Transnational Hickey Spring 09

7/27/2019 Transnational Hickey Spring 09

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TRANSNATIONAL LAW - HICKEYSPRING 2009 OUTLINE

WHAT CAUSED THE ADVENT OF TRANSNATIONAL LAW

1. The End of he Co!d W"# the division of the world into the east and west, politically,socially, economically, etc. Cold War ended in 1990s, and a period of global immigration was

created.2. $#e"% &' of he So()e Un)on *he !"+ ,o!on)"! 'oe#. Brea!p of the "oviet #nion

1990s, empire system went away, so the states are free to integrate with other co!ntries.$. /o(een of he ",,e'"n,e of he Deo,#"), fo# of 1o(e#nen a nation sho!ld be

democratic. Commonality to the world and transnational behavior.3 Gene#"! E4#",e of C"')"!)+ "nd "#%e e,ono)e+ "+ he '#efe##ed e,ono),

en1)ne fo# +o,)e)e+%. E5'!o+)on of he Info#")on A1e Comm!nication has changed drastically. &nternet,

telephone, etc. 'his increases transnational law b(c no one has information advantage overthe other3 )ow it is easy to find o!t when a state is doing to its own citi*ens.

63 P#o4!e+ 4e)n1 f",ed 47 he o#!d od"7 "#e NOT doe+), '#o4!e+ "n7 !on1e#

TRANSNATIONAL LAW IS DIVIDED INTO THREE AREAS1. +&-'/ &)'/)'&) W law that governs the states and h!man beings.2. +#B&C &)'/)'&) W law governing private parties not states3 in more than one

state.$. C4+'&-/ W lawyer compares two different legal systems to render advice in a

setting of law5THESE SYSTE/S OF LAW ARE NOT SEPARATE $O8ES

PRO$LE/S THAT CAUSED APPLICATION OF TRANSNATIONAL LAW

6 C#)e "o!th merica dr!g cartels, &talian mafia, etc. Calls for a global approach and

addressing the problem. Crime is increasingly global so the transgressions are&)'/)'&).

6 Ene#17 708 of o!r oil comes from other co!ntries today. nd every economy depends!pon energy.

6 C!)"e ,h"n1e o! cannot form a domestic energy policy w(o!t nowing international law6 Food the world:s fisheries are diminishing greatly. 4eat.6 Ine#n")on"! T#"de the &4; controls monetary val!es.

Sof !"< "tandards created to serve a p!rpose. 'hey are generally a c!stom, b!t not !s!allybinding.

H"#d !"< When the =c!stom> becomes a stat!te.

WHAT IS A STATE:

6 'he /# has power over its 2? members, b!t o!tside of /!rope, it is no longer those 2? statesthat are obligated to cond!ct affairs. 'he /# is in charge of this. )@s range from theinternational chamber of commerce, ed Cross, mnesty &nternational, @reenpeace, etc.)@s are creat!res of domestic law

SOURCES OF TRANSNATIONAL LAW

6 International treaties most international law today is governed by treaties, )' c!stom3


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6 Customary international lawsimilar to common law as the !nwritten law of the #", generalpractice of states as they accept the law3

6 General principles of law4!st be something more than treaty or c!stom36 Court decisions and the works of writers6 Foreign law peremptory norms of international law =A!s cogens.> Cannot be transcended by

any law3

;URISDICTION

6 Basis of A!risdiction of domestic and international co!rts over persons or events.6


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6 )o conflict of law here. Eeath penalty for children. #" said that this was constit!tional !ntilthis case. 4aAority loos to foreign and international law even tho!gh there is no conflict oflaw.

FACTS< #" has )' signed rticle $? of #) treaty prohibiting capital p!nishment.

ISSUERULE< Whether it is admissible !nder the /ighth and ;o!rteenth mendments to eec!te aA!venile offender who was older than 1% b!t yo!nger than 1G when he committed the capital crime.

HOLDING< 'he /ighth mendment proscribes the imposition of the death penalty for crimescommitted !nder the age of 1G. Eetermined that the death penalty is disproportionate p!nishment foroffenders !nder 1G. 'he /ighth and ;o!rteenth mendments forbid imposition of the death penaltyon offenders who were !nder the age of 1G when their crimes were committed. 'he A!dgment settingaside the sentence of death imposed is affirmed.

OBConno# D)++en< )o national consens!s against A!venile death penalty. 'he /ighth mendmentdoes )' forbid capital p!nishment of 1?6year6old m!rderers in all cases.

S,"!)" D)++en< #" reserves the right to capital p!nishment ) ) +/"). )o national

consens!s, b!t no contrary consens!s either. 'he Co!rt says that merican law sho!ld conform tothe laws of the rest of the world and this sho!ld be reAected o!t of hand. Co!rt:s special reliance on#F laws is terrible. 'he Co!rt has wrongly reAected a p!rely originalist approach to the Gthmendment. cnowledgment of foreign approval has no place in the legal opinion of this Co!rt!nless it is part of the basis for the co!rt:s A!dgment.

6 :Connor does not disp!te the content or !niformity of international law, foreign law, andinternational consens!s against the A!venile death penalty or that it has a place in #"Constit!tional Gthmend. A!rispr!dence. "he does not find any domestic #" gen!ine nationalconsens!s against the A!venile death penalty.

Do!se threatened to ban the !se and citation of international and foreign law into interpretation of the

#" Const.

AUTOCEPHALOUS GREEK OTHRODO8 CHURCH OF CYPRUS V3 GOLD$ERG FELD/ANFINE ARTSFACTS 4osaic case. "he might get a better case in &ndiana state co!rt. &f yo! determine that thech!rch is a s!bAect to Cypr!s, then diversity A!risdiction wo!ld attach. ;irst instinct wo!ld be, let:s s!e

where yo! are going to win. 'hey probably wo!ld win the Cypriot co!rts. B!t when yo! get theA!dgment, yo! don:t want money, yo! want the mosaics BCF.RULEHOLDING

L"o')on+< 'he @ree Cypriot system of law, the '!rish law, "wiss law, &ndiana law. What lawappliesHWh" !" dee#)ne+ h),h of he+e !"+ 7o& "''!7: And "fe#"#d+? h" doe+ h" !"+"7:We are in ;ederal Eistrict Co!rt and ;ederal law says that they will apply the law where they sittherefore, the Co!rt is in &ndiana so they will loo to &ndiana law to determine what law applies3.&ndiana law says that yo! apply the law of the place with the /OSTSIGNIFICANTCONTACTS.


