Professional Documents
Culture Documents
by Nathaniel Burney
I.
Article 38 of the Statute of the International Court of Justice defines the sources of international law.
Look at them in order, to find the law.
First, look to treaties and other bilateral agreements to which sovereigns are signatories, and which govern the
issue.
Second, look to multinational agreements among sovereigns, which govern the issue.
Third, look to customary international law.
a.
General practices of states, accepted as if they were law.
b.
Followed not out of habit or expediency, but because considered law.
Fourth, look to general principles common to mature legal systems.
Fifth, look to subsidiary determinations of law (e.g., Supreme Court decisions). Cases are important. They are
used in real life.
CUSTOMARY INTERNATIONAL LAW
Customary international law is something done as a general practice not because it is expedient or
convenient, but because it is considered law, out of a sense of legal requirement (opinio juris).
Element 1: General practice.
Element 2: States do it out of a sense of legal obligation.
What you do becomes precedent. Your actions have a legal effect, even though you didnt actually create a
legal document.
Any order or document issued by any government entity can be used as precedent!
The Paquete Habana case relied on edicts and agreements as far back as 1403.
Even when no binding document exists, there is such a thing as estoppel. White House memos can be just as
precedental as a treaty!
Whenever considering whether something is custom, ask the following:
What constitutes state practice?
How much practice is required?
How much consistency is required?
Inconsistent state practices can be ignored if you look at the big trend.
Are dissenting and non-participating states bound by custom?
Do regional and special customs involve different requirements? May a special custom (one that conflicts with
general custom) bind a state that has not supported it?
What evidence is required for opinio juris, the requirement that practice be accepted as law?
May treaties be invoked as evidence of customary law? May they create it?
Is there a normative hierarchy in customary law?
Would declarations of law adopted without dissent by the UN General Assembly constitute presumptive
evidence of accepted international law, regardless of actual state practice?
Would the adoption of recommended standards of conduct by the General Assembly or another representative
international assembly give rise to customary law if they are generally followed by states?
Those countries with the ability to do it have more influence than others when it comes to creating custom. The
U.S. is frequently in this position.
The Paquete Habana (1900)
A case about the Rules of Engagement, going into customary international law.
Rules of Engagement Before the military engages in an action, it is governed by standing instructions on
what they can and cannot do. These are frequently classified, of course.
The Paquete Habana and the Lola were Cuban fishing boats that were seized by the U.S. during the SpanishAmerican war. The U.S. District Court said that the Navy had acted within its authority, under Federal statute.
The Cubans argued that customary international law prohibited us from seizing the ships. The U.S. S. Ct.
agreed, holding that international law is part of out law.
This established rule of international law had existed to protect peaceful fishermen from wartime seizures.
Coastal fishing vessels, their cargoes, and their crews, are exempt from capture as prizes of war. (As a result,
every US ROE since then has said to leave fishing boats alone if involved in the peaceful act of fishing [but not
if using fish to camouflage silkworm missiles, however].)
Asylum Case (1950)
Under the Vienna Convention on Diplomatic Relations, when you get inside the walls of an embassy, you are
inviolable, because others cannot go in and get you without that embassy countrys permission. One inch
outside, though, and youre out of luck. (Theres lots of tense chases here in DC for that reason, spies etc., and
China doesnt let people within a mile of the US embassy.)
Note, there are several Vienna conventions. Lots of conventions of all sorts. Be specific which ones you are
referring to.
A deposed Peruvian political leader sought asylum in the Colombian embassy in Peru. The Colombians granted
asylum, and wanted to transport him through Peru to Colombia unscathed, as a matter of law.
Colombia relied on a treaty that Peru had not signed on to. Peru claimed it had no legal obligation.
There was no bilateral agreement between Peru and Colombia.
There was no multinational agreement binding on Peru. Peru had even repeatedly repudiated the Montevideo
agreement, so that it would have the status of a nonconsenting state.
A multinational agreement can still be binding as customary international law, even if you didnt sign on. Only
if you repeatedly repudiate it do you earn the status of a nonconsenting state.
You do have the option of dissenting while international law is being formed, but your dissension must be active
and persistent.
Dont sit on your hands. Make your protest. Nobody is going to tell you to do it, youre a sovereign. States
can do whatever they want. You have the ability to assert your rights, if you choose, but that means youd better
do so or else you may lose the right.
Certain fundamental rules, however (such as freedom from torture, slavery, apartheid, genocide, etc.) cannot be
repudiated. They are peremptory norms.
International agreements are governed, not by contract law, but by the Vienna Convention on Treaty Law.
Under it, states can do anything they want to agree to, unless it violates a peremptory norm.
Is there a rule of customary international law binding on Colombia and Peru?
The ICJ said cases went both ways. Colombia pointed to numerous and frequent examples where American
countries allowed safe transport like this. However, the custom was only for political expediency it was not
done out of a sense of legal obligation.
Note Asylum has different meanings in international law contexts and U.S. domestic-law contexts. It can
mean leaving people alone who are under the protection of another countrys embassy (something the US
refuses to do, same as Peru here). It can also mean we wont repatriate you to a country you fled for
political/humanitarian reasons.
Mere uniformity of external regularity never justifies a conclusion of normativity. Governments attach
importance to distinguishing between custom by which they hold themselves bound, and the mere practices
often dictated by consideration of expediency and therefore devoid of definite legal meaning. The inductive
reasoning that establishes the existence of custom is a tied reasoning: the matter is not only one of counting the
observed regularities, but of weighing them in terms of social ends deemed desirable.
Portugal v. India (1960) Customary relations between nations becoming binding. (Not, by the way, related to
the Anglo-Saxon concepts of adverse possession or easement.)
Portugal had territory within India, and India wouldnt let the Portuguese move their military and ammo back
and forth to the enclaves. India asserted the rights that England had enjoyed, and the right of passage only
applied to civil activities.
If you dont take the measures to assert your rights, and protest, you acquiesce. You may even create legal
precedent for a customary international law contrary to your interests.
The major seafaring nations, for example, sail right up to the 12-mile limit when countries try to claim more sea
territory. At the very least, they object to those countries claims.
OPINIO JURIS North Sea Continental Shelf Cases (1969)
Germanys coastline was concave, so the Dutch/Danish method of equidistant lines would have reduced
German sea control drastically. Germany had actually signed an agreement to that effect at a party, but when it
sobered up it decided not to ratify it.
The agreement didnt say it was binding upon being signed, so it wasnt binding on Germany until it was
ratified. (Geneva Convention of 1958.)
That didnt mean Holland & Denmark couldnt argue that it was binding as customary international law, since
everyone else was doing it.
There are 3 ways the treaty could have become binding customary international law:
The treaty re-stated a pre-existing custom.
The treatys rule crystallized customary law that had been in the process of formation.
The treatys rule generated a new customary law following its adoption.
Holland & Denmark argued that this treaty had generated a new customary law, a new norm of international law
binding on everyone.
That wasnt such a good argument, because Germany had repudiated the treaty.
Also, there had been very little time since the treaty [customary international law can be created in a short time,
but the presumption is that it isnt].
Also, only a few countries were using this rule, and even then they had resorted to equidistance out of
frustration, not because they felt it was a binding legal obligation.
Also, it was not apparent that the provision was a norm-creating provision. It was a secondary provision only.
Also, the treaty permitted reservations, and many countries had made their reservations known. That was
hardly acceptance of a norm-creating law.
The ICJ therefore held that there was no customary international law for the Dutch/Danish position.
Nicaragua v. U.S. (1986).
Customary law may be a source of international law in international disputes. It is separate from treaty law and
convention law, as it must be applied even if the countries are parties to a treaty.
The court held that it is no longer okay to settle disputes with force, a customary norm.
Note Use of force can be justified three ways: (1) self-defense, (2) enforcement under Ch. 7 of the UN
Charter, or (3) pre-UN rules of necessity & proportionality [the US and a few other countries assert this third
principle from time to time].
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TREATIES, GENERAL PRINCIPLES, AND OTHER SOURCES OF INTERNATIONAL LAW
Treaties: International agreements are governed, not by contract law, but by the Vienna Convention on Treaty
Law. Under it, states can do anything they want to agree to, unless it violates a peremptory norm.
Many countries dont have governments that work. But, presuming there is a government that works, one
country can make an agreement with another government.
Problems are settled between the parties apology, reparation, etc. There are plenty of mechanisms to work
out violations of international obligations. States are grown-ups, they can deal with it.
General Principles of Law and Equity.
There arent that many of these:
A Declaration creates an expectation of adherence, and so far as the expectation is gradually justified by
national practice, a declaration may by custom become recognized as laying down rules binding on all
countries.
These mere declarations have been foundations for treaties and conventions which took these rights and built on
them and codified them as international law. All of them say that torture is a human rights violation. (Time
was, torture was just good police work, but no more. Now it is universally renounced.) Not only is this
customary international law, but it is a fundamental principle that cannot be limited.
So the 2d Circuit entered a judgment, and assessed compensatory & punitive damages. The defendant escaped
the US before the judgment could be enforced, but if he or any of his property returns it is subject to
jurisdiction. (We actually deported him. Communications between the agencies are not fantastic.)
This was not a suit against the Paraguayan government because of an official actor Paraguay had denounced
the defendant, even though he had been acting under the color of authority.
As result of this case, the Alien Tort Statute has been used more frequently. See the judgment entered against
Radovan Karadzic [70 F.3d 232 (2d Cir. 1995)] for genocide. (That case has a good discussion of the sources of
international law and affirms that these are real rules binding on us, and states that certain forms of conduct
violate the law of nations regardless of whether undertaken by those acting under the auspices of a state or only
as private individuals.)
Western Sahara Case (1975) General Assembly Resolutions cited for the proposition that free-association
and self-determination are norms of international law.
Texaco Overseas Petroleum et al. v. Libyan Arab Republic (1977) The legal value of UN resolutions can be
determined on the basis of the circumstances under which they were adopted, and by analysis of the principles
they state.
Arbitration decision. Texaco went to Libya, planned for the worst and got an agreement that Libya wouldnt
nationalize the oil fields or refineries.
Note A contract between a corporation and a foreign government is not international law. Its much better to
get an agreement between the US government and the foreign government. Otherwise, international legal
standards wont apply unless there is some other way to get international jurisdiction, and you can easily wind
up getting screwed by the foreign government.
Aside Be wary of even the most highly-paid corporate lawyers advice on international law matters. In the
experience of professional diplomats, many if not most corporate lawyers are clueless about the realities of
international law.
Texacos lawyers put in the contract that the applicable law was Libyan law that was in accord with
international law principles, and any blanks would be filled with international law, and disputes would be
decided by international arbitration, not by the Libyan courts.
Libya tried to nationalize the fields and refineries, so they went to the International Arbitration Court. The court
said that UN resolutions are of varying weight. Not all represent clear agreement. But Resolution 1803 of 1962
was a clear agreement that Libya would have to compensate Texaco. It had no unfettered right to take the
facilities without compensation.
They had to find Libyan law, but Surah 5 of the Koran was part of it, and it said you had to perform your
contracts.
Note There is no generally-recognized right to property in international law.
Back to Contents2007-2010 Nathaniel Burney
II.
The US is truly a nation of laws, especially as compared to many other countries throughout the world.
A problem with that, however, is that often our law is contrary to international law.
That is not an excuse for a violation, by the way. We may be obligated by our law to not perform a promised
duty, yet we will be liable for the breach. Shouldnt have undertaken the obligation. Sometimes it happens
because of internecine squabbles, but youre still going to have to compensate for the violation.
The principle that a state cannot plead its own law as an excuse for non-compliance with international law has
long been established and generally recognized. In 1887, e.g., Secretary of State Bayard said: It is only
necessary to say, that if a Government could set up its own municipal laws as the final test of its international
rights and obligations, then the rules of international law would be but the shadow of a name and would afford
no protection either to States or to individuals. It has been constantly maintained and also admitted by the
Government of the United States that a government can not appeal to its municipal regulations as an answer to
demands for the fulfillment of international duties. Such regulations may either exceed or fall short of the
requirements of international law, and in either case that law furnishes the test of the nations liability and not its
own municipal rules.
Article 13 of the Draft Declaration of Rights and Duties of States adopted by the International Law Commission
in 1949 says: Every State has the duty to carry out in good faith its obligations arising from treaties and other
sources of international law, and it may not invoke provisions in its constitution or its laws as an excuse for
failure to perform this duty.
That standard makes sense. Nazis couldnt defend their actions by saying they did what the Reichstag said to
do, and neither can you.
Some other countries constitutions say that international law is part of their law, and that in the event of a
conflict international law trumps as a matter of municipal law.
In Germany, e.g., if you can prove an international law violation, you win in German court. International law
takes precedence over municipal law.
See also Italy, Austria, Greece, and France.
Other systems, like the US, dont acknowledge international law as precedental over municipal law.
See Switzerland and the Netherlands.
Lots of systems leave open the question of which rules prevail.
Also, in many countries, the substance of international law is not an issue of fact for the jury, but a matter of law
for the court.
We are bound to international agreements, even though our convoluted municipal law may result in failure to
keep our end of the deal. In the United States, there are conflicts at times between our law and international
law.
Customary international law is NOT the supreme law of the land here. Only treaties are.
So customary international law loses to municipal law. But first do all you can to interpret the law in such a
way that there is no conflict.
Customary international law is still important it just isnt as strong as treaty law.
Treaty law is even more complicated.
Treaties prevail over inconsistent state laws.
The Constitution prevails over inconsistent treaties.
When a treaty conflicts with a federal statute, the most recent one prevails. And the treaty would have to be
either self-executing or already executed by Congress.
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You have to break this all down into customary international law and treaty international law.
The United States is very complex here.
Customary international law.
In the Paquete Habana case, our courts applied customary international law, but note that it did not involve law
contrary to US law. No controlling treaty or municipal law existed, and the S. Ct. said that, had a treaty or
executive/legislative/judicial law existed, it would have trumped customary international law.
The Constitution refers to international law in Article I 8: Congress has the power to define and punish
offenses against the law of nations. So the framers knew that international law existed.
Article 6 says the supreme law of the land includes the Constitution, laws made in pursuance thereof, and
treaties made in the name of the US. Period. Not state law, federal common law, judge-made law, etc. You
cannot plead supreme law of the land to excuse a breach of international law.
Murray v. Schooner Charming Betsy (1804) An act of Congress is never to be construed in a way so as to
conflict with international law, if there exists a construction that doesnt conflict.
When there is indeed a conflict, we must apply the supreme law of the land, which the President is sworn to
uphold. There is authority for the President, when there is a true conflict, to apply US law over international
law.
Courts dont involve themselves in conflicts here its a political question for the executive branch. Under
the Act of State doctrine, because of separation of powers, the courts just stay out of it.
There are potential conflicts between the executive and legislature, between the feds and the states.
The Constitution makes the President extremely powerful Chief Executive Officer of carrying out all
executive functions, monstrous powers in foreign affairs, Commander in Chief of armed forces, head of state
embodying the country in international activities.
The President also has an interesting power to receive ambassadors and other public ministers. This has been
read to mean that the President alone has the power to recognize another country.
The legislature also got some international powers: it can borrow money, regulate customs, nationalization,
define and punish felonies, maintain & arm the navy, make rules for the conduct of the armed forces, power of
the purse for the executive to pay for what it wants to do, and the power to declare war.
Note Regarding declarations of war, there havent been all that many declared wars in the many conflicts in
our history. Some say that a treaty where we say we will protect another country is a de facto declaration of
war. The NATO treaty doesnt require US commitment of forces, only such action as we deem necessary to
take care of a situation, because Congress was and remains jealous of its power to declare war.
The judiciary doesnt have much, but it does have responsibility for interpreting the Constitution.
The 10th Amendment may or may not give the states and the people some say.
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Treaty international law.
Know the difference between Ratifying a treaty vs. Implementing or executing it. Different things.
A treaty that says the parties agree to is binding. A treaty that says the parties intend to is not
binding.
Treaties are not made by Congress, but only by the President with ratification by the Senate. Nevertheless,
those treaties become the law of the land, regardless of what the House of Representatives or the Supreme Court
might have said about it. The only check on this power is where powers are given to Congress as a whole
the power to declare war is one such power, which Congress guards jealously.
If a treaty makes X a crime, Congress alone has the power to decide the punishment the treaty provision has
to be executed by Congress. Such provisions thus are never self-executing.
Missouri v. Holland (1920) Conflict between a treaty and state law. Unlike acts of Congress, which are the
supreme law of the land only if constitutional, treaties are de facto law of the land, and are binding on the states
as well as on the federal government.
We had a treaty with England/Canada protecting migratory birds. Missouri sued to prevent a federal game
warden from enforcing the treaty. The S. Ct. held that state powers fall whenever they conflict with the treaty.
This principle has been stated even more dramatically in years since. It is a slam dunk: the state loses. Under
Belmont, state lines disappear; states dont exist so far as treaties and executive agreements are concerned. The
federal national interest is so supreme that treaties and executive agreements always trump state laws.
Note The rule doesnt apply when state action is required to implement a treaty.
Reid v. Covert (1957) If a treaty is contrary to the Constitution, then the treaty fails. The Constitution
trumps. Treaties and executive agreements have the possibility of violating a constitutional provision and thus
being invalid.
Watch out for clauses in international agreements that are contrary to the US Constitution:
Interference with the power to declare war.
Prohibitions on free speech.
Restricting the rights of aliens (recall that the Constitution protects persons, not citizens).
Denying due process of law.
Denying equal protection.
Taking private property.
Limiting the right to travel.
Just because a treaty is agreed-to, it may still need a little more to make it the supreme law of the land.
Foster & Elam v. Neilson (1829) A treaty is equivalent to a legislative act whenever it is self-executing.
That means it operates of itself without aid of any legislative provision. But, when the terms are contractual, the
parties must execute it, so it requires an act of the legislature.
The US needed access to the Gulf of Mexico, and Napoleon needed money for his wars, and so was willing to
sell the whole Louisiana tract for $15M. But the land had French subjects and Spanish subjects. Titles were
granted to different people for the same land, then the US got it all. In order to secure the rights and privileges
of the people on the land, the US, Spain and France needed a treaty to settle it.
The treaty was alleged to give the King of Spain power to grant title to land even after the US took control. The
language said that such a grant shall be ratified and confirmed. Did that meant it was automatically ratified,
or did it need an additional act of Congress.
The treaty was contractual. Therefore, the contract must be actually performed to get the end result. The treaty
merely stated the intent of the parties to confirm a grant of land. It envisioned an additional act of the
legislature to implement it before the grant was confirmed.
Self-executing treaties vs. Non-self-executing treaties.
An international agreement cannot take effect as domestic law without implementation by Congress if the
agreement would do something that is within the exclusive law-making power of Congress.
Thus, an international agreement providing for the payment of money by the US requires an appropriation of
funds by Congress.
An international agreement cannot bring to US into a state of war.
An international agreement cannot make something a US crime.
An international agreement cannot raise revenue by imposing a new tax or tariff, but it can affect tariffs with
most-favored-nation and similar clauses.
