transnat outline part two

7/30/2019 TransNat Outline Part Two

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Introduction to Part Two

Proliferation of Nation States: Statehood Revisited

James Crawford, Creation of Sates in International Law (2006)

Universality is a core principle of the United Nations

General Assembly resolution 2758 (XXVI) has not resolved the issue of the

representation of the people of Taiwan

Taiwan is a sovereign state and a constructive member of the international

community

Taiwan is a vibrant democratic society and an active international partner

UN General Assembly letter 11 August 2006

Protocl

WTO (23 Nov. 2001) Accession of the Sperate Customs Territory of Taiwan, Penghu, Kinmen,

and Matsu

Congressional Findings and Declaration of polciy

Implementation of United States policy with regard to Taiwan

Application of Taiwan of laws and international agreements

The American Institute in Taiwan

Taiwan instrumentality

Defintions

Taiwan Relations Act (1979)

Admission of Palestine as a member of UNESCO

Constitutive Effect

Confrimation of the Objective legal situation

Declaratory Effect

Stefan Talman, The Constitutive Theory versus Declaratory Theory of Recognition: Tertium

non Datur? (2004)

State recognition: Taiwan

Antonio Cassese, International Law (2005)

Introduciton

Russia - Successor Stateto the Soviet Union or its Continuation

Conclusion

Rein Mullerson, The continuity and Successsion of States, By Reference to the Former USSR

and Yugoslavia (1993)

ILM Background

Declaration by the Heads of State of the Repblic of Belarus, the RSFSR and Ukraine

Agreement eastblaishign the commonwealth of independent States

Agreemnts Establsihing the Commonwealth of independent States (armenia, azerbaijan,

belarrus kazakhstan, russian federation, ukraine, Turkmenistatn, etc (1991)

State Succession: The Break-up of the USSR

Intergovernmental organizations

Actors: State Clubs and Non-State PlayersSunday, September 30, 2012

2:47 PM

Part II. Evolution Page 1


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They are outside the Wesphalian system

IO's are what's really different about the modern era

Lots of them - numerically iportnat

No treaties- corporations not bound

And use UN Material as ammo to show this is customary law

Look to customary international law

How to show

Ex: sue domestic corporation under alien torts act for violations of human rights

laws

UN Security Council sometimes freezes assets of clients

Does the UN matter in typical legal practice

Contra sovereignty

Can't create a super stae- in westhpalia states don't recognize super state

But could have an agreement amongst nations in which they agree to forgo

wars, soe disputes with peaceful means and have amechanism to enforce it

Here is where the original idea for the UN is usually located

Immanuel Kant, On Perpetual Peace (1795)

The League of Nations (1919=1946)

We often look at these things as legal douments (and it is)

Thus security council with veto powers

Driven by attempt to organize world in a way that prevents

future war

But Primary Function: A Political world order in which the big

powers unabashedly play the lead role and preseve the world order

So see how the political reality drives this

Meant by founders as a political club

Note: emphasizes that

Antonio Cassese, International law

The creation of the Un

Note: not rule of law

Make international peace and security

Develop friendly relations among nations

Establish platform for international cooperation

Purposes

Settle disputes peacefully

No

Non-intervention -un will not interfere with domestic things

Principels

Have to be a state to be admitted

Everyone has a seat here

Often soft

Powers:

General assembly

Organs

Charter of the United Nations

The United Nations



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"it may"

Elects members of other organs

Budgetary

Unless matter specifically binding

GA resolutions usually not binding

But that's an expression of an opinion by the world

community

Even if sot - still a lot of power

Secretariat

Victoriolus powers form wwII

Veto power

5 permanent

10 rotating

Resolutions are binding internaitonal law (Article 25)

A lot of power

Then can decide on measures

Can authorize use of force

Determines if there's a threat to internatioanl security

Security Council

Eco-Soc (Economic and Social Council

Internatioanl Court of Justice (ICJ)

Charter prevaisl against other itnernataional agreements

Supremecy clause type thing

Article 103

Nuked Japan

What did US do 41 days after signign the UN Charter?

UN envoy deployed to keep peace in Israel/Palestine

Brits given mandate to run occupying government (Ottoman

empire had broken down)

But ran it sort of effectively

Palestine governed under mandate of league of nations

Immediataley war with surrounding arab countires

UN got involved, sent diplomat to seek peace solution

Israel declared indpendnce may 14th, 1948

Radical isreali faction that didn't want UN involved

(Not in case)

Diplomat murdered

So at the time of the events, Israel not yet a member, but will be soon

Case was decided while Israeli's application to the UN for membership

F:

See Harry Roberts

A state could - established intenraitonal law that if a citizen is damaged by

a different state, his nation can bring a claim under interntational law

Can the UN bring a claim for reparations?

Could just be a bunch of states sitting together- a talking club with some

rules, but nothing with legal personality, nothing that is an entity in its

Options for what the UN is:

What is the core question:

Reparation for the injuries suffered int eh Service of the United Nations (ICJ 1949)



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own right

Note: WTO agreement says the WTO is - the UN charter is si lent

Couldn't protect personel

But nee to protec them because need to send them

So that they can make a legal claim like what's here

i.e. it has to be that way, therefore it is that way

Necessary

Has rights and obligations

Reads almost like a state constituion

That indicates an entity that is creaed

And constituions usually constitute something

If they can make agreemetns with states, hire peopele

The organization's charters

Even vis-a-vis non-members

b/c israel isn't a member yet

This fly's against the idea of consent

Objective personaltiy - it's there

Yes: UN has legal personality

The state has acquired competition

States no longer amongst themselves

Now- someoen on the world stage other than a state

What happens when the UN acquires legal personaltiy?

They compete

Once you recognize legal personaltiy for itnerntaional organizations- states are

no longer alone on the world stage

Court probably didn't think of this

But really changes the composition fo the world legal order

No longer the Wstphalian system

MR: still - court goes pretty far out here:

No territoryNo population

Compare sovereign states- all powers not prohibited by

international law

No residual power

Only has powers in the Charter, none others

For example: if wanto claim sovereignty, can't just appeal to customary

law, need text

Does it have sovereign power?

In what sense is the UN still different from a state?

Not saying reparations would be paid twice

Sweden or UN could make claim

MR: this case is loosely reasoned

You can use internal powers, processes to change it

But not judiciable stuff- internal decisions

Bound by the system

When yoou're in it, you're in it

If you're in the UN , and you don't lie what they're doing, you can't just say no

Note on the 'certain expenses" case



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Works in Legal Office

BIO

Very political organization

6th Committee - the legal committee

5th Committee- approves the budget

In reality, many more

Offices away from HQ

Head quarters based in NY

Secretariat

But also other tribunals and special courts

ICJ

Peace Keeping Forces

6 organs according to charter

Overview of UN System

Office in UN secretariatAdvises secretary general

Role of Legal officer

Anything UN officers do in offical functions has imunity

Under convention

Functional immunity

For local staff, contractors

Under conetion

Limited immunity

No choice of law

Can complain to UN if lose out on bidding for procurement contract

But conditions to be met

Very new

Procurement:

Note: here- treaty between natiosn and an internatnaionl organization

Convention on the Privilgeges and Immunities of the United Nations:

UN Relationship with other coutnries set by treaty

Guest Speaker: United Nations

The Organization for Economic Cooperation and Development (OECD)

Convention on the Organisation for Economic Co-operation and Development (Paris

December 1960)

Agreement Establishign the World Trade Organization (1995)

Note: internationl Standard Settign Organizations

The Purposes, Structures, and Powers of International Organizations: Comparing the UN, OECDand WTO

Why do we have Ios? What is their purposes( See UN Art1: OECD Preamble, Art. 1: WTO

Questions



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UN: Peace

OECD: increase wealth amongst wealthy countries

WTO: bring down trade, facilitiate world trade

Premable, art III

International cooperation

Not cheap- have to contribute to operating charges

Have to comply with rules of club

i.e. if you join th eUN, give up right to go to war at wil l

Join the WTO: give up subsidies, customs tariffs

Give up some indpendence

Cost:

Why do states and other enties join?

More like a constitution - builds an entity

Treaty usually does what UN charter does

Almost always come into being via treaty

How do IOS come into being and what is their legal stauts?

UN - open to all nations who will comply

Somone open only regionallly,

Who can be a member of these Ios? Is membership defined globally, regionally, by subject

matter or by a comibnidation of these (oand other?) Criteria?