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Con",+ )h S)e#!"nd< 'he transaction too place in @eneva airport. &t was in the transitlo!nge of @eneva airport before yo! went thro!gh c!stoms. ther than that, not m!ch contact with"wit*erland.

Con",+ )h T%)+h Re'&4!), of No#he#n C7'#&+< Where the mosaics came from.!tocephalo!s ch!rch is located here. #nder this law, who had title to the mosaicsH 'he )orthernCypr!s government does b(c they iss!ed a decree confiscating title to the mosaics. +robably bettercontacts here than with "wit*erland.

Con",+ )h G#ee% C7'#)o Go(e#nen 'hey are the recogni*ed government of all of Cypr!s,therefore they wo!ld have he same contacts as the '!rish ep!blic of )orthern Cypr!s beca!se ofobAections to the way that '!rey too control of )orthern Cypr!s.

Con",+ )h Ind)"n"< Eefendant is from there, mosaics are located in &ndiana, the art gallery andthe b!siness are in &ndiana.

Who h"+ he o+ +)1n)f),"n ,on",+: THE COURT HELD THAT INDIANA HAS THE /OSTCONTACTS THEREFORE THE FEDERAL DISTRICT COURT IN INDIANA WILL APPLY ONLYTHE STATE OF INDIANA LAW3

Doe+ '#o'e#7 !" he!' he#e )n Ind)"n": Ind)"n" o# !" "+ "''!)ed o dee#)ne h" !"+ho&!d "''!73

Re'!e()n31. #nder &ndiana law, if the property is !nlawf!lly obtained, than the defendant !nlawf!l detention2. Wrongf!l possession.$. 'itle.

The Ch,hB+ C"+e< 'he ch!rch establishes that it is their mosaic title3. +eg @oldberg won:t givethem bac therefore, !nlawf!l detention3. +ossession is wrongf!l b(c she has possession tho!gh

she does not have title wrongf!l possession3. ;oreign affairs power of the #" resides ecl!sively inthe ;/E/ B)CD. 'herefore, the #" state co!rts are not entitled to engage in internationalaffairs.

HOLDING< Bona fide p!rchasers prevail. +eg @oldberg is bad, therefore the ch!rch has the validand s!perior title than she does. +eg new or sho!ld have nown, or sho!ld have been alerted abo!the setchy sale in "wit*erland.

$on" f)de ',h"+e# fo#("!&e< a good faith p!rchaser for val!e, yo! are going to be protected,even tho!gh the title is not good in most circ!mstances3;C'"< ;iled a s!it in eplevin to cover the stolen good. &f they wanted money damages, they

wo!ld have wanted 'rover.

&""#/< Eo #" Co!rts have A!risdictionH

I1$$2 Eiversity. &s the ch!rch a s!bAect of a foreign stateH Dere, the ch!rch is in Cypr!s. 'helawyers have to loo at Cypr!s:s law to determine whether or not the #" law applies.

What law do we !seH ;ederal co!rts !se the local law of the state in which they are sitting. 'heyhave to go to &ndiana and loo at those r!les to determine what law applies.


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CASE OF SOERING CASE V3 THE UNITED KINGDO/ *99? P3 2.

FACTS< -irginia do!ble m!rder case. 'he perpetrators wo!nd !p in the #F and "oering is a@erman national now in the #F, and his girlfriend and accomplice was a Canadian. 'here was anetradition treaty between the #F and #". #pdie prosec!tor3 has to get the etradition treaty andarg!e to the feds to invoe this provision of the etradition treaty. #pdie tries to mae concessionsto them beca!se the #F and @ermany do not want a german national to be eec!ted.RULE may be members of the #)

"oviet #nion wanted all 1% rep!blics of the "oviet #nion admitted to the #)separately b(c of comm!nist vs. non6comm!nist co!ntries.

Capacity to enter into relations with other states now that #raine and Belar!swere members of the #), they had to be concerned with voting power in the #)and then the #" wo!ld be o!tn!mbered. 'hey only allowed two of the "oviet#nion rep!blics into the #) so that the comm!nist votes wo!ld not o!tvote thenon6comm!nist votes

"tate of &srael eample and +alestine6 IS THERE A PROCESS FOR $ECO/ING A STATE:

o &f yo! meet the definitional reM!irements, do yo! A!st become a stateHo 4#"' D-/ /C@)&'&) " @-/)4/)'("''/ recognition etends to

statehood so is there a process or a form of acceptance by the internationalcomm!nityH

o wanda and B!r!ndi how co!ld the #) allow them in when they were only colonies

and not statesHo If he UN ,oe+ )n "nd +"7+ h" 7o& ,"nno o)n 4, 7o& "#e no " +"e? h"

)1h h"(e %)!!ed he '#o,e++ of ",h)e()n1 +e!f-dee#)n")ono /ee)n1 he def)n))on"! #eJ&)#een+ ALONE )+ NOT ENOUGH 4& ) )+ (e#7

)'o#"n

Pe",e of We+'h"!)" *6.6 'he establishment of the state6 'he primary(only actor on the international stage. ther entities played on the international

stage depends on other states =picing them !p>6 Ohe# en))e+ do no h"(e )ne#n")on"! !e1"! 'e#+on"!)7 on he)# on

REPARATIONS CASE *$e#n"doe.6 "wedish man, woring for a #) organi*ation, was dispatched to &srael to sec!re a peace6fire

and he was illed in &srael6 'he government of &srael, whether it was recogni*ed or not, the government was critici*ed for

not providing protection to the man who was illed6 'he criticism was that they effectively responsible for his death b(c the did not sec!re his

safety6 #nder the old law of nations, he was a citi*en of "weden so traditionally, "weden wo!ld tae

!p his claim and assert it against &srael "weden v. &srael

6 )ew organi*ation, protect employees#) felt that it needed to step in to show that someonewas going to act on their behalf.