If an international agreement is silent as to whether it is self-executing or not, and the intention of the US is
unclear, then look to things said by the White House/State Department or by the Senate in ratifying it.
If a provision is non-self-executing, then the US is under an international obligation to adjust its laws and
institutions (if necessary) to give effect to the agreement. (Wed get a reasonable time to do so before being
held in default.)
Fujii v. California (1950) A California statute forbade aliens ineligible for citizenship from owning or using
real estate. The plaintiff relied on the UN charter, in part, claiming that the statute violated human rights. This
was held not to be enough, however. The charter was not a binding set of rules without some other act. (He
won on 14th Amendment grounds, anyway.)
Any agreement which itself requires further legislative enabling action by the countries is non-self-executing.
Note Im not talking about ratification by the parties. Ratification is self-execution.
If you write in a provision describing how the US will fulfill its obligations on its side, thats fine, but thats not
binding as part of the international legal obligation.
You do have some power to go into who implements what. Its just a problem when the unilateral obligation is
not rationally-related to the international agreement itself.
Note well If the agreement makes it enter into force, and the provision is self-executing, then it is binding
even if it hasnt yet been implemented by the legislature.
Whitney v. Robertson (1888) In the event of a conflict of a treaty with United States statute, the one that is
most recent in time prevails.
The US and the Dominican Republic had a most-favored-nation agreement, where the US would never give
another country a better deal on sugar tariffs. If another country did get a better deal, then the Dominican
Republic would get the same treatment. The D.R. was utterly dependent on sugar exports, so it was important
that the treaty say theyd always get the lowest tariffs on sugar.
Congress then let Hawaii export sugar duty-free. The D.R. objected to the duty its had to pay, and paid only
under protest.
The S. Ct. acknowledged that treaties and statutes are both the law of the land. When there is a conflict, it held,
then the later in time controls.
The statute violates the international agreement, sure, but the US law is whichever is most recent. The D.R. still
has the right to reparations or other satisfaction, though.
Note A more recent treaty overtakes inconsistent prior legislation automatically only if it is a self-executing
treaty. Otherwise, it overtakes the legislation upon the passage of implementing legislation.
Charlton v. Kelly (1913) A breach of a treaty by one party makes the treaty voidable by the other party.
The US and Italy had a mutual-extradition treaty. Usually, states dont agree to extradite their own natives, but
this agreement said thats what the parties would do. Italy refused to extradite its own nationals to the US,
however.
An American was going to be extradited to Italy under this treaty, and argued that because Italy had breached
the agreement it was void, and so there was no need to extradite him.
The Supreme Court held that a material violation of an international agreement doesnt automatically void the
agreement. A treaty is binding until abrogated, so it was still binding and the US had to perform.
The executive branch decides when a treaty has been abrogated. In this case, they felt that it wasnt worth it.
So the American got extradited to Italy.
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III. EXECUTIVE AGREEMENTS
95% to 99% of all international agreements to which the United States is a party are Executive Agreements.
The Constitution doesnt refer to executive agreements, but they have been entered into from the beginning.
Not the same as a treaty, but in terms of international law there is no difference.
In terms of municipal law, the difference is that executive agreements are not submitted to the Senate for
approval. Treaties must be.
The 1972 Case Act requires that Congress be given a chance to look at executive agreements within 60 days. 1
U.S.C. 112b. All that happens, though, is that Congress recognizes the existence of the executive agreement
there is no need for congressional approval.
If an executive agreement conflicts with the Constitution, the Constitution prevails.
If an executive agreement conflicts with state law, state law loses.
United States v. Belmont, 301 U.S. 324 (1937) The Soviets nationalized everything in Russia. American
companies property was seized. The President froze soviet bank accounts, as always, so that an agreement
could be made where the soviets would drop their claims to the accounts, which would then be distributed
among the United States citizens whose property had been taken. Pennies on the dollar, but at least it would be
something. In exchange, the President recognized the soviet government.
Belmont was a private banker doing business in New York state. The United States sued to recover the soviet
deposits with him. The lower court held that this would conflict with the interests of New York state, so it
couldnt be done.
The S. Ct. held that the feds have sole and complete power over international affairs, so even if the result of
federal action would be contrary to the controlling public policy of the state, the state still loses.
New York didnt have the power to recognize foreign governments. Only the President could do that.
United States v. Pink, 315 U.S. 203 (1942) same holding. Whenever there is a conflict between an executive
agreement and state law, state law loses. These are huge executive powers.
Nevertheless, it is important to establish good relations with state authorities who do things, because they are
probably going to violate some executive agreement along the line if theyre unaware of it.
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When the President needs an executive agreement, he can do one of three things:
1. If the agreement is crucial to international and national agreements, he should get a treaty.
UN membership, NATO, extradition, taxes, postal matters. Only the really big commitments, nothing else.
2. The President may just sign the agreement as an executive agreement, based either
a. on his sole powers under the Constitution, or
b. with congressional acquiescence if based on shared powers.
Regardless of which basis it is, neither kind of executive agreement requires congressional approval.
The statute books are full of acquiescences by Congress to let the President make executive agreements in
certain areas.
So what happens when, even though the basis is shared powers, Congress was silent, and the President still did
it?
What happens when Congress is vocally opposed to it, and the President still does it?
3. Sometimes, in certain economic agreements, the President knows he could do a treaty or an executive
agreement, but instead he does a fast-track agreement.
The President makes the agreement, and it goes to the House and Senate for a strict thumbs-up or thumbs-down.
They cannot make any modifications.
These are rare. NAFTA, GATT.
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Purely Executive Powers, versus Shared Powers.
There are some, albeit very few, areas where the President has powers that he doesnt have to share with
Congress. Congress opposition or acceptance is irrelevant regardless of how Congress votes, the President
alone can do these things, such as:
Recognition of foreign governments.
Receiving ambassadors.
Most presidential powers here are shared with Congress. So most executive agreements are CongressionalExecutive Agreements. Congress has either supported it or acquiesced to it. The President does it with
Congress blessing.
Recall Youngstown Sheet & Tube, Trumans steel seizure case. Truman committed many troops to Korea,
50,000 of whom would die there, without a peep from Congress yea or nay. While that was going on, a
steelworkers union strike was planned. Hours before the strike, Truman ordered the executive branch to take
over the steel mills and keep them running. The S. Ct. said his power to do this had to come from either the
Constitution or a statute. No statute, not even any act of Congress existed from which this power could be
implied. Justice Jacksons opinion broke it down well (he was freshly back from the Nuremburg tribunal).
There was lots of overlap between the powers of the executive and the legislature here, which created a zone of
twilight (soon the be the name of a TV show) in between the areas where each branch clearly trumps. The
lawyers job is to decide whether the President can go ahead or not. This case had many different opinions,
only three of which allowed the President to go ahead and do it. So Truman lost the President did not have
the power to seize the steel mills. Only Congress could do it.
When there are shared powers, it is important to know whether Congress has spoken on the area.
Usually, Congress winks at the executives actions, or actively supports them. But this isnt always the case.
Merely because Congress has powers in an area, that doesnt mean that the President doesnt.
Apply this analysis to conflicts in foreign affairs:
Take, for example, the nonproliferation of nuclear weaponry. Nothing is more important tons of it is pouring
over borders. Nuclear devices are all over. They arent technically weapons, but theyre just as deadly.
Chemical & biological weapons are out there, too, and theyre no joke either.
Because we arent part of an exclusive club here any more, Congress justifiably is anxious that something be
done about it and fast.
So Congress gives the executive branch funding and marching orders to do something about it.
Executive agreements are handy tools for doing something about it.
What if Congress hasnt spoken on a subject, and the President makes an executive agreement?
The President has a good record here, so its still okay.
If Congress vocally opposes it, however, and the executive agreement conflicts with a statute, then theres a
problem.
The standard is not the same as a conflict between a statute and a treaty. If the President lacks the sole
constitutional authority to make this executive agreement, and Congress shares the authority, then Congress
prevails.
Only once has a court addressed this problem. In 1948, the 4th Circuit decided Capps, where Congress had
passed a law to protect farmers.
The law said that should the President detect a possible trade problem, then the President was to order an
investigation. If the investigation turned up a problem, there were certain things he could then do.
Our ambassador to Canada noticed that a lot of potatoes were pouring in to the United States from Canada. The
Secretary of State made an executive agreement with Canada to permit unlimited potatoes, but only for seed
purposes, not for eating. The Secretary of State took it upon himself to do this without going through the steps
Congress had laid out.
This is clearly a shared power commerce and trade. Congress had spoken dont do X without doing Y.
Of course the Secretary of State likely had no knowledge of the statute, as it was only a few months old. The
court nevertheless still held that the executive agreement failed because Congress had said not to do it.
There was much citing of Youngstown.
There was another case in 1981, Dames & Moore v. Regan, but it really wasnt on point here. So Capps remains
the only precedent here.
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IV. STATES
Definition.
The nation-state is the fundamental entity of international law. States are not the only actors there are also
people, corporations, international organizations, etc. but states are the big ones.
A government is not the same thing as a state.
A government is a separate entity from the state.
Four Requirements:
1. DEFINED TERRITORY, OVER WHICH THE SOVEREIGN EXERCISES CONTROL.
Not every single river, stream and rock need be defined. Border disputes are common.
Emerging states It is a common principle that emerging states inherit the territorial borders they had before.
Usually, the only other alternative is bloodshed.
The former Yugoslavia did have a border agreement at first each entity would retain the borders it had prior
to independence. Had the nations of the world enforced that border agreement, much of the bloodshed and
atrocities would have been avoided.[1]
Still, the all bets are off approach seems to be the exception, rather than the rule, for emerging states.
2. DEFINITE POPULATION OF PEOPLE.
Can be a few hundred only, but you do need some people.
3. UNDER CONTROL OF ITS OWN GOVERNMENT.
If another state governs you, youre not a state yourself.
they didnt. Then Saratoga, the first time the brits got their butts kicked, showed that the rebels had something
to back up their independent entity. Only then could France intervene (and even then it was way premature).
And without the French fleet in the Hampton Roads, there would have been no surrender, and there would be no
United States.
Recognition was a major issue in our Civil War, as well. The Confederacy at first fought a defensive war. Then
Lee said that the best way to win the war and get foreign recognition was to invade the north. This was
calculated to get British and French recognition. The blockade of the southern ports had put vast numbers of
the British population out of work, and there was great starvation. The average subject, though, was still so
appalled by the idea of slavery that no matter how much it hurt the British refused to recognize the Confederacy,
though they came very close. (Even though they were starving, human rights still mattered.) The driving force
behind Antietam and Gettysburg was foreign recognition by the French, British, Prussians, etc. (as well as that
little thing called winning the war, but thats a subject for another discussion).
In the United States, recognition is a political power left up to the President alone.
There has to be a government in charge, for there to be recognition.
A government may be a hard thing to find, as in Somalia in the 1990s, even though it is there.
Finland wasnt recognized for a while, because all sorts of peoples lived there. Yugoslavia had the same
situation, but went the opposite direction and became so... balkanized... that it is not one state any more.
Because a government is not the same thing as a state, there is a difference between recognition of a state and
recognition of a government. Also, you can do both yet still have limited or severed diplomatic relations (these
mean little, other than that you dont like each other). See Recognition of Governments, below.
(Proposed) FIVE ADDITIONAL CRITERIA FOR RECOGNITION, developed following the Yugoslavian
crisis that began in 1991. Recognition would be accorded in light of the states adherence to:
1. Peaceful and democratic determination of the countrys future.
2. Respect for all existing borders, both internal and external and change to those borders only through
peaceful and consensual means.
3. Support for democracy and the rule of law, with emphasis on the key role of elections in the democratic
process.
4. Safeguarding human rights, based on full respect for the individual and including equal treatment of
minorities.
5. Respect for international law and obligations, especially adherence to the Helsinki Final Act and the Charter
of Paris.
See, Slovenia had broken off and whipped the Serbs thoroughly. They got their own territory, people, post
offices, etc. But the EEC, the US, and the UN said they had to do the above as well.
These criteria are NOT part of customary international law!
They are expedient, not law, and the EEC has gone back on requirements in many cases.
This may be the beginning of a custom, but it isnt law yet.
Recognition isnt guaranteed, even if it would be okay.
Macedonia meets all 4 requirements for statehood. The UN peacekeepers are there with the consent of the
government. It looks like a state, acts like one. Yet nobody has recognized it, because Greece doesnt like the
name (they have a border province with the same name, and they dont like the implications, unsurprisingly).
And the flag resembles Alexander the Greats seal, so the Greeks dont like that either. So Greece hasnt
recognized Macedonia, and it gets mad at anyone who even thinks of it. (So immediately Turkey and Bulgaria
recognized it.) But nobody else has recognized it. Lesson: Governments are made up of people. Bitter, petty
people.
Even though a state is not recognized, not a de jure state, it still may have responsibilities and obligations as a
de facto state.
Nonrecognized states can and do engage in activities that affect other states.
Tinoco Claims Arbitration (1923) Britain asserted claims against Costa Rica for acts of the predecessor
Tinoco regime, which had come to power by a coup and maintained itself in control for two years. Britain
didnt recognize the Tinoco regime. When it fell, the restored government nullified all of the Tinoco contracts,
including an oil concession to a British company. Britain argued that the Tinoco government was the only
government in Costa Rica when the liabilities were created, and that its acts couldnt be repudiated. Costa Rica
argued that the Tinoco regime was not a government, and that Britain was estopped by its nonrecognition of
Tinoco anyway. The sole arbitrator (Chief Justice William Howard Taft) held that a government which asserts
control throughout the country with the acquiescence of the people becomes the de facto government the
nonrecognition of it by major powers has no effect on whether or not it is the government. Also, the claim of
estoppel was wrong because the British nonrecognition didnt dispute the existence of the Tinoco regime, and
also because the successor government had not been led by British nonrecognition to change the governments
position.
To hold that a government which establishes itself and maintains a peaceful administration, with the
acquiescence of the people for a substantial period of time, does not become a de facto government unless it
conforms to a previous constitution would be to hold that within the rules of international law a revolution
contrary to the fundamental law of the existing government cannot establish a new government. This cannot be,
and is not, true.
It didnt matter that the government wasnt recognized. You couldnt deny that it had been in control.
This had been a deal between a British company, not the government, and Costa Rica. Britain stepped in to
protect the company (rare, and its usually a bad idea for a corporation to contract with a government anyway).
Ordinarily, changes in government dont change the states obligations. The President signs for his state, not for
himself. The Shahs agreements are still binding on Iran, and they have to go through the procedures to remove
them if they dont like them.
Remember Tinoco in dealings with nonrecognized entities they are still the effective government of their
states.
Control can be brief. Here, Tinoco only had thirty months. It cant be just for a day, though.
You also cant take over a portion of a state and speak for the whole state (with the small exception of
obligations that are normally incurred by government anyway).
Once in a while, unrecognized governments do things like sign agreements with foreign governments, maintain
diplomatic corps, etc.
Nonrecognized governments can engage in acts that will be recognized by United States courts.
Salimoff & Co. v. Standard Oil of N.Y., New York Court of Appeals 1933 Even though the Soviet
government was not recognized by the United States, soviet confiscation of property within the territory of the
USSR was binding on the United States courts.
The property in question, oil land, was in the USSR. The de facto power in control of the Russian territory was
the Soviet government. The land had been confiscated from Salimoff & Co., who claimed that the Soviet
government was a band of robbers. The Soviet government was not yet officially recognized by the United
States, so what was the validity of its acts? The case was taken to court in New York State.
If a nonrecognized government is allowed to sue, then youd be recognizing it. Here, however, neither party
was the Soviet government; the only parties involved were businesses.
The first thing to ask in a situation like this is Is a foreign government (or its agency) a party directly
involved? There are a whole array of analyses that will go wrong if you dont ask this first.
1. Is the foreign government involved?
2. Is it a party to the court proceeding?
The USSR met all four requirements of statehood, and the Soviet government de facto existed. Recognition
does not create the state. So the New York court held that the Soviet governments actions did pass title of the
oil lands, and it was legally binding in United States courts.
Note that this was only property located within the USSR. We didnt permit the Soviets to confiscate assets
abroad, such as bank accounts in the United States.
Salimoff, read in conjunction with Tinoco, also means that successors of nonrecognized governments are bound
by their actions.
Upright v. Mercury Business Machines, New York appellate division 1961 Just because a government isnt
recognized, that doesnt invalidate private obligations arising out of dealings with that government.
The defendant company issued a note to pay for typewriters from East Germany (very cheap, because East
Germany didnt feed its workers). The note got passed around, and citizen Upright tried to have it honored.
The defendant company rebuffed the poor schmo, claiming that East Germany was not a recognized
government, and the manufacturer of the typewriters was an instrument of that government.
However, the fact that the government was not recognized doesnt invalidate the typewriter sales transaction,
even though the manufacturer was controlled by that government.
Fairness is also an issue here you cant transact with the manufacturer and then refuse to honor your own
note, regardless of the validity of the manufacturer. You made the note, you honor it.
National Petrochemical Company of Iran v. M/T Stolt Sheaf (2d Cir. 1988).
Bizarre exception to the rule that nonrecognized governments cannot get access to United States courts.
Iran was trying to sue in United States courts over black-market shenanigans. The State Department wanted
Iran to be allowed to sue, on this one occasion only.
The executive has great powers here, to which the judiciary deferred.
On international law matters, a State Department amicus is actually given weight by the courts.
A foreign government in exile is not a de facto government. It may be de jure, however.
It doesnt control a defined territory, thus it is not a state.
It can be treated as a de jure government, however. The Polish government in exile was very effective during
WWII, acting out of London.
You have to choose whether to take the status of de jure government in exile.
The PLO decided not to, because although it could have been recognized as such, that would be admitting that
they werent actually in control.
The Palestinians have been doing everything they can to look like a state theyve got a flag, currency,
passports, etc. But they arent necessarily in control of their own territory, and theyre not really able to engage
in foreign relations. Maybe theyll be an independent state sometime, but Israel wont let that happen until
theyre satisfied on security. (Israel still makes agreements with the Palestinians regarding extradition,
however.)
State Succession.
The rights and responsibilities a state takes from its predecessor are only those which it can convince other
states that is has succeeded to.
If a state has just undergone a change in government, the rights/capacities/obligations of the state are
unchanged.
Only a concern if the state acquired sovereignty over a territory from another state (absorbed another state or
part of it, or became independent).
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Self-Determination.
The right of peoples to self-determination is undeniably a right under customary international law, but the hard
part is defining Self in self-determination.
One source of customary international law here is the United Nations Declaration of Principles of International
Law Concerning Friendly Relations Among States in Accordance with the Charter of the United Nations (1970).
The right to split away and form your own new government is only recognized in terms of ending colonialism
or ending foreign subjugation.
The declaration is not meant to authorize or encourage any action which would dismember or impair, totally or
in part, the territorial integrity or political unity of sovereign and independent states conducting themselves in
compliance with the principle of equal rights and self-determination of peoples, and thus possessed of a
government representing the whole people belonging to the territory without distinction as to race or creed.
