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154 Cards in this Set
- Front
- Back
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OVERALL: SAIDR - SUS - SIS - JIU
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SAIDR SUS SUI JIU
sources actors idr sus sov imm act of state jurisdiction of state intl human rights use of force |
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What is International Law?
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Rules and principles of general application dealing with:
1) conduct of States and International Organizations and 2) their conduct with each other 3) as well as with their relations with private persons (Rest. 3rd of Foreign Relations Law) |
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Sources of Int'l Law (generally)
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CCGJT - Conventions; Customs; General principes; Judicial decisions and Treatises
1) Int'l Conventions/Agreements (treaties etc... expressly recognized by participating countries) 2) Int'l Custom (evidenced by general practice established by law) 3) General principles of law (in civilized nations) 4) Judicial decisions and treatises (to help determine what the rule of law is) |
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Is Int'l Law really Law?
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- No real Leg., Jud., Exec. branches like traditional gov't
- No law unless a country consents (Lotus case/Positivism) or if you believe in "natural law" (order and not chaos is governing principle of the world) |
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Pacta Sunt Servanda
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Agreements shall be observed (most important principle of int'l law)
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SOURCES OF INTERNATIONAL LAW
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x
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What is the Vienna Convention?
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- Treaty that codified the law of treaty (U.S. signed but never ratified - but never rejected either)
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What is a treaty?
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SWAG (states, written, agreement, gov. int'l law)
1) Int'l agreement 2) concluded between states 3) in a written form and 4) governed by int'l law (Foreign agreement governed by NY law - not a treaty under convention. |
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When is a state (party) bound?
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State is bound (obliged to refrain from acts which would defeat the object and purpose of the agreement) when it has signed the treaty - regardless of any conditions that signature on domestic ratification.
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What is soft law?
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Int'l law-making designed to be unenforceable.
- Formal statements from orgs or meetings - Codes of conduct from NGOs or interest groups - Political agreements - and more |
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Treaty interpretation
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Treaty shall be interpreted narrowly based on text (where you find object and purpose - use dictionary) and rarely look to "travaux" or legislative history when interpreting (only look at context within other agreements of same parties around the same time)
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Invalidity of Treaties
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Treaty is void if its conclusion has been procured by threat or use of force (in violation of UN law - so peace treaty at end of defensive war NOT invalid - WWII treaties valid)
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Reservations
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Statement made by a State when signing a treaty that modifies the legal effect of part of it on the State. (The state says - "this part applies in this way to us - and this part doesn't even apply to us)
A unilateral interpretation issued after ratifying by US would operate as a reservation. |
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Rules Governing Reservations
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PISN; prohibited, incompatible, small number, narrow purpose
They are okay unless a) prohibited by treaty, b) incompatible with purpose of treaty or c) small number of countries and narrow purpose of treaty (no reservations in bilateral agreements - just have a meeting) |
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Effect of Reservations
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- A objects to B's reservation and wants to disregard them as a part to the treaty; they aren't parties vis a vis one another
- A objects to B's reservation; they are parties but that principle/article not effective between the two - A accepts B's reservation; parties and the reservation works BOTH ways (essentially A has the reservation TOO in regards to B) - A remains silent for 12 months as to B's reservation; A thereby accepted the reservation. |
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Breakdown of Treaties (breach)
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Breach = violation of a provision essential to accomplishment of the object and purpose of treaty (not something minute - big deal violation invalidates treaty; high standard)
Effect of Breach = bilateral; use it to decide if you are going to terminate the treaty. multilateral; use it to decide if you are going to suspend operation of treaty or terminate the party from the treaty or the entire treaty remedies are suspend or terminate |
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Defenses if you do breach
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IFWD; impossibility, fundamental change, withdrawal/denunciation
Principle - law favors stability in treaty arrangements (can't just get out willy nilly) 1) Impossibility: Allowed but not if you created the impossibility by your own breach 2) Fundamental change of circumstances: a) if not foreseen and b) the change is part of the "essential basis" of the consent or c) radically changes extent of what needed to be performed under treaty (ICJ said downfall of Soviet Union NOT sufficient enough change to abandon the project to build lock system between Hungary and Slovakia - applied Vienna convention as customary law; not impossibility because resulted from action of the party) 3) Withdrawal and Denunciation; only if all parties consent to withdrawal |
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Customary Law
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(Traditional view) CL results from:
1) General and consistent practice of states 2) creating a sense of legal obligation (Modern view) CL results from: 1) Whatever states saw as evidence of int'l customary law (but question their motives)/ their conduct over time should show you what their norms are too 2) General Assembly resolutions can be looked to as a good measuring stick as to what is CIL - Inaction could be evidence of customary int'l law; state A does something and no one responds, then int'l law - Cannot just withdraw consent to CIL because it is a norm and once it "exists" it is there. |
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Jus Cogens
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Norm of general international law (CIL) which is UNIVERSALLY RECOGNIZED and no derogation is permitted which can be modified only be a new norm. Serious CIL.
Examples: aggressive war, slavery, genocide, torture, apartheid - States can't opt out/object (like you can when objecting during foundation of CIL) - This is CIL to the next level I guess. |
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General Principles of Law
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Rule of international law that has been derived from general principles common to major legal systems of the world (thus accepted)
- really a gap filler; to use other states law to fill in gap of international law - little procedural law so general legal principles apply - fills in gaps of substantive law too: unjust enrichment, force majeure, can't profit from his or her wrong, duress as partial defense to war crime charges and possibly others |
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ACTORS IN INTERNATIONAL LAW
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The State
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GDERP: gov't, defined, enter relations, perm. pop.