6 De is left witho!t anyone(any state being responsible for his death. De is illed by the "term@ang that was a terrorist organi*ation in &srael.

6 &srael was not a member of the #) or a party to the #) charter at this part of its life.


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6 Doe+ he UN h"(e he #)1h+? d&)e+? '#)()!e1e+ "nd )&n))e+ h" )ne#n")on"! !e1"!'e#+on"!))e+ h"(e:

o &f it does )' have international legal personality, then it is not a s!bAect of internationa

law6 &f there is &nternational egal +ersonality, co!ld it proceed with a state that is a non6memberH6 COURT CONCLUDED The O#1"n)")on )+ "n )ne#n")on"! 'e#+on3 Th)+ )+ no he

+"e h)n1 "+ +"7)n1 h" ) )+ " +"e? h),h ) ,e#")n!7 )+ no? o# h" )+ !e1"!'e#+on"!)7 "nd #)1h+ "nd d&)e+ "#e he +"e "+ ho+e of " +"e3 I e"n+ h" he UN

o#1"n)")on )+ " SU$;ECT OF INTERNATIONAL LAW "nd ,"'"4!e of 'o++e++)n1)ne#n")on"! #)1h+ "nd d&)e+? "nd h" ) h"+ ,"'",)7 o ")n")n )+ #)1h+ 47 4#)n1)n1)ne#n")on"! ,!")+3

6 Th)+ ho!d)n1 ,h"n1ed f&nd"en"!!7 THE LAW OF NATIONSo fter this holding, are states any longer the only s!bAects of international lawH )

o &f not, what other entities might also have international legal personalityH

o E-&" +&)&) ; 'D/ &)'/)'&) C#' ; J#"'&C/

6 Re'"#")on+ C"+e Whether or not the #) "ecretary general has the power to seecompensation for inA!ries to #) employee, #) co!ncil votes and says Rwe donSt now, lets asthe &CJ. &CJ analy*es the sit!ation and sees that #) does have right . 'hro!gh impliedpowers of charter which incl!des necessity to protect members. +olicy reason, otherwise

individ!als wo!ld not Aoin #) beca!se no g!arantee of protection IC; HAS THE ULTI/ATEPOWER TO DECIDE THE LAST WORD WHAT THE POWERS OF THE ORGANIATIONARE3 HELD necessary to provide protection for members of #) on international stage.

C!"++ Noe+Fe4#&"#7 >? 2009

5'he state is the primary international legal personality and has been so since 17KG !ntil 19KG.6 When yo! have state maing a claim against state B for something that state B did in

violation of some international principal or r!le, now yo! have international claim from 17KG6

19KG36 &n the eparations case, we have the #) or any organi*ation for that matter, that is )' a

state3,

1. rgani*ationa. +ermanent officesb. rgansc. dministrationd. ;!nctions

2. 'reaty$. "tate6based

a. 4embers of the organi*ation are states

6 Conferences and other entities that are not treaty based and not comprised of state membersare also not considered international organi*ations i.e. ed Cross, @reen +eace, etc.3

6 eparations case changes the definition of an international organi*ation as well as the modelthat eisted B/;/ 19KG.

6 'his is an advisory opinion of the international co!rt of A!stice6 Wh" )+ he f)#+ !e1"! '#o4!e h" he IC; h"+:

o H"+ o e5")ne he,h"#e# this is an international organi*ation and there is no

provision in the charter abo!t how to respond to this


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='he Charter does not epressly confer !pon the rgani*ation the capacity toincl!de, in its claim for reparation, damage ca!sed to the victim or to personsentitled thro!gh him. 'he Co!rt m!st therefore begin by enM!iring whether theprovisions of the Charter concerning the f!nctions of the rgani*ation, and thepart played by its agents in the performance of those f!nctions, imply for thergani*ation power to afford its agents the limited protection that wo!ld consist inthe bringing of a claim on their behalf for reparation for damage s!ffered in s!chcirc!mstances> p. %?3

o Unde# )ne#n")on"! !" #nder international law, the rgani*ation m!st be deemed to have those powers

which, tho!gh not epressly provided in the Charter, are conferred !pon it bynecessary implication as being essential to the performance of its d!ties p. %?3

nce yo! create the organi*ation, they have inherent, implied powers that arenecessary to the performance of its d!ties

6 &f yo! have international legal capacity, that still does not give yo! a!tomatic right to bring aclaim, b!t yo! are a s!bAect as an organi*ation and capacity can be analy*ed p. %93

o Whether the organi*ation has capacity to bring a claim, they have the power in

conformity w( international law to bring into being an entity possessing BJ/C'&-/&)'/)'&) +/")&', b!t not merely personality recogni*ed by themembers alone.

o 'he co!rt finds both that there is international legal personality and the capacity of this

organi*ation to bring international claims.6 Was it essential that the #) organi*ation bring a claim for Co!nt BernadoteH

o 4aybeH De was an employee and was woring for the #) when he was illed.

6 &f one organ of an international organi*ation finds powers not in the treaty creating it, to dothings that may not be so essential to the f!nctioning of the organi*ation, wo!ld the #) reallyhave gone o!t of b!sinessH

P3 > M


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6 J!st lie &srael was liable in the eparations Case, so too fghanistan sho!ld be responsiblefor l Qaeda:s attacs on "eptember 11th

6 &n the #" what is the ability of the fghan government to control attacs of a non6state actoro!tside of the fghanistanH

6 'he attac triggered the #" government to give the fghan government an !ltimat!m< theyco!ld allow the #" government to come and arrest the attacers, co!ld t!rn over the attacers

etc. they had a d!ty to cooperate in ending the safe6haven for the terrorist gro!p, and theydid nothing

6 Ine#n")on"! Le1"! Pe#+on"!)7 S"e+? Ine#n")on"! O#1"n)")on+? H&"n+o Eo we have rightsH

o What is the process of vindicating these rightsH

6 O4e,+ of )ne#n")on"! !" *h&"n+. S&4e,+ of )ne#n")on"! !" *Ine#n")on"!!e1"!personality, rights and processes3

6 The#e h"(e "!"7+ 4een


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6 UNIVERSALITY OF HU/AN RIGHTS AND THE DEFINITION OF THOSE RIGHTSHAVING A RIGHT IS DIFFERENT FRO/ $EING A$LE TO HAVE THIS RIGHT