Usually large club + smaller executive committee( like the security council)

Secretariat (UN)

Beauracy

Note: OECD has no judicial branch

Differences: some have judicail branch, some don't

What are the Principle organxs? Is there a standard pattern? (Compare graphs provided for

all three orgnaizations at the end of this chpater (See UN Art. 7; OECD arrts 7-11; WTO arts

IV, VI)

But see UN - that for GA, but relaly sec council members more powerfulOften 1 nation one vote

See World Bank - weighted by financial contribution

Some naitons weight the vote

How do Ios make decisions? By (Qualified?) majority? Consensus? How do votes count? Are

Ios (internally) democratic) (see UN arts. 18, 27; OECD Art 6; WTO Art IX?

So about military and poltiical power balanced against democracy

Security Council - world powers

Each reflects different puproses

These aren't per se democratic insitutions

What underlying facts and considerations do the voting structures and procedures reflect?

Played only a small role in Westphalian order

Because of cheaper global communication networks

Proliferation lately

Exist on national and international level

See trade advocates

Human rights

All over political spectrum

Types of things

Increasing official recognization of NGO's

Benefits

Non-Governmental Organizations



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Sometimes trigger treaty making with activism

Sometimes particiapte in disputes via amicus briefs

Shape international law

Must acquire legal personality in at least one country

Clubs- usually chartered

Who NGOs are and What they do

Based in one coutnry (or several countries)

No official international standingLegal status of NGOs

NGO personality

NGOs as consultation Partners

Publish a lot of reprots and things

Publicity/transparency

Small governments often lack expertise

Provide expertise

Governemtns have perspective of local consitiuency

Particularly important for environemental mattersRepresent global view of things

Do a lot of things govenremtns don't do that should be done

If fail through the state - then some NGO can pop up supported by a small

section of the population

Second-bite at the apple for special interest

Democratic processes?

The Legitimacy of NGO Participation

Lots of them, how to manage

Not democratic

Legitiamcy

Often overrepresent western rich countriesBiased

Problems with NGO's

Steve Charnovitz, Non Governmental Organizatiosn and International Law (April 2006)

Given access to things then

UN certifies certain NGO's

Note: NGO's status with UN

World Trade ORganiation: EC- Asbestos - additioanl procedure adopted under rule 16(1)

Note: The Special Case of the Red Cross

Individuals



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Obligatons for individuals mostly in criminal law, but some viil law

Did not direclty recognize indivduals

Did not direclty sanction individuals

Westphalian system

But there were anti-slavery provisions

But never gave them direct access

(for the most part)

Individuals become endowed wihtown rights and obligations: this is the end of

the Westphalian system

Also- international economic actors- corporations

Compete with Clubs (Ios) NGOs, and individuals

States are no longer among themselves

Today: individuals paly a very significant role in the international system

Most important rights

In many instances, parts of populations from one countries

ended up on other side of the border

Compare Harry Roberts (foreigner in another country)

Here: citizens within a country

States recognized they wanted to porect populations against

their own governments

Idea that international law should protect the ctiizens agaisnt

heir own govenrment is arevolution

After WWI: redrew boundaries of Europe

So not a full f ledged human rights mechanism yet

Still needed special enforcement mechanism and no direct

representation for individuals

System, run by league of nations, protecting minorities that ended up in

particular states

Precurser to human rights: Inter War Minotiries Treaties

James Hathaway, Rights of Refugees under Itnernational Law

Need to understand the status of these thigns, not the indivdual articles

Note: no sovereign immunity in this area

Largely the work of Eleneor Roosevelt

No binding legal force

General assembly has no itnerntaional law making power

General Assembly Resoltuion (1948)

Not a treaty

Not a bindign UN Resolution

Legal status:

Creates a text htat looks and souns like a treaty

Maybe influential

But soft

Functions:

What is this thing in legal terms

Universal Delcaration of Human Rights (GA Res. 217)(1948)

The Emergence of the Global Human Rights Framework

Rights (Protections)



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So countyr has to go in front of the GA and apologoize/

explain

So it's like a personal promise- still a sort of moral obligation

Makes it more difficult for a country to be blase about human rights

violatiosn

Effects

Right, liberty, slavery

i.e. stuff you find in constituions/ declarations since the age of

enlightenment

Typical

Housing

Work

Protections against unemployment

Rest and leisure

education

Social welfare

Democratic rights

What sorts of rights are in here:

These are nice thigns -not going to happen

Put in the bill of rights sort of stuff- actually enforceible

Includes soic-econoic rights

But this goes well beyond western veiw

One view

RM: what do we think about these

So no internal force (in US)

But not self-executing

Binds member states vis-a-vis other states to abide by these human righs

Legal Status: Treaty (a real treaty!)

Includes the liberal defense of western types rights

This is put in a sepearte treaty

b/c western side really digs these politicalrights

While eastern bloc much more into the social and

cultural rights

So split of delcaration into two UN convetntions

But trend in that direction

Lots of countries sign up to both

But coutnries did just sign onto one, and not the other

Not a clean split -not all west on one side and all east on the

other

Does not include the Socia Welfare

First half of the UN delcaration

What kinds of rights does it have?

What do we do with this/ how do we enforce it?

International Covenant on Civil and Political Rights (in force 1976)

An annex treaty to the ICCPR

Members of ICCPR don't need to submit to this sytem, but can sign on

US never signs on to this

Creates an institution/compalint mechansims for enforcement of ICCPR

Optional Protocol to the Internaitonal Covenant on Civil and Political Rights (1976)



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About half of the people who sign onto the ICCPR sign the optional

protocol

Submit complaints

Individuals can:

Court decides in written procedure

Austrial signed optional protocol to the ICCPR

Province in Australia crminilizes homosexual acts in private

F:

Exhaust domestic remedies

Files complaint

Not making a decision in the sense of a jdugment

An advisory opinion from an expert body

Only giving their views

Forces member state to respond

All written procedure

Note:

Power of the Huma rights committee:

Rules

Indiviaul launches compalint agaisnt own government in internaitoanl

forum under internatioanl law

Mechanism holds governemtns repsonible in itnernatioanl forum under

internatioanl law

This is radical

Toonen v. Australia (Human Rights Committee, Comm 488/1992: 4 April 1994)

Larger than EU - includes Russia, Turkey

Not done by the European Community, instead the Council of

Europe

Regional Convetnion

Every member state delegates a judge

Exhaust domestic remedies

Indiviuals can complain - their state or another state

Actual internal review

Results final, binding udgment that states actually do abide by

Court has power to:

Enforcement: collective enforcement - a Court

Note: very different form above:

European convetion for the Proteciton of human rights and fundamental freedoms(1950, in force 1953)

Gays in the army

Asking about sex life

Etc. very intrsuive

Privacy

Violates human rights

Case of Smith and Grady v. The UK (Euorpean corut of human rights 1999)

The European Convention on Human rights



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They've people have chosen a career in the army, not easing for

them to find jobs after dismissal

Dismissal from armed forceds

Civil law tradition - very structured way

Describe what's hahpepnign

Yes

In accordance with the law

Except to the extent it is necessary in a democratic

soceity for national security

Except:

Article 8: everyone has a right to privacy

Are we eithing this article- do we have a problem

Article implicated

Keep armed services read

Legitiamte purpose?

Liberal, enlightened society that calls for certain values

Puaralism, tolerant, broad mindedness

Court is certain these are the values to enforce

They mean a liberal society, not a democratic socirety

Utlimatley court says they're not buyign the

arguemnt

Level of review: higher than abuse of discretion-

ultimatle; we would call it strict scrutiny

So given the intensity of intrustion, UK must come up with

some compelling reasons

Justif iable in a democratic society?

Court puts gays as protected category

Can the government justify it's actions

Court's approach

Now integrate uk armed services

Result: heavy invasion into sovereign perogative of the state

And it's activitst to the point that would freak out US judges

So signign onto a human rights system like this subjects you to massive

intrusions in state sovereignty

This system is sort of super-constiuional-super national

The Inter-American Human Rights System

The African Human Rights System

Internatioanl criinal law

Nerve gas and things

Still conencted to war fare, not holocaust sized offensive

But these crimes weren't as bad as we saw in WWII

So there wasn't that much real wil l to do that

losing powers leaders held responsible for wwI

Abuse of state power in eruope has been massive

Bad guys so clearly bad- enough world consenus to do something about it

1945

Malcolm Shaw- Int Law

Responsibilities



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Some acquitted

Most hung

US wanted to show that Law scould handle this

One surviving particpatn: Thomas Maryland

Not a show trial

No- international law requires consent of those involved

That's how the cookie crumbles when you start a war

But when you win a war- victor's justice

Can you do this: can you make a treaty agreeign to do something to a 3rd

party

But deals with non-members

Legal nature of document: Treaty

Establishes a tribunal

In international law, officials acting in official capacity usualy get

immunity

These nazi's don't

But today, this is what the internatioanl criminal court does

This would have been unthinkable 50 years earlier

Sets up individual resposnbiliteis for crimes doen in official capacities

Starting war of aggression as a crime for individuals

Differs from standard dmoestic criminal law?