1) Permanent population 2) Defined territory 3) Gov't 4) Capacity to enter into relations with other states - Whether a state is a state depends on how other states treat them (Constitutive view) - State is state because it meets criteria (Declaratory view) - Only way you can refuse to recognize a state that meets criteria is if they got there through threat or use of force |
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Recognition of a Gov't
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- Can refuse to recognize gov't but must treat it as on if it is in effective control.
- Obligated not to recognize or treat regime as gov't if obtained control by force |
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Effect of Non-recognition by US
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- Denied access to courts
- Can't own property as a state - Can be recognized as a state (and get into courts) but still be refused diplomatic relations. (cuba) |
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European Union (EU) - History
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History; 1951-57 - Three groups (coal, nuclear, defense), 1993 - EU established as an economic union, 1999-2003 - Amsterdam and Nice treaty to enhance authority of EU, 2004-07 - 12 members added, 2009 - Lisbon Treaty which enhanced EU powers making it look more like a state
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EU - Structure
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Commission, Council, Parliament, Court of Justice
Commission (executive) - guardian of the treaty compelling member states to enforce EU initiatives, initiates legislation, implements decisions - 1 commissioner per member state, 1 is President, represent the interests of the EU not their state - Directorate-Generals; like departments with permanent civil servant at head - a bit overpowered by US standards (they want deeper integration - more power for them) Council of European Union (legislative - senate(ish)) - 28 reps of Heads of State, one from each country, 80-90 meetings a year but separated into different counsels - Voting depends on size of country and quorum required to vote (at least half of the outstanding votes) European Council - heads of the member states European Parliament (legislative - house(ish) with more power) - Directly elected, with the council is forms the bicameral legislative authority of the EU, shares equal power with the Council, commission is accountable to parliament - parliament can veto it and force resignation. European Court of Justice (Judiciary) - Luxembourg; settle disputes submitted by states, gives advisory opinions (even for UN GA), not like federal court system. |
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EU - Basic principles of treaty
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Four freedoms: Free movement of 1) goods, 2) capital, 3) persons, and 4) right of establishment and to provide services
Subsidiarity: member states get first crack at solving problem - then to the EU. Mutual Recognition: I market something in my country, it can be marketed in yours even if it doesn't meet some rule in your country. (exceptions apply - and it is a mess of a rule; chocolate case) |
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EU - Legislative Process
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CFCSC: Commission, 1st reading, common position, 2nd reading, conciliation
1) Commission Proposal 2) First readings (parliament adopts position) then council approves their position or not 3) If not then Council writes its own (common position) and sends it back to parliament 4) Second reading by parliament, if no likey then 5) Conciliation - committee draws up compromise if can't in 6 weeks then legislation fails, or if either parliament or council doesn't agree then it fails |
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United Nations (UN) - Key Legal Principles
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1) Aggressive Force is NOT Permitted; settle disputes peacefully, refrain from threat or use of force, don't give assistance to states the UN is working against
2) Don't intervene with domestic issues |
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UN - Key organs
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General Assembly: discuss stuff and then recommend
Security Council (15 members, 5 permanent with veto power, 9 affirmatives to pass): primary resp. for maintenance of int'l peace and security, members agree to carry out decisions of the SC, each member has one vote, permanent member can veto a decision - US, UK, France, China, Russia Secretariat (with secretary general): Has 7,500 employees from 170 countries (Ban Ki-moon is leader now) Int'l Court of Justice (ICJ): discussed later Economic and Social Council: Humanitarian arm of the UN. Not tested concerning this. |
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UN - Security Counsel
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5 permanent members, US, UK, France, Russia, China and they can overrule any decision.
- Determines threat and action to be taken (compete or partial interruption of economic relations and of rail, sea, air, postal etc...) and if those are inadequate then they can do anything else by land, sea, or air and UN members obligated to help out |
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UN - Self Defense
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Art. 51 - Nothing in charter shall impair the RIGHT of individual or collective self-defense if an armed attack OCCURS against a member of the UN (not retaliation - that is illegal) - argument that the self defense must be proportional to the threat posed
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INTERNATIONAL DISPUTE RESOLUTION
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IDR Methods
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CG/McAj
1) Consultations (negotiation) 2) Good offices 3) Mediation 4) Conciliation and Commissions of Inquiry 5) Arbitration 6) Judicial Court |
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IDR: Consultation
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Chat with other States about potential problems and sidestep them. When we do something that would affect the economy of other countries.
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IDR: Good Offices
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World Trade Organization Director-General goes and sets up a meeting between parties involved in a conflict to get them to come to an agreement, gets them to meet together without them having to call it.
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IDR: Mediation
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People that actively push the parties to meet together and settle disputes. Mediator gives blunt assessment to the parties. Removes some of the passion and anger in negotiations. Helps find common ground. Offer new ideas and proposals.
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IDR: Conciliation
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Hear the parties and make his own assessment and offer a proposal to the parties. Conciliator is much more active in framing the agreement.
(different than commission of inquiry which resolves issues of fact) |
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IDR: Arbitration
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US courts easily enforce arbitration awawds.
Arbitration is: 1) Non-governmental third party decision maker 2) Consensual 3) Binding award (decision) 4) Flexible process 10 reasons better than litigation in national courts 1) neutral decision maker 2) single forum (all disputes) 3) enforceable 4) final decision 5) less formal and rigid 6) less extensive discovery 7) more confidential 8) more incentive and opportunities for settlement 9) relatively fast and inexpensive Will be an arbitration clause in contract between the two countries (parties). |
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IDR: Soler (arbitration case)
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PRican car dealership that agreed to sell Mitsubishi cars, had to sell a certain amount and couldn't, started shipping to US to sell enough, Mits didn't allow them to do this and then sued Soler to compel arbitration.