VINDICATED TO GET HIS RIGHT TREATED IN ACCORDANCE WITH THE ORDINARYSTANDARDS OF CIVILIATION? /R3 RO$ERTS NEEDED A STATE SPONSOR? ANDTHAT IS WHAT HE GOT WITH THE US M IF HE DIDNBT HAVE THAT? HE WOULD NOTHAVE $EEN A$LE TO $RING THE CASE

6 #" had to tae !p his claim in order for his rights to be vindicated. 'he #" too !p his claim,not b(c of concern abo!t his partic!lar treatment, b!t that #" citi*ens sho!ld be entitled to

have international law when their rights are at stae6 A,%no!ed1e+ h" "74e he#e "#e +oe #)1h+ fo# he )ne#n")on"! !e1"! 'e#+on"!)7

of h&"n 4e)n1+ M 4& h" "4o& he '#o,e++: When he US +ee%+ ,o'en+")on "#ehe7 +ee%)n1 ,o'en+")on fo# he h"# done o /#3 Ro4e#+ o# o he US: TO THE USHe h"d " #)1h? 4& he needed o 1e " STATE SPONSOR o "%e on h)+ ,!") h" hen4e,oe+ he +"eB+ ,!")

6 D!man beings not only have an epanded scope of rights that are !niversal, b!t ven!es in

which h!man beings can vindicate o!r own rightsi.e. in /!rope after WW&&, theestablishment of the Co!ncil of /!rope and the /!ropean Convention of D!man ights hasnow recogni*ed the right of &)E&-&E#" to petition E&/C' to the /CD and see

A!dgment against their W) C#)' for violation of h!man rights law.

6 IT IS STILL VERY I/PORTANT TO GET A STATE TO SPONSOR YOU 4& ,o&!d ANY+"e h"(e "%en &' he ,!"): Wh" )+ needed fo# " +"e o "%e &' " ,!") on 4eh"!fof " ,))en:

Noe4oh C"+e *L),hen+e)n (3 G&"e"!".6 &mpending WW&&. 4r. )ottebohm is worried b(c if there is going to be world war and the #"

and @!atemala are going to be enemies of @ermany, 4r. )ottebohm is worried abo!t hisb!siness.

6 /propriation foreigners6 &f yo! are going to #" +roperty, yo! are not allowed to discriminate against other co!ntries6 )ottebohm leaves @!atemala to visit brother in ichtenstein and obtains citi*enship.

6 T"%)n1 "+ )n ()o!")on of )ne#n")on"! !" of h)+ '#o'e#7 *G&"e"!"nB+ oo% h)+'#o'e#7.

o +!blic p!rpose

o )on6discrimnatory

o +rompt, active, effective p!rpose

6 Ho!d< )ationality lone is not eno!gh, @overnment m!st have an interest to tae !p a claim.GENUINE LINKto yo!r co!ntry T R)ationalityR U @ov:t can tae interest in yo!r claim

6 Noe4oh !",%ed "n7 4ond of "",hen 4eeen Noe4oh "nd L),hen+e)n? 4&he7 +)!! oo% &' h)+ ,!") ichtenstein wants to g!ard their citi*enship and g!ard that ifyo! are a citi*en of their co!ntry, they tae it very serio!sly, so they were protecting their owninterest in having more people become citi*ens of their co!ntry.

6 C))en+h)' ReJ&)#een+o Dad to accepted into the Dome Corporation of ichtensteino )eeded to reno!nce his former nationality @erman3o 'hree years of residence b!t that can be waived3o pplication of evidence of residency in the territory, proof of good cond!ct from the

police of the territory, proof of ownership of property or income and payment ofnat!rali*ation fee and application

De did not live there, got the three year reM!irement waived, got the ta

reM!irement dispensed with, etc. he did -/ &''/


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6 L),hen+e)n "%e+ h)+ ,!") &' )n he INTERNATIONAL COURT OF ;USTICE Th)+ )+

he ,o he#e one +"e 1oe+ o +&e "nohe#6 HOLDING< 'he lin between )ottebohm and ichtenstein laced a / &)F b(c it was

lacing in gen!ineness this case has come to stand for the notion that there m!st be a

=@/)#&)/ &)F> between the state and that h!man being the co!rt said that there was no

s!ch lin here.

6 Co!rt maes it clear that grant of citi*enship is a matter of ichtenstein:s sovereignty

international law will not enM!ire into a state:s criteria for maing someone a citi*en6 The Co doe+ no "%e )+ de,)+)on 4"+ed &'on L),hen+e)n !"3 When he

,))en+h)' #e",he+ o& 4e7ond he doe+), 4o#de#+ of L),hen+e)n? he#e /UST 4e "1en&)ne !)n% 4eeen h" ,))en "nd he +"e of L),hen+e)n

6 )ottebohm co!ld not go to @ermany b(c he reno!nced his citi*enship from @ermany when he

became a citi*en of ichtenstein. De wo!ld lose in @!atemalahe wo!ld have to s!e the

@overnment for taing his property w(o!t compensation that wo!ld be a big losing case for

him6 HU/ANS /UST

o E+"4!)+h h" e h"(e +oe #)1ho F)nd " "7 o 1e h" #)1h ()nd),"ed on he )ne#n")on"! +"1e

S"e+ do no "n o 1)(e &' he)# +o(e#e)1n)7 he 'oe# no o 4e )ne#fe#ed o& he)#

'e#)++)onThe o(een of h&"n+ f#o o4e,+ o +&4e,+ of )ne#n")on"! !" e"n+ he o(een

of +"e +o(e#e)1n7 +!)d)n1 +,"!e? he o#e #)1h+ h&"n+ h"(e? he !e++ #)1h+ +"e+ h"(e

+o(e#e)1n7 o(e# &+

C!"++ Noe+Fe4#&"#7 2? 2009

So,e+ of T#"n+n")on"! L"

6 US6 Fo#e)1n6 Ine#n")on"!

re corporations directly responsible for international law violationsHWhich state may tae !p a claimHre corporations directly responsible for international law violationsH

'hin bac to oper v. "immons Fennedy fo!nd that international h!man rights law was&)"'#C'&-/ in that case.