What does this thing do?

Charter of Nuremberg Tribunal

Modern version of the nuremberg trial

Multileateral treaty

Own legal perosnalityNot UN entity, indpendentas

Clinton signed

That's the right thing to do if you do not intend to ratify

But Bush withdrew

US not a party

What is the legal status of this:

If they do, the ICC stays back

Or if you're just faking the prosecution

If the meber states don't, ICC steps in

Preference for member states themselves to prosecute the

itnerntaitoanl criminals

Subsidiary jurisidciton/prosecution means

Rules

Rome Statute of the Itnernational Criminal Court (adopted 1998, in force 2002)

Conscription and Enlistiment of Children under 15 or using them to Participate

Actively in Hositlities

Can't handle a lot of cases l ike this

Q: why is this deicsion so long

Situation in the Democratic Republic Of the Congo in the Case of The Prosecutor V.

Thomas Lubanga Dyilo (ICC)

The International Criminal Court



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The weight of the system is enormous

Could put more money on the ground

Money invested may be totally out of proportion to the actual

effect

So although while a big success to have one of these trials

Non citizens have standing in federal court for violations

of international law

Alien Torts Act

2 federal statutes

War crimes, genocide, slavery

If this is the sort of violation that sounds in internatioanl

law when done by idnividuals

Even when acting in a pivate capacity -don't need to be state

actors

Individuals, non-state actors, can be liable for tort in international

law

Hooks hereHere: Fed Corut endoreses tort liability of an individaul under itnernatioanl law

Massive human rights abuses commited, arguably tby the heads of states

Foreign plaintiffs/victims

Events on foreign soil

US has nothing to do with this case

Tort law sutis in american district court

f:

1789

Dormant for a long timeCame back in 1980

District courts have jurisdiction for any alien, in tort only commited

in violation of international law or a treaty of the US

Question here: jurisdiciton - can the court proceed to tdiscovery,

the merits

Alien Tort Claims Act

Federal Torture Victim Act

2 statutes at place

An alien sues

For a tort

Committed in vioaltion of the law of nations

Alient Torts claim act jurisdiction establisehd when

Court: no- tort liability, even for individauls

D: only applies to tort

Threshold issue re: Jurisdiciton: (Al ien torts act)

Because international law applies only to state actors

Is Sprska a state?

Theshold issue: is Akrdzic a state actor (Torture Victims Act)

Kadic v. Karadic (2d 1995)

Jose Francisco Sosa v. Humberto Alvarez-Machain (Souter 2004)



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No cause of action directly in ATCA

Cause of action comes from background common law

Violations have to be as serious and uncontestedas thigns like priacy were in 1789

So for Human Rights violations, if hardcore, that's

okay

Like can't include racial discrimination

So cases like Karadic are okay

But no judicial adventurism

Cause of actions only for hardcore vioaltions of

international law

But not still born

But merely jurisdistical

Court affirms Alien Tort Claims Act alive

Didn't claim they crossed border and abducted

Couldn't locate this in international law

Instead, claim centered on him being held without due

process for a 24 hour period

Problem with his case:

But didn't make that argument

Note- clearly a treaty between the united states was violated

Issues: unkind court and weird posture of cliam

Alvarez-Machain has no claim here

Summary:

Follow-up from Mexican Abduction case

F:

Note: first time SCOTUS faces ATCA

Note: in Kadic, Unocal, and other cases thought the ATA implied a

cause of action

The ATCA gives you a jurisdiciton only - does not create a cause of action

i.e. a cuase of action from outside the Alien Torts Act

Comes from common law (federal common law)

Where the cause of action comes from:

Have to be violations of international law, not limited to 1789, but

the violations have to be as clear and generally accepted as those in

1789

Rape

Torture

Genocide

So we can have things like

Court is being politically cautious- critimiscism over ATCA

cases

But can't push the boundaries, nothing seriously debatedable

So no doubt about these

In fact cited in footnote with approval

Causes of action: mass rape, murder, torture, summary

execution, war crimes

Q: is does anything change in Kadic in light of this?

This is what we're talking about with aiding and abedding and

bsiness enterprise

Q: how much further beyond this stuff can you go?

What are the causes of action

Important things about the ATCA from here:



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Agaisnt individuals

Clear violations of international law

First generation of Alien Torts Acts cases

People started suing corporations

Later:

Are corporations liable for intenrational alw

Can you do it beyodn actual perpetrator and hold liable for aiding and abedding

Opening questions

More murky water here

But still through the state - states must esposue claims

See Barcelona Traction - corporations deserve some minimal protections under

international law standards

Corporations acquire their own international rights

Summary

Yes corpoartions have rights

But only home state may espouse claims

Summary

Company goes under because spainish governemnt doesn't authorize transfer

of funds

Note: Canada could have sued ICJ

Company is candaien, but lots of beligiun shareholders

F:

Does not extend to coutnries with sharehodlers

That would be lots of companies

Under international law, the right to diplomatic protection for coproaiton is

limied to home of corporation (where incorproated, maybe wehre

headquartered)

Can Belgium sue spain

Deserve protection under internaitonal law

But can't act indpendently, have to make their governemtn do

something

Home governemtn can sue on their behalf

Corporations matter-

Important

Case concernign the Barcelona Traction, Light and Power Company, limited (Belgium v.

Spain (ICJ 1970)

MFN

Natioanl Treatmnet

Tax equality

With these rights, corporation can represent itself - go to arbitration itself, etc

Corporations get a lot of rights through bilateral treaties

Bilateral investment treat -this changes things from the case above

Treaty Between the United States of America and the Argentine Republic Concerning the

Reciprocal Encouragement and Protection of Investment (1991)

Rights

International Business Entities



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Facilitate foreign investment by protecting foreign investors

Get work visas

Can bring in perosnell worldwide

Management can come in and out

Fair compensation

Due process

Legal remedites

Protection against appropriation

National Treatment

Most Favored Nation

So now, under bilateral treaties, corporations have direct rights

Almost like human rights on the economic side

So corporations acquire rights in internaitonl law

Corporation can take coutnry to binding arbitration

Have a remedy outside of your home country

Rights these treaties get:

So corporationsget right to due process

Corporations have indiviaul, human rights

Went beyond warrant

French corproaiton subject to searches by own country

F:

You are legal entity, have human rights to due process

French company wins

Soceite Colas Es and others v. France (Eruopean Court of Human Rights 2002)

Here- the emphasis not done on cirminal law, mostly on civil and tort liablity, almost all

action in the US

Outlines reasons corporations should be held accountable under internatioanl law

Try to induce corpoations to sign up to UN program asking them to keep self

respsonbile, reporting requirements

Soft law

So clearly need to deal with what they do

Well, we may have nothing else

q: is private litigation through tort law the best way to do that? Reactive l iablity?