This is a big exception.
Self-determination is not just the right to break free and establish a new territory. There is also a middle course,
a right of minorities to be themselves without being punished a right to participate in cultural, linguistic, etc.,
groups.
The problem is, that leads to more separatism. If every ethnic, religious or linguistic group claimed statehood,
there would be no limit to fragmentation. Peace, security and economic well-being for all would become even
more difficult to achieve.
Separatist groups may not have the right to rebel. Nor may they be entitled to foreign assistance. (They do, of
course, have human-rights rights.)
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Sovereignty over Land, Sea, and Air.
States are sovereign, and cannot interfere with other states without permission. Sovereigns are responsible for
everything and everyone inside their territory. Citizens owe real allegiance to their sovereign state (IRS goes
wherever you go, for example).
UN Charter Article 2, 7, says that you cant interfere with what a sovereign does in its own territory, with the
exception of enforcement.
Acquisition of Territorial Sovereignty.
How do you acquire territorial sovereignty? How do you get control over this plot of land?
Borders are not set in stone, and there are many border disputes around the world. But most border disputes are
settled by negotiations, not with tanks.
Borders have amazing legal ramifications. On one side of an imaginary line drawn through the woods, youll
be punished for behavior that may be positively encouraged on the other. Usually, without GPS or a surveying
team, you cant determine which side of a border youre on.
To maintain your territory, you dont have to physically occupy every square inch of land 24-7, but not a day
goes by without some action to maintain your borders.
Title, in most cases, descends from discovery of the land.
Island of Palmas Case (1928) oft-cited case here. Right on the international boundary between the Dutch
East Indies and the Philippines sat the Island of Palmas. It had been discovered, but not settled, by Spain. It
had been treated as Dutch by the Netherlands for centuries. The United States got Spains Pacific holdings, and
the Treaty of Paris specifically included this island (well, on the map only, it wasnt listed in the document, but
including something on a map thats part of a document is dangerous this way. And the Dutch werent party to
the Treaty, so they wouldnt be estopped by the map anyway). So was the island Dutch or American?
Spain had based its territorial claim on discovery (well, at least they were the first Europeans to sight it). But all
they did was see it, they didnt set foot on it.
The Dutch claimed that it was theirs, based on a continuous and peaceful display of sovereignty. Well, they
hadnt occupied it either, but the Dutch government had been having official relations with the tribal leaders
there, and theyd had dealings with the island from time to time. During the couple of hundred years that this
was going on, there was nary a peep out of Spain.
By discovery, Spain got inchoate title.
Thats just a preliminary right. You have to do something else within a reasonable period for title to vest. In
this case, theyd have had to occupy the island.
At the very least, Spain should have objected to the Dutch activities. By failing to do so, it was estopped from
claiming sovereignty over the island. And thus so was the United States when it took over Spains territories.
Spains claim of contiguity was a red herring here. (Its ours because its close to us.) Thats not a factor
when islands are at issue. Maybe, however, if part of a land mass.
Legal Status of Eastern Greenland Case (1933).
In 1814, Denmark lost Norway and Sweden because it had sided with Napoleon and lost (ironically, Swedens
new ruler had been a field marshal for Napoleon). Denmark still retained control over Iceland, Greenland, and
some other islands.
For many years, nobody objected or disputed Denmarks claim to Greenland, not until the first half of the 20th
century. However, in the meanwhile, Norway secretly coveted Greenland. This was a big deal 840,000
square miles of territory.
In 1921, Norway disputed Denmarks claim. In 1931, Norway landed a military force on the island, saying that
it had been terra nullius, and that now they occupied it. I dont see anybody here, and its mine now.
Denmark disputed this claim, and in good Nordic tradition submitted it to ICJ arbitration.
Denmark based its claim on a peaceful and continuous display of sovereignty (having read the Island of Palmas
case). Itd been continuously asserting its rights, and nobody had disputed it until 1921.
TWO REQUIREMENTS FOR PEACEFUL AND CONTINUOUS DISPLAY:
1. Demonstrated will to be sovereign, AND
2. Display that sovereignty through affirmative actions not just by saying that nobody else owns it.
Denmark had done little, but they had done what they could they put their claims in international documents
from time to time. From 1815 to 1914, there was no doubt about their claim, and even between 1921 and 1931
Denmark had still done enough for the arbiter to decide in their favor.
According to the court, Norway would have lost anyway, on 2 other unrelated grounds.
Norway had failed to object when signing a multilateral agreement on herring, where the Danes had stated that
Greenland was theirs. What they should have done was either not sign it, or make a reservation (up in the
corner, state that your country does not assent to that assertion).
Norway had expressly promised not to contest Danish sovereignty over Greenland.
Norways express promise not to contest Danish sovereignty over Greenland were oral. Just some vague
statements between ministers at a cocktail party. How could that possibly be legally binding on Norway?
Norways Minister for Foreign Affairs sent an official memo back to his government on July 22, 1919, stating:
I told the Danish Minister to-day that the Norwegian Government would not make any difficulty in the
settlement of this dispute.
The PCIJ considered it beyond all dispute that a reply of this nature given by the Minister for Foreign Affairs
on behalf of his Government in response to a request by the diplomatic representative of a foreign Power, in
regard to a question falling within his province, is binding upon the country to which the Minister belongs.
Understandably, lawyers get antsy when the appointed diplomats start talking out of turn.
Norway replied that under its constitution, the foreign minister could not enter into a binding international
agreement on matters of importance without approval of the King in Council. But the PCIJ rejected that claim.
It was sufficient, the Court found, that the foreign minister acted within his province in replying to an inquiry of
the Danish government.
DONT DO BUSINESS ORALLY. PUT IT IN WRITING. Dont take the risk of getting stuck like this,
especially because the conversations cant accurately be reconstructed.
Burkina Faso v. Republic of Mali Frontier Dispute (I.C.J. 1986) There are lots of problems in Africa
resulting from political borders being drawn across tribal and geographical boundaries. They can live with the
borders as drawn, or make them all contested (in which case bloodshed is unlimited). Here, bloodshed was
avoided by an ICJ settlement.
Malis President made a statement to the press that Mali wouldnt care if Burkina Faso got the disputed territory.
His handlers quickly covered for him, saying that it was a marvelous example of his witty nature. The ICJ held
that it wasnt binding anyway, because the statement was made to the press, not in diplomatic channels.
El Salvador v. Honduras (I.C.J. 1992) A riverbed was the border. The riverbed shifted. So now where was
the border? (This happens all the time on the Rio Grande, too.)
If the shift is gradual (accretion), then the border shifts with the riverbed.
If the shift is sudden (avulsion), then the border is not changed.
Footnote: The horrid bloodshed and war that led up to this case was the result of a soccer match! I kid you not.
Thalwig Doctrine Borders along rivers are usually in the middle of the NAVIGABLE CHANNEL, not
necessarily the same thing as the physical halfway point of the riverbed.
AIRSPACE/SEA TERRITORY (much more on this under Law of the Sea).
There is a right of innocent passage on water within the 12-mile limit (the territorial sea).
There is NO right of innocent passage in AIRSPACE, even within the 12-mile limit/territorial sea.
Regularly-scheduled airline corridors and routes aside, everybody needs clearance for each plane going over
each countrys airspace.
Countries vigorously enforce their airspace as their territory.
Use of force against violations must be PROPORTIONATE. Dont shoot people down who pass in and out, or
who are just dropping leaflets. You may not even have the right to shoot the plane down, but try telling that to
the Sovs.
When an incoming craft is high-speed, we ask for ID before it gets to the 12-mile limit, but thats out of caution,
not technically international law.
Airspace goes all the way up into outer space above your territory.
These rules are real. Americans are dead because of them. Pilots die because countries wont let us fly over
their airspace, and they run out of fuel over water. You have to get explicit permission to fly over someones
airspace, and often it isnt given.
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V. NON-STATE ENTITIES: ORGANIZATIONS, CORPORATIONS and INDIVIDUALS
International Organizations.
Governmental (Public) International Organizations.
These are established by states.
Given powers by states (specified in the organizations charter).
Powers include much of what states can do. For example, they may be able to enter into treaties with states.
Non-governmental International Organizations.
These are tolerated by states.
Multinational Companies.
Not corporations that operate in several countries. (Those are transnational corporations.)
A truly multinational company is owned by several countries.
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Individuals and Nationality.
The individual has always been a factor in international law, with piracy if for no other reason.
Individuals can be responsible to international law for their own actions as individuals, not solely their actions
as government agents.
Crimes against international law are committed by men, not by abstract entities, and only by punishing
individuals who commit such crimes can the provisions of international law be enforced.
The official position of a defendant, whether as a head of state, or as a responsible official in government, shall
not be considered as freeing him from responsibility, nor in mitigating punishment.
DIPLOMATIC PROTECTION the state takes up a citizens claim on behalf of the individual.
Mavromattis Palestine Concessions (Greece v. Great Britain) (PCIJ 1924).
A Greek citizen said he had been treated unfairly by Great Britain in violation of international law, and he asked
Greece to take up his case before an international tribunal.
Great Britain said an individual has no right to have a state take up his claim on the individuals behalf.
The PCIJ held that, by taking up the case of one of its subjects and by resorting to diplomatic action or
international judicial proceedings on his behalf, a state is in reality asserting its own rights its right to ensure
respect for the rules of international law. It just happens to be asserting that right through one of its subjects.
The decision to provide diplomatic protection is left up to the state. It is not the individuals decision to
make.
Only the state of which the individual is a national has the right to provide diplomatic protection.
Determining the nationality of the individual is therefore CRITICAL in a situation like this.
Note, this wasnt a formal extradition, they were just deporting an alien. Extradition is when you send someone
to another country to stand trial for a crime.
Critical point international law leaves it up to each state to make the rules for nationalization. Whatever the
state says are the requirements, thats the requirements to be a national.
Critical point but, whether other states must recognize that nationality is up to international law.
Nationality is a legal bond having as its basis a social fact of attachment, ...
a genuine connection of existence, interests and sentiments, ...
together with the existence of reciprocal rights and duties.
Merely being a resident isnt enough for this genuine connection.
Requirements:
At the time of naturalization, did the individual appear to have been more closely attached by his tradition, his
establishment, his interests, his activities, his family ties, his intentions for the near future, to this state than to
any other state?
Here, the I.C.J. said no, his switch wasnt genuine. So Guatemala didnt have to honor his Liechtenstein
nationality.
Involuntary Nationality.
Some countries embrace you as a national whether you want them to or not. You walk through the airport, they
say Welcome back, citizen, and the next thing you know youve been sent into the army for your required
service, at the age of 54.
This may violate international law.
You might be able to say there isnt a genuine connection.
A state is not required to recognize a nationality imposed by another state on an individual against his will on
the basis such as marriage to a national, a specified period of residence, acquisition of real property in the states
territory, bearing a child there, or having a particular ethnic or national origin.
Nor is a state required to recognize a nationality that the individual has renounced.
Dual Nationality.
United States ex rel. Merg v. Italian Republic (1955).
Mrs. Merg was born in the United States, and was an American citizen. She married an Italian, thereby
becoming an Italian citizen under Italian municipal law. (Not only had she married an Italian national, she
married a diplomat under Mussolini.) They were assigned to live in Imperial Japan.
She tried to maintain her United States citizenship. Under United States law, she possibly could have
maintained it.
At the end of WWII, her US citizenship became very valuable. When wars are over, United States citizens who
owned property in other countries, and foreigners who had property in the United States, bring claims in front of
commissions where nationality is important. Shed had a grand piano in Italy, which was destroyed during the
war. The US brought a claim on her behalf for the value of the piano. Italy refused, claiming that she was an
Italian citizen, so the US couldnt represent her. The Commission had to decide whose national she was.
First, looked at the peace treaty. That was no help.
Second, looked at the Hague Convention of 1930, which says you cannot ask state 1 to intervene against state 2
when you are a national of state 2.
States cannot assert diplomatic protection against another state when the individual is a dual citizen of both.
BUT, if you are before a third party, such as an international tribunal, there is a different test what is your
DOMINANT nationality?
What is the country to which you have the most connections, your principle or habitual residence, economic
bonds, social/family bonds, etc.
Applying these factors, the Commission decided that she was principally an Italian citizen. The United States
therefore couldnt make a claim on her behalf for the loss of the grand piano.
Alexander Tellech Claim (United States v. Austria & Hungary) (1928).
Sad case. Commission held that a 5-year-old accompanying his parents to Austria was voluntarily incurring the
risk incident to residing in Austria, and voluntarily subjugated himself to the duties and obligations of an
Austrian citizen.
The claimant was born in the United States of Austrian parents in 1895, thereby acquiring both US and Austrian
nationality. He lived in the US until he was five years old, when he accompanied his parents to Austria.
In 1914, at the age of 19, he was interred as an agitator engaged in propaganda in favor of Russia. After 16
months in an interment camp, he was impressed into military service.
The Commission rejected a United States claim on his behalf, on the ground that Tellech was a citizen of both
countries and that he had voluntarily taken the risk incident to residing in Austrian territory and subjecting
himself to the duties and obligations of an Austrian citizen arising under the municipal laws of Austria.
Heres a hypothetical situation. Say a citizen of the U.K. is a trader in Singapore. He bets the firms ass on the
Nikkei, and loses. He flees to Germany. Should Germany extradite him to the U.K, or to Singapore?
The citizen would prefer to go to the U.K., since Singapore can be a tad harsh in its punishments.
No problem. The U.K. simply drops its extradition request, and Germany happens to have an extradition treaty
with Singapore, so bye bye trader.
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Corporations.
How do you decide if a corporation is a national? Apply a different test than for people.
Barcelona Traction (Belgium v. Spain) (I.C.J. 1970) Belgium wanted to exercise diplomatic protection for
the shareholders of Barcelona Traction. For that to happen, the company had to be a national of Belgium.
Absent nationality, the state couldnt intervene on behalf of the company.
The company was incorporated in Canada, but 88% of the shareholders were Belgians.
The shareholders clearly suffered harm when Spain deliberately sank the company. Still, a corporation is
clearly distinct from its shareholders. The wrong was only done to the corporation.
Unequivocally, a state is the sole judge of whether, when, to what extent, and for how long it exercises
diplomatic protection.
Whether or not a company is a national depends on municipal law. Otherwise, there would be tremendous legal
difficulties.
A shareholder is not personally liable for the corporation. He isnt responsible for it. The loss of a
shareholders investment therefore is not a legal wrong against the shareholder.
The test for nationality of a corporation is not a general connection test. Nor is it a dominant/effective
nationality test.
The test is wherever the corporation is registered. Wherever its principal place of business is.
And of course, even if your company is registered in the United States and its principal place of business is in
the United States, there is no guarantee that the State Department will argue on your behalf if youre being
screwed by another country. (Unless theres an international agreement to that effect in place already.)
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VI. JURISDICTION
General Principles of Jurisdiction.
Definitions.
Prescriptive Jurisdiction
A legislature passes laws prohibiting conduct criminal laws. This power to pass laws to regulate conduct in
your territory (and sometimes extraterritorially) is prescriptive jurisdiction.
Enforcement Jurisdiction.
This is the power to send cops out after you. Also called Executive jurisdiction.
Judicial Jurisdiction.
This is the power to try and punish you.
Passing a law criminalizing conduct in another state is one thing. Going to that other state and arresting you
there is another thing entirely.
Entering another states territory without permission is a violation of that states sovereignty.
So states make extradition treaties in advance. States can choose to give up little bits of sovereignty in this
manner.
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PRESCRIPTIVE JURISDICTION. (This is important as hell.)
The power to prescribe is not questioned on your own territory. But extraterritorial prescription can be a
problem. People doing business in Switzerland shouldnt have to worry about the laws of other sovereigns to
whom they owe no allegiance.
Bases of Prescriptive Jurisdiction:
Territorial states can regulate conduct within their borders.
Subjective Did the legislature actually attach liability to conduct within its own borders?
A crime was committed inside your territory. Regardless of where the crimes results were consummated.
Absolute power of the sovereign over its own territory.
Objective Did the legislature intend to attach liability to the conduct, outside the territory, of non-nationals?
The crime began elsewhere, but was consummated here.
This can be problematic how remote can the repercussions be from an act done in another country, and still
have liability here?
[Yes, I know the labels appear mixed-up, but thats the way they are used.]
United States v. ALCOA (2d Cir. 1945) Six international corporations (1 Canadian, 1 British, 1 French, 2
German, 1 Swiss) formed an alliance in Switzerland under Swiss law, to monopolize aluminum and control its
prices.
This was not a governmental association like OPEC, just a business association. There was no law against this
in Switzerland.
The United States said all participants in this violated the Sherman Antitrust Act, which doesnt say that it only
applies to United States corporations. The United States was trying to apply the statute to everything
worldwide.
In order for the statute to apply extraterritorially, (effects in the US, act abroad) the legislative history had to
show that Congress intended the statute to be applied extraterritorially. (You dont have to extend your
jurisdiction unless you want to.) (Not all laws have been held to apply extraterritorially. Murder, e.g., has never
been applied extraterritorially.)
There was no problem finding such intent here, as it would be a meaningless statute if you could get around it
just by shifting your operations overseas.
The next question was whether the Constitution permitted it. Here, they had to have both the intent to affect
commerce and the actual effect of their conduct. (Courts today say this must be a substantial effect, and
foreseeable.)
Helms-Burton Act The law seeks to punish foreign countries that trade with Cuba. A foreigner can lose his
visa to travel to the United States, can get kicked out, fined, etc. Passed because Cubans were shooting down
planes that were in Cuban airspace ... planes that were leaving Cuba. Some countries (like Mexico) say that if
one of their citizens pulls out of the United States under Helms-Burton, he will be subject to Mexican penalties.
Counter-regulation like this does happen. And a United States courts ruling wont be upheld by a Mexican
court.
Nationality prescriptive jurisdiction follows you abroad.
Allows the United States, for example, to prescribe the conduct of its citizens abroad.
This can cause problems for you when the law of the United States conflicts with the law of the foreign country
you happen to be in.
One state has no right to mess with the affairs of another by passing laws governing the conduct of foreigners
abroad (with the exception of reasonable international law principles).
Blackmer v. United States (S. Ct. 1932) Blackmer was a witness to part of the Teapot Dome scandal,
whatever that was. He was subpoenaed in France to come back to the US and be a witness at the criminal trial.
A federal statute gave the Attorney General power to subpoena witnesses from abroad. You dont even need to
look at the legislative history for intent, because the statute itself specifically said nationals abroad, and laid
down the procedure for getting them.
Blackmer objected to the service of the subpoena, as he wasnt in the US, he was in France.
Unless the legislatures intent was otherwise, statutes are not construed to apply abroad.
But the jurisdiction of the United States over its absent citizen, so far as the binding effect of the legislation is
concerned, is a jurisdiction in personam, and he is personally bound to take notice of the laws applicable to him
and to obey them.