$"#,e!on" T#",)on Co'"n7 C"+e6 Canada("pain(Belgi!m Case6 /lectric company with operations in many co!ntries. ne of these co!ntries was "pain6 +eople in "pain bondholders3 wanted to get their hands on the operations of the company

they forced the company into banr!ptcy. When a company gets forced into banr!ptcy, thatmeans that there are more creditors than assets. By forcing them into banr!ptcy, they got the"panish creditors to the =front> of the creditor list.

6 ater on, Canada withdrew from this place.6 Canada tho!ght that they had an interest, b!t it became apparent to them that they did not.

Barcelona 'raction Company was of diminished val!e in receivership. 'he Belgianshareholders essentially hold the assets and the val!e of the company GG83.


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6 'he Belgian government cared abo!t this b(c Belgian people are being h!rt by the banr!ptcyof this company. 'he Belgian government m!st have tho!ght that it was within its interest totae !p the claim and assert it on behalf of the shareholders.

6 Citi*enship )/ is )' /)#@D4#"' have an effective nationality and a gen!ine

lin6 C+'&)" D-/ /@ +/")&'/&" 'D/ D-/ &@D'" 'D' /

"/+'/ ;4 'D/ +/")&'&/"6 Belgi!m is prevented from taing !p a claim on behalf of its citi*ens with whom it has direct,

gen!ine lins. o! assemble capital yo! will mae a lot more =widgets> which creates wealthfor society if yo! have more of an investment to start

6 o! do not have to worry as an investor(owner abo!t what the company does daily the

characteristic of a corporation is that it allows owners to invest with &4&'/E &B&&'

C+'/ -/&6 We have a corporation that is in between the h!man beings that were harmed and the state

that is seeing to tae !p the claim on their behalf. 'he corporation ahs a distinct legalpersonality with rights and obligations separate from anyone else.

6 &n the #", corporations are creat!res of the "''/" of the #" it is a state law matter that

creates a corporation. &t is incorporated !nder the laws of the %0 states. 4"' corporationsin the #" are incorporated in E/ beca!se there are ta benefits from that state towards

corporations.6 'he company is &)C+'/E &) C)E !nder Canadian domestic lawregistered

office, ta records, board meetings, operated there for %0 years, ban acco!nts,6 What is the relevance that some of the shareholders of Barcelona 'raction Company are

BelgianH )othing really, this is a free choice that they made. Belgians chose freely toparticipate in this corproration they J&)/E the company. &f there is a state willing to tae !pthe claim, it has to be Canada here as long as the corprorate identity is preserved, theBelgian shareholders are noced o!t of bringing their own separate claims thro!gh Belgi!m.

6 +&C< 'hin of what wo!ld happen if co!ntries co!ld tae !p the claims of shareholders

that were from other co!ntries to assert those claims against other co!ntriesH that wo!ld be

a mess

6 &f a corporation does something wrong, they will be held acco!ntable !nder the domestic lawof the co!ntry in which they operate in.

6 Eo corprorations have d!ties to which they can be called !pon E&/C' to the internationalstageH

o /" if they behave in a way that violates ;#)E4/)' D#4) &@D'"

P#e+47e#)"n Ch,h of S&d"n (3 T"!)+"n Ene#176 ) Eistrict Co!rt case.6 A!)en To# C!")+ A, says that the district co!rts shall have &@&) J#&"E&C'&) of

) civil action by an alien for a tort only committed in violation of the law of nations.

C!"++ Noe+Fe4#&"#7 @? 2009

ROAD/AP#" aw ;ederal "tate;oreign aw Civil law, &slamic, "ocialist, etc.&nternational law treaties, c!stom, general principles of law, co!rt decisions and wors of writers

6 ;o!r so!rces of treaties


17/25

P#e+47e#)"n Ch,h ,"+e s!ed Canadian company for violations of the most f!ndamental h!manrights of the "!danese people. J!risdiction is in ) here normally it is in a place where the tortocc!rred or the law of where the co!rt sits is applied. &' 4#"' B/ '' #)E/ 'D/ W ;)'&)" not A!st any tort !nder #" law. 'he law of nations that is violated is f!ndamental h!manrights. )ormally these cases are being bro!ght against a government. Dere, the case is beingbro!ght against a private corporation. / C+'&)" "#BJ/C' ' 'D/ W ;)'&)"H

Ve#),"! N"e of US L" what is the relationship between the federal government and the stategovernments.

/,C&!!o,h (3 /"#7!"nd said that the M!estion of vertical nat!re of #" law is a M!estion thatis Vperpet!ally arising:

Ho#)on"! N"e of US L" the allocation of power hori*ontally at the federal level

S&'#e",7 C!"&+e of he Con+)&)on. rticle && of Constit!tion recogni*es the sovereign power ofthe states.!r federal government is a C/)' government. 'he states are a!tonomo!s as were the

colonies3, in legal effect and in practice.