50 of the largest 100 economies in the world are corporations

Steven R. Ratner, Corporations and Human Rights: a Theaory of Legal Responsibility (2001)

UN Global Compact-Ten Pricniples

Yes corporations can be liable under ATCA and inteernatioanl law

Can even be liable as aiders and abbetors (b/c recognized under

itnerantioanl law

Yes, enough to go back to trial

Is there enough issues to overturn SJ for corporation

Summary

John Doe, Individual and As administrator of the estate of his deceased child baby doe

I and on behalf of all others similarly situated v. Unocal Corp (9th cir 2002)

The Un Global Compact

Responsibilities



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So unocal went on to settle

So now: the plaintiffs have a lot of alw on their side

Soverieng immunity, politicall impossible

Can't sue in US because of sovereign immunity

Can't sue their own military

Bu tthey didn't violate directly

Need aiding and abedding liablity

Basically only potential forum is US, only potential defendant

is corparotion

So maybe sue corporation in cahoots with them

Victims of miliatry action in own coutnry seeking remedies for human

rights violations

Aiding and abbedding

Suing corporation for these violations

Note: issues before supreme court

F:

PP: summary jdugment 12-b 6

Thus yes, can sue corporations for aiding and abedding

This pusehs the limits of the law and the facts

Court: yes- this cause of action survives

Have to be adventerous in terms of poltiical risks

Resource company has to go where the resources are

Had success entering countires earleir than competitors

Myanmar:

Foru reasons this case should be interest

John Imlet

Was that aiding and abedding

Do we want to hold companies liable for investing in coutnries

with these sorts of governments

They did know slave labor used in connection with the railroad

project a few hundred miles away

Assuming everthing he said was right about nothing bad happened with

the pipeline,

Reactions

Note on challenges to the Alien Tort Statue: kiobel and ExxonMobil

Note on the Chevron v. Ecuador Litigation

See assumption of against extraterritorialtiy jurisdiciton

And the ATCA doesn't' say so

And if the court finds that the ATCA doesn't apply

So SCOTUS has asked the parties to brief this question

Also quesiton if ti can be applied extraterritoriality at all

Q: can corpraotiosn be sued under ATCA

2nd circuit says no corporate repsonsiblity under human rights/ internatioanl

law

Note: corproate liablity once again infront of supreme court



18/57

Domestic something

They'll say it applyies extraterritoraitlly, bu

tneed some link to the US

Reimann thinks they'll do this

extraterritoriallly, it becomes defunct

Reimann thinks this remains- lots of itnernaitoanl law now

about corporations

Can corporations be sued under the act?

Note: See enforcement of interntaional Human Rights flowchart on CTools



19/57

Now recognize some intenrtioanl law that is permanent, can't be changed

Happened because sovereign coutnries delegate a lot of sovereign power to

international organizations

Situations where sovereignty not respected

Overall: states no longer exercsiing sovereignty across the board in the

Westphalian way

Changes of sovereignty

So in some areas, ahave asserted sovereignty more aggressively by saying have

jurisdiction beyond their border

Expansion of Jurisdictional Claims

See Ctools overview of Ch. VIII Authoriyt: The Erosion of Sovereignty and the Expansion of

Jurisdicitonical claims

So in some cases sovereignty beign cut back while in other ways becoming more assertive

Preliminary notes:

A treaty is void if it , at the timeof its conlcusion, int conflicts with a preremptory norm

of general internataionl law

Article 53: treaties in Confl ict with Peremptory Norm of General International Law (Jus

Cogens)

Vienna Convention on th0eLaw of Treaties

These are made in normal way of itnerntiaonl law, treaties, custom, etc

i.e. can't make a treaty counter to one of these - if you do, it's void

States then can't say they don't consent

Some stuff in itnerntaionl law, that if sufficiently consolidated is removed

from the agreed consent of states

Just some norms of internatioanl law, so fudnamental that we render themnonderogable- states cannot derrogate from them

Not a soruce of law

Jus Cogen

Slavery

Genocide

Warcrimes

Extra-judicial killing

See also Kardic v. Karadic

I..e the stuff from nuremberg and subsequent

The hardcore human rights protections

Normativeist say yes, positivist say no

Racial discrimiantion

Beyond this - disputes:

What are these norms

Not so much that i t prohbits active, concious derrogation

Ups the psycholagical ante in the ligitagion

Creates pressuesure- accusign them of nuremberg type stuff

In litigation, when you invoke these

Main impact: visible in cases l ike Unocal

Other thing it does:

What is the effect of Jus Cogen

Hathaway, the Rights of Refugees under International Law

Peremptory Norms (Jus Cogens)

Interaction: States in the Contemporary Global ContextMonday, October 08, 2012

1:23 PM



20/57

Takes arguemnt that this is recognized ntenrtiaonl law, there is a treaty, etc, off

the table

No consitent self -practice, etc

Show stoppign arguemnt on this

Shows you're complaining about serious stuff - breaking fundamental

rules of the legal order

This is a bigger gun

Like constitutional arguments

Removed from usualy political process

Not subject to change by wil l of legisaltive majority

If you recognize norms that are removed from derrogation, tha's like

consitoutional law

Gives more weight to the proceedigns

Fundamental values of legal order

Jus Cogens norms are like constiutional norms of international law

What kind of arguments are like this in a domestic litigation?

If you compalin of Jus Cogens violatiosn, that's okay

See Sosa

In ATCA litigation, they do

Do they do a lot of work

It has limited it in a certain way

Certain things removed from sovereign choice

And think about what this does to the sovereignty of states

Understand Jus Cogens are about rank, not where the norms come from

Note: just because it seems important in your legal system, doesn't mean it's jus cogens

Chapter III: Serious breaches of obligations under peremptory norms of general

international law

Articles on Responsibility of States for International Wrongful Acts (international law comission

2001)

Previously -states can wage just war at will

Self defense

Authorized by security council

Exceptions

Give up right to wage aggressive war

Now

Big deal-

Attempt to prevent conflicts like WWII

Used to be albe to use mi litary force, just within certain laws of war

Now: give that up- must use peaceful means, not using aggression

or threat of aggression

This part of sovereignty has been delegated to the security council

Note: major inroads on sovereign rights

If something bad happens, go to security council to authorize use of force

40: non force sanction -embargos, etc

The security council: if they determine threat to itnernational peace and

authority may take ajust about any steps

How is this supposed to work

Waging War: The United Nations System of Collective Security

The Delegation of Sovereign Powers



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When miliatry foce authorized- orignal idea was that member states

would make forces avialable to UN comman system

Really what happens, telsl member states to go out there and get

'em

41: if 40 fail s, authorize use of miliatry force

Inherent right of idnivaula or collective self defense if an

armed attack occurs agaisnt a member of the UN

Self defense

So an come to the aid of yoru allyIndivual or colelctive

Exception: article 51:

If not authoirzed by 41 or 51 when using force, then violation of international

law

David Bederman, International Law Frameworks

Charter of th eUN

No

Imminent

No other means left

But requries

Pre-emptive strike may be allowed

Q: can the US justify iraq invasion under article 51, collective self defense

Q: but maybe necessity (terrorism) means you can't rely on article 51 anyone

Here- resolution was political compromise to give both participants and

objectors policatal coverage

q: was the action authorized by the security council?

States have done thisk, see Kosovo and Nato

People said probably illegal, but nobody was

going to stop them

Grey zone

Reimann - this si an open quesiton

q: is that document final and conclusive - can't go outside of it/ can'tdo anything not provided by document, or is it more open ended ( if

silennt, not addressed, look elsewhere)

US charter doesn't say anything about it

Q: is it legal under UN charter or in international law to intervene internally to

prevent humanitarian disasters

Aug 190 Iraq invades kuwait

Aug 1990 Resolution 660: SC condmens, demsnds withdrawl

Nov 1990: resoltuion 678: final opporutnity, for iraq, then use all necessary

means

Jan 1991: First Gulf War

April 1991: Resoltuion 687 Formal cease fire, conditons imposed on iraq

Nov. 2002: Resoltuion 1441 (Citing 678, 687), Iraq in "material breach", "final

opporutnity to comply" Security Council Remains Sezied"

Mar. 2003: Second Gulf War

Time line

Once can show self defense, no need to appeal to security coucnil

Can the US justify based on 51:

Self Defense:

If you're the state departmetn and you want to justify 2nd iraq war as in compliance

of international law:

The 2003 Invasionof Iraq



22/57

So wording of 51 doesn't halp you

Problem -no armed attack against US

Article 51 is si lent on this

But threat must be imminent and resposne necessary

Must have no other recourse

But lots of international law, some right to pre -emptive

mili tary rights

It's just a question of timing

Note: this is what's invoked by israel all the time

But can argue pre-emptive sel f-defense

Too far away

Can't plausibly make this arguemnt

Franck: hard to make arguemnt striek against US emminent

But this is moving beyond the UN Charter, nad you're pushing

But plausible arguemtns- rogue states with WMDs, wil ling to

give to terrorist

Article 51 is too narrow, have to take out terrorist early

Could say: producing weaposn of mass destruction, could give that to

terrorist

So Security council has authroized

Material breach of regimeunder 687, as noted in 1441, authorizesunilateral action, authorization of 678 back in effect

US Reasing of resolutions:

That's all used up

We did that

Scope of those earlier resolutions had to do with protection of

Kuwait

If you want new authorization, gots to go get that

"we remain sezied of the matter"

If you breach 687, 678 is only about the liberation of Kuwait

Other side:

Reimann: this sins't a clear vioaltion of itnernatioanl law, the USreading is plausible at least

Should have come to a clear resoltuion and said what the deal

is

But that's a stupid law professor perspective- there's a lto of

politics

US and UK ready to go to war, saying going to take the

motherucker out, what are you going to do about it

French and Germsans said no

Russians and Chinas said they'd veot eveyrthing

Something half can say authorizes, others say

doesn't

To give plasuible deniability to everyone

So, decided to draft something to keep things open

So this was a compromise, probably the only thing

security council could do

What happened on the Sec. council

Fact that security counicl doesn't reach agreement, the

world can't act

This is the problem with the securiyt appartatus- all the

eggs in one basket

Real problem: security council couldn't reach agreement what

to do

Problem: drafting 1441 is a disaster

Who is right

Security council authorized:



23/57

So what do you don when the Sec Council system is shut down?