If Congress wants to regulate American citizens abroad, it can do so, but first it must say it wants to.
This holding is consistent with international law.
Blackmer is cited all the time when we grab nationals abroad for any of the 3000 federal crimes where the
United States has expressed intent to get you abroad, such as bribery.
Protective states can exercise jurisdiction over things that are inimical to the state itself.
There are certain fundamental principles & interests that a state has a right to regulate.
Falsifying passports, counterfeiting money, treason, espionage, etc.
Crimes that violate the political/territorial integrity of a state. Not just acts that put some people out of a job.
Not just acts that offend sensibilities.
Apply this in a very limited fashion.
The activity has to have been illegal where it was done, in addition to being inimical to United States interests.
If not applied in a very limited way, this basis of jurisdiction would make a mockery of the others. Iran would
be able to pass a law requiring all United States women to wear veils and not work, because it offends their
sensibilities.
Universal for crimes that are universally bad, anybody can prosecute, no matter where they occurred.
There are a very few certain crimes that are so universally abhorrent, it doesnt matter where they were done,
who the victims were, how long ago you did it. Anybody can implement such laws.
This began with piracy, people that preyed on shipping. If you could catch them, you could prosecute them.
This area of jurisdiction is only grudgingly and carefully extended. Covers slavery, genocide, and crimes
against humanity.
Doesnt yet cover drugs, as many countries make most of their money from drugs.
Almost there on hijacking airliners. Enough states have signed agreements to that effect that this may well be
now a universal crime. The Fawaz Yunis case (below under passive nationality) held that it is.
Maybe terrorism too, but terrorism is hard to define. Certain terrorist traits, however, are being identified.
Jurisdiction over ships and airplanes registered under the states flag.
The laws of the flag nation apply to crimes committed on ships and planes.
Article 91 of the Law of the Sea Convention, paragraph 1, says ships have the nationality of the state whose flag
they are entitled to fly. There must exist a genuine link between the state and the ship.
A stateless ship can be boarded by anybody.
The flag country of an airplane is responsible for events on the plane wherever it flies, and has jurisdiction over
it. Chicago Convention on Civil Aviation.
The powers of the state of registry have been expanding over time, as is the number of crimes that apply.
(Terrorists used to have loopholes they could take advantage of.)
The U.S. Code says the United States has jurisdiction over any aircraft belonging in whole or in part to the
United States, while such aircraft is in flight over the high seas, or over any other waters within the admiralty
and maritime jurisdiction of the United States. Thats pretty vague. Does that refer to property ownership,
as well as to the registration of the plane? Yes it does. Thats why most foreigners dont want Americans to
own any part of their planes. (Note that this is from 18 U.S.C. 18 means JAIL.)
The person who did it is also under his countrys nationality jurisdiction.
The victims country may have passive-nationality jurisdiction.
If the crime was done in the territorial waters of another country, its laws also apply.
Jurisdiction granted as a result of agreements.
This often fills in the holes when other sources of jurisdiction dont work.
The agreement can be multilateral, like conventions, or it can be bilateral between two countries.
Status of Forces treaties Apply United States law to American servicemen abroad, rather than applying
local law. Well, ideally anyway. We dont want our guys put in local jails when were over there to help the
locals.
When an act is a crime both in the United States and in the foreign country where it happened, it depends on
who has primary jurisdiction.
The United States has exclusive jurisdiction if the act was on-base or against a U.S. citizen.
Locals have exclusive jurisdiction if the act was off-base or against a local.
If only local law was violated, then the locals have exclusive jurisdiction.
If only United States law was violated, then the United States has exclusive jurisdiction.
Wilson v. Girard (U.S. S.Ct. 1957) the most oft-cited case in this area.
Girard, a U.S. soldier, wounded a Japanese woman during a military exercise in Japan (he stuck an empty .30cal shell casing in his grenade launcher and launched it, and it went through a womans back). An agreement
between the two countries provided that the United States might waive its jurisdiction over offenses committed
in Japan by members of its armed forces. A later agreement authorized that, in criminal cases where the right to
jurisdiction is concurrent, the military authorities of the United States would have the primary right to exercise
jurisdiction over members of the armed forces for offenses arising out of any act or omission done in the
performance of official duty.
The United States claimed the right to try Girard, on the ground that his act was done in the performance of his
official duty, and therefore the United States had the primary right of jurisdiction. But the U.S. ultimately
waived any jurisdiction it might have had.
Girard tried for habeas, but it was denied. Then he asked for an injunction against delivery to the Japanese
authorities, and the injunction was granted. The DOD appealed.
The Court held that a sovereign nation has exclusive jurisdiction to punish offenses against it committed within
its borders, unless it expressly or impliedly consents to surrender its jurisdiction.
Japans cession to the United States of jurisdiction to try American military personnel for conduct constituting
an offense against the laws of both countries was conditioned by the protocol agreement, which provided that
the authorities of the state having the primary right shall give sympathetic consideration to a request from the
authorities of the other state for a waiver of its right in cases where that other state considers such a waiver to be
of particular importance.
There had been no prohibition against this, and absent that the wisdom of the arrangement was left up to the
executive and legislative branches. They had decided to waive jurisdiction and deliver Girard to the Japanese
authorities, so he was s.o.l.
Work this stuff out before you start doing things in another country. Just work out an agreement on who had
jurisdiction over what, and who has first claims, etc. This can be unpleasant and time-consuming, but it is
infinitely preferable to not having done it. And without it, your program probably isnt going to work.
Passive-nationality basis of jurisdiction (jurisdiction because the victim of the crime was your national) new
basis, and rare. Its getting more popular, though, especially with regard to tourism.
United States v. Fawaz Yunis (D.C. Cir. 1991) The defendant was one of four hijackers of a Jordanian
aircraft. The defendant was Lebanese, and the plane was hijacked in a foreign country. The United States still
got jurisdiction.
He was brought before a magistrate for conspiracy, air piracy, and hostage taking. A couple of Americans on
the plane were taken hostage.
Normally, the fact that victims of a crime were Americans isnt enough to give the United States jurisdiction
over the criminal. But here, the U.S. Hostage-Taking Act 18 U.S.C. 1203 gives us that jurisdiction here. If the
entity being threatened is the United States, or the hostages are Americans, then the U.S. law applies.
Also, under the Air Piracy Act, it doesnt even have to have been an American plane. If there were Americans
on board, thats enough.
The defendant said that these laws exceeded the bounds of extraterritorial jurisdiction under international law.
However, Charming Betsy being cited again, the court said that you dont construe laws to conflict with
international law if a nonconflicting construction exists.
Under the passive-nationality principle, a state may punish non-nationals for crimes committed against its
nationals outside of its territory, at least where the state has a particularly strong interest in the crime.
More on jurisdiction over terrorism.
Tokyo Convention of 1963, Hague 1971, and Montreal 1971 Tried to define illegal acts on international
flights, then tried to elaborate who has jurisdiction over events happening on the plane.
Article 4 of the Tokyo Convention 1963 said that only the state of registration has jurisdiction. No other state
gets jurisdiction unless crimes are committed against or by a national (or even a permanent resident) of that
state. This opened up passive-nationality jurisdiction.
A boy born in the West Bank becomes an orphan when his parents are killed, and he goes to the Bakaa Valley to
become a terrorist. Then he goes to Syria for a bit, then to Libya. Then he goes to France. After two years in
France, he commits a terrorist act in Germany.
Because he lived permanently in France over the last 2 years, France can assert jurisdiction even though he isnt
a national.
Libya has signed a lot of these conventions, so a lot of terrorists are covered by them.
Article 6 & 7 of Hague 1971 says that when a terrorist ends up in your territory, you must detain him, and then
either extradite him or try him yourself.
You cannot be forced to extradite someone unless you already agreed to.
Note, the fact that your ass is in Burundi doesnt mean that Burundi has jurisdiction over you. If you didnt
commit a crime there, then they dont have jurisdiction over you unless there is some other basis. BIG
SOURCE OF SCREWUPS.
Articles 6 & 7 of Hague 1971 are exceptions to this rule.
1979 Convention Against Hostage-Taking.
Your state has jurisdiction over crimes committed by stateless people who are residents of your state.
The United States has jurisdiction even if there is no connection with the United States other than that the
terrorists want prisoners who are held in the United States released.
Oh, there is also another universally-signed convention giving you jurisdiction over crimes committed against
your diplomats.
All countries have these various kinds of prescriptive jurisdiction, but a country has to want to assert that
jurisdiction.
In cases of overlapping jurisdiction, which state gets to assert it first is usually up to whoever has possession of
the suspect.
Back to Contents2007-2010 Nathaniel Burney
ENFORCEMENT JURISDICTION.
Enforcement jurisdiction is separate from the other kinds of jurisdiction (prescriptive and judicial).
Dont mix them up.
Restatement (Third) 431 Jurisdiction to Enforce.
A state may employ judicial or nonjudicial measures to induce or compel compliance or punish noncompliance
with its laws or regulations, provided it has jurisdiction to prescribe.
Enforcement measures must be reasonably related to the laws or regulations to which they are directed.
Punishment for noncompliance must be preceded by an appropriate determination of violation, and must be
proportionate to the gravity of the violation.
A state may employ enforcement measures against a person located outside its territory:
--if the person is given notice of the claims or charges against him that is reasonable in the circumstances;
--if the person is given an opportunity to be heard, ordinarily in advance of enforcement, whether in person or
by counsel or other representative; and
--when enforcement is through the courts, if the state has jurisdiction to adjudicate.
There is no question that we have prescriptive jurisdiction over someone who killed Americans, but whether or
not we have enforcement jurisdiction is another matter entirely.
You need explicit permission to go onto another countrys territory to enforce your own laws.
Kidnapping a felon is a no-no. But first, the foreign sovereign must object. If it consents, then there is no
violation of international law.
The suspect has to be in one of these places:
-- In a country with which you have an extradition treaty.
-- On the high seas.
-- Aboard a ship flying your flag.
-- Aboard a ship that permits you to board.
You need permission to take the suspect from the other states territory.
Mr. Yunis again. He had spent most of his life in countries unfriendly to the United States. We might have sent
in the Delta Force to grab him, and once he was physically in U.S. territory we would have had jurisdiction over
him. (Thats the Ker-Frisbie doctrine).
Instead, we set up a clever ruse to lure him onto a U.S. ship, when then went into international waters. At mile
13, he was quickly (and violently) arrested.
We go out of our way to respect other countries sovereignty. Ruses dont always work, but they are preferable
to violating another countrys sovereignty.
These rules are real. Americans are dead because of them.
There was another guy named Eichmann, who was an evil Nazi now hiding in Argentina. (The South American
countries were popular with former Nazis, because they didnt have extradition treaties.) Some Israeli nationals
kidnapped him, drugged him, put him in a box, and shipped him to Israel. There, he was tried, convicted, and
executed.
Argentina was not pleased with the kidnapping part. The U.N. said that if the State of Israel was involved in the
kidnapping, then there would have been a problem. But before anything was done about it, Argentina withdrew
its objection, and Israel admitted that it had committed an offense.
Back to Contents2007-2010 Nathaniel Burney
Conflicts of Jurisdiction.
In cases of overlapping jurisdiction, which state gets to assert its jurisdiction first is usually up to whomever has
possession of the suspect.
S.S. Lotus (P.C.I.J. 1927). Two ships collided on the high seas in the Mediterranean on a dark murky night.
One ship was Turkish, and the other was French. The Turkish ship sank, and the French ship picked up the
survivors, but some Turkish sailors had been killed. The French ship put into port in Istanbul, and Officer
Demons was arrested and blamed for negligently causing the accident. He was fined and sentenced to 80 days
in a Turkish prison. The French got upset, and the two countries agreed to international arbitration.
The French contended that the Turks had no right to assert their jurisdiction over officer Demons. The passive
nationality of the Turkish victims wasnt a basis for jurisdiction, they said, and the P.C.I.J. said that fact was so
obvious that they wouldnt even discuss it.
The French argued that Officer Demons acts took place on a French ship, under the French flag, and thus only
the French had enforcement jurisdiction over the alleged crime.
The French also argued that you cannot assert your jurisdiction beyond your borders. The Turks said that was
b.s., and that the French did it all the time and had always done so.
The Court held that the French had the burden of proving that there was a rule against the Turks having
jurisdiction. The Turks argued that jurisdiction is inherent in sovereignty; the events took place on both the
French and the Turkish ships; and Officer Demons was then physically located in Turkey, so Turkey was
entitled to exercise its jurisdiction.
The Court finally held that there was no rule of international law prohibiting a state from exercising
enforcement jurisdiction over a foreign national who committed acts outside the states borders, and that both
states had concurrent jurisdiction over the matter.
Now, many years later, an Italian ship called the Achille Lauro was on the high sea. Terrorists hijacked the ship,
and it is unknown what their nationality was. They committed many serious crimes, including the murder of an
American who was in a wheelchair. So who had jurisdiction?
Conventions have filled in the holes. The ships flag country had jurisdiction. The victims country had
jurisdiction. The perpetrators country had jurisdiction.
If the crime were one of the rare universal crimes, or if it violated the Hostage-Taking or Hijacking conventions,
then the country with physical custody of the perpetrator has jurisdiction.
Otherwise, mere possession of the suspect is not enough to grant jurisdiction.
Also, except under these conventions, extradition only results from an extradition treaty or the sovereign's
choice.
The Hostage-Taking and Hijacking conventions say that the country with possession must either try the suspect
there or extradite him for prosecution elsewhere.
So the terrorists fled the Achille Lauro and went to Egypt. How could the United States get jurisdiction over
them? By EXTRADITION (see below.)
But Egypt didnt extradite the terrorists. They let them stay in the country.
Then Egypt secretly put the terrorists on a plane. Of course, the United States is the best at intercepting
communications, and some F-14s intercepted the plane and forced it down over the high seas, and made it land
in Italy.
The plane was surrounded by U.S. troops, who were then surrounded by Italian troops.
Italy ultimately got control of the bad guys, and then they let them go!
United States v. Humberto Alvarez-Machain (S. Ct. 1992) A DEA agent was tortured over several days, and
a Mexican doctor involved in torture kept the agent alive throughout the ordeal so the torture could continue.
The DEA put out a bounty on the doctor. Some Mexicans kidnapped him and brought him to the United States.
The DEA didnt do the kidnapping, but they took responsibility.
In the United States, the fact that you were illegally seized doesnt mean that you still cant be tried. But, if the
abduction was accompanied by brutality.
The United States still doesnt abduct foreign criminals on a general scale. Usually, we get them by deception
and ruses.
Here, the U.S. S. Ct. said the abduction was legal.
(On remand, the lower court still let the guy go, and he fled to Mexico. But thats irrelevant.)
The doctor didnt argue that customary international law applied, he only argued that the U.S.-Mexico
extradition treaty was violated. That was a really bad tactic to take, in light of the 1992 Supreme Court. There
was no provision like that in the treaty, so he lost.
Not that this treaty has been complied with by Mexico. Lots of murders and rapes in California go unpunished,
because the perps go to Mexico.
What happens when the United States says you violate U.S. law if you trade with Cuba, and Mexico says you
go to jail if you obey the U.S. law? Youve got overlapping jurisdictions with conflicting laws.
United States v. Bank of Nova Scotia (11th Cir. 1982) A Canadian bank opened an office in the United
States. It was therefore subject to personal jurisdiction in the United States.
The bank had a branch in the Bahamas, where the secrecy laws prohibit banks from releasing depositors info.
A Florida grand jury was convened to investigate some drug lords, and it subpoenaed the bank for information
on certain depositors.
The bank wanted to comply, but its officers would go to jail in the Bahamas. So they didnt.
The U.S. court held the bank in contempt, and fined them $100,000 per day until they complied. Wham.
Such situations create nightmares for corporations. This bank appealed to the 11th Circuit. It first argued that
this was a real violation of Due Process.
The Court said that nobody would have really gone to jail, and the bank didnt really try to get the information
released.
This involves also the idea of comity. Thats when a court steps back and recognizes that another country has
a more fundamental national interest at stake than what is at stake here.
United States v. Field (S.Ct. 1976) had applied a balancing test which countrys interests outweigh the
others?
Here, the 11th Circuit held that the United States interest in getting the drug lords was more fundamental than
the Bahamian interest in account privacy.
Every corporation out there should be aware of the web of conflicting laws.
Back to Contents2007-2010 Nathaniel Burney
Extradition.
No matter how heinous the crime, you cant be extradited without a treaty.
In the case of the Achille Lauro, where the terrorists had killed an American on an Italian ship on the high seas
and then fled to Egypt, there were not yet any hijacking/terrorism treaties requiring extradition, so the United
States had to either convince Egypt to voluntarily give us the perpetrators, or violate Egypts sovereignty and
grab them ourselves.
Requirements for Extradition.
To successfully object to your being extradited, assert any of these:
-- What you did isnt a crime in the country youre in now.
-- It isnt a crime specifically listed in the extradition treaty (treaties usually cover all crimes punishable by
more than 1 year in prison).
-- You havent had a hearing first to determine whether there is enough evidence under the law of the country
youre in now to hold you to stand trial.
-- You havent yet had a hearing to determine whether you are the same person who is wanted.
-- It was a political crime Need to show (1) it was a political offense, and (2) your actions were politically
motivated.
This is the loophole that terrorists try to use.
The European Convention on the Suppression of Terrorism lists a number of things that cannot be politicaloffense exceptions:
-- Violations of the 1971 Hague Convention.
-- Actions on an airplane.
-- Offenses against a diplomatic agent or any other internationally-protected person.
-- Hostage-taking.
-- Offenses using a grenade, automatic weapon, bomb, rocket, firearm, etc.
Note: Knives are not listed. So a terrorist who uses a knife or boxcutter instead of a gun may be trying to
benefit from this loophole.
You can be extradited to a third-party country, just so long as it has an extradition treaty with the country youre
in.
There is no obligation for a state to extradite its own nationals.
If you are extradited, you have to be tried for the same crime for which you are extradited.
Back to Contents2007-2010 Nathaniel Burney
VII. IMMUNITY FROM JURISDICTION
Sovereign Immunity and the Act-of-State Doctrine.
Sovereign Immunity.
Sovereigns cannot exert jurisdiction against other sovereigns without their consent. The United States cant sue
Russia in U.S. courts unless Russia agrees to it.
Sovereign immunity used to be absolute, but as states have gotten more directly involved in commerce, their
immunity has gotten less and less absolute.
So check out the kind of action involved is it an official or public act, or is it commercial?
This view of immunity is codified at 28 U.S.C. 1330, and is part of modern customary international law.
Semi-official / semi-public entities pay big bucks to lock in their status here.
The Schooner Exchange v. McFaddon (U.S.S.Ct. 1812) United States ships were stolen by the French and
converted to warships. They came to New York harbor in a storm, and the owner recognized them and sued to
have them returned. But there was nothing the United States could do, because warships are floating pieces of
immunity.
If you let a warship into your territory, it is immune from your jurisdiction. Even if a citizen is raped on board
in the harbor, you cant prosecute the crime.