A#),!e+ of Confede#")on The Con+)&)on6 'he doc!ment that the colonies p!t together to cond!ct the evol!tionary War.6 Was replaced by the #" Constit!tion6 'he #" Constit!tion has a federalism dynamism embedded in it b(c of the rticles of

Confederation and all of the individ!al colonies that eisted thro!gho!t the co!ntry6 "!spicion of power too m!ch power residing in government motivated the #" states to

become &)E/+/)E/)'6 'he Constit!tion maes all of the branches of the government /Q#

C!"++ Noe+Fe4#&"#7 9? 2009

Coon L"6 &s there anything that really does separate the #" and other common6law tradition co!ntries

from the rest of the world in terms of the style of practice and how we approach legalproblems, etc.H

6 aw that reflects the !sages and practices of peoples that are artic!lated in A!dicial decisions6 CO//ONLAWDEFINED< 'he ancient, !nwritten law of /ngland6 We e(en h"(e fede#"! ,oon !" "nd ,oon !" )n "!! of o >0 +"e+

Fo#"! (+3 /"e#)"! So,e+ of L"6 ;ormal< 'he machinery by which law is made in the #", it is the Constit!tional process6 ;ormal law is made in the #" by &)'//"'" coming to Washington to p!sh their interest to

the legislat!re6 'he law that is p!shed o!t of the =machine> is the material so!rce of the law6 When we loo at a treaty we are looing at a partic!lar "#C/ of law

P#e,eden (+3 S"#e De,)+)+6 "tare decisis compels the co!rts to #"/ precedent co!rts are bo!nd to apply the prior

decision


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6 +recedent is +& "&4& E/C&"&)"

Wh" d)ffe#en)"e+ &+ f#o C)()! !" +7+e+:6 'he idea of common law, precedent and stare decisis6 &n o!r system, o!r A!dges are +""&-/ they are mere =referees> they are not participants

or parties in the case, they are there to referee the case and to decide WD wins by renderinga verdict

6 &t is the lawyers, m!ch more than the A!dges to decide the case

6 &n civil law traditions, it is !s!ally )' an adversarial system in the civil law system, A!dgesare m!ch more active they will mae obAections, cross eamine witnesses, etc. the A!dge isa party trying to reach the J#"' /"#' in the case

/"dd&5 C"+e6 &n this case and the "/ v. "CD case there was a car accident where the inA!ries of the victim

were ca!sed by m!ltiple people6 there were chain collisions6 'he problem is, who did what damageH We want to apportion responsibility b!t we can:t6 +laintiff won. Eefendant said that yo! cannot trace the proimate ca!se for any ind of inA!ry.

'he co!rt held the defendant responsible for all the inA!ry so that the + can recover all thedamage from )/ defendant.

6 Common law analysis yo! have to deal with bad precedent from 1G29 that analogi*ed sheepand dogs to cars and people by p!shing aside the precedent beca!se of fairness

6 'he co!rt also fo!nd other a!thority for a different r!le the restatement, writers, etc.

SE (3 SCH C"+e6 +laintiff won in a m!ltiple chain collision case

5J!dges get o!t of precedent beca!se o!r co!rts are both co!rts of the law and co!rts of eM!ity.J!dges can p!sh aside precedent even if a case is similar, beca!se yo! can always arg!e that it is&)/Q#&'B/

C!"++ Noe+Fe4#&"#7 2? 2009

6 J!dges are passive referees in common law A!risdictions that weigh the positions of the parties

SE (3 SCH C"+e6 'he Co!rt dealt with the other cases by taing =bits> of information from them instead of

applying them as mandatory a!thority6 'hey are not wearing the =handc!ffs> of precedent or stare decisis they hear the cases as

=information>

6 'he decision is shorter as well6 'he Co!rt here is trying to apply the written code provision of the civil code6 What is most important is that the law accepts certainty and predictability6 +ractically, yo! sho!ld find someone who nows the system, what is important, how to present

cases based on the W of the co!ntry within which yo! are arg!ing6 !r legal system is m!ch more !niM!e than other systems aro!nd the world

5'he practice of law is becoming 4/&C)&/E6 ;rom a common law perspective, other law firms and corporations got global representation moreand more so they had to deal with merican legal perspective stare decisis, precedent, etc.3


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So,e+ of P&4!), Ine#n")on"! L"6 the law governing the relations of states and international organi*ations and sometimes the statesand h!man beings international h!man rights3 to the etent that it eists6 there is no =s!per legislat!re> on the international scene6 formal so!rces of law the process by which a treaty comes into being is a formal so!rce of law6 what is the evidence for the content of the lawH

N""! (+3 Po+))(e L"

6 4odern international law was born in 17KG6 When international law began it relied heavily on nat!ral law the law that is derived mostly

from a matter of logic and rationality it has an air of morality abo!t it international law reallybegan by relying on nat!ral law the notion that states sho!ld behave in a certain way, etc.

6 o! co!ld act!ally discover what states considered to be the law yo! co!ld find agreements,practices, and c!stoms that states wo!ld engage in this is a very different eercise than

prayer or thining yo! are looing at an earthly way at what states do POSITIVELAW

6 H&"n #)1h+ !" )+ 4"+ed !"#1e!7 on n""! !" n""! !" "%e+ " #e+en,e

he#e6 Ine#n")on"! Co of ;&+),e *IC;. "7 on!7 he"# ,"+e+ "on1 STATES M he ,o


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6 'hey are in this litigation and the treaties bind only the parties to them6 Eenmar v. the )etherlands6 'he treaty represents c!stomary international law the law that represents the general

practice to of states accepted as law sometimes there is a relationship b(w treaty and c!stom sometimes a treaty can codify law that is the c!stom of the area

6 &f they say that this is c!stomary international law, then they can say that @ermany is a party tothis treaty.

6 /Q#&E&"')C/ b!t in this case, yo! have a conve coast so if yo! do eM!idistance

analysis, @ermany gets nothing. @ermany says that this sho!ld be handled eM!itably b(c theyare not a party to the treaty !nder article 7.

6 GER/ANY WON THIS CASE the co!rt said that eM!idistance is )' binding on theseparties and says that eM!ity sho!ld apply. 'he co!rt did not draw the new line the co!rtartic!lated the law here and @ermany won the case. When they negotiated the line, theynegotiated a line that still left them short of the oil

6 REUIRE/ENTS OF CUSTO/ *NEED $OTH.o @eneral practices of states

Gene#"!P#",),e international c!stom as evidence of a @/)/ +C'&C/

of state accepted as law. @eneral means something less than "''/"beca!se it is not !nanimo!s

f stateso 'hat states accept as law opinion A!ris3

TWO REUIRE/ENTS FOR UNWRITTEN INTERNATIONAL LAW CUSTO/Q *A POSITIVE LAWE8ERCISE.