Frederic L. Kirgis, ASIL insights Security Council Resoution 1441 on Iraq's Final

Opporutnity to comply with disarmanement Obligations (Nov. 2002)

Will iam Taft IV and Todd Buchwald, Premption, Iraq, and International Law (AJIL 2005)

Thomas m. Franck, What happens now? The United Nations after Iraq (2003)

The Caroline Incident and the Right to Anticipatory Self -Defense

UN Report: A more secure World: Our Shared resposnbility; Reprot of the High Level Panelon Threates Challenges and Chains (2004)

If added more permanent members with veto power would probably we

worse

Big powers wouldn't assent to getting rid of veto power

But unlikely to change anytime soon

This is anarchonistic b/c of security council permanent members

Important to see how the security council stuff breaks away some sovereign power

Reimann overview

Including Dispute

Lots of organs

International organization

Underlying agreements are multilateral and pluralateral treaties

Legal personality

Almost all trade volume around the world

150 members

Platform to negotiate and enforce trade agreements to faciliate world

trade

Main purpsoe

What dos the WTO do?

Structure of the WTO

Sonia E. Rolland, WTO Law: an Overview

Right to make special deals

Right to regulate outflow and influx of foreign goods

Right to

Give up a lot of rights

How does this work

Small developing coutnries don't have the man

power at geneva to be present at every meeting

In order to say no, must be present at the meeting

Not clear it does work

Almost all decisions have to be unanimous

Consensus

Overview

Article I Establishment of Organization

Article I I Scope of the WTO

Agreement Establishing the WTO (1995)

World Trade Organization Agreements

Regulating Trade: The World Trade Organization



24/57

Article IX Decision-Making

Makes bi llateral treaties have mulitlateral effect

If you give a trade favor to one country, must extend it to every other

member

No special deals

Article I General Most-Favoured-Nation Treatment

Treat imports the same as domestic goods once inside your country

Article III National Treatment on Internal Taxation and Regulation

Article XI General Elimination of Quantitati ve Restrictions

Article XX General Exceptions

The General Agreement on Tariffs and Trade

Article I Scope and Defintion

Article II Most-Favoured Nation Treatment

Article XIV General ExceptionsARticle XVI Market Access

Article XVII National Treatment

General Agreement on Trade in Services

Appraising Section 609 Under Article XX of the GATT 1994

Exhaustible natural resourcesArticle XX(g): Provisional Justification of Section 609

Small countries score a victory against US

Environmental policies

Plainti ff countries not all for this

NGO's let to f ile amicus briefs

Treaty interpretation

Dispute resolutiona nd appellate body relied on general internatioanl law

Why this case is important

Comes to recommendation

First- Panel (DSU)

AB

So this is almost unthinkable

Note: AB decisions adopted if no consensus not to accept

Procedural Posture

No restrictions other than tariffs

Article XI: General Elimiantion of Quantitative restications

Need to show justfied through article XX

So here- restrictions

Principle Argument of Claimants as to why the US is in violation?

XX(g) applies

US: likes formal equality - just treat alike

Cultural divide-De Facto - treatying countries in very diffent circumstances alike

Gave some coutnries more time to implement

But also not really treating eveyr country alike

Can't abuse these excpetions

Reads chapeau as good faith clause

Need due process like stuff

More powerful arguments: demandign same policy and not just any

equally effective policy, and not allowing shrimp trawled in

complaince from non complying coutnries

Arbitrary discrimination -treaty countries differently

But fails chapeau

Case:

The Shrimp-Turtles Case (US-Shrimp) (AB)



25/57

See references to negotiatiosn and shits in the opinion

Give up right to act unilaterally

Must coopearte

Mexico: Extradition treaty is a platform for cooperation

Similarities with first Alvarez-Manchein case

Riemann: US gave up more sovereignty than they thought

Look at how the law making power of the EU has restricted the soveriegnty of

tis members

Just being swiss

Switzerland

Lots of oil money, doesn't want to share

Norway

Also a couple of Bulkan states- too much unrest

2 hold outs in western europe

Largest market in the world

Great supplier of jobs for translators

Quasi federation with 23 different languaes

These treaties are piled on top of each other.

All basically occurred under former article 117

Cases here are the defining cases

Doesn't decide these kinds of cases, gives a binding

opinion/recommendation

European Court of Justice

Overview

Art. 117 of the Treaty of Rome (now article 267 TFEU)

Art. 10 of the Treaty of Rome

Direct effect itn eh member states (rank left open)

Creates rights (And obligations) of ctizens

Overview

And if i t does, can indivduals make a direct claim under the treaty against its

own state?

Issue: does the treaty have direct effect in the Netherlands

Reimann: this is deviation from usual rule:

And here: this treaty has direct effect

b/c new international legal order, not usualy type treaty

b/c ECJ doesn't trust states to enforce agaisnt each

other, wants indivuals/commercial actors to be polciing

this

Aricle 12 gives individual rights

Reimann: integral part of estalbished legal order of member

states

Court: by joining European Community given up that right, this

court interpets the treaty

But Court: direct effect does not turn on domestic constituional order

Text: looks non-self executing

Flew out of the radar screen - was a small little organization type thing at

this point

Reimann: why didn't people freak out about this?

Summary:

NV Algemene Transport-En Expeditie Onderneming Van Gend & Loos v. Netherlands Inland

Revenue Administration (European Court of Justice 1964

Making Law: :The European Union



26/57

By 1980, the deal was done, too far to go backwards

But before too long, turned the treaty into something quite different

EEC Art. 12: Member states shall referain from introducing between themselves

any new customs dusties on imports or exports or any charges having

equivalent effect and from increasing those which they already apply in their

trade wi th each other

European Econioomic Community

Netherlands institutes tariff against some belgium products

117: has jurisdiction for interpretation of treaty

And does it give individuals a cause of action

But this isn't a question of interpreation, it's a question of whether the

treaty obligation is part of dutch domestic law that can be enforced by

dutch court

Usually look to the constituional order of the countries

Is this self -executing or not/ i.e. does it have direct effect/ does it

penetrate domestic legal order

Reimann: where have we seen this before:

No Jurisdiction for the court here

Talks only about member states, not individuals

Says states "shall"

Marshall wouldn't find this self -executing

Issues

And gives indivudals a direct right to invoke

Reimann: why does the court want individuals to have

standing

Court finds direct effect b/c it's aboslute "shall"

Does this article 12 have direct effect?

Court: we have jurisdiction

Netherland:

Supremeacy over national law

Trums even subsequent national law

Even as a matter of domestic law (EC law is an integrated part of the domestic

legal order)

This means that natioanl legisaltors are unable to deviate foerm EU law- locked

in forever

Overview

Issue: Can Italy disregard treaty obligations with subsequent domestic legislation?

Compare US: treaties have same level as doemstic legisaltion, so last in time rule

applies

Would defeat purpose of community law if states could legilsate out of it

Community would erode- states could have subsequent legi saltion and

For EU law:

Constituionalizing EU law

So EU law is higher than domestic law

EU Treaties can't be superceded by domestic legislation

Flaminio Costa v. ENEL (European Court of Justice 1964)

Overview:

i.e. must go to Italian legal instiutions to get rid of conflicitn glaw (constiuional

court or legislature)

Issue: who makes the decision that a domestic law conflicts with EU law? Must Italy

get subsequent law off books?

Court: automatic- ultimately enforced by everybody- every judge in EU has to give EU

Amministrazione Delle Finanze Dello Stato v. Simmenthal (European Court of Justice 1978)



27/57

Must not get formally reviewed in domestic instituions

law direct, supreme effectwith indivual rights

Recent treaty wrote it in, but nothing in the original treaty

Based on the structure of the EC/EU

Almost no textual support for this supremeacy

Law above the states- more than just cooridnationSupremacy that states can't do anything about

Step from international alw to suprernational law

Eric Stein: wrote about constiutionalization of EU law- peple hadn't realized it(1978)

Oveveiw of thsese cases

Are positive oblgifations (of member states) direclty enforceable (by private

indiviuals)?