If a warship comes in without your permission, thats called war.
Private individuals dont own warships, but they do get involved in financial dealings, investing, buying
perfume, etc.
Dralle v. Republic of Czechoslovakia (S.Ct. of Austria 1950) When the communist countries started
nationalizing commerce, that caused problems all around the world. This was a classic example.
The communists seized Dralles perfumes, and started selling them under the Czech national name. Dralle sued
for trademark infringement.
The Czechs said that selling cosmetics was an official government function, and therefore they were entitled to
sovereign immunity from lawsuits here.
The Supreme Court of Austria looked at customary international law and saw that a state is not immune when
its acts are commercial.
Foreign Sovereign Immunities Act 28 U.S.C. 1602.
Unless the Act says otherwise, a foreign governments activities in the United States are exempt from U.S.
jurisdiction.
General exceptions to sovereign immunity in the U.S.:
The state waived immunity.
Commercial activity in the United States.
An act in the United States connected with a commercial activity elsewhere.
An act elsewhere, connected with a commercial activity elsewhere, but with a direct result in the United States.
Case involves rights to immovable property in the United States.
Participation in wills and estates in the U.S.
Any case where money damages are claimed for tortious acts, so long as the tort occurred inside the U.S.
If a diplomat runs over a pedestrian, then there is no sovereign immunity. It is okay within the Foreign
Sovereign Immunities Act to sue the foreign government or the individual.
But, the Vienna Convention on Diplomatic Relations gives immunity to diplomats. So you still couldnt sue.
See below.
The main exception is commercial activity.
Specifically defined in 1603(d): either a regular course of commercial conduct or a particular commercial
transaction or act. The commercial character of an activity shall be determined by reference to the nature of the
course of conduct or particular transaction or act, rather than by reference to its purpose.
The definition looks at the nature of the act, not its purpose.
Selling cosmetics to advance justice for the global proletariat is still selling cosmetics.
Applying the Foreign Sovereign Immunities Act is not snag-free.
The State Department goes to the mat on this all the time.
Two beautiful, oft-cited cases here are Weltover and Amerada.
Republic of Argentina v. Weltover, Inc. (U.S.S.Ct. 1992) Argentina borrowed money. When it came time to
pay, Argentina decided to refinance. It created bonds, under the terms of which the principle and interest would
be repaid in U.S. dollars, not in pesos. The payments would be made not in Argentina, but in other financial
markets chosen by the creditors (New York, London, Zurich, or Frankfurt).
When the bonds came due, Argentina issued a presidential decree substituting other instruments for payment,
and unilaterally extending the term.
U.S. banks (ever stupid) accepted this. But Panamanian corporations and Swiss banks refused to go along with
the rescheduling, and insisted on full payment to be made in NYC. Argentina didnt pay, and got sued in U.S.
courts (thats why NYC was chosen).
Argentina said issuing bonds was an official public act, not commercial, so it was immune from U.S.
jurisdiction.
NOTE: They werent claiming immunity under the Act of State doctrine. Thats something else entirely. See
below.
The Foreign Sovereign Immunities Act is the sole basis for obtaining jurisdiction over a foreign sovereign in
the United States. It is the only way.
They can do bad things maim, kill, torture, terrorize, etc., but unless there is an exception under the Act,
you cannot sue them in U.S. courts.
For the commercial activity exception to apply, under 1605(a)(2)...
The act must take place outside the United States;
The act must be in connection with a commercial activity of Argentina outside the United States;
And the act must have caused a direct effect in the United States.
Argentina said the whole thing setting up the bank, issuing the bonds, refinancing, etc. was all
governmental, economic policy.
The Supreme Court responded that the purpose is irrelevant. Whether there was a profit motive or a publicinterest motive, it doesnt matter. The nature of the activity governs.
And these were garden-variety debt instruments, and garden-variety deadbeat refinancing. That was
commercial, so there was no sovereign immunity.
An act that would have been immune as a sovereign activity would be regulation of currency a uniquely
governmental act. It is something an individual cannot do, so it is a government activity even though it is an
economic activity.
However difficult is may be in some cases to separate the purpose of the activity from its nature, the statute
unmistakably commands that to be done. It is irrelevant why Argentina participated in the bond market in the
manner of a private actor; it matters only that it did so.
So was there an immediate consequence in the United States? Sure. The brilliant U.S. lawyer who drafted the
bond instruments made NYC the place of payment. So even though the Panamanian corporations and Swiss
banks had no dealings at all in the United States, they could exercise the bonds in NYC, so there was a direct
effect. Argentina purposely availed itself of the privilege of conducting activities in the United States.
In Foremost-McKesson, Inc. v. The Islamic Republic of Iran (D.C. Cir. 1990), the American plaintiff brought an
action against Iran asserting that Iran had used its majority position in an Iranian corporate joint venture
wrongfully to deprive plaintiffs of benefits to which it was entitled. Iran pleaded sovereign immunity. The
court ruled that Irans alleged wrongful conduct was commercial and also found the requisite direct effect under
the third clause of 1605(a)(2).
The court distinguished this case from Zedan v. Kingdom of Saudi Arabia (D.C. Cir. 1988), in which it found
the circumstance that the plaintiff had not received the contractually-stipulated payment for work done in Saudi
Arabia after his return to the United States wasnt an effect in the United States as required by statute. In
Foremost, the complaint alleged a constant flow of capital, management personnel, engineering data,
machinery, and equipment between the United States and Iran.
Argentine Republic v. Amerada Hess Shipping Corp. (U.S.S.Ct. 1989) A Liberian shipping company had to
float an oil tanker, the Hercules, between Argentina and the Falkland Islands during the war. The company
told the belligerents about it, and the captain of the ship radioed his presence. Argentina said it was okay to
pass. Then the ship was attacked repeatedly by Argentinean warplanes.
At 12:15 GMT, the ships master made a routine report by radio to Argentine officials, providing the ships
name, international call sign, registry, position, course, speed, and voyage description. About 45 minutes later,
an Argentine military aircraft began to circle the Hercules. The ships master repeated his earlier message by
radio to Argentine officials, who acknowledged receiving it. Six minutes later, without provocation, another
Argentine military plane began to bomb the Hercules. The master immediately hoisted a white flag. A second
bombing soon followed, and a third attack came about two hours later, when an Argentine jet struck the ship
with an air-to-surface rocket. Disabled but not destroyed, the Hercules reversed course and sailed to Rio de
Janeiro, the nearest safe port. At Rio de Janeiro, the ship was determined to have suffered extensive deck and
hull damage, and that an undetonated bomb remained lodged in her No. 2 tank. After an investigation by the
Brazilian Navy, they decided it would be too hazardous to remove the undetonated bomb, and a couple of weeks
later the ship was scuttled 250 miles off the Brazilian coast.
Certainly, public international law was violated. A neutral ship on the high seas shouldnt be attacked.
However, there was no lawsuit in the I.C.J., because the ship was Liberian. Liberia is a country where the
government isnt going to pick up the phone, because bullets are probably flying through the room where the
phone is ringing. And Liberia doesnt get involved anyway. So they sued in the United States courts.
Even though the bombing was clearly illegal under international law, it wasnt necessarily a case that could be
brought in the United States.
They sued under the Alien Tort Statute, as in Filartiga.
But the Alien Tort Statute is not an independent ground for suing a foreign government. There had to be an
exception to the Foreign Sovereign Immunities Act to sue.
Here, Argentina was definitely involved. This was definitely an official act.
The Foreign Sovereign Immunities Act has an exception for torts, but only if that tort occurs inside the United
States.
Congress intended the exception to have this limitation.
It turned out that there was no exception to the Foreign Sovereign Immunities Act here. So the United States
had no jurisdiction. It was bad deed, but the United States courts couldnt do anything about it.
Nelson v. Saudi Arabia (U.S.S.Ct. 1994) An American plaintiff sued Saudi Arabia to recover for his
detention and torture in Saudi Arabia.
This is a very important case, and textbooks get the outcome wrong, so be careful!
The plaintiff alleged that he had been recruited in the United States as a monitoring systems engineer in a Saudi
hospital, but he was detained and tortured in retaliation for reporting safety violations.[2]
The 11th Circuit said in 1991 that the action was based upon a commercial activity the plaintiffs
recruitment carried on in the United States.
The Supreme Court reversed, holding that recruitment and hiring were not commercial acts related to the
detention and torture.
Mistreatment in foreign prisons is a governmental official act. So Saudi Arabia was immune from suit in the
U.S.
This was not a case where the government denounced the actions, and the suit was against the person who did
it. This was an action by the Saudi government, and the suit was against the country.
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Act of State Doctrine.
Unlike foreign sovereign immunity, which is a requirement of international law, the Act of State doctrine is
purely a municipal policy of the United States.
It is neither required nor barred by international law. Other countries may or may not have similar rules.
Comes into play when the litigants are both private individuals or entities (nobody is suing a state or a state
official).
Comes into play only when the issue is whether the laws of another state are to be respected in a U.S. court.
Rule Whether or not the laws of another state are to be respected in a U.S. court is a decision left up to the
executive branch (the State Department).
The courts have decided not to get involved, based on separation of powers. The reason is they dont want to
say a foreign law is bad while the President is saying its good, or vice versa, so they leave it entirely up to the
executive. They dont want to get involved in the executives application and determination of foreign policy.
But if they dont pay their bills, you are entitled to shut off their gas, water, electricity, etc. (Of course, people
from some countries feel right at home in a humid D.C. summer without air conditioning or water, so it may not
be all that much of a deterrent.)
The land on which a diplomatic mission is located is not sovereign territory of the sending state. It is territory
of the state where it is located.
You are, however, outside the jurisdiction of the receiving state when you are on the diplomatic compound.
This is not necessarily a good thing. You might be inside the compound of a foreign mission here in D.C.
against your will, and theres nothing the cops can do.
Its good when youre being chased or need a safe haven for some other reason.
Article 31 Immunity from jurisdiction.
A diplomatic agent is immune from the criminal jurisdiction of the receiving state.
Even if the act was not part of his official duties.
He is immune from civil and administrative jurisdiction, except in the case of:
an action concerning private real estate in the territory of the receiving state.
a lawsuit over a decedents estate.
an action relating to professional or commercial activity, outside his official functions, performed in the
receiving state.
Even if one of these exceptions applies, you still cannot exercise your jurisdiction over him if that involves
infringing the inviolability of his person or residence.
A diplomatic agent is not obliged to give evidence as a witness.
The immunity of a diplomatic agent from the jurisdiction of the receiving state does not exempt him from the
jurisdiction of the sending state.
Article 32 Waiver of immunity.
The sending state can waive the immunity of a diplomatic agent, his family, staff, etc.
Article 37 Family and Staff.
The diplomatic agents household family has the same privileges and immunities as the agent himself (unless
the individual is a national of the receiving state).
The administrative and technical staff (and their households) (but not nationals of the receiving state) have the
same immunities as the agent, except:
The civil and administrative immunity only covers acts performed in the course of their duties.
The service staff (but not nationals of the receiving state) have criminal/civil/administrative immunity only for
acts performed in the course of their duties.
Privately-employed servants and other private members of the mission who arent employed by the sending
government only enjoy the privileges and immunities granted to them by the receiving state.
For someone enjoying full privileges and immunities, the worst that can happen to you is to be P.N.G.-ed
sent home as persona non grata.
Article 27 concerns the diplomatic bag. It can be as big as a truck. Simply goes through without any problem.
Under Article 36, the personal baggage of a diplomat is also exempt, with a couple minor exceptions.
Vienna Convention on Consular Relations.
All you need to know is that consular officials are only immune from jurisdiction when they were acting in their
official capacity.
States can agree to grant greater immunity to consular officials if they want to.
A famous abuse of diplomatic immunities occurred when a British policewoman was killed by a member of the
Libyan consular staff in the mid-80s. A whole bunch of people were protesting outside the Libyan embassy in
London. The British police surrounded the embassy to protect it from the protestors. The Libyans decided to
deal with the protestors the way they did back home, and opened fire with machine guns. They missed the
protestors, but shot a policewoman in the head, killing her. The Libyans got away with it, scot-free, because of
their diplomatic immunity. All the British could do was declare them PNG and kick them out of the country.
In order to invoke your immunity:
Prevents Safety Measures -- it would require all unmanned ocean vessels, including submarines that protect
ships by detecting mines, to navigate only on the surface in territorial waters. This eliminates their value for
such purposes.
Internationalizing Domestic Law -- the laws passed by US citizens would be endangered through conservation
provisions, which allow foreign organizations to change US environmental law through legal action in
international and domestic courts.
Nevertheless, the United States considers most of the provisions of the Convention to be customary
international law, and we abide by them.
The U.S. has already accepted much of the treaty by way of the U.N. Charter and the 1958 Geneva
Conventions. President Ronald Reagan issued an executive order that treats the 1982 version of the Convention
as binding except for the mining provisions.
Arguments against ceding authority to the U.N. apply to all international agreements, reflecting the importance
of careful consideration when entering into binding agreements such as this.
The straits issue is not limited to the U.S. waters, but deals with the scores of straits around the world, which the
U.S. and other countries rely on for military and trade shipping. Instead of requiring all countries to collect a
multitude of two-party navigation treaties, this would simplify matters with a single agreement. Unfortunately,
other terms in the Convention are more divisive. It is worth considering that the portion on straits, standing
alone, might have been successfully ratified as a treaty unto itself.
With respect to dispute settlement, the International Seabed Authority only has jurisdiction over seabed mining.
The Law of the Sea Tribunal does have wide jurisdiction, though it allows for arbitration between nations. The
purpose is to give nations a peaceful way to resolve disputes when one country tries to close its straits to
navigation. It is not useful, however, when the country closing its straits is not a party to the treaty, in which
case ordinary diplomatic pressures and sometimes military action would be required anyway. Essentially, it
gives already-friendly countries a peaceful alternative to already-peaceful options, and gives no help to nonparty countries like Iran and the U.S.
More and more countries are signing on to the Convention.
The Law of the Sea Convention is a compromise of many competing interests.
The Law of the Sea in general is the result of an eternal contest between the seafaring nations and the coastal
states.
The seafaring nations want freedom of shipping, while the coastal states have territorial claims over often vast
stretches of ocean.
This dispute has been going on at least since the rise of the nation-state and Grotius development of
international law back around 1648.
It is getting more and more important for a lawyer to know the rules out there on the ocean.
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Law of the Sea.
Kinds of Territorial Rights. (The farther out you go, the more rights ships have and the fewer rights the coastal
state has.)
Land Territory.
The sovereign has exclusive jurisdiction over everything within its borders (including lakes and rivers).
Borders on the sea are measured from the low-tide mark.
This low-tide mark is the baseline for measuring everything in the law of the sea. Article 5.
Thats easy when the coastline is convex, but when its indented and convoluted, Article 7 permits straight
baselines to be drawn from set points on the coast.
Not enough to know just where the coastline is. You have to know where the baseline is.
Rivers and Bays.
Water on the land-side of the baseline is Internal Waters, the same as land territory.
The state has exclusive jurisdiction.
There is no right of innocent passage.
If the mouth of the water is broader than 24 nm (12 nm from either side), then the territorial sea will be indented
there.
Territorial seas are 12 nm out from the coastline.
Article 10 defines bays.
There must be a certain amount of area behind the mouth of the bay, otherwise its just an indentation.
Unless it is a historical bay.
Taking the mouth as a diameter, the area must be at least that of a half-circle of that diameter.
If the distance between the low-water marks is 24 nm or less, then just draw the baseline straight across the
mouth of the river/bay.
Territorial Sea.
Article 3 permits states to claim out to, but not exceeding, 12 nm from the low-tide baseline.
Countries have the right to claim this much, but they arent required to exert their jurisdiction this far out.
There used to be no rule as to what was the breadth of a territorial sea. If the coastal batteries could hit you,
then you were in the states territorial sea. That became meaningless with long-range weapons.
It used to be just 1 nm, then 3 nm. Then in the 1940s states started claiming all sorts of distances 15, 20,
100, 200, etc. This caused problems for those who were trying to navigate.
The Law of the Sea Convention got the vast majority of the states to agree on the 12 nm limit.
When the few rogue states out there try to claim more, there are protests and countermeasures against them.
The United States recognizes the 12 nm rule, and asserts its territorial-sea jurisdiction right up to the limit.
Innocent Passage.
Articles 17 - 32. This is what effected the compromise between the seafaring and coastal nations. You get the
12-mile belt provided other states get the right of innocent passage within it.
Passage is innocent so long as it is not prejudicial to the peace, security, and good order of the coastal state.
A variety of laws and regulations can be applied to ships in innocent passage it is not the same as the high
seas.
Cannot do anything threatening force. Cant practice with your weapons.
No spying or propaganda.
No launching or landing aircraft or any military device.
No commerce contrary to the laws of the coastal state.
No willful and serious pollution.
No fishing.
No research or surveying.
Cant do anything else not having a direct bearing on passage.
Submarines must navigate on the surface and show their flag.
Coastal states have the rights & duties to regulate innocent passage.
They set up sea lanes, regulate safety, etc.
nnocent passage CAN be SUSPENDED at the discretion of the coastal state.
Exception Israels only Red Sea port is at the mouth of the Gulf of Aqaba. Article 45 says that innocent
passage there cannot be suspended by Egypt and Saudi Arabia.
Innocent passage is a problem for warships.
Many states say that passage of a warship is by definition prejudicial to the peace and good order of a coastal
state.
The big-navy states (U.S., U.K, Russia, France, etc.) contest this. So many states say its okay only if the
coastal state gives permission.
Jurisdiction in Territorial Seas.
A Panamanian cruise liner is just passing through the United States territorial sea. Abu the Butcher is on board,
and he has clearly violated United States laws. Can the U.S. Coast Guard board the ship and arrest him?
No. Article 27 defines the only circumstances in which the coastal state gets criminal jurisdiction over ships in
innocent passage.
A crime must occur during passage.
These can set baseline borders around the clusters of islands, but they must permit sea lane passage (Articles 46
- 54).
The baselines cannot be extended out around islands far away from the rest of the group.
To prevent gerrymandering, the rule is that the ratio of water to land must be no greater than 9:1 within the
boundary.
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IX. INTERNATIONAL ENVIRONMENTAL LAW
There is no clear customary international law here yet, but were starting to establish some clearly-stated goals.
Not obligations yet, just goals.
The Law of the Sea Convention says signatory nations have the obligation to preserve the sea, but thats a really
broad statement.
The Law of the Sea Convention also says states must take all measures necessary to ensure that activities
within their own jurisdiction wont harm the environment of other states.
And when you learn of damage to the environment, you have to notify everyone about it. (Chernobyl sped that
provision along.)
The duty of a source state to inform others of impending arm to them or of significant risk of such harm is an
obvious corollary of the general obligation to prevent and minimize transboundary harm.
This is soon to be a binding provision.