1. @eneral +ractice of "tates Xand international organi*ationsY not !nanimo!s, b!t less than!nanimo!s3

2. ccepted as aw opino A!ris3

C&+o6 +ositive acts of state practice are affirmed in votes6 ffirmative acts of state practice6 )egative acts of state practice when yo! obAect to the claim of legal right, that is negative

practiceP any ind of diplomatic note of process is a negative process.6 What abo!t non6statesH

o ))6"''/ C'" C) +-F/ 'D/ +C'&C/ ; "''/". 'o the etent

they can provoe states to engage in practices, it is indirect. obbying, etc.6 'he state has to =B/&/-/> that they are acting o!t of legal obligation. &n international law that

is referred to as opinion A!ris. "ome scholars claim that this reM!irement is not necessary forthe formation of c!stomary international law b!t it &" )/C/""

6 'his is the critical difference between mere habits and !sages and W6 nly concerned with c!stoms that have attached to them a sense of legal obligation i.e. a 21

g!n sal!te is the !niversal practice of states that when a visiting head of state goes to anotherco!ntry, they get a 21 g!n sal!te3. 'his is the !niversal practice of states. &f bama goes to;rance and the ;rench give him a 19 g!n sal!te, wo!ld ;rance have violated internationallawH 'hey have violated the !niversal practice of states, b!t they did not violate the law 'hisis mere habit, !sage, )' a c!stom. CUSTO/ /UST HAVE A SENSE OF LEGALO$LIGATION ATTACHED TO IT

T#e")e+ "nd Non-'"#)e+


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6 'reaties in general only bind the states that are parties to them6 @ermany was not a party to the continental shelf convention so they co!ld not be bo!nd to the

treaty with eM!idistance.6 Can bind non6parties if they @// to it. i.e. #" and Canada who got into a disp!te in the

@!lf of 4aine where there were rich fisheries. Eisp!te arose o!t of the promise that!nderneath the @!lf of 4aine was !ntold oil.

6 &f the treaty reflects the accepted practice of the states(general practice of states.6 &f in the years since the treaty came into being the general practice of states adopted that

treaty as c!stom, then that treaty will be c!stom international law

Continental Shelf Case

'o become c!stom

o 'ime

ver ten years since the convention was signed

'he generality of practiceo )!mber of states

o pinio A!ris

&n the case there was not a s!fficient showing of opinio A!ris

'he treaty was not binding on @ermany that was not a party to it 'he co!rt was ased to state the principals of international law abo!t the iss!e that the parties

disagreedo 'his was the net step in the analysis after the co!rt reAected the party:s arg!ment

What was the c!stomary international lawH

o miable negotiation

'he co!rt has to go beyond this beca!se this is what the parties tried to do beforethe case

o 'he co!rt:s r!le is on page 1%9

'he agreement has to be in accordance with eM!itable principles

@eneral principals of law

rticle $G of the &nternational Co!rt of J!stice

&nternational

o )ot embedded in treaties or c!stoms, b!t in cases

Eomestic

)o !sed a lot

o -ery vag!e

J!dicial decisions and writers

So,e+ of P&4!), Ine#n")on"! L";&+ ,o1en+ peremptory norms of international law. 'he idea that there are certain activities that

cannot be legitimated by legal processes. Certain activities cannot be legitimated by states, h!manbeings, or corporations. "ince states are sovereign, to hold them responsible despite their lac ofconsent, is rather narrow.

5)o A!risdiction of the &CJ over corporations or individ!als

'his means that states and B ,o&!dnoget together and say that since indigeno!s peoples arespreading across their borders, we sho!ld enter into a treaty that is binding on each of !s, that wesystematically eterminate those indigeno!s peoples.


22/25

S"4")n"case #" sovereign imm!nity. &t says that rgentina implicitly waived its claim toimm!nity. "tates can waive their imm!nity if they want to litigate. Dere, the Co!rt intimates thatrgentina waived their claim to imm!nity. 'here is a difference b(w peremptory norms and the rightof states to proceed with a peremptory norm

S)de#"ncase cites to the Barcelona traction company case. 'he doctrine of actio pop!lares can befo!nd in a treaty, etc. where it says that some r!le of law.

&nA!ry triggers a right to s!e b(c it creates a legal interest. 'here is a difference b(w A!risdiction to tae!p a claim. )' /-/)/ D" 'D/ &@D' ' "#/

+eremptory norms create an obligation /@ 4)/" owed to all3

# "'& )//E /@ &)'//"' ( C#"'&) B/'W//) W )E 'D/ &@D' '+#"#/ 'D/ C"/

&f we have an obligation owed to all, everyone can s!e for a violation of ",)o 'o'&!"#e+

&nternational Criminal Co!rt is established by treaty. 'hey do not have actio pop!lares A!risdiction in

that treaty.

TWO TYPES OF COURTS

1. &nternational Co!rts2. 4!nicipal Co!rts Eomestic aw Co!rts3 if m!nicipal law M!estion is before international law

co!rt, m!nicipal law will fall before the international law. 4!nicipal law is )' an ec!se.

Theo#7 (+3 P#",),eheories#

"3 D&"!)+

i. &f the A!dge is a m!nicipal law A!dge, how are yo! are going to get that A!dge toapply that separate(eM!al body of law internationallyH

1. 4!st show that that international law has been made into domestic law insome way i.e. show a c!stom, a treaty, etc. that incorporates intodomestic law

43 /on)+i. ne system of law international law at the top and m!nicipal law at the bottom

yo! wo!ld apply international law as a monist if there is a conflict of lawsii. Re(e#+e on)+ when m!nicipal law is on top and international law is

s!bservient to it i.e. "calia in oper v. "immons3

H)e#"#,h7Constit!tion;ederal aw"tat!tesCo!rt decisions/ec!tive rders"tate constit!tions"tate stat!tes"tate co!rt decisions

Ine#n")on"! L"'reaty, c!stom, general principals, co!rt writers


23/25

C!"++ Noe+/"#,h 0? 2009

'heoretical and +ractical aw +roblems in &nternational aw

Th#ee %)nd+ of #e")e+

$. "elf6eec!ting treatiesK. )on6self eec!ting treaties%. /ec!tive agreements

D)+)n,)on+7. Eistinction between self6eec!ting treaties and non6self eec!ting treaties were made by chief