Does EC law have direct effect between private parties (horizontal effect)?

Effect of EC law outside of Treaties (regulaitons, directives)?

Open Quesitons: after Simmenthal

Cosntiounal law

Federal law And treaties

State law

US

European Union alaw

Natioanl Cosntional law (maybe same as Euroepan Union law, but maybe

below)

Natioanl Law (Federal/state)

European Union

Compare US

Why here: example

A treaty

Basically ensure full faith and credit for civil and commerical

judgments thorugh Europe

Rules for jurisdiciton and jugdgment enforcement

Free Judgment recognition

Brussels Convention on Jurisdiction and the Enforcement of Judgment in Civi l and

Commercial Matters (1968)

So now has direct effect in member states

EU - turnign treaty regime int o bidnign rgeuglations

End of horizontal cooperation, now top down direction from Brussel ls

that goes on to be turned into a federal statute with supremeacy

US equivelaent would be like a model act for state legislation

What's happening: movement from horiztonal coooperation to top-down

direction

Council Regulation (EC) No 44/2001 of 22 December 2000 on Jurisdiction and the

Recognition and Enforcement of Jdugments in Civil and Commercial Matters

The Evolution of the European Regime of Civil Jurisdiction and Judgment

Recognition

Filled with unelected buearucrats

Fundamental problem: bound by deicsions made by international organizations

Nobody's voted for them

Who do they answer to?

Unelected

Democracy problem:

Eric Stein: Delegation of Sovereign Powers and Democratic Legitimacy:



28/57

The people who sent them?

Not subject to democractic or constiutional control

So there is a chain of legimitacy, but it is long, not very transparent,

hidden by public view

Further away instiutions are are harder to control

Lack of transparency

Internaional level: Germany v. Italy

Domestic level: Fisa e.g. Weltover

States: Foreign sovereigns (States etc

Domestic Level: act of State Doctrine

Acts:Certain acts of foreign governemnt

Interntaionl leel: e.g. Belguim Arrest Warrant

Domstic Level: Pinochet

Persons: Immunity of certain persons cahrged w// Governemtn Functiosn

Three kinds

Issue: when one state allows

F: Italy allowed some citizens to sue Germany for atroscities commited by Nazi

Regime

Consistent state practice

Sufficently long period of time

Customary International Law

Italy: agrees there is this rule of sovereign immunity as establisehd

customary interntiaonl law

From where:

Was it consistent state practice for a suff iceintly long period of time

Question here: is there a jus cogens exception to this for atrocities (crimes

against humanity) -today these are called Jus Cogens Violations

When this case was brought, no consistent state practice

Reimann: to win this argument Italy must show it is consistent state practice not

to allow sovereign immunity when Jus Cogens invovled

Germany: Sovereign Immunity

Court here: No exception to sovereign Immunity

But diffi cult to miantain in situaitons where governemtn admits to

violations and admits to Jus Cogens vioaltions

Open the flood gate to the kinds of litigation sovereign immunity wants to

prevent

argument not to:

So given their rank, maybe

Jus Cogens is non waivable - no derrivation is viable

Internaitoanl law is now ranked, and Jus Cogens is th ehighest

A state invoking internatioanl law on its side (sovereign

immunity) for vioation of itnerntaionl law that is supposed to

be higher

Dissenting opinion

See Princz case (n note

argument to allow exception:

Reimann: should there be an exception fro Jus Cogens Violations

Germany v. Italy

Foreign Sovereign Immunity

Limitations of Sovereign Immunity



29/57

But we don't' do this domestically - still get procedrual rights

Implicit waiver of sovereignty to commit violations of Jus Cogens -

become a criminal, not awarded normal rights in civil society

Tries to judicial ize a formerly political game

Statute- poorly drafted

State i tself

Organs

Political subdivisoin

Issue with socialist companies

Better have an exception

See what happens if suing chinese ownedcompany

Private entity majority owned by state, organ or

political subdivision

Agencies or insturmentaliteis sperate legal persons

1604: foreign state

Gate keeping issue: what is a foreign state

1604: treaty

Probably want to put waiver in contracts

Waiver

Most litigated exception

This is cusotmary internaitonal law: no sovereign

immunity for commercial activity

Commercial activity

Property taken in violation of international law

Succession rights and real proeprty in the US

With excpetions to discretionary acts

Tort (in the US)

If arbitration clause - that's probably enforceable

Arbitration

No soverieng immunity to designated terroirst

states

Terrorist states (Designated

Special maritime rules

1605:

Once start suing someone, open yourself to coutner

cliams

1607: coutnerclaims

Exceptions

Note: no genreal exceptions for violation of fundamental rights

Fundamental rule 1604: subject to existing internatioanl agreements, a

foreign state shall be immune from jurisdiction fo the federal courts and

the states unless exception:

FSIA: Foreign Soverieng Immunities Act

Sovereign immunity in US almost exclusively turns on FSIA

Commercial activity?

Direct effect?

Issues:

Argentina: we're regulating currency, not commercial activity

Plainti ffS: raising capital, issuign tyrpcial commerical debt

Court: look at nature of acts, not purpose:

Commercial activity:

Republ ic of Argentina v. Wel tover (Sovereign Immunity of States:bonds, place of

performance NY)



30/57

Garden variety debt

Any time acting like a commercial actor, waiving sovereign immunity

Here: private parties could do this

But maybe not fighter jets

Private parties can buy things (procurement)

Note: this expands this

Reimann: if other rule: if risk of sovereign immunity when raising

capital - that would increase cost of raising capital for thse organs

Test: commercial acvitity if a private party could do the same thing

Must be more than deminimis, but needn't be substantial

Here: place of performance was New York-should have paid into NY bank

account

Yes, default in US

Note: effect in US, not effect on US (or people)

Doesn't this put offending party at the mercy of the plaintiff?

Reimann: should this be enough?

effects in US

Banco Nacional De Cuba v. Sabbatino (Harlan 1964)

Restatement of th eForeign Relations Law of the United States 3d Section 443 Act of State

Doctrine: Law of the United STates

The Act of State Doctrine

Territorialism

Nationalism

2 traditional basis

Effects Doctrine

Protective Principle

Modern

New grouds for Jurisidiction

402: Bases of Jurisdiction to Prescribe

Restatmetn of the Law Third Foreign Relations Law of th eUS

Can take Jurisdiction (contrary Holmes in American Bana) if the acts or the ffects take

place in US

Foreign D's acting abroad

But acts have effects on american Market

F:

Now recognized that the terrirotirality of effects on the receiving end are a proper

base for jurisidciton

Problem isn't that you're allowed to do it, problem is i f you want to do this as a

matter of federal legislation

Learned hand side steps this

Issue: doesn't deal with issue-

Substantial

Intended

real

Effects must be

US v. Alumininum Co of America (1945) (US . Alcoa)

15 US Code 6a: Conduct involving Trade or Commerce with Foreign Nations

German Antitrust Statutre

Eropean Regualiton unfair competion

The Effects Doctrine

The Expansion of Jurisdiciton



31/57

Foreign natioanls abroad

Plan to blow up Amerian Planes

F:

Because aimed at foreign policy, goes to core of governemtn policy

Court: acts directed against security and soveriegnty of the US

Controversey: How far to do you push it

US v. Yousef (2d 2003)

The Protective Pricniple (see terrorism)

Can evoke jurisdiction b/c victims were yoru nationals

More debated than Protective Principle and effects test (ditto for universality)

Strong notions of sovereignty in Israel

Invokes Lotus Principle:

Reimann: but these weren't Isaeli citizens, no Israel at the time

Link between state of israel and victims of the holocaous

Special relationship between Israel and the Jewish People

Historical link between Holocaust and the state of Israel

Israel is a Jewish state

State claims Ethnic/religious connections

Who else is going to do it- we've got him, we're in the best position

How to justify

Issue: jurisdiction over German Naitoanl, dong nothing in Israel, no effects in Israel,

protective pricniple doesn't work b/c israel doesn't exist

Attorney General and the Government of Israel v. Adolf Eichman (Int'l Law Reports 1962)

Jordanian Airliner hijacked abroad

A few american passengers

F:

Passiverpersonal pricniple- developed for hostage takingsIs it good enough that there are some US Ctiizens as victims?