- Clause said they were held to Japan Commercial Arbitration Association for an disputes with procedure and Swiss law for substance - US supports arbitration clauses generally (enforces them) - All types of claims are arbitrable (no limit by US courts) - Problem was whether Japanese arbitrator would hear the US antitrust claim (US court said they must under the agreement) - If arbitration agreement prohibited an arbitrator deciding a US statutory claim then the courts would hear it in the US. |
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IDR: Arbitral Awards Enforcement (Foreign money judgments too)
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- Confirm award: once you get the award then you have the courts where the situs of arbitration was (Japan, US, or wherever) confirms it as valid.
- Vacate award: Losing party can ask court to vacate the award as inconsistent with its laws or policy - Enforcement: Courts where losing party is subject orders them to hand over the money - most courts will do this for you around the world. - Recognition of award: you might have to argue in court that your award is valid when losing party is trying to say otherwise |
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IDR: Back Channel/Track 2
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Secret negotiations between the parties
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IDR: New York Convention (arbitration/enforcement)
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Primary agreement concerning recognition and enforcement of int'l arbitration awards (1958) citing lots of reasons you can refuse to enforce: absence of due process, lack of notice, no opportunity to defend, award beyond scope of agreement, contrary to law of situs country, subject matter not arbitrable under national law (Mitsubishi issue)
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IDR: Parsons Case (Egyptian company and papermill)
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American Company lost arbitration from ICC. Sued in US court to invalidate the arbitration and LOST at all levels. (lesson - American company should have finished out their contract - arbitration clause enforceable in US courts)
- No public policy defense unless it violates forum states most basic notions of morality and justice (one that violates first amendment) - Court thought their argument that a witness didn't show up wasn't a problem, they needed to do more to get the witness there. |
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IDR: Uniform Foreign Money Judgments Recognition Act
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Recognizes any foreign judgment as final and conclusive and enforceable even if on appeal (recognized in 30 US states) to the extent that it grants recovery of money - just like full faith and credit of US.
- judgment not conclusive if foreign court didn't have PJ or SMJ and court was partial - if judgment attained by fraud, without notice, against PP, serious inconvenient forum and more |
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IDR: International Court of Justice (ICJ) - Basic Principles
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Judicial Organ of the UN
- Binding decisions on members of UN but not on SCOTUS (except as between the actual parties in that individual case) - All members of UN are parties and others can be brought in (only states are parties) - Use conventions, custom, general principles of law, and judicial decisions and treatises as basis of their decisions |
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IDR: ICJ Jurisdiction
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SCC - special, compromissory (agreed in treaty), and compulsory
- Special agreement (two states agree to submit dispute) - Treaty provides for mandatory jurisdiction (compromissory) - Compulsory - state has agreed that it accepts ICJ jurisdiction without special agreement What they do: - interpretation of treaty - question of int'l law - existence of fact that would be breach of int'l obligation - court makes choice as to whether or not it has jurisdiction |
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IDR: ICJ - Oil Platforms Case
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US was torching Iranian oil platforms (because they were attacking from there) - a treaty had a compromissory clause that they would go to the ICJ for disputes. Did the attacks violate the "freedom of commerce and navigation" clause of the treaty? ICJ said it WOULD affect commerce BUT ruled against Iran because "Iran couldn't have shipped oil to US at that time, even without attacks" so no jurisdiction.
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IDR: ICJ - Genocide Convention and Rwanda
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Convention has a clause sending disputes to ICJ, but Rwanda had made a reservation to this and Congo said that the reservation defeated the purpose of treaty AND that genocide is Jus Cogens norm so Rwanda's consent is not needed.
ICJ upheld the reservation. They don't enforce jus cogens apparently. |
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IDR: ICJ - The "Optional Clause" and Norwegian Loans Case
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"allows states to make declarations accepting the Court's jurisdiction as compulsory"
If you reserve out of ICJ jurisdiction that is fine but it can be used against you by another party even if they other party didn't reserve out of it. Norwegian Loans case: France and Norway arguing about how Norwegian bonds were to be paid; came before ICJ France wanted to be paid in gold and Norway said sorry France, you made a reservation that "matters essentially within national jurisdiction of France" can't be litigated at ICJ so we say since this is in Norway's national jurisdiction it can't be litigated. Norway won. |
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IDR: ICJ - Nicaragua v. USA
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Nic sued US because we were trying to overthrow their government - sued in ICJ.
