided the substantive requirements of the Act are satisfied [private/commercial act]. Here credit thru US bank.¥ Also affirms CongressÕ power to grant federal jurisdiction over cases requiring application of substantive federal law.

Status of Embassies, Consulates and Diplomatic Personnel:

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Restatement 463¥ Premises of stateÕs accredited diplomatic mission are inviolable and are immune from any exercise of jurisdiction by the receiving state.

From Vienna Convention on Diplomatic Relations, 1961.Foreign Embassies however are not territory of the foreign

state, the embassy is just inviolable (via treaty and custom.)

Personnel:¥ Diplomats - inviolable¥ Career Consuls - generally inviolable.¥ Honorary Consuls - accorded immunity for official acts, but otherwise remain liable for acts not related to consular activities.

Head of State Immunity: p. 664¥ When a head of state or government comes on an official visit to another country, such head is given personal inviolability and immunities as a diplomat.¥ Situation for former heads of state is less well developed.¥ For a head of state to declare HoS Immunity, such head must have been recognized by the US - ie: Noriega was never recognized by us as Head of State

ACT OF STATE DOCTRINE: p. 670

Act of State Doctrine: Every foreign state is bound to respect the independence of every other sovereign state, and the courts of one country will not sit in judgment on the acts of the government of another done within its own territory.

¥ Again, Gassama claims this is an act of comity, not required by customary IL.

Underhill v. Hernandez 1897, p. 670 - engineer held in Venezuela¥ US Ct affirms Act of State Doc and refuses to try defendant (due to role as government person). ¥ Re: revolutions - if the party seeking to dislodge the existing government succeeds, and the independence of the government it has set up is recognized, then the acts of such government from the commencement of its existence are regarded as those of an independent nation. ¥ Again SCT shows deference to the Executive branch. US courts will recognize IL unless it goes against an executive position.

Act of State Doctrine when the other state doesnÕt care:¥ Purpose of the Act of State Doctrine is to not interfere in relations between US and other States.

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¥ If other state does not care whether we try a person/(former) government official, then no requirement to apply AOS.

Distinctions between FSIA and Act of State:¥ FSIA - applies to government actions.¥ Act of State - applies to individuals in their government roles.

often both raised at same time.AoS often raised after FSI loses.

Banco Nacional de Cuba v. Sabbatino 1964, p. 673US person brokered sugar sale, didnÕt pay revolutionary govÕt.

but instead people who had property ÒtakenÓ by Cuban govÕt. ¥ Issues: Should Act of State Doc. apply even if such acts are in violation of IL?¥ Held:

Act of State Doc. applies, Ct will not examine the substance of IL.

p. 680 Òthe Judicial Branch will not examine the validity of a taking of property within its own territory by a foreign sovereign government, extant and recognized by this country at the time of suit, in the absence of a treaty or other unambiguous agreement regarding controlling legal principles even if the complaint alleges the taking violates customary international law.Ó

Hickenlooper Amendments p. 686¥ First Amendment - President shall suspend assistance to a state which:

has nationalized or expropriated propertyhas taken steps to nullify or repudiate existing K with Americansimposed or enforced discriminatory taxes.

¥ Second Amendment (in reaction to Sabbatino) - No Court shall decline on the ground of federal act of state doctrine to make a determination on the merits if case is based upon confiscation or taking of property or claims of title.

unless President requests application of AOS directly to court.

¥ Courts have interpreted Sabbatino Amendment narrowly so that it applies only to property specifically involved in claim of title before court. (ie: no acquisition of other property not at issue)

International Law on Nationalization of Property: p. 674 OK if expropriation is -

¥ For a public purpose (canÕt be petty, or retaliatory - not public purpose)¥ Action canÕt be discriminatory against particular nationals.¥ The government provides prompt, adequate and effective

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compensation.

Kirkpatrick v. Environmental Tectonics Corp 1990 p. 711 - bribes to facilitate deal with govÕt went bad.

¥ Ct. ignores act of state doctrine becauseState Dept said to do so would not hurt relationsConsidered acts not official government acts (bribes were

forbidden)

Kalamazoo Spice Extraction v. Provisional Military Gov. of Socialist Ethiopia 1984, p. 717

¥ Ethiopia took over US owned spice company. Company sued.¥ DC stated Act of State Doc. precluded judicial inquiry into the expropriation.¥ CA reversed. Claimed:

Recognized Òtreaty exceptionÓ stated in Sabbatino; here had treaty that property will not be taken w/o just and effective compensation.

LAW OF THE SEA supp 561

Law of the Sea - What is important:¥ Jusrisdiction over vessels (law of the flag; other)¥ Maritime Boundaries - pp. 990-992¥ Doctrines: Innocent Passage; Hot Pursuit; Various Zones¥ Economic Uses¥ Enforcement of National Laws¥ Development of Sea Bed¥ Dispute resolution

Law of the Flag: p. 981

Law of the Flag - a ship is deemed to be part of the territory of the sovereignty whose flag it flies and does not lose that character when in navigable waters within the territorial limits of another sovereign.