They didn't know were laws governing them

Issue: don't want to surprise people for violating things

Issue: what if not a borderline case, def a crime,

If you take the rule to ts limit- then you can end up with lots liability in

foreign coutnries

Everyoen would walk around with risk of being subject to foreign

jurisdiction

Passive Persoanltiy is a risky source of Jurisdiciton

Reimann: what if it wasn't an airplane hijacking, more of a traditional crime. i.e. bank

robbery, gunman kil ls 2 American tourists

Heinous crime

Internationally recognized

Limits

Problem: line drawing problem

US v. Yunis (DDC 1988)

The Passive Personality Principle (victim based jurisdiction)

World wide open season

Certain crimes so universallyrecognized, (vioaltions of Jus Cogens Human Rights

norms) that whoever captures them can go and proceed on them

The Universality Principle



32/57

Note: line drawing problem

Probably not

Then motivation for states to go on world wide hunts for people for

commiting crimes

Problem: what if you don't already have them, can you get an arrest warrant on

this gorund, try to catch them on this groun

Attorney General and the Government of Israel v. Adolf Eichmann (1962)

3rd Restatmetn of Foreign Relations Law404: Universal Jurisdcition to Define and PunishCertain Offenses

US v. Yunis (1988)

German Code of Crimes Agianst Itnernaitonal Law (2002)

Comes from Barcelona Traction case

If you want to invoke them you have to be in that special realtionship if you want to

have standing

i.e. they didn't do it to me, they did it to the world at large

Q: are the norms of itnernaitonal law that relate to all states-give all states standing

Some norms of itnernational laws between parties

Reimann: li ttle analytical power, just out there as an assertion

Example: US boycotting /sanctioning because of pipeline throug afghanistan based onsoviet invasion of afghanistan - US said - this is Erga Ommnes

Because for these sorts of things, we give rules Erga Omnes effect

Universal Jurisdction strikes Reimann as the only place this works

In this sense constiutionalized

Jus Cogens- about rank of the law and making no derrogable

Erga Omnes- about the ffects of norms, who can complain about their vioaltiosn, who

has standing

Erga Omnes and Jus Cogens

Kadacic not in US prison

No US victims

Nothing directed against security of US

Almost always see these applied in criminal setting, very little

Butlwiggle room - lotus princple background for both criminal and civil

Problem: recognized in criminal proceedings, but not clear can base a tort law

suit on it

Could argue need to do it because no forum elsewehre

What are we left with: Universal Jurisdiction

Note: Kadacic case

Addendum: Erga Omnes (universal) Obligations

Lotus prinicple- do what you want

Traditonal terrorital

Traditonal natioanlity

Effects

Passive personality

Protecive prersonalitky

Universality

But now also 6 positive, aff irmative pricnples

Lots of options to exercise jurisdiciton

Parralel proceedign

Could have lots of coutnries, asserting different basis for jurisdiciotn over the same

incident

Problems:

Problem: 7 basis for jurisdiciton



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Judgment recognition problems

These cases all deal wi th problem above

Remember- used comity to recognized jduments from the courts of other coutnriesHere: - use comity as deference- we could take jurisdiciton, but maybe we shouldn't

Q: when and why should we defere?

Deal with Comity (and other things)

F: antitrust allegations

Holmes (Ame rican Banana): nope - no acts abroad covered

Hand (ALCOA): use the effects doctrine- but need to draw line

Whether Sherman Act applies extraterritorially to acts happening in Honduras

9th circuti- not good enoughLower court: direct and substantial

Does the alleged restraint affect, or was it intended to affect, foreign commerce

of th eUS

Ois it of type an dmagnitude as to be cognizable as avioaltion fo the Sherman

Act

Degree fo conflict with foreign law

Natioaltiy or allegience of th eparties

Locaitons or pricnpel places of business

Signficance of effects in the US

Forseeabi lity of such effect

Relative importance

Factors: totality of circumsanstacnes(pg 582

Reimann: these go in all sorts of different directions

As matter of international Comity and fairness, hsoudl the extraterritoiral

jurisdiciton of the US be asserted to cover it

Three part test for applyign Sherman act extraterritorially

Where are the lines

Timberlane v. Bank of America (9th Cir 1976)(we now know the anittrust laws can be applied to

acts abroad (contra American Banana by way of ALCOA), american players (P and D), effects on US

maniarket, forseeable, manifest

Lots of factor above

Inderminacy high b/c these factors can go in all directions

Bad thing

Issue: different jduges looking at same rule and same facts could come up with different

resoltuions

Look at everything then decide whether or not to take up the case

It's a rule of reason/ mulitfactor test

Restatement on Foreign Relations: 403 Limitations on Jurisdiction to Prescribe (codifies

Timberlane)

f:

As long as can comply with both our and theres, no conflict, dispaate punsihemnts

doesn't count

Only if theres a true conflict, no balancing

Question: whetehr "There is in fact a true conflict between domestic and foreign law

Hartford Fire Insurance Co. V. California (1993)

Comity Limitations on the Exercise of Jurisdiction



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No multifacctor test, no balancing, no comity

Given rights from one country isn't supposed to give you rights elsewhere

Reimann: would be a rare case where you msut do something under foreign law that

violates our law

Wants to keep timberlane alive

Scalia wouldn't apply antitrust extraterritroriality but too late for that

So when Scalia says charming betsy says intenraitonal law says not

to apply, he's just wrong

Reimann- that's a C exam

He doesn't understand the difference between Internaitoanl

law and Comity

This sisn't the Charming Betsy Rule at all

Reimann: clealry no violation of itnernaiotnal law b/c of effects test, etcHere- violation of internaitoanl law

Charming Betsy rule- don't construe federal statue that violates international law

unless you have to

See also RST F P

Comity: (Sides with Timberlane balancing test) -maybe majority is too harsh

Scalia doesn't want to apply anttrust law

Scalia's concurrence/dissent

Ahlstrom Osakeyhtio v. Commission (Wood Pulp, Jurisidciton (European Court of Justice

Largely euopean producers of vitamin components

Internatioanl vitamin fixing cartle

Conduct b foreign parties done abraod

So would be there uner ALCOA, Timberlane, And Hartford

But clearly effects on US vitamin market (also intended

F:

Conduct abroad

By foreigners

Effects in other coutnries

F CUBED

But are they liable for the foreign effects in US courts

But from tehsame acts that also caused domestic harm

Should our antitrsut laws apply to

Whole thing is based on comity

Question: can US take jurisdiciton over the parts of the vioaltions effecting foreign

coutnries

To acts that have an effect int eh US

That cause a casue of action

6a: suggest the Sherman act applies

Does the broad langauge cover entirely foreign effects

Problem: congress dind't think about effects in foreign coutnreis

Problem: so condcut causes effects in a lot of other coutnries

Effects: not aplibcable here

Passive Personaltiy: no americans harmed

Protective: not directed against US State

Universaltiy: antitrust not unviersal human rights norms

Basically: no traditional soruces of jurisdciton

Can we get jurisdiciton

Yes, language of 6A says this would cover

Reimann: the opinion Breyer should have written

F Hofflmann-LA Rouche LTD v. Empagran SA (Scotus Breyer 2004)



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This is close to vioaltion of itnernaiotnl law- much clsoer than Scalia in Hartford

But , Charming Betsy-

Not a good idea, b/c different antitrust laws

Lets defer to these coutnries, they can handle their own markets

Instead, court gets into Comity Busienss

That's why these coutnires came here to try and get this forced

Note the claimant countries: weak legal remines, hard time reigning in itnernaitonal

antitrust violations

Effects in US covered by US antirsut laws

Hartfod

Won't cover effects in other coutnries

Spriti of scalia consent in Hartford

F Hofflemn

Hartford and F Hofflman

Class action for securities fraud

SEC rule 10(b)

Fraud based on acts in florida, but

F:

Substantial acts, central to the action

Core to the case, not just a stop over

acts in US, or

Ripple effecs won't do it

Fairly substantial

Effects in US,

Applyies extrattoriteiarleity if

We apply antitrust laws territoriality, so courts of appeals had sort of done the same

thing with securiteis

Balancing in Court of appeals, Said effects weren't substantial

How far do we go, jurisidcition wise, with our securities reuglation

Goes all the way back to holmes, embraces a STRICTLY TERRITORIAL APPROACH

Your result is right, but for much more categorical reasons

See 6a of the Sherman act, Blackmer(sp?) case - statute appleis to US

citizen wherever they roam

To go beyond that, need a strong message from congress

But if statute is silent, applies only to the US

Federal statutes applies only to the territority over which the US has plenary

juridsidcition

Traded in US

Sales conducted in the US (if not traded on SU stock exchange

Effects

Acts

Does not applie to things with

Here: applies to actions I

On the rise

Scalia says this rule makes sense, avoid international conlfict

Sends clear message to congress to give them a clear rulel

Strict territorialtity

Scalia:

Say construction is too narrow

But still majroity of court says connectons to US have to be pretty high

Concurring opinions

Morrison v. National Australia Bank (Scalia 2010)



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Expansive groudn rusles to apply our laws territoirlity

Balance on comity (timberlane)

Priamry look to see i f they can apply both laws and if no conflict, we apply our laws

Strict territoritliasm (we just don't apply our statutes abroad, see Morrison)

Then three reactiosn

No, it's allad hoc

No comity issues now

Clear rules mfers

No?- > then statute does not apply

Conflicts?