- US had made declaration and revoked Nic authority to bring suit in ICJ. - Nicaragua had sent their declaration by telegram and it was lost and ICJ said it didn't have binding force because of that until they became a UN member - US tried to get out of the compulsory jurisdiction in a lot of ways but ICJ wouldn't let them, made a power grab against most powerful nation and so US disregarded their decision (SCOTUS veto) |
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IDR: ICJ - Forum Prorogatum
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When you invite another state to have ICJ settle the dispute
- State A goes to ICJ and initiates a suit, ICJ goes to state B and tells it about the procedure. If state B consents then the case goes before the ICJ. - France used it twice because the French executive didn't like the criminal prosecutors. Typically this isn't used at all. |
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SOURCES OF INT'L LAW in the U.S. LEGAL SYSTEM (37 pages)
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x
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U.S. Law - Scope of the Treaty Power
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Basically, if the constitution prohibits it you cannot make a treaty to get around it. (Reid)
Constitution: - Advice and Consent Clause; president can enter into treaties with 2/3rds senate approval - Supremacy Clause; Treaties are supreme law of the land - Missouri v. Holland, Reid v. Covert, Missouri v. Holland: Treaty to protect migratory birds with Canada, court had already held statute of such was unconstitutional because not commerce. Missouri sued because they wanted to kill birds saying you can't treaty around the 10th amd. - SCOTUS says you can in this case. Treaties not subject to same limits as legislation. - Reid v. Covert: Wives murdered their husbands on an overseas base. UK had given US military courts jurisdiction for such crimes based on executive agreement. The military court didn't give the women a jury or speedy trial. Court held that Constitution more powerful than the agreement and US citizens even if abroad still have bill of rights protection. Court initially ruled against women but then changed its mind. Cannot treaty around the bill of rights. |
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U.S. Law - Self executing treaty/Non self executing treaty
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Non-self-executing treaty will not be given effect if no necessary implementation; agreement states that it shall not be made effective domestically without enactment of implementing legislation or the Senate requires implementing legislation when giving consent to a treaty, or implementing legislating is constitutionally required.
Whether or not treaty is self-executing depends on US intent which we get from words or from signals from President. Asakura v. City of Seattle Case: Law said no non-citizens could own pawnshops, but treaty with Japan said he could. He won, law struck down. Self-executing treaty because 1) no suggestion future implementation was needed, 2) used mandatory language like shall, and 3) bilateral treaty (not a lot of parties) US v. Postal: Factors for non-self executing treaty, 1) multilateral with parties that NEVER have self-executing treaties and 2) if it were self-executing it would conflict with US laws |
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U.S. Law - RUDs (reservations, understandings, declarations)
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This is internal implementation of RUDs, not Int'l Law.
Reservation: statement by senate as part of ratification process in which senate limits the obligations of the treaty somehow (ICJ has no jurisdiction without US consent) Understanding: like a reservation as int'l law is concerned Declaration: A statement of how US plans on implementing treaty, not reservation of any kind. Common example is declaring it a non-self executing treaty so that Congress gets second chance before anything happens with the Treaty. |
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U.S. Law - Last in Time; Breard v. Avena
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If legislation and self-executing treaty conflict, the last one to go into effect will win.
Breard case: Paraguayan citizen convicted of rape and murder in US and US never contacted the Paraguayan consulate and Paraguay brought a case in the ICJ because Vienna Convention demanded defendant be told he was allowed to contact the consulate. Which rule wins? Virginia or Convention? They invoke last in time meaning that the Virginia law trumps the convention and that the Defendant had waived his claim under Vienna convention to contact consulate VIOLATION OF INT'L LAW TO SUPERSEDE TREATY LANGUAGE. Pres. Can't order state courts to follow principles of Intl Law or ICJ decisions unless he has const authority, its an act of congress, or a self executing treaty |
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U.S. Law - Does SCOTUS have to follow ICJ?
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NO - should they, maybe. But, they have the right to say what is the supreme law of our land and if that goes against the ICJ (which we are not compulsory members of) what does it matter.
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U.S. Law - Curtiss Wright (scope of executive authority in int'l sphere)
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1) foreign affairs power was vested in the national government as a whole
2) the President of the United States had "plenary" powers in the foreign affairs field that was not dependent upon congressional delegation. (established the broader principle of executive supremacy in national security and foreign affairs) Pres. issued executive order to not sell guns to Bolivia pursuant to congressional grant of authority so that US could remain neutral there. CW sold bombers to Bolivia. CW said the order was invalid. Case says: Yes, congress can give president this authority. Can forbid arms sales under these circumstances. - Court said no constitutional authority for president's action |
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U.S. Law - Steel Seizure (Youngstown); Presidential authority case
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- Truman seized steel mills; he didn't have this authority to do so unilaterally. Abuse of power.
- Three zones of Jackson: 1) President acting in concert with Congress - authority is GREATEST, 2) Zone of twilight - acting without congressional authority and relying on own powers, powers may overlap with congress 3) President in CONFLICT with Congress - Power at lowest ebb, behavior won't be sanctioned. President wanted to say he had the power to seize, but he didn't. Jackson very against this. |
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U.S. Law - Hamdan
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Hamdan tried by military tribunal, court rules that these tribunals are unconstitutional because pres. bound by constitution, UCMJ (statutory law), and Law of War (Geneva Conventions) in setting up the tribunals. UCMJ states it has to be like a court marshal l and it wasn't, so against congressional intent. LIMIT HIS POWER.
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U.S. Law - Executive Agreements
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Trumps state law when President makes an international agreement:
1) as a treaty 2) with congressional authority 3) with his own authority |
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U.S. Law - Open Agreements
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Agreements have to be OPEN, Sec. of State has to send them to congress within 60 days (oral too)
- except in interest of nat'l security, in which case pres can hold it back |
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U.S. Law - US v. Pink
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US citizens wanted to be paid for property the USSR had nationalized - as Soviet Union was going to become formally recognized, these claims had to be settled. US said okay, take the money in this USSR bank in New York to pay out all the claims. Litinov agreement accomplished this. Foreign creditors wanted the money. President won due to his power to recognize governments and the implied power to settle claims in doing so. "sole organ of federal government in the field of international relations."
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U.S. Law - Dames and Moore v. Regan
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During hostage crisis, Pres. Carter froze Iranian assets then signed an Accord (Algiers) that nullified existing claims against Iran in US courts and cost Dames and Moore a lot of money. Argued that Pres. didn't have power to make agreement with Iran, but court said he DID have the power because there is a history of Congress agreeing to these.