Transborder Pollution Trail Smelter Case (U.S. v. Canada, U.N. arbitration tribunal 1941) United States
claimed that Canada was polluting the U.S. The court held that:
Under the principles of international law, as well as the law of the United States, no state has the right to use or
permit the use of its territory in such a manner as to cause injury by fumes in or to the territory of another or the
properties or persons therein, when the case is of serious consequence and the injury is established by clear and
convincing evidence.
Restatement (Third) 601: State Obligations with Respect to Environment of Other States and the Common
Environment.
Really mealy-mouthed. An example of how to draft something so it wont be a binding obligation.
To understand international environmental law, youve got to understand the formation of customary
international law cold, because thats what its all about.
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X.
INTERNATIONAL AGREEMENTS
Some nonbinding documents have become binding international law, and others have achieved great legal
significance.
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Capacity to Enter Into Treaties.
The capacity for treaty-making is both an attribute of statehood, and a requirement for statehood. Sub-entities
of a state only have treaty-making power if the constitution of the state says so.
Doctrine of Full Powers.
In most negotiations, the presumption is that the guy at the table has the authority to speak for his state.
You can request a document to that effect, but there is no need if youre negotiating with a head of state or the
foreign minister.
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Making a Treaty.
Often what will happen is a document is drafted, redrafted, translated, and redrafted again. It helps to know
which text youre talking about. So what you do is adopt the text.
You initial the document, or sign it ad referendum.
This doesnt make it binding, it just means this is the text we were talking about.
Thats smart, because it makes it easier to go forward during the negotiations.
Articles 9 & 10 of the Vienna Convention on the Law of Treaties adoption of a text is not an expression of
intent to be bound.
The agreement should definitely say when it goes into force; how long it remains in force; and how it may be
extended, amended and terminated.
But, if you neglect to include such language, the Convention fills in the blanks.
Do it yourself, because the default provisions may be contrary to the needs of your country.
Accession (Article 15).
Accession is the acceptance by one nation of a treaty already concluded between other states.
The third nation can formally enter into the treaty, becoming a party to it. (The consent of the original parties is
required.)
The consent of a state to be bound by a treaty is expressed by accession when:
The treaty provides that such consent may be expressed by that state by means of accession;
It is otherwise established that the negotiating states were agreed that such consent may be expressed by that
state by means of accession; or
All the parties have subsequently agreed that such consent may be expressed by that state by means of
accession.
While awaiting signature, you cannot do things that are contrary to the object of the agreement, unless you
REPUDIATE the agreement.
Unless you repudiate the agreement, while youre waiting for signature you comply with the agreement as if it
was signed.
Reservations.
A reservation is a unilateral statement by a state, excluding or varying the legal effect of certain provisions of
the treaty as they are applied to that state.
The U.S. Senate loves to make reservations to treaties. (We agree so long as this clause doesnt mean we have
to . . .)
We have made reservations, for example, in human rights treaties, because our Bill of Rights permits free
speech (treaties forbid hate speech). And also because we still want the death penalty.
Some treaties expressly forbid reservations. (The Law of the Sea Convention is an example.)
Reservations are then impermissible. You cant make them.
Unless the agreement forbids reservations, they are permissible.
Reservations are always impermissible if they go to the very heart of the agreement.
Some reservations are permissible, but would be objectionable to the other signatory states.
Reservations have the effect of turning one agreement into many different agreements.
They must be in writing.
They must be communicated to the other parties.
They are only binding on the other parties if the other parties accept the reservation.
Acceptance will happen by default if they dont reply within 12 months.
Suppose there is a treaty signed by countries A, B, C, and D. A makes a reservation on one part of it, say Article
III.
B is okay with it. Fine, there is a treaty between A & B, including the reservation.
C opposes the reservation. There is no agreement between A & C as to Article III. Theres only a partial
agreement.
D says the reservation is intolerable, and that A is not a party as far as D is concerned. There is no agreement at
all between A & D.
Between B, C, and D, there is an agreement.
Because of the hodgepodge this creates, the trend has been to forbid reservations in multilateral agreements.
It ought to have a dispute-settlement clause as well.
Best to negotiate out any problems between the parties, rather than going to a third-party arbitrator.
(Sometimes, however, an arbitrator is preferable.)
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Observance of Agreements.
International law is not an excuse for the non-observance of an agreement. Even if by doing so you would
violate your own laws or international law, you still have to comply with agreements or be held liable for the
result of your noncompliance.
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Interpretation of Agreements.
Use the ordinary meaning of words, in light of the context and purpose of the agreement. Article 31.
Take context not only from the surrounding text, but also from actions and failures to act after the agreement
was made.
Failure to object to potential breaches makes them okay.
If you want the agreement to be interpreted a certain way, either get in there are enforce it, or make your
objections known.
Be consistent.
Preparatory documents and discussions can be used to help interpret an agreement, but only when the Article 31
rule doesnt give you any useful interpretation.
Stick to the agreement itself first (text and context). Only if it remains ambiguous do you go to other sources.
With plurilingual texts, you have to go through the same steps.
Jesse Laws Case (United States v. Great Britain, Special Arbitration 1921) Neither party individually
interprets treaties. Nor is it up to the courts of either party to interpret treaties.
Both parties must make an interpretation, for it to be authentic and binding.
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Amendments and Modifications.
Always write in your agreements that amendment and modifications must be in writing. Otherwise, youll have
a nightmare to deal with when it gets amended orally.
Also, make the original parties do it.
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Invalidity of Treaties.
Articles 46 - 53 list things that can invalidate a treaty. None of these automatically invalidate it, they simply
give the other side cause to invalidate it.
Ultra Vires treaties You cant excuse nonperformance just because entering the treaty was in violation of
your internal laws (your internal laws did not give you authority to enter into the treaty), unless the violation
was manifest to any other state. (This has never happened.)
Ultra vires means an act beyond your authority.
A violation would be manifest if it would be objectively evident to any state conducting itself in the matter in
accordance with normal practice and in good faith.
Specific Restrictions on Authority to Express the Consent of a State.
If the negotiators authority to sign it has been limited by a specific restriction, his failure to observe that
restriction may not be invoked as invalidating the consent expressed by him .
The exception is when the restriction was notified to the other negotiating states prior to his expressing his
consent.
Error.
Error invalidates a treaty if the error relates to a fact or situation which was presumed to exist as of the time the
treaty was concluded, and if the presumption formed an essential basis of the states consent to the treaty.
Error is not an excuse if you contributed to the error, or you should have known of it.
An error relating only to the wording of the text doesnt invalidate the treaty. Instead you go to Article 79
(Correcting errors).
Fraud.
If you were induced to conclude a treaty by the fraudulent conduct of another negotiating state, then you may
invoke the fraud to invalidate the treaty.
Bible is full of international agreements, and frauds. The Israelis amazingly admitted to being duped in Joshua
9. The Israeli army was conquering and liquidating the whole region, and anybody on the territory was fair
game so far as they were concerned. Joshua was not making any treaties with neighbors. The Gibeonites lived
on the other side of the hill, and didnt want to be crushed. So they got together a negotiating team and made
them look like theyd made a long journey dressed in old ragged clothes, carried moldy food. They met up
with Joshua and claimed they were from far away, and wanted a peace treaty. Joshua made a peace treaty, and
three days later came upon the Gibeonites, and he couldnt conquer them because of his treaty. Joshua needed a
good lawyer. He had God as a lawyer, not bad, but he didnt consult him.
Corruption.
If your consent was procured through the corruption of your representative, directly or indirectly, by another
negotiating state, then you can invoke that corruption to invalidate the treaty.
Coercion Automatically Void.
If your consent was procured by the coercion of your representative through acts or threats directed against you,
then the treaty is invalid.
If your consent was procured by the threat or use of force in violation of the principles of international law
embodied in the U.N. Charter, then the treaty is void.
Conflicts with a Preemptory Norm of International Law.
A treaty is void if it conflicts with a pre-empting norm of general international law.
Breach.
The breach has to be material. It depends on the object/purpose of the agreement.
You cant just automatically renounce an agreement because the other side breached. Breach only gives you
grounds to revoke. And you may only be able to revoke part of the treaty.
India v. Pakistan (I.C.J. 1972) An example of states trying to wriggle out of a dispute-resolution clause.
A plane was hijacked in India, and landed in Pakistan. India claimed that Pakistan was behind it, or at least
supported it. In return, India suspended all flights that would have flown over Pakistan or landed there. But
there was a treaty saying they couldnt do that.
The treaty said that the ICJ would make binding settlement of disputes.
India said there was no need to go to the ICJ, however, because Pakistan had also violated the agreement.
Because the two parties mutually breached the agreement, it must be void, so they didnt need to abide by its
dispute-resolution clause.
India was wrong. Thats total chutzpah, you cant do that. So they were bound by the dispute-resolution clause.
Radical Change of Circumstances.
Termination of a treaty is okay if the circumstances have fundamentally changed. Article 62 spells out the
narrow circumstances where this is okay: The change has to be material, unforeseen, and has to radically
change the performance of the agreement.
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XI.
HUMAN RIGHTS
Basics.
There are several sources of human rights.
Bilateral agreements establishing substantive human rights.
Bilateral agreements establishing procedural human rights (how to enforce the substantive rights).
Multilateral conventions establishing substantive human rights.
Multilateral conventions establishing procedural human rights.
Some provisions of these conventions and treaties (especially those which are fundamental norms) are also
customary international law. So even if a state isnt a signatory to a certain treaty it may still be obliged to abide
by its provisions.
First look to see if there is a bilateral agreement. There may be diplomatic protection of nationals, there may be
human rights protections.
If that isnt adequate, look to see if the states signed on to a multilateral convention that deals with the rights at
stake.
What you think people are entitled to is not necessarily the same as what international law says people are
entitled to.
When the government is involved in violence, torture, etc., rather than mere individual evils, it is a higher level
of evil.
It corrupts the whole state, by creating a bureaucracy to administer it and to inflict it. Corrupts even innocent
people.
The exact same evils committed by the Nazi state are still being done worldwide.
Human rights are not bestowed by individual states on their people.
States cannot dictate what human rights their people have and dont have.
The Universal Declaration of Human Rights states that every human being is born with rights. Nobody gives
them to you.
Also the International Covenant of Civil and Criminal Rights.
The rights derive from the dignity of the human person.
Law is what makes the difference between the despots whims and justice.
Universal, by the way, means universal.
Once, there was a time when countries could say dont impose your western ideals on us. But that was before
practically everybody got together and agreed to these human rights.
Now if a country says dont impose your western morals on us, you point to the Universal Declaration of
Human Rights and respond you signed this beforehand. You helped write it. These arent western ideals,
these are universal. So obey them.
These rights have been articulated in convention after convention after convention, by almost every country.
Many states have been cajoled or compelled into agreeing to these conventions, and there still remain a small
handful of renegade states.
Not every bad thing is a violation of international law.
You need to know whether a particular evil is covered by customary international law, or by a
bilateral/multilateral agreement.
You also need to know what the law provides.
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Some U.S. Mechanisms Related to Human Rights.
22 U.S.C. 1732 Release of U.S. Citizens Imprisoned in Foreign Countries.
When U.S. citizen is imprisoned abroad, the President (State Department) must demand the reasons for that
imprisonment.
If the reasons are unjust, he must request the release of the citizen.
If that demand is not met, then he should try to get him out, preferably by means other than an act of war.
The President is only required, however, to inquire.
Often a single source of information is not enough.
America is not required to come to your aid.
We do it a lot anyway, but many other countries couldnt care less about the fate of their citizens abroad.
Some governments are notorious for not caring about the treatment of their citizens abroad.
But the United States will at the very least inquire as to the reasons for your imprisonment.
To sue for a remedy in a U.S. court for human rights violations, the best basis is the Alien Tort Statute.
Oldie but goodie, but only applies to non-nationals, remember. Aliens hurting aliens.
You sue the torturer as an individual.
If you dont know who the torturer was, youre out of luck.
You cannot sue a foreign state in U.S. courts for human rights violations. The Foreign Sovereign Immunities
Act prevents that. There is no exception for torture, only for commercial activities.
Torture Victim Protection Act.
Anybody can sue under this one. Citizens too.
The torturer is liable for civil damages.
Dont forget about international agreements, which set further protections and rights.
The United States is party to a lot of bilateral agreements that do this.
Treaties of Friendship, of Navigation, and of Commerce are usually what establish certain guaranteed rights and
the enforcement procedures.
When you draft such a treaty, do make sure you include both substantive and procedural rights.
Corporations really need such treaties, to protect their rights. Especially property rights. Their property rights
are often at risk in foreign countries.
Responsibility for Injury to Aliens.
Property rights have never really been codified in any human rights conventions. (Because the world cannot
agree on what are and are not property rights.)
So a corporation should get the United States to make an agreement with the foreign country, ensuring the
protection of your property rights.
Make sure this is a bilateral agreement between the two governments. Merely putting such a clause in a
contract between your company and the foreign state is not enough to protect you.
Its not an international agreement, recall, unless both parties are states.
Otherwise, you wind up suffering through the cold reality of litigating disputes in a foreign court, and all the
U.S. can do on your behalf is whine a bit.
Case Concerning Elettronica Sicula S.p.A. (ELSI) (United States v. Italy) (I.C.J. 1989).
Raytheons assets were seized by Italy. Raytheon now couldnt pay off its creditors, and it requested United
States diplomatic protection.
It just so happened that there was a treaty between the United States and Italy protecting the property rights of
corporations doing business in these countries.
Procedural Point Before you even go into the tribunal, you must show that you have exhausted all local
remedies.
Otherwise, your case is going to get thrown out of court. Not ripe enough.
A good lawyer will make sure that you did exhaust your remedies. Good lawyers know the procedural
requirements.
There are a couple of exceptions to this rule.
The burden is on the defendant state, however, to show that there were remedies that you failed to employ.
You also must have made a good-faith effort to comply with the law.
Raytheons lawyers did attempt to litigate the matter in the local Italian courts. Of course, the local jurists ruled
against them, so they then went on to the international level.
They asked the United States to sue Italy on their behalf, for violating the agreement.
Italy claimed that local remedies had not been exhausted; Raytheon could have appealed, in some arcane
fashion. Raytheon responded that this was ludicrous. How many courts did they have to look for?
The I.C.J. ruled that, once Raytheon made the attempt to use local remedies, the burden was on Italy to show
that there was another remedy available. And Italy did not do that to the satisfaction of the court (it really was
pretty arcane).
Claim of Finnish Shipowners (Finland v. Great Britain) (Arbitration 1934).
Ships, owned by Finnish nationals, were used by Great Britain during war. Some of the ships were lost, and
Great Britain never compensated the Finnish owners.
Finland, the state, sued in British courts and lost.
Then Finland took the claims to an independent sole arbitrator, claiming that the local remedies had been
exhausted.
Britain argued that arbitration was precluded, because Finland could have appealed. Finland replied that an
appeal would not be a true recourse, because the issue would no longer be an issue of fact but of law. So an
appeal would not be an effective remedy in itself.
The arbitrator held that there is no obligation to exhaust local remedies if, as here, they would be ineffective or
illusory.
This is still the rule. And its important, since the U.S. has the same legal system.
If your opportunity to be heard means youll be dead if you show up, then the local remedy would be illusory,
so you arent required to use it before going to the international courts.
If the machinery simply doesnt exist to handle your case, then local remedies would be ineffective, so go
international. You are exempt from the requirement to exhaust local remedies.
If it would be pointless to use local remedies, then go international.
If the local courts say they dont have jurisdiction, then go international.
The Calvo Doctrine (Latin American view on responsibility for injury to aliens).
Like much of the world, Latin American countries have a deep-seated feeling that foreigners only have as many
rights as locals.
So corporations are made to sign contracts where the corporation waives diplomatic protection.
This is odd, as it is the corporations state, rather than the corporation, that has the right to assert diplomatic
protection.
So usually such provisions will not be given much weight by international tribunals.
However, when the corporation didnt make good-faith efforts to obey local law, then the international tribunal
is likely to rule against the corporation.
Standing for Diplomatic Protection.
You need to be a national of the country asserting diplomatic protection.
Use the Nottebohm standard to determine whether one is a national or not. (Genuine intent, etc.)
In pleadings for a human-rights case, you must attribute the violation to the state, not an individual.
Any state official counts. His acts may be attributable to the state.
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Was The State Involved?
For there to be a human-rights violation, the harm must have been inflicted by the state.
Getting mugged in an alley doesnt count.
Government conduct frequently can hurt you without being considered a human-rights violation. Taxes,
bureaucratic nitwittery, currency devaluations, conduct reasonably necessary in an emergency, etc.
However, even conduct that would not ordinarily be illegal will still be a violation if it involves unreasonable
discrimination.
William T. Way Claim (United States v. Mexico) (General Claims Commission 1928).
A local Mexican sheriff issued a bad warrant, for the arrest of an American (warrant was facially void under
Mexican law for failure to state a charge). The bad warrant was based on a personal grievance he had against
the American, and directed the armed officers to use suitable means to bring him in. The American was shot
and killed during the arrest. The United States sued Mexico on behalf of the Americans family.
Even this personal vendetta by the sheriff was considered conduct attributable to the state. Even a lowly official
is still an official.
Gross mistreatment in connection with arrest & imprisonment is not tolerated under international law.
The United States always immediately accepts responsibility for the actions/inaction of local officials, in order
to maintain this precedent.
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Substantive Bases of Responsibility.
Restatement (Third) 711: State Responsibility for Injury to Nationals of Other States A state is responsible
for injury to a national of another state caused by an official act or omission that violates:
A human right that a state is obliged to respect for all persons subject to its authority.
A personal right that a state is obliged to respect for foreigners.
A right to property or another economic interest that a state must respect for any persons.
B.E. Chattin Claim (United States v. Mexico) (Claims Commission 1927) An American was subjected to a
Mexican kangaroo court. He was seized without being notified of the charges, neither his family nor anybody
else was told of this, there was no habeas corpus, no opportunity to confront his accuser, no opportunity to
interview the witnesses against him, no oaths were taken. He was given a 5-minute hearing (the court merely
read the paperwork), and was sentenced to two years in a Mexican prison. (He escaped after 11 months.)
International standards werent violated by any of this, however. Such standards didnt exist yet.
So this case held that certain proceedings had to be required:
Regularity of court proceedings.
Proper investigations.
Confrontation.
Right to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights
and obligations and of any criminal charge against him.
Right of accused to be presumed innocent until proved guilt according to law, in a public trial at which he has
had all the guarantees necessary for his defense.
Cannot find you guilty for something that wasnt a crime when you did it. Cant impose greater penalties than
were applicable at the time you committed the offense.
No arbitrary interference with privacy, family, home, or correspondence.
No attacks upon honor and reputation, and Right to state protection against such attacks. (The U.S. hasnt gone
along with this, because of 1st Amendment.)
Right to freedom of movement and residence anywhere in the state.
Rights to leave any country, including ones own, and to return to ones own country.
Right to a nationality.
No arbitrary deprivation of nationality, nor denial of the right to change nationality.
Right to marry and start a family without limitation due to race, nationality, or religion.
No marriage without free and full consent of the spouses.
Right to state protection of the family as the fundamental group unit of society.