Foreing l icenses not recogniszed

Hartford: apply all the time unless true conflict!!!!

Messy , litigation intentse, intdetermianate

Throw it all in, mix it up and decide what to do

Timberlane: we're going to balance everything and decide

what to do (arguign based on Scalia's dissent in Hartford

Yes, clear intentioanl intents-> one of two things

Morrison: does this statute give any indiction to support extraterritorial

jurisidcition?

We apply terrotiraitlity if:

As best as he can piece ittogether, it looks like this:

Reiman: does this add up to a coeherent appraoch?

But that's all the human rights violatiosn, they all took place in some

foreign jurisdiction

At least not to acts committed extreerortialtiy

May not apply extraterrorialtiy

Alien Torts Claim Act Case before the supreme court

Why is this a hot topic?

What we have up to this poitn

But for SEC, not private parties

Mad eclear want some extra-territorial application for F-cubed cases

We shouldn't be world courts

Attracting foreigners suing based on acts in other coutnries, effects in other coutnries,

thigns we don't care about

Dodd-Frank Act



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Tratties

CustomsGeneral pricnipels

Writings of most immentn publcicist

Judicial opinions

Compare tradaitonal sources of law

More itnernational law, more things in play

Now: things much less clear

Introduction

Now a platform for coopeartion between nations

Yes, parties agree to them

Easily manageable

Old:

Multiparty

Global

Very raod

Put beforeteh world, that you can join

A club that is open for membership

More like model statutes

Now:

But far away from extradition traety in Alvarez-Machain, or theother bilateral

agreemetns

More foundational documents for subject specif ic orders than contracts between the

parties

No longer a contract between states

Increasing imporatnace

But this might mean this isn't really law in action, no real

traction

Aspirational documetns tryign to get everyone to join, don't ask

hard questions about compliance

See EU

High threshold before you can join

Expect to see compliance before jioning

2 views

Should you require compliance before joiing

Lots of members to conventions that still ignore them

Issues

Strong consensus to do something about genocide after WWII

History:

Pretty short docurment

Genocide Convention (1948 )

Worldwide Multi-Party Convetions

The New Generation of Treaties: "Platforms for internaitonal co-

operation"

Law: Diversification of SourcesSunday, November 11, 2012

1:44 PM



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That wil l force to to prosecute anyone guilty of genocide

States promise to make domestic law

What does it actually do? What obligations does it give rise to?

But hat's not new, knew that since nurmembeug trial

Genocide internaiton crime:

But note that this does have itnernaitonal force - vioaltiosn of thigns widelyaccepted treateis says is a vioaltion of intenatioanl law

Declaratory:

Reservations

Servia not legally repsosnbile for commititing the genocide

Knowledge

Dmeonstrated ability to exercise control

But violited its obligation to prevent genocidei

ALSO CONTINUED FAILURE TO PROSECUTE PEPRETRATORS OF THE GENOCIDE AND TO

EXTRADIDE WAR CIRMIANSL CONSTITUTED FURTHER VIOLATIOSN OF THE GENOCIDE

CONVEIOSNT

Note on Genocide Case (applicaton of the convention on the prevention and punishiment of

the crime of genocide (2007 ICJ)

Reservations: I don't want this part to apply

Reimann: a lto of coutnries do this

Does not accept article IX, subjecting to jursidciton of th eICJ withotu the

specific consent of the US in each acse

So we want to avoid that

If a treaty conflicts wtit hthe consitution, the constituion wins (somecase (covert(Sp?)

Here- we don't want to do that, free speech here

herE: someone on the street corenr screaming "kill all jews"

probalby violates the genocide convention

Reimann: why'd they'd do that?

It makes it unclear what the parties are agreeing to, they'd need to

consult constitutional epxerts for each reserving country

Trouble with such a reservation:

We won't do anything the consitution forbids

US

Declarations and Reservations to the Genocide Convetin

You take or tleave the deal

Traditional sovereitny/contract theory

So don't want to make it take it o r leave it

This sort of treaty

Purpsoe of this sort of treaty is to get as many people onborad as possible

Here:

Can the reseving state be regarded as beign a party to the Convention while still

mainating its reservation if the reservation is objected to by one or more of the

parties to the Convention but not by others?

Reservations Case (excerpts) Reservatiosn to the Convention on the Prevention and

Punishment of the crime of gEnocide (Advisory Opinion) 1951)

The complexity of Multilateral Agreements



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Ones trying to get as many people as possible

Need to be more forgiving

Only those ccombiabile with the object and purpsoe fo the

convention

But also don't want to allow any resevatiosn

e.g. definition of genocide

Can't reserve anything core

Jurisdiction of ICJ

Other things, more forgiving

Where beign in is highly prized

See WTO, EU

Here: genocide- need to persuade people to sign on

Treaty can make clear no reservations are allowed, or limit the srots of

reservations

Rules

Reatry rule (Art 19(a) and (B)( VCLT

No Treaty rule-> Default rule: "Compatible with object and prupose of

treaty"?

Reservation

Accepatnace

Clause reserved with reciprocal effect (Art. 21 sec. 1 VCLT)

No objection (12 months silince)

No acceptance

Clause not resrved not in force between parties

Objection reservation oly

No acceptance and

Treaty not in force betweent he aprties (Arg. Ex art 20 sec. 4(b)

(VCLT

Objection declaring treaty not in force

Objectiosn (to reservations allowed in pricnple

Rules on reservations See course tools (didn't' type all

Chceck for treaty/ies (on the subject matter)

Genreally (enough members?)

For US ("ratified")?

For other coutnry/ies invovled?

Treaty "in force"?

Resrvations?

Objections

Ascertain applicalbe version

["Self-executig"?]

Steps of treaty research

Must look at their resrvations and objections

Version that applies between any two states may be different form te

treaty appleid to any two other states

Treaty may not even be in force betwee the parties, even if they're both

Treaty you read may not be the actual treaty in force between two parties to a

dispute

Issues:

Vienna Convention on the Law of Treaties Arts. 1921, 23



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parties to the treaty

Moral: odn't just take the treaty text, li st of membership and say, "here

we go!"

Can't invoke it against that party

When a treaty not in force

Some members of Eurozone, some not

Some members of Shannen (sp? Aggreemtn) some not

Some are members to advance jurisdicitonal rules and som

eare not

See EU

End up with different versions of treaties

Problem: some maembmers want an updated member, but some don't

Ammending multilateral treaties

Vienna Convention on the Law of Treaties arts 30, 39-41

United Nations Charter Arts. 108-109

US a member

Passed provisons thorught the Intenraitonal Child abduction rememdies Act

Hague Convention on the Civil Aspects of intenraitonal Child abduction (convetnion)1980

Child must be immediately returend if aducted in violation of "rights of custody"

unless certain exceptiosn apply

Ne exeat - from chilean law (habitual residence of child)

Ne exeat: authority to consent before the other parent may take the child to

another country

Q: is a ne exeat right a right of custody

Looks to text, purpose of treaty

Because want to interpret the treaty as uniformly as possible

Court deicsions of other contracting parties

Court in interperpetign the treaty

Abbotv. Abott (2010)

Interpreting Multlateral Convetions

i.e. a claim, followed, states do it

See Truman Proclimantion

Fiat by politically powerful actor followed by acquiesence by other world actors,

followed by actual state practice

But overlayed by new things:

Old stuff still there

Jose E. Alvarez, the Internationalization of US Law (2009)

The Modern Improtance of Custom

Truman Proclamation on the Continetnal Shelf 1945)

But here- court doesn't actually do it

Have to stick to consistent state practice and opinio juris

Case Concerning Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v.

US a ICJ 1986

New Modes of Customary Itnerantional Law Making

The Changing Face of Customary International Law



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Extracts pricinple

transnat outline part two

Documents