Presidential agreement trumps state law but not federal law. Ever. Black letter. |
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U.S. Law - National Emergencies Act
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National Emergencies Act: President can declare a national emergency that is ended if joint resolution passed or president issues proclamation that terminates it.
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U.S. Law - IEEPA (Int'l Emergency Economic Powers Act)
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President has certain authority delegated to him when an emergency has been declared in order to handle the external threat. He may respond by prohibiting economic transactions (freezing assets) and actually confiscate property (of the enemy state).
Must consult with Congress about what he's doing. Not really challengeable in court because it is a "political question", Congress has little power to stop it, they are too slow to require their approval in an emergency state - can only end it with 2/3rds vote (impossible). |
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U.S. Law - Hamdi
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- American captured by US troops in Afghanistan working for Taliban. Bush held him without normal rights as an "enemy combatant" under the AUMF (Authorization for Use of Military Force Act - authorized to use all necessary and appropriate force against those nations that planned or aided the terrorist attacks of 9/11.)
- AUMF authorizes president to detain because it is incident of war and don't want him to return to battlefield while conflict ongoing BUT state of war is not a blank check for the president when it comes to the rights of the nations citizens and need to return him when conflict is over. (Scalia says all US citizens get writ and he is a citizen so he gets it) |
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U.S. Law - Hamdan revisited (lens of emergency powers)
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Hamdan - court says that he was not given the trial he deserved under the UCMJ and Geneva Convention. We was supposed to get more than he got because he UCMJ said so. "apply principles of law and the rules of evidence generally recognized in the trial of criminal cases in the US district courts"
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U.S. Law - State Secret Privilege
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Executive will try to keep some info secret during the course of litigation by asserting this judicially created doctrine:
1) gov't must make a formal claim of privilege 2) must be invoked by head of dep't who has personally considered the matter Judge will try and figure out if the claim is valid without forcing disclosure of the info that is supposed to be protected and focus on whether there is reasonable danger that secrets will be divulged (military, security, diplomatic secrets). Court will dismiss it or grant summary judgment for defendant if the defense needed state secret info for valid defense. Really, just can't go forward with it. |
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U.S. Law - Role of Customary Int'l Law (Paquete Habana)
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Congress shall have power to define and punish offenses against the law of nations.
Paquete Habana (1900): Our navy intercepted fishing vessels sailing under Spanish flag, we auctioned their boat and the owners brought a suit under the ALIEN TORTS STATUTE. CIL? Consistent state practice followed from a sense of legal duty. - The vessel should have been exempted from seizure so long as it wasn't facilitating the conflict, but Congress CAN override CIL, any authority can (executive and judicial). |
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U.S. Law - Filartiga
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Essentially, courts upheld customary international law where it hadn't before and allowed torture taking place in another part of the world to be litigated in the US.
Paraguayan police man killed a 17 yo then moved to US, relative of the victim brought a claim in US court under Alien Torts Statute claiming violation of the law of nations by the man in torturing and killing her brother. - ATS; district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States - Torture forbidden by MANY international agreements, but none self executing in the US. |
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U.S. Law - Torture Victim Protection Act
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Passed after Filartiga. It put into US statute what was CIL before Filartiga. Can get damages for torture BUT have to exhaust remedies in the country it occurred and has a 10 year statute of limitations. It also requires defendant to act under actual or apparent authority of any foreign nation
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U.S. Law - Sosa
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- Dr. in Mexico tortured a DEA agent (American) - US had the Dr. abducted and brought to America to be tried where he was acquitted and then brought suits under the ATS and Federal Tort Claims act that his capture was illegal and in violation of the law of nations.
- FTCA waives sovereign immunity for personal injury or death caused by negligent or wrongful act or omission of US gov't employee while acting within the scope of employment - SCOTUS says FTCA not applicable to acts done in foreign country and ATS not applicable to "arbitrary detainment" claim of Sosa - Old law of nations torts; offenses against ambassadors, violations of safe conduct, and piracy BUT new torts allowed to be added under ATS, it is possible (like torture in Filartiga) but not far enough with arbitrary detention I guess. Scalia says close the door and leave it to legislature to create new actionable tort claims. |
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U.S. Law - Charming Betsy
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When fairly possible, US statute is to be construed so as NOT to conflict with int'l law or with int'l agreement of the United States. Court relies on int'l law to back up some of its decisions - still in effect today. Scalia against it. Keep US law pure.
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FOREIGN SOVEREIGN IMMUNITY AND THE ACT OF STATE DOCTRINE
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Intro, Verlinden, Altman
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FSI: Absolute Sovereign Immunity
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US approach until 1952
- Foreign sovereign and agencies of foreign sovereign absolutely immune from jurisdiction of US courts - public acts and commercial acts - Exceptions: real property (immovables) and interest in an estate of deceased person - BUT this changed starting in 1930 and courts began deferring to the advice of the executive on whether to grant sovereign immunity to particular parties in particular cases |
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FSI: Why SI?
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Because you wanted other countries to do the same for you.