¥ applies even for purposes of criminal jurisdiction.Article 27 LOS Criminal J. - should not be extended from port

state to ship unless crime extends to coastal state or meets below. Ex: murder on a ship - flag state law.

¥ Only exception: so long as ship/crew do not involve the peace or dignity of the country, the tranquility of the port.

Lauritzen v. Larsen 1952, p. 981 Danish sailor injured on Danish ship in US port, wanted to file suit under Jones Act.

¥ Court raised Law of the Flag; thus Danish law should hold, not US.

Flag of Convenience: p. 983

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¥ term used to describe countries that have limited requirements for registry of ships.

LOS And Nationality: p. 984¥A. 91 Nationality: There must exist a genuine link between state and ship ....

Ògenuine linkÓ not defined by LOS but, in 1986 Convention on Conditions for Registration of Ships - option of either manning the vessel or thru ownership and management of vessel establishing Òcompetent and adequate national maritime administrationÓ in order to exercise effective control over the vessel.

¥A. 92 Status: Ship shall fly only one flag, and shall be subject to exclusive jurisdiction of that state while on high seas, subject to exceptional cases expressly provided for in treaties.¥A. 94 Duties of Flag State: Exercise jurisdiction; Provide safety of ship in construction, manning and signals/communications.

Territorial Zones p. 990

Internal/Inland Waters - Art 8 - waters landward of the baselineBaseline - low water line or straight baselines in special contexts

See Arts. 5 - 7 supp 576Territorial Sea - Extends Seaward 12 miles from baselineContiguous Zone - Extends Seaward 12 miles from edge of territorial seaExclusive Economic Zone - Extends Seaward from Edge of Territorial Sea to a distance 200 mi from Baseline.Continental Shelf - Art 76 (sp 602) minimum 200 miles from baseline, or 100 mi beyond 2,500 m isobath to a max of 350 miles.

Truman Proclamation p. 1025 in book.High Seas - seas beyond EEZ

National and Ship Rights in Zones:

1] Internal Waters - State has total Sovereignty, passage only by permission.

2] Territorial Sea - State has jurisdiction, Ship only has right of innocent passage (subs on surface, no overflight) A 17.

3] Contiguous Zone - StateÕs jurisdiction limited to customs, fiscal (counterfeiting etc), immigration and sanitary laws. Ships have right of innocent passage.

4] Exclusive Economic Zone - A 55+; sp. 592 - State is the primary governing

authority for almost all activity (to include research) except freedom

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of navigation (to include subs under water) and overflight. State has exclusive management rights over exploration and exploitation of living and non-living resources.

5] Continental Shelf - A 76+, sp. 602 - State has exclusive right to explore and exploit non-living resources and non-movable living natural resources.

6] High Seas - A 86, sp. 606+ - Freedom of the high seas¥ No other nation can interfere with right to navigate and overflight.¥ Exceptions - Piracy; Drugs if other ship has treaty with flag state; ÒStateless vesselsÓ subject to boarding; ¥ Freedom to fish with obligation to conserve resources A 116 - A 120.¥ Freedom of scientific research¥ Seabed Mining - subject to Annex III/ Seabed Mining Beyond National J.

Special Regimes:

1] Straights - A. 34, sp. 585¥Transit Passage A. 37+ - straights used for intÕl navigation bet. one part of high seas to another.

2] Archipelago States - A. 46+, sp. 589

3] Rights of Landlocked States - ¥ A. 69, p. 599 - right to participate in exploiting surplus living resources in EEZ.¥ A. 70 - Right of Geographically Disadvantaged states¥ A. 71 - Non-Applicability of A. 69 and 70: do not apply for coastal States whose economy is overwhelmingly dependent on exploitation of living resources in EEZ.

4] Regime of Islands - A 121 - must be able to sustain human habitation naturally (naturally formed too).

Corfu Channel Case (UK v. Albania) 1949 p. 1007 - UK ran straight, mine sweeped.Addressed issue of innocent passage (custom as codified in A. 17 - 21 of LOS)

¥ 1] Br. first conducted innocent passage fine.¥ 2] Br. later acts (minesweeping, ships guns out etc) in violation of IL.¥ Sending of ships through a straight for ÒpoliticalÓ purposes is still innocent passage.

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Right of Hot Pursuit p. 1020¥ Coastal state can pursue into the high seas a foreign ship that the coastal state has reason to believe has violated its laws either within the contiguous zone or within its territorial sea or internal waters so long as the pursuit is continuous.

Fisheries Case (UK & Ger. v. Iceland) 1982, p. 1029¥ 1] In territorial sea coastal state has absolute right for fisheries.¥ 2] Beyond 12 miles, coastal state has preferential rights but cannot be exclusive and must recognize and respect historical customary rights. [here court held that there is no right, but an expectation that forces parties to negotiate a resolution.]¥ Court highly criticized for imprecision of the concept of Òpreferential rightsÓ

Law of the Sea Contents:

See Table of Contents sp. 561+

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