A!stice 4arshall?. /ec!tive agreements arose o!t of necessity there are tho!sands of eec!tive agreementsG. 'he senate does not want to be tied !p with a minor agreement so then it is decided thro!gh

an eec!tive order

/),%e7 Ed"#d+ (3 ;"e+ E"#! C"#e# *'3 @.9. 'reaty that closed the deal between +anama and the #nited "tates10./dwards said that the Constit!tion !nder rticle &-, section $, that Congress shall have the

power to dispose of territory belonging to the #"11.De bro!ght the case against +resident Carter saying that Carter violated the Constit!tion by

maing this real estate deal with +anama therefore the Constit!tion sho!ld tr!mp this treaty12.De calls on Carter to bring legislation that wo!ld adopt the +anama Canal treaty before the

Congress1$.Carter too the treaty and went to the "enate it needs 2($ vote to be ratified, and the "enate

did that. 4icey /dwards: problem is that the C)@/"" is s!pposed to have the power todispose of #" property, therefore, B'D the "enate and the Do!se have to eercise their

power, and here Carter bypassed the Do!se3THE CONSTITUTION DOES NOT SAY THAT CONGRESS HAS THE E8CLUSIVE POWER

TO GIVE OUT PROEPRTY? THEREFORE? CONGRES IS NOT THE ONLY $ODY WHO CANGIVE OUT PROPERTY

1%.'he Co!rt fo!nd that this is a self6eec!ting treaty. ;or a self6eec!ting treaty, there m!st be ap!rpose that is more &44/E&'/ )/C/"". Dere, we have a self6eec!ting treaty thatinvolves a non6ecl!sive power of Congress

17.HOLDING< "/; /L/C#'&)@ '/' +/'&)@ )' &) -&'&) ; 'D/C)"'&'#'&) &" 'D/ W ; 'D/ )E

@3The #end no )+ o #e" ALL #e")e+ "+ non-+e!f e5e,&)n1 od"7

A+"%" (3 C)7 of Se"!e1G.'his ordinance in "eattle forbids aliens from owning and operating pawn shops in "eattle.19. &""#/< Was the treaty involved self6eec!ting or notH20.&f it is a self6eec!ting treaty, then it tr!mps all state law21.'he 'reaty itself says that it operates of itself witho!t the aid of legislation22.Eid this case care abo!t intentH /". 'he intent of the instr!ment sho!ld be analy*ed.

T#e")e+2$.'o have a treaty, the president signs it, then taes it to the "enate who by 2($rds vote has to

ratify it, then it goes bac to the president who signs again and then we have a treaty2K.&f we have a treaty, what is its internal effectH


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2%.What if there is a conflict b(w federal law and state law against that treatyH27.'he #) charter is a '/'

Se F&)2?.rticle %72G.=ll members pledge to tae separate action>

a. 'he circ!mstances in determining the intent of the #F, ;rance, #" and "oviet #nionregarding discrimination in the "oviet #nion was to p!nish states lie Japan

b. "!rely the #F intended for it to be immediately operative inside the #F

WHETHER THE PARTIES TO THE TREATIES INTENDED FOR THE TREATIES TO $E SELF-E8ECUTING IS THE DIFFERENCE $ETWEEN SELF-E8ECUTING AND NON-SELF-E8ECUTING3THIS TEST IS SU$;ECTIVE3

The#e e#e +e!f-e5e,&)n1 PROVISIONS )n he UN ,h"#e# M '#o()+)on+ 1)()n1 he 'oe# of he'+e o ,on#o! he 4&d1e? e,3 4& he#e he7 +")d h" h)+ PIECE of he #e"7 "+ NON-+e!fe5e,&)n13 The7 +")d h" +oeh)n1 o#e needed o 4e done3

C!"++ Noe+/"#,h 2? 2009

E"+e#n A)#!)ne+ C"+e *e"#!7 990+.S"!e (+3 H"))"n Ref&1ee+ ,"+e/",h"een ,"+e *DAA "1en ho "+ %)!!ed.

5 'D// ; 'D/"/ C"/" '#) ) 'D/ &)'/+/''&) ; 'D/ 4/)&)@ ; 'D/'/'

Se F&) (3 S"e29.+rovisions of the charter that were ))6self eec!ting and had )' been eec!ted

Se!f-e5e,&)n1 #e"7 AND non-+e!f e5e,&)n1 #e")e+ h" h"(e 4een e5e,&ed "#e heSUPRE/E LAW OF THE LAND *UNDER THE CONSTITUTION.

$0.;orever, the states of the !nion have had the power to reg!late abo!t illing birds in their state.$1.Birds that traversed from Canada to the #" and 4eico began to become a problem. 'his

cycle was necessary for their s!rvival. 'hey co!ld not s!rvive witho!t this migration pattern.$2.Congress passed a federal law in 191K saying that the states cannot ill these migratory birds$$.'he stat!te from 191K was str!c down as !nconstit!tional.

$K.&n 1917, 4igratory Bird 'reaty #F and #" enter into a treaty where there was aninternational agreement where they both agreed to reg!late the illing of migratory birds anon6self eec!ting treaty !nder either test the treaty co!ld )' operate of itself there ismore that needs to be done

35. 191G, federal law violation of the constit!tionH C)@/"" /)C'/E 'D/ "''#'/

; 'D/ 4&@' B&E '/' C'. non6self eec!ting treaty that is /L/C#'/E bystat!te. 'his 191G federal law did eactly the same thing as the 191K law, and the stateschallenged the ct as !nconstit!tional saying that it violates the 10thamendment.

36. "!preme Co!rt said that possession is not dispositive of ownershipthe contention of the

states that they =W)> the birds, is str!c down b(c the birds are wild birds and they belong tono one !ntil they are capt!red


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$?.&t is m!ch easier to get a treaty signed than to mae an amendment to the constit!tion

To Te++ fo# De,)d)n1 )f " T#e"7 )+ +e!f-e5e,&)n1 o# no1. A+"%"test2. Se F&) intent test

A#),!e II? +e,)on 2 M

Transnational Hickey Spring 09

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Transcript of Transnational Hickey Spring 09