Right to free thought, conscience, and religion. This includes freedom to change religions, and freedom either
alone or with others, in public or private, to manifest ones religion in teaching, practice, worship, and
observance.
Right to freedom of opinion and expression. This includes freedom to hold opinions without interference, and
to seek, receive, and impart information and ideas through any media and regardless of frontiers.
Right to peaceful assembly and association.
Cant compel someone to belong to an association.
Right to take part in the government of his country, directly or through freely-chosen representatives.
Right to equal access to public service in ones country.
Right to expression of the peoples will as the basis of authority of government, expressed in periodic and
genuine elections with universal suffrage and secret ballot or other free voting method.
States who argue that this is eurocentric hooey" are wrong. Everybody voted on the U.D.H.R., except for 8
states. And none of the 8 states that abstained are around any more, except Saudi Arabia. Every corner of the
globe was represented and had a say in the formulation of these rights. This is truly a universal declaration.
International Convention on Civil and Political Rights Realistic, designed for application in the real world.
If a country declares a state of emergency, then it must tell other countries (Art. 4). And even in a state of
emergency certain rights are still inviolable (Art. 7).
This is not just a rule of customary international law. These are fundamental norms of international law.
Even dissenting states are bound by these norms.
There are no exemptions.
Torture is a violation of fundamental norms.
Cruel, inhuman, and degrading, however, are open to local variation. Cases are still developing the standard.
Tyrer, 26 Eur. Ct. H.R. 14-17 (1978) A 15-year-old British citizen living on the Isle of Man assaulted a
schoolmate. Under Manx law, he was sentenced to 3 strokes of a birch branch on his ass. He was sore, but not
cut. (This wasnt caning, which can cripple, disfigure, or kill, and which often results in genital mutilation.)
The state was involved in the beating.
The U.K. was party to the European Convention of Fundamental Rights and Procedure, which said no torture,
cruel/ inhuman, or degrading treatment.
This wasnt torture, nor was it cruel or unusual treatment.
Was it degrading? The state was involved, there was a six-month delay between the sentence and its imposition,
it was public in nature, it was govt-imposed assault by one person on another, it was done via official
procedures. So yes, it was degrading.
Parents can do it, but strangers cannot. Especially not in the name of the state.
This is not new. It was 1978. Wasn't even brought up during the debate over the caning of that kid in Singapore
back in the early 1990s. The civilized countries of the world had already long since gotten together and said
this was a human rights violation.
Ireland v. United Kingdom, 25 Eur. Ct. H.R. 65-67 (1978) England was going all-out to get information from
the IRA, and the police were using severe interrogation techniques, including sleep deprivation, food
deprivation, white noise, always-standing, always-hooded, etc.
This wasnt torture torture is aggravated and deliberate but it was certainly degrading treatment.
Soering v. United States, 161 Eur. Ct. H.R. 11 (1987) This is the case of Jens Soering, a German citizen and
U.Va. student, who with his girlfriend killed her parents. Soering fled to the U.K., and the U.S. asked for
extradition.
You cannot extradite to a country that subjects people to torture or to cruel, inhuman or degrading treatment.
He could have gone to death row in Virginia, so the U.K. refused.
The problem wasnt the fact that he was subject to the death penalty. Both the U.S. and the U.K. had the death
penalty. The problem was Virginias Mecklenburg death-row facility (a favorite target of the ACLU), where it
takes 6 - 8 years to await punishment.
The Commission held that the wait on death row was unacceptable. Confinement itself is bad enough, but the
psychological effects and contact with other death-row types would be too degrading for this kid, so the U.K.
was not required to extradite him to the U.S.
The price people are willing to pay for law & order varies from state to state. Some are more tolerant of pain
and degradation than others.
Torture is always too far, though.
The deterrent effect of a certain treatment cannot be the only determining factor. Dignity of life is also
important.
Art. 6 leaves open the possibility of a death penalty.
You just cant arbitrarily be deprived of life, thats all.
Article 8, cant be held in slavery.
Article 11, cant go to jail for debt/contractual breach.
The biggies of Art. 14 are the fundamental rights enumerated in the next section.
Without these, is breaks down.
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FUNDAMENTAL HUMAN-RIGHTS VIOLATIONS.
According to Restatement (Third) 702, these are:
Genocide.
Slavery & slave trade.
Murdering or disappearing individuals.
Torture.
Cruel, inhuman or degrading treatment or punishment.
Prolonged arbitrary detention.
Systematic racial discrimination.
Consistent patterns of gross violations of internationally-recognized human rights.
More and more conventions are out there, precisely defining these terms and specifying how to enforce them.
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Human Rights Procedure:
Is the country a party to the International Covenant on Civil and Politic Rights?
Are they a party to the covenant, or are they merely signatories?
If merely a signatory, then the country is required only to submit progress reports on compliance every 5 years,
to the International Human Rights Committee. (Committee, not commission.)
All parties to the covenant can complain to the Committee about the practices of a party country.
You can complain, not only on behalf of your own nationals, but even on behalf of citizens of the other country.
All parties can assert claims on behalf of victims.
If the state signed Optional Protocol # 1, then individuals within its jurisdiction can petition the Committee,
regardless of their nationality.
This is a big deal.
The highest court of a country is no longer your last resort. In fact, you can even bypass the local courts and go
straight to the Committee for redress of human-rights grievances.
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What do you do if an American is tortured by a foreign government?
Is there a treaty on point between the United States and the other country?
If yes, then look to see what substantive rights are defined. If such rights were violated, then look for
procedural mechanisms in the treaty to enforce them.
If no treaty between us and them, you now can intervene with a U.N. force for humanitarian reasons. More on
that under Use of Force below.
For a long time, if there was no treaty, then you couldnt do anything.
And a foreigner being tortured by his own country had no recourse at all.
After WWII, the U.D.H.R. spelled out human rights, which were later codified in the I.C.C.P.R., which has been
implemented by local conventions. These provide substantive and procedural rights.
Article 40 All states must make reports on their compliance.
No state wants to look bad on human rights, no matter how tough they act.
If theyre bothered enough, theyll quit the violations just to stop the pickets and protests. True.
Publicity is the first step towards correction. Publicity is the bane of human-rights-violating countries.
Article 41 Experts sit on a committee. Any country can take up the case of an Iranian being tortured by the
Iranian government, for example, and bring the case before the committee.
But that is only if Iran had already made the Article 41 declaration.
If a state has signed Optional Protocol # 1, then the individual himself could sue the sovereign for human rights
violations.
You need to look at each human-rights convention youre concerned about to see what procedural mechanisms
it establishes.
If it merely defines rights, thats not much help if it doesnt say how those rights are to be enforced.
So you have a 2-pronged search. Look for substantive definitions, and then look for the procedures which make
them real.
U.N. procedures may be available to both the U.S. citizen being tortured in Iran, as well as to the Iranian citizen
being tortured there.
In the Economic and Social Council of the U.N. [ECOSOC], there is a Commission (not a committee) that
reports on human-rights violations.
ECOSOC and the Human Rights Commission have provisions for individuals to request the U.N. to investigate
individual human rights violations, under Resolution 1503.
Or, if there are widespread & systematic violations, you can have a Resolution 1235 hearing, where the
violating country is made to suffer by all other countries by a vote of disapproval.
If the violating country has signed Article 41, then the U.N. can make on-site investigations.
Iran has never signed Article 41, so all that can happen is that the other member states vote their disapproval.
China is a signatory, but every year it pours a staggering amount of resources into avoiding on-site
investigations.
Tyrants do fear them. Following on-site investigations, governments have been known to fall and be replaced.
On more than one occasion.
Again, the violating country cannot argue that its treatment of people is a cultural or religious thing, and should
therefore be respected and left alone. These are universal norms, codified and signed by all sorts of countries of
all cultures and religions. This is not just western idealism.
The rights themselves are evolving, as are the enforcement procedures that make them real.
Now that the United States is a party to the I.C.C.P.R., we may start to see charges against us brought before the
Commission. It already happened to Canada in the Lovelace case.
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Suspension of Human Rights.
Lawless Case (Eur. Ct. of Hum. R. 1961) Talks about how certain rights can be suspended.
This includes due process & fair trial rights.
The concepts of due process and fair trial are still evolving.
The sorts of permissible restrictions on such rights, however, are limited.
When you suspend human rights, you cant just wash your hands of the rights.
And some rights can never be suspended or derogated.
Freedom from torture, and the other fundamental jus cogens rights, can never be suspended.
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Duplication of Claims.
You cant simultaneously appeal to the European Court of Human Rights, and to the Commission, or to
someone else. You can only bring your claim before a single tribunal.
If there is duplication, then all of the courts will throw your case out.
Youd better choose wisely, because the rights and procedures are different in each tribunal.
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XII.
The first rule on the Use of Force is not to use it, but rather to resolve your differences in a peaceful manner. So
the first thing to do is everything short of force.
It used to be that the use of force was one of many acceptable means to resolve a dispute with a neighboring
country. But after the horrific slaughter of WWI wiped out an entire generation of European men, slaughter
beyond understanding, war was seen as undesirable. The League of Nations was set up to prevent future wars,
but because the U.S. didnt participate the League of Nations failed (also because, despite its lofty goals, the
League started selectively treating different aggressors differently). These are the same problems which the
U.N. may face. But the League never used the mechanisms that did exist, and the world paid a horrible price
for it when Italy, Germany, and Japan started getting away with their aggression.
When the use of force is an issue, first ask why no other recourse was available.
The big rule is in Article 2, paragraph 3 of the U.N. Charter:
All members shall settle their international disputes by peaceful means in such a manner that international peace
and security, and justice, are not endangered.
Also, all members shall refrain from the use of force against the territorial integrity of another state contrary to
the purpose of the U.N.
You can only do it for self-defense or as part of a collective enforcement action.
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Settling Disputes Peacefully.
Article 33, paragraph 1 of the U.N. Charter says:
The parties to any dispute, the continuance of which is likely to endanger the maintenance of international peace
and security, shall first of all seek a solution by negotiation, inquiry, conciliation, arbitration, judicial settlement,
resort to regional agencies/arrangements, or other peaceful means of their own choice.
Were dealing with disputes, as opposed to disagreements.
A dispute is not just a difference in views, nor does a sense of injury mean that there is a dispute.
A dispute requires a disagreement on a point of law a conflict of legal views or on a point of fact.
Its not a dispute unless the resolution would have a practical effect on the relations of the parties. It cant be
moot.
Its a good idea, when drafting a document about a disagreement, to refer to it as a disagreement rather than a
dispute. Dispute is a technical term that should only be used in the proper sense. If you call it that, then that
might be what you wind up having.
There is an obligation, under customary international law, to settle disputes by peaceful means.
Adjudication and arbitration are at the far end of the spectrum.
These are the most expensive and time-consuming methods available.
Going to court should be the last resort.
First, try negotiation.
Agreements can specify the procedures for the parties to resolve disputes.
Negotiation is the State Departments preferred means of dispute resolution written into international
agreements.
You cant go to some court every single time a disagreement pops up.
Note that an obligation to negotiate means you have an obligation to negotiate in good faith.
You actually have to make the attempt.
The manner in which you participate in the negotiation can be used against you, so do it in good faith.
Second, try good offices, mediation, conciliation, and inquiry.
Good offices and Mediation usually merge together.
A respected third party helps the two sides reach a mutually-agreeable resolution of the problem.
Conciliation.
A settlement is proposed only.
Not the result of arbitration.
Just a recommendation. It isnt binding.
Inquiry.
The process of establishing the factual basis on which the dispute-resolution process will rely in figuring out
what to do.
Basically means coming up with an official version of the facts, so you can get to work fixing the problem.
Third, try arbitration.
Unlike conciliation, this is usually binding on the parties.
The parties propose their solutions, and the arbitrator decides which one is best.
The arbitrator doesnt come up with a third solution, even if it would be best. Thats what you do in mediation.
Last, try courts.
All the procedural requirements must be satisfied. Have to have standing, the case must be ripe, cant be moot,
no duplication, etc.
The sides argue what the official version of the facts should be, and the court decides that.
The sides argue what the law should be, and the court decides that.
The court applies the law to the facts and decides what the outcome should be.
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Dispute Settlement through the United Nations and Other International Organizations.
The U.N. settles disputes using the following methods:
Preventive Diplomacy.
Ease tensions before they result in conflict. Or, if conflict breaks out, act swiftly to contain it and resolve its
underlying causes.
This can be done by the Secretary-General personally, or through staff or agencies or programs, or by the
Security Counsel or the General Assembly, or by regional organizations (like NATO) in cooperation with the
U.N.
This requires measures to create confidence. It needs early warning, based on good intelligence and factfinding. It may also involve preventive deployment of troops, and sometimes may require demilitarized zones.
Examples of Measures to Build Confidence.
Systematic exchange of military missions.
Formation of regional or subregional risk-reduction centers.
Arrangements for the free flow of information, including the monitoring of regional arms agreements.
Fact-Finding.
Prevention requires timely and accurate information, as well as an understanding of developments and global
trends based on sound analysis.
Given the economic and social roots of many potential conflicts, the U.N. needs info on economic and social
trends in addition to political developments that may lead to dangerous tensions.
A request by a state for a U.N. fact-finding mission on its territory should be considered without undue delay.
Contact with member states should be maintained to keep up the flow of info.
Formal fact-finding can be mandated by the Security Counsel or by the General Assembly. They can send a
mission or a special envoy. The missions presence alone may sometimes defuse a situation.
Peacemaking.
Mediation and negotiation are the U.N.s methods here.
Mediation and negotiation can be undertaken by an individual designated by the Security Counsel, the General
Assembly, or the Secretary-General.
The individual is usually a distinguished statesman.
His personal prestige and experience can encourage the parties to enter serious negotiations.
There are lots of people willing to serve in this capacity.
You could also take your dispute to a regional organization which would facilitate a resolution of the dispute.
Some of these organizations have good records here, others are still working on it.
Organizations which have had active roles:
OEA/OAS (Organization of American States).
OAU (Organization of African Unity).
The Arab League.
CSCE (The Conference on Security and Cooperation in Europe).
ASEAN (The Association of South-East Asian States).
NATO.
The conflicts in Yugoslavia have been dealt with by joint U.N.-E.C. mediators.
The settlement of the civil war in El Salvador was assisted by joint OAS-U.N. representatives.
The conflict in Somalia got help in conciliation efforts from the U.N., the OAU, the League of Arab States, and
the Organization of the Islamic Conference.
Problems sometimes lead to the parties preferring the U.N. over regional organizations.
Regional bodies sometimes have a conflict of interests.
They often lack the resources that the U.N. has.
They often lack the experience that the U.N. has.
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International Arbitration.
You need to set down the ground rules first. These are not set under international law.
What law will be applied.
What the scope of the decision will be.
What will be the means of determining the facts.
What the procedures will be.
These ground rules can be screwed up big time, so be careful.
A treaty between the U.S. and the U.S.S.R. after WWII contained an arbitration document, drafted by the
United States, which said that arbitration would only happen after the representatives were chosen. So the
Soviets never picked any representatives, thus arbitration could never take place. So there was never any
resolution of the dispute under the treaty, and the Iron Curtain descended for 50 years. It was bad drafting on
our part, and bad faith on theirs, but it still happened.
Arbitration can only reach one of two decisions. Either X is right, or Y is right.
If the arbitrator reaches a third decision, then it is a nullity.
This is what happened in the Chamizal Tract case.
Examples of Arbitration Rules:
The most active arbitration tribunal in the 1990s was the Iran-United States Claims Tribunal in the Hague, with
jurisdiction over claims of the citizens of one country against the other state. It was governed by the rules of
UNCITRAL (the U.N. Commission on International Trade Law).
If you say so in an international agreement, you can have these same rules apply to the resolution of any
disputes under the agreement.
More and more countries are signing on to the New York Convention on the Recognition and Enforcement of
Foreign Arbitral Awards of 1958.
An arbitration clause in a contract with a foreign state ensures that there will be a forum to adjudicate any
dispute that may arise under the contract.
Such a clause will also ensure that any award rendered in such a dispute will be enforceable virtually anywhere
in the world.
In this respect, awards entitled to recognition and enforcement under the New York Convention enjoy more
effective enforcement than other awards or judgments, including those of the International Court of Justice.
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FORMAL ADJUDICATION THE INTERNATIONAL COURT OF JUSTICE.
The ICJ is an organ of the U.N., with 15 judges, sitting at The Hague.
Every state that has signed on to the U.N. Charter has also agreed to the rules of the ICJ.
That doesnt mean they have assented to ICJ jurisdiction, only that they agree to its rules.
ICJ decisions dont bind any nations apart from the parties to the particular dispute.
And they only bind those parties with regard to that particular dispute.
However, some ICJ decisions are so well-reasoned that they get cited a lot as precedent and have become
customary international law binding international law.
Only states have standing before the ICJ for a contentious case.
Individuals and companies do not have standing.
In addition to its dispute-resolution authority, the ICJ can also issue advisory opinions.
Only specified international organizations, under U.N. Charter Article 96, can request advisory opinions.
Of the 15 or so organizations so authorized, the most common requestors are the General Assembly and the
Security Council.
States cannot request advisory opinions.
imposed by international bodies, and other similar or related acts, measures or situations in which India is, has
been, or may in the future be involved.
So no dispute in Kashmir will ever be in front of the ICJ. . . that lawyer sure earned his fee!
2. You and the other state refer the dispute to the ICJ.
This is just an ad hoc referral by the parties.
This, too, is common.
3. The international agreement between the parties spells out that any disputes under the agreement will be
decided by the ICJ.
More and more international agreements say this.
This also works if the primary settler decides you can appeal its decision to the ICJ.
Admissibility of the Case.
Is there standing? Is the case moot? Even though the ICJ has jurisdiction, the case may not be justiciable.
Standing.
Meaningful local remedies must have been exhausted first.
Mootness.
Nuclear Tests Case (Australia v. France) (ICJ 1974).
There was jurisdiction, but the ICJ couldnt go to the merits, because of a critical failing in the pleadings:
Whether or not there was an actual legal dispute.
The case must involve a real legal dispute.
Here, there was no dispute any more, because France had already come forward and said they would cease
testing. So it was moot.
Note that France never admitted that they were violating international law, so that issue was never reached.
Aegean Sea Continental Shelf Case (Greece v. Turkey) (1976).
Turkey was dropping explosives all over the continental shelf in the Aegean, trying to get seismic readings in
search of oil. Greece got upset.
Greece wanted the ICJ to indicate interim measures, i.e., issue an injunction to stop the Turks from continuing
this action.
The ICJ held that there must be a risk of irreparable prejudice for it to issue an injunction.
The action must be necessary to preserve the issue before the court.
The standard for irreparable prejudice here was whether Turkey could make reparations for the damage if it was
ultimately found to have been bad. If reparations wouldnt fix it, then an injunction would be proper.
Case Concerning United States Diplomatic And Consular Staff in Tehran (United States v. Iran) (1979).
Here, irreparable injury would be hostage-taking and execution of Americans. We had to protect these
Americans and return them. The irreparable harm and injury was ongoing.