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FSI: Restrictive sovereign immunity
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- State dept had authority to determine in which cases sovereigns should be immune
- 1952; officially adopted via the Tate letter the modern restrictive approach (public acts but not private acts) - Administering the approach: legal advisor in state dept would decide yes or no, foreign gov't would request it, then state dept hearing, then they would advise court of its view, if no view court would resolve issue themselves |
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FSI: Objections to sovereign immunity
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- Executive shouldn't advise courts on questions of law
- inconsistent - highly politicized decisions - lack of procedural protection (no evidence or witnesses, no appeals process) - too much uncertainty - What is private? how do we differentiate |
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FSI: Foreign sovereign Immunity Act of 1976
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1) Fed Courts receive SMJ over suits involving foreign sovereigns
2) Foreign sovereigns presumptively entitled to immunity 3) VARIOUS exceptions to sovereign immunity 4) If exception applies then courts have PJ and SMJ |
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FSI: FSIA Definitions (foreign state, agency or instrumentality)
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Foreign state: political subdivision of a foreign state or an a or i of a foreign state as defined in subsection
A or I: separate legal person (corp or otherwise), organ of a foreign state, majority owned by foreign state, neither citizen of US or created under the laws of any third country |
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FSIA Exceptions
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PEWTECT
4) Property from gift or succession 3) Expropriation 1) Waiver by foreign sovereign 5) Tortious act or omission 6) Enforcement of arbitration agreement or award 2) Commercial activity 7) Torture or extrajudicial killing |
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FSIA Extent of Liability
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Not liable for punitive damages but otherwise liable as a private party would be
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FSIA Counterclaims
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Foreign states not granted immunity for counterclaims when it brings the case initially in the US
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FSI: Verlinden
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- Basically dutch company contracted by Nigeria to supply concrete, Nigeria changed the rules of the game halfway through which screwed the dutch company who then SUED the Central Bank of Nigeria under the FSIA and FSIA was upheld as constitutional in enlarging the Federal court jurisdiction. In America because US bank ended up liable somewhat to the Dutch company
- Bank was presumptively immune because it was a foreign organ - FSIA was a substantive and jurisdictional statute, anything arising under it was able to be brought in Federal court |
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FSI: Amerada (Argentina Republic)
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- Holding: FSIA is the SOLE basis for obtaining jurisdiction over a foreign state in US courts (not ATS).
- Argentine military plane bombed oil tanker in int'l waters during war. Two liberian corps sued Argentina in Federal US court under ATS for violation of "law of nations" - tried to bypass FSIA. SCOTUS dismissed the case holding that FSIA is the SOLE basis for obtaining jurisdiction over a foreign state in US courts. - This limits the ATS now because you have to go through the FSIA to get there which means showing a nexus with the US. Which there was none. Filartiga (cop killing son in paraguay liable in US for torture probably not okay under FSIA if you have to qualify cop as an agent or instrument when doing the torture because no nexus when going through FSIA, different in private cases - don't have to go through FSIA) |
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FSI: Altman
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- Jewish art stolen by Nazi's ends up in Austria and after war Austria wouldn't give it back. Make them give grants to art museums before they'd give it back. US citizen sued Austria under FSIA
- Gets in to Court under expropriation exception; rights or property taken in violation of int'l law - Does FSIA apply retroactively (when expropriation occurred before FSIA enacted)? Usually NOT but court said "henceforth" in language made it retroactive. - Floodgates not open because other ways to keep out old cases (PJ, act of state doctrine, forum non conveniens, and others) |
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FSI: When (time wise) does an entity have to be a foreign state to trigger FSIA?
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- Must be designated a "foreign state" at time of the suit rather than the time of the injury (RR private during time of issue but owned by France at time of suit and deemed sovereign immunity at that time)
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FSI: Liability of foreign officials
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- Prior to 2010 FSIA covered foreign officials acting in official capacity; after 2010 this was no longer true - it didn't cover foreign officials.
- Samantar case |
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FSI: Waiver Exception
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- Explicit; by treaty or private contract
- Implied; in selecting US law but not when selecting foreign law, agreeing to submit to foreign jurisdiction, or egregious conduct |
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FSI: Commercial Activity Exception
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- Not immune if action based on:
a) commercial activity carried on in the US by the foreign state, b) or act performed in US in connection with commercial activity elsewhere, OR c) act that causes direct effect in the United States (but occurs elsewhere) - definition of commercial activity: substantial contact with US determined by nature of conduct not purpose |
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FSI: Saudi Arabia v. Nelson (commercial activity exception)
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- American recruited to work in SA hospital, noticed poor conditions, reported them, was beaten, tortured, taken to prison, US senator eventually got him out and he sued the Saudi's in FL. Was it a commercial activity such that it fit the exception? No, because claim was "you beat me up" which wasn't in the nature of the commercial activity. Getting beat up isn't commercial.
- Weltover test: only commercial activity when acting in the manner of a private player in the market |
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FSI: Non-commercial tort exception (Letelier and Risk) and exception to the exception (discretionary act)
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- Not immune if money damages sought against foreign state for tort occurring in the US and at the hands of someone acting within scope of his office of employment
- Letelier: Former Chilean ambassador spoke out against gov't, killed in US, family sued in USA under non-commercial tort exception. Court held that it was allowed and that FSIA is broad and that gov't didn't fit under the "discretionary function" exception to the exception (criminal act and bombing ambassador NOT discretionary) - Risk v. Halvorsen: Husband steals kids from Norway, wife comes to US and sues for custody, gets it and is required to keep them in SanFran - with help of Gov't she whisks them back to Norway. - When is official act discretionary? Not every illegal act is outside scope of the discretionary exception (like it said in Letelier), the gravity of the illegal act is key in determining what is discretionary |
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FSI: Expropriation exception
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- Not immune in case where property taken in violation of int'l law AND
1) property is in the US or 2) property owned by foreign state engaging in commercial activity in US - Notes: No cause of action, just immunity issues - careful of the triggers, FSIA doesn't overrule existing expropriation claim limits (act of state doctrine and sabbatino) |
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FSI: Arbitration Exception
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- Waives immunity for suits to enforce an arbitration agreement or confirm an award
- Subject matter must be arbitrable in US - Enforcement available if: arbitrated in US, agreement/award governed by treaty, or underlying claim subject to another FSIA exception |
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FSI: Terrorism Exception
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- Not immune in cases where money damages sought for act of torture or extrajudicial killing etc... but not if foreign state not designated as state sponsor of terrorism or even if designated if act occurred in foreign state and not arbitrated in Int'l arena or neither party national of US.
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FSI: Alejandre (terrorism exception)
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- Cuba shot down two planes without giving a warning to pilots which was international custom. Families sued Cuba in US under terrorism exception of FSIA
- Cuba didn't show, but US forbidden to enter default judgment against a foreign state by statute - Had to show: 1) Foreign state engaged in or provided material support for extrajudicial killing 2) That CUBA designated a state sponsor of terrorism 3) Act occurred outside foreign state 4) Victims must have been US nationals and 5) Need substantive CAUSE OF ACTION (Flatow Amd.) - 10 year statute of limitations |
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FSI: Broader Terrorism Policy Issues
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So - these judgments are there against Cuba and Iran, but what happens when relations are good and we try to go after $1 billion?
President would need support from Congress to negotiate a settlement to recover the awards. Congress will have to cut teh awards or pay out of taxpayer money to protect political relationships with those foreign countries. |
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FSI: Execution and Attachment - Satisfying the judgment
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- Foreign state property in US is immune from attachment EXCEPT for situations that are exceptions in FSIA (but gives foreign sovereign plenty of time to get its assets OUT of there because NO pre-judgment attachments)
a) not included in these exceptions are foreign central banks or the military - can't attach them |
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Act of State Doctrine (Underhill v. Hernandez (1897))
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- "Act of foreign states taken within their own jurisdictions shall be deemed valid."
- Doctrine is very broad; Congress could modify it if they wanted - US citizen not allowed to leave city in Bolivia by Hernandez. Eventually allowed to leave and sues Hernandez. - Every sovereign state bound to respect the independence of every other sovereign state and courts will not sit in judgment of another gov't's acts done within its own territory (US court won't give judgment of Venezuelan gov't act in Venezuala) - Underhill loses. |
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Act of State - Sabbatino
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- Court will not examine the validity of a taking of property within its own territory by a foreign sovereign gov't in the absence of a treaty or other unambiguous agreement regarding controlling legal principles - even if the complaint alleges that the taking violates CIL
- AofS doctrine not based on IL or constitution but does have underpinnings, namely in the principle of separation of powers |
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Act of State - Bernstein Exception
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Will decline to apply act of state doctrine if executive branch says so (not really an exception anymore.
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Act of State - First national city bank and Kirkpatrick
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Citibank: State Dept. wanted Bernstein exception to be good law, it is up in the air after this whether it is or not. It is at a minimum though and not conclusively adopted as good law mainly because they don't want COURTS to be beholden to the will of the executive.
Kirkpatrick: US citizen accused of bribing Nigerian gov't official to get contract. Act of State doctrine not applicable because it was a US citizen not a foreign actor. Even though it basically called out nigeria for accepting bribes - the doctrine still applied. |
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Act of State - Possible exceptions (when they can go after foreign sovereign decisions within own jurisdiction)
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1) Expropriation claims involving specific property before the court
2) Treaty provides the controlling legal principle 3) Other unambiguous agreement provides controlling legal principle 4) Counterclaim up to amt of plaintiff foreign sovereign's recovery (sovereign sues us and we can counterclaim them) 5) Commercial activity 6) probably NOT bernstein |
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JURISDICTION OF STATES
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22 pages - gotta finish tonight
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Three Jurisdictions
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1) Jurisdiction to Prescribe (prescriptive jurisdiction); authority of state to make its law applicable to persons or activities whether by legislation, executive order, courts, regulations. Exercise of prescriptive jurisdiction has to be reasonable even if it does fit into one of the categories of acceptable exercise of prescriptive jurisdiction.
2) Jurisdiction to adjudicate; authority of state to subject people to its judicial process 3) Jurisdiction to enforce; authority of state to use the resources of gov't to induce or compel compliance with its law by use of executive, police, or other nonjudicial means |
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Prescriptive Jurisdiction: Five Bases
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1) Territorial
2) Nationality 3) Passive personality 4) Protective 5) Universal |
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Prescriptive Jurisdiction: Territorial
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Subjective: If it began in US but ended elsewhere; power to adopt laws that apply to crimes committed within territory
Objective: if it ended in US but started elsewhere. objective applies where the act ENDED, but where it crossed over doesn't really matter. Power to adopt criminal laws that applies to crimes that take effect within its borders even if started out of borders. Effects doctrine: antitrust law; honda and toyota merge - that will affect US and we will have power to adjudicate it |
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Prescriptive Jurisdiction: SS Lotus
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French and Turkish ship collied in int'l waters - Turkish sailors killed - French ship sails to Turkish port and get arrested and charge them under Turkish law.
- Started in French so subjective territorial and ended in Turkish so objective territorial there; passive personality/nationality available to both countries because their citizens harmed - Don't need int'l law to be allowed to assert prescriptive jurisdiction BUT need to make sure you don't violate principle of international law in doing so. |
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Prescriptive Jurisdiction: Diamond Joe Gutnick case
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Libel came from the US but Gutnick was injured in Australia so he should be able to sue in Australia (harmed here) - Injured here; so objective territorial jurisdiction (maybe passive personality - but tricky and no reason with OB.T. jur.)