ICJ and SECURITY COUNCIL ACTIONS.
After Pan Am flight 103 was blown up over Lockerbie Scotland (the altimeter bomb went off sooner than
planned because of a change in the flight, it was supposed to go off over the ocean so no pieces would be found)
we found out who did it by looking at the pieces. The United States asked Libya to extradite the bad guys, and
Libya refused.
We still havent gone all the way to Chapter 7 collective use of force under the U.N. Charter. Instead, the
Security Council has imposed sanctions, which are still there.
Libya said okay, we can try them or we can extradite them, so well try them ourselves. Then they asked the
ICJ to tell the Security Council to end the sanctions.
The ICJ refused. When the Security Council has taken action, the ICJ will not interfere.
If the Security council is still debating though, then the ICJ will get involved. (Thats what happened in the
Greece v. Turkey dispute.)
confined to cases in which the necessity of that self-defense is instant, overwhelming, and leaving no choice of
means, and no moment of deliberation.
The necessity must be immediate.
The necessity must be overwhelming.
There must be no other choice.
There must be no time to deliberate.
It should also be proportional. (This comes from an earlier letter. Here, killing everyone, burning the ship, and
sending it over the falls was not proportional.)
This case keeps coming up over and over, throughout history, on the question of whether anticipatory selfdefense is proper. The criteria listed are the criteria that get cited.
The Nazis went out of their way to make it look like Poland had started it, so as to justify their invasion. They
even dressed up Polish prisoners in German uniforms, shot them and filmed it, and blamed it on Poland. The
Nuremburg tribunal, however, did not buy it.
In the Cuban Missile Crisis, the United States went out of its way to say its actions were not self-defense, but
merely a quarantine of Cuba on the high seas to keep the missiles out.
A blockade is a use of force, but it is less intrusive than other kinds.
The United States proposed this in the U.N., and it was representatives from Ghana (who, unlike ours, had been
well-educated in international law) who stood up and cited the Caroline case, asking is this emergency instant,
overwhelming, leaving no choice of means, and no moment for deliberation?
When the Israelis bombed Iraqs nuclear reactor in 1981 (because it could have been capable of making
weapons-grade plutonium), that also led to lengthy discussions of whether the standards for preemptive selfdefense attacks had been met.
Of course, the act had been done by then.
One side effect of this was for Iraq to put its reactors underground, under hardened shelters. Every time we
come up with a cool bomb that can punch through layer after layer, and can count how many levels its gone
down before exploding at the right one, they come up with something to stop it.
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Non-Charter Uses of Force that are Permitted by Customary International Law.
Preemptive self-defense.
See above.
Retrieving your nationals.
You go into another country with your armed forces to get your nationals and get out.
This is usually done unilaterally, and its not part of the U.N. Charter, but everybody supports it.
The use of your armed forces can only be for the exclusive, narrowly-tailored purpose of pulling out your
nationals.
This can be troublesome when you go in to extract your nationals and wind up changing the government, taking
over, setting up a continuing military presence, etc. (you know, like we did in Panama and Grenada).
Israel had some people in trouble in Uganda. Before they extracted them, they took out the entire Ugandan air
force on the ground. It was a similar situation to the U.S. and Grenada/ Panama, and they similarly got
lukewarm support for their actions.
Back to Contents2007-2010 Nathaniel Burney
INTERVENTION.
Humanitarian Intervention.
Unilateral intervention for humanitarian purposes is not much supported.
This is especially true now that the U.N. sets up multilateral collective intervention even for internal problems,
if they are widespread humanitarian problems.
The multilateral stuff is okay. Thats different from looking at another country, saying they need our kind of
government over there, and going over to help them get it. Thats what the U.N. was set up to prevent,
remember?
The U.S. had difficulty establishing this, because we didnt argue the case! Thats right, we disputed the ICJs
jurisdiction, so we didnt even send a lawyer to argue for us. So the only version of the facts that the ICJ had to
work with was Nicaraguas version.
Thus, the ICJ never saw the photos, never saw any of the evidence of Nicaraguas armed attacks. So its attacks
on Honduras, its shipments to El Salvador, and its attacks on Costa Rica were not regarded as armed attacks for
Article 51 purposes.
Did supplying arms, equipment, and training to the Contras count as an armed attack by the United States
against Nicaragua?
No. The United States support of the Contras, as well as the Nicaraguan support of El Salvadorian rebels, might
be violations of international law, and they might be uses of force, but they are not armed attacks justifying selfdefense.
Even presuming that the supply of arms to the opposition in El Salvador could be treated as imputable to the
government of Nicaragua, to justify invocation of the right of collective self-defense in customary international
law, it would have to be equated with an armed attack by Nicaragua on El Salvador.
The ICJ was unable to consider that, in customary international law, the provision of arms to the opposition in
another state constitutes an armed attack on that state. Even at a time when the arms flow was at its peak, and
again presuming the participation of the Nicaraguan government, that would still not constitute an armed attack.
It might have been illegal intervention, it might have been use of force, but it wasnt an armed attack for selfdefense purposes.
It may be an armed attack when you send in armed bands or mercenaries to stage an attack, but only if you sent
them in such a way that their actions were directed and controlled by you.
Merely giving them the arms and the cash and the training isnt enough.
It may still be illegal, but it isnt use of force.
To make an armed response in self-defense under Article 51, you must state that you are under an armed attack.
You must immediately report this fact to the Security Council. And you must also promptly report your own
actions in response.
Here, none of these states announced that they were victims of armed attacks. Nobody ever asked the United
States to come help them. Nobody ever told the U.N. they were under attack.
The United States did not obey international law here. We have learned our lesson, too.
So when Iraq invaded Kuwait, Kuwait and Saudi Arabia begged us to intervene, and we said put it in writing
first. An immediate record was established before the Security Council.
Nicaragua claimed that it was the victim of indirect aggression (namely, the embargo, our support of the
Contras, and our military maneuvers in Honduras).
The ICJ held that the maneuvers were not use of force.
Neither the embargo nor giving money to the Contras were uses of force.
Supplying weapons might have been use of force, however, but economic measures of intervention were not a
violation of international law. If you dont want to trade with someone, thats fine.
Now. . . prohibiting other countries from trading with a state might be a problem.
Back to Contents2007-2010 Nathaniel Burney
NECESSITY AND PROPORTIONALITY.
Even presuming that Nicaragua engaged in armed attacks on Honduras and Costa Rica, that we were formally
invited down there, and that we had notified the U.N., Honduras has nevertheless already crushed the rebellion
a year or so earlier.
There was no necessity.
If you say youre using force against another country, no matter what the reason, the use of force must be
necessary.
Ask this for every particular act. If a particular act was not necessary, then it was illegal.
No necessity, so the United States had failed to abide by this standard, as well.
All uses of force must be proportional.
Iraqi gunners are shooting at you. You need to destroy them. To do so, you do not take out a dam upriver and
drown a million people.
This is not a new standard. Its been around at least since the Caroline case, and even it said this is nothing new.
Its always when we do things halfway that Americans get killed. Like in Somalia, where we took out most of
our forces and left just a few there to make the political statement that were still there, without enough armor
and support to protect those who were there.
As has been noted by the terrorists themselves, the American habit of pulling out emboldened Al Qaeda and
others to more numerous and harmful attacks on American interests, culminating in 9/11.
Its the half-hearted stuff, the warm fuzzy idea that sending Americans somewhere will somehow make things
better, that gets people killed. During the period from 1979 through the late 1990s, the US had about 500 KIA.
(During that same time, there were about 15,000 American soldiers killed in all, from jeeps turning over to any
other reason.)
Manuel Noriega made a big mistake by declaring war on the United States.
Had he not declared war, a lot of s*** might not have hit that fan.
George Bush sent a communication to the Speaker of the House detailing the justification for the invasion of
Panama:
On December 15, 1989, at the instigation of Manuel Noriega, the illegitimate Panamanian National Assembly
declared that a state of war existed between the Republic of Panama and the United States. At the same time,
Noriega gave a highly inflammatory anti-American speech. A series of vicious and brutal acts directed at U.S.
personnel and dependents followed these events.
On December 16, 1989, a U.S. Marine officer was killed without justification by Panama Defense Forces (PDF)
personnel. Other elements of the PDF beat a U.S. Naval officer and unlawfully detained, physically abused,
and threatened the officers wife. These acts of violence are directly attributable to Noriegas dictatorship,
which created a climate of aggression that places American lives and interests in peril.
These and other events over the past two years have made it clear that the lives and welfare of American
citizens in Panama were increasingly at risk, and that the continued safe operation of the Panama Canal and the
integrity of the Canal Treaties would be in serious jeopardy if such lawlessness were allowed to continue.
[. . .] The deployment of U.S. Forces is an exercise of the right of self-defense recognized in Article 51 of the
United Nations Charter and was necessary to protect American lives in imminent danger and to fulfill our
responsibilities under the Panama Canal Treaties. [. . .]
We did not actually invoke self-defense, however.
We rarely do so under Article 51. The only times weve done so were in the Nicaragua case, which we lost, and
the bombing of Libya.
Back to Contents2007-2010 Nathaniel Burney
WAR POWERS RESOLUTION.
This is still law.
This resolution governs the commitment of U.S. forces to any activity, be it the use of force, or just international
peacekeeping.
Need:
Declaration of War by the U.S. Congress.
Specific statutes authorizing the use of our forces.
Actual national emergency created by an attack on U.S. territory or on our armed forces.
Before 9/11, none of these things had happened. So how did the U.S. do everything it did?
1543 The President has to submit a report within 48 hours of action. If President doesnt withdraw first,
then he has 60 days to get Congress consent or else he must then withdraw the forces. 1544(b).
Only have to leave after 60 days, and the 60-day period doesnt start to run until the letter is sent to Congress,
and the letter isnt always required.
The letter always comes within 48 hours, but it also always says the report is consistent with the W.P.R, not
that it is in compliance with it.
Bush did ask for Congressional support of the intervention against Iraq in 1991, because we were facing a
battle-hardened army, the fourth-largest in the world, with mint-condition Soviet equipment.
The tension between Congress and the President on declaring war is a healthy tension. War is the last thing you
want to get involved in.
Back to Contents2007-2010 Nathaniel Burney
COLLECTIVE USE OF FORCE.
IN PROGRESS...TO BE COMPLETED.
"LAWFARE"
The term "lawfare" was coined by Maj. Gen. Charles Dunlap, Deputy Judge Advocate General for the United
States Air Force. The -fare suffix is meant to imply warfare, not welfare. The word simply refers to the use
of law and legal process as a weapon in modern warfare, to either achieve a military objective or to deny an
objective to the enemy.
Lawfare tends to be used as a weapon against countries and societies where the rule of law is strong. It is most
commonly used in asymmetrical warfare, by guerrillas and terrorists who seek to affect public perception
abroad and gain a moral advantage.
Most people are familiar with the concept, if not with the term itself. One commonly-understood example is the
use of human shields the placement of civilians at military targets to deter attack with the fear that the
death of innocents would be ruled unlawful, at least in the court of public perception. Much as with
propaganda, perception is the key to lawfare.
Groups also use the rule-of-law countries own courts to stifle the dissemination of information that would hurt
their objectives, to stifle criticism, and to gain sympathy while painting the rule-of-law countries as evil.
It is used by governments as well. For example, after four months of bitter opposition from lawyers and the
judiciary in Pakistan, Pervez Musharraf declared a state of emergency in late 2007, suspending the nations
constitution, blacking out the media, and arresting many. The lawyers and judges had been sharply criticizing
him for failing to control the terrorists, who had taken over even civilized resort areas of the country. Musharraf
acted to preserve his control of the country.
During his speech declaring martial law, Musharraf switched to English and made an appeal to American ears,
blaming the lawyers of being on the side of the terrorists, and citing principles of preserving the union and the
precedent of Abraham Lincolns suspension of Habeas corpus during the Civil War. Musharrafs aide later
confirmed to international lawyer Scott Horton that this message was intended for the U.S. government, to
ensure that the U.S. would continue to support him, knowing that lawyers are not well-regarded in the U.S.
Ultimately, the ploy did not work, and Musharraf stepped down. But it was a clear attempt to appeal to law
mis-stating it and mis-applying it, to be sure in the hopes of affecting Western opinion.
The concept is often mis-used by those who claim that there is too much law, and that the application of law to
military matters is a bad thing that hamstrings commanders in the field. The fact of the matter is that lawfare is
out there; it happens. It is not inherently good or bad. Guerrillas, terrorists and their backers are already using
it with some degree of success. It might be wiser for such critics to take it into account, and use it effectively
themselves, rather than wish it didnt exist.
Despite the widespread use of lawfare in asymmetrical conflicts going back at least as far as the Vietnam
Conflict, western military commanders have only recently begun to accept the grim reality that they must bring
lawyers with them to the battle.
Before they can give useful advice to commanders usually in real time, without any chance for review, and
without any do-overs military lawyers must have an understanding of how military operations work. To
prevent the killing of non-combatants in a fluid enemy compound, for example, they need to know how minute
fusing changes can affect the destruction caused by a particular bomb. The military wants to avoid killing the
wrong people, but it doesnt want the enemy to escape because of that.
Typically, lawfare is waged by those from societies without a strong rule of law, against those who do have a
strong rule of law. This takes advantage of the fact that the citizens of rule-of-law countries have a sense of
justice and fair play that can be manipulated to achieve enemy ends. Too often, their own governments and
militaries are unwilling or unable to change this.
Words have meaning, and those who wage lawfare are careful to use or release certain words.
Al Qaeda trains its people to claim torture if captured, because of the effect of such a claim on westerners.
The meaning of words can be manipulated. Terms of art such as proportionality, for example, are commonly
used improperly to make western forces appear to be acting unlawfully when in fact they were not.
Proportionality is an international law concept that simply prohibits superfluous suffering. As described
above, you dont drown a million people to take out a machine gun emplacement.
It is commonly mis-used, however, to say a military should not use more effective weapons than those used by
the enemy. How you kill an enemy fighter is not the issue, its whether youre killing far too many other people
to take him out.
It is also mis-used to say collateral damage is per se illegal. This explains the common use of human shields
and hiding military personnel and equipment among civilian women and children, and in hospitals and schools.
Collateral damage is an expected an unavoidable consequence of warfare, and avoiding it at all costs is a losing
proposition. Those who aim to minimize it, of course, are those whose societal standards open them up to
criticism when it does happen.
These uses of the word fit its colloquial meaning of the word, but dramatically distort the legal meaning, for the
purpose of making rule-of-law forces appear to be the bad guys.
You can mis-use words yourself, giving an advantage to the enemy.
Jihadist, for example, is the wrong word to use when attacking islamist terrorists. In Islam, the word
jihadist has strong connotations of goodness and proper behavior. Calling someone a jihadist confers on them
real religious legitimacy. The proper word to use would be mufsidun, which means evildoer.
In 2008, the local sheikhs and tribal leaders in Iraq began using the word mufsidun when describing
terrorism, with real results. Their people began opposing and punishing terrorist behavior, and generally began
acting like terrorism was wrong and bad. Even with the significant progress under the militarys surge
strategy, this single conceptual change was considered the biggest change on the ground in 2008. (This is one
of the few actual examples of the U.S. itself successfully using lawfare in that conflict.)
A lawfare battle will be lost by ceding the ground to the enemy, or by ignoring the other commonly-understood
principles of war, such as unity of effort and the principle of the offensive. The battlefield is real, and the stakes
are the high as any other.
If you let the enemy control the terms or the message, you are losing.
If you stay on the defensive, so youre only reacting to the enemys legal ploys or inaccurate reporting, then you
are losing.
Legal Jihad or Soft Jihad is an example of the practice of using the courts of a rule-of-law enemy to achieve
military objectives against that enemy.
Terrorists and their supporters use western courts as a battleground to attack the free flow of information,
especially information prejudicial to their interests. Typically, lawsuits are filed to silence and punish legitimate
criticism, and even objective reporting and neutral commentary. (Essentially, it is the use of western law to
subvert western legal principles such as free speech and civil rights.)
It can be extremely effective, even if the underlying claims are meritless, because publishers and corporations
want to avoid the expense and bad publicity of such cases, and individuals often cannot afford the expense of
defending such actions. So to make the cases go away, they often simply capitulate, make an apology and
retract the offending materials.
Typically, when a defendant decides to defend itself, these actions tend to be withdrawn during the discovery
phase, when the plaintiffs would be required to disclose information supporting their claims. This supports the
common belief that such actions are brought as a kind of extortion or intimidation.
Meritless though they may be, these actions have a significant chilling effect on free speech. There has been a
wave of self-censorship in the media and publishing worlds in recent years. Books, journals, even video games
are unilaterally pulled from the market to avoid litigation.
There is an even greater effect outside the U.S., in the courts of Canada, the U.K. and Europe, where they dont
have the same free-speech protections. Hate-speech laws, liberal libel laws, and even criminalization of causing
offense, make lawsuits there not only more common, but more likely to result in a win for the soft jihadists.
Even the U.N. passes resolutions banning criticism of Islam (62/145, passed in 2007 and 2008).
The courts are also used to litigate military detention. This litigation is as much a battleground for lawfare as
any other, and there are deep divisions over whether it should even be happening.
Litigation is, of course, the preferred method of dispute resolution in the U.S. But there has long been a
recognition that the courts should stay out of policy and military decisionmaking, as judges are neither beholden
to the voters for the consequences of such decisions, nor possessed of the expertise required to make such
decisions.
So, for example, in 1948 the U.S. Supreme Court held in Chicago & Southern Air Lines v. Waterman S.S. Corp.
that the courts cannot review Executive intelligence actions the courts do not (and should not) have access to
the secret information underlying such actions, and lack the expertise to know what to do with such information
even if they had it. 333 U.S. 103, 111.
The FISA court tries to address that by channeling intel surveillance matters to one court, so at least the judges
dont have to re-invent the wheel every time a wiretap application comes in.
Some further object that judges and courts can only increase civil rights, not take them away. So by allowing
the courts to review claims of wartime prisoners, they are granted rights they did not have before, and can only
get more rights as time goes on.
The U.S. government, under the G.W. Bush administration, actually took the lead in increasing this court
involvement, in an attempt to stay on the right side of public perception. All it did, however, was give another
forum to its enemies to wage lawfare against it.
Back to Contents2007-2010 Nathaniel Burney
[1]But Tito, a Croat, didnt like the Serbs. So the borders were crazy, with the Serbs scattered all over and a
hodgepodge of peoples everywhere. For a brief period after independence, the border agreement was there, but
then the ethnic cleansing began. The result was three increasingly purged states. Nobody enforced the original
plan of regulating the borders, and resulting in the Dayton accord with different borders based on the
intervening battles.
[2]Visitors to Saudi Arabia in the 1970s and 80s, for example, were repeatedly warned never to report a crime,
because you would be jailed until the culprit was caught and convicted.
This is a confidential communication, but does not
automatically create an attorney-client relationship.
2010 Nathaniel Burney
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