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Prescriptive Jurisdiction: Kiobel (2013)
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- Filartiga no bad law under ATS the act had to occur on US soil or have some effect on US soil. The court held that the "presumption against extraterritoriality" applies to claims under the ATS, we aren't going to adjudicate there. If our law is going to apply outside US then let Congress say that - but not the courts.
- Concurrence tries to save Filartega saying that today's torturer is like yesterday's pirate that can be brought to court anywhere (more like universal jurisdiction) |
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Prescriptive Jurisdiction: Hartford Fire Ins. v. California
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- reinsurers engaged in practice affecting US markets but not illegal under English law (only US law)
- Court holds that there is no conflict of laws and that reinsurers could have complied with both english and american laws, so REASONABLE for Sherman act to apply |
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Prescriptive Jurisdiction: ARAMCO presumption
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Congress is presumed not to have exercised prescriptive jurisdiction extraterritorially unless a contrary intent appears (the contrary intent was apparent in Hartford because Sherman act applied extraterritorially) However...
- Should have used Charming Betsy (needed to overcome it as well) in Hartford (if plausible interpretation of US law that does not conflict with IL, that interpretation is favored unless a contrary intent appears) |
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Prescriptive Jurisdiction: Hoffman
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Price fixing in violation of Sherman Act, victims and perps all over the world (including US). Uses Scalia approach to analyze:
1) Prescriptive Comity; Courts should assume that legislators account for the sovereign interests of other nations when they write laws. 2) Because vitamin manufacturers and purchasers and victim are all foreign we don't reasonably have "prescriptive jurisdiction" even with substantial effects. With US plaintiff maybe different. No US hook. |
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Prescriptive Jurisdiction: Broader Questions
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- Presumption against extraterritoriality gets its basis in "prescriptive comity" which is basis of Charming Betsy. Congress will SAY when it wants its laws to be extraterritorial.
- Int'l Law is fuzzy on the reach of prescriptive jurisdiction - TWO canons; Aramco and Charming Betsy - to focus us on extraterritoriality and not apply extraterritorial jurisdiction willy-nilly - big companies benefit because they can escape grasp of unfavorable laws by leaving country |
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Prescriptive Jurisdiction: Nationality
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State can prescribe law for activities, interests, status, or relations of its NATIONALS outside as well as within its territory.
- Natural because; place of birth, nationality of parent (blood ties), or naturalization - Corp. nationality where they were incorporated and where there is a registered office |
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Prescriptive Jurisdiction: Nationality and Emergency Regs
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- President has a lot of power to regulate extraterritorially in emergencies
- Sensor case: not enough time to figure it out, text me if you get it. |
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Prescriptive Jurisdiction: Protective Jurisdiction
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Definition: can prescribe laws with respect to people NOT our nationals if directed against security of state (or other limited state interests)
Examples: espionage, counterfeiting, falsification of official documents, conspiracy to violate immigration or customs law Romero case: Caught ship with a ton of pot on it and were allowed to prosecute them even though we got them in int'l waters because possession of narcotics threatens state interests (don't want it coming to the US) |
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Prescriptive Jurisdiction: Passive Personality Jurisdiction
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Definition: state may apply law to act committed outside territory if victim was our national (not generally accepted except for torts or crimes)
Columba-Collela Case: Sale of stolen car in Mexico, basis of jurisdiction is that the victim is US citizen (stolen from US). No jurisdiction because selling the car is divorced from theft of car. |
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Prescriptive Jurisdiction: Universal Jurisdiction
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Definition: jurisdiction to define and prescribe punishment for offenses that are universal concerns: piracy, slave trade, attacks on or hijacking of aircraft, genocide, war crimes, and perhaps terrorism
Usama Bin-laden case: US embassies bombed in Kenya and Tanzania, try the guy in US under universal jurisdiction. They said not universal but protective. |
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Jurisdiction to Enforce
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Definition: state may employ measures to induce or compel compliance or punish noncompliance with its laws or regulations - if it has jurisdiction to prescribe. Can enforce against those outside territory if: notice of charges, opportunity to be heard, if through courts
Alvarez-Machain Case: US kidnapping Mexican torturing Doctor. Ruled that there was no jurisdiction over Dr. because abduction violated treaty. (read more in outline - too tired to fix) |
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Jurisdiction to Adjudicate
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Definition: exists if person present in territory, domiciled, resident, national, organized there, consented to jurisdiction there, carries out business there, does bussiness with direct effect there and others...
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Other Bases for refusing to adjudicate:
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Comity, Forum non conveniens, Exhaustion of local remedies
Comity: deference to laws and interests of foreign country FNC: 1) adequate, alternative forum exists and 2) public and private interest favor trial in alternative forum Exhaustion of local remedies: Foreign or int'l court should not hear case if local remedies not exhausted (unless they are a sham or inadequate) |
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INTERNATIONAL HUMAN RIGHTS
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short section
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Human Rights:
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UN Charter 55 - Big human rights one.
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UN Charter 55 Categories
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LT/APP/COWS/LE
a) Preamble b) Art. 3 – life, liberty, security c) Art. 5 – torture d) Art. 9 – arbitrary arrest e) Art. 12 – privacy f) Art. 17 – property g) Art. 18 – conscience and religion h) Art. 19 – opinion and expression i) Art. 22 – social security j) Art. 23 – work k) Art. 24 – leisure l) Art. 26 – education |
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Binding Human Rights Covenants
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Int'l Covenant on Civil and Political Rights
Int'l Covenant on Economic, Social, and Cultural Rights |
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ICCPR (Int'l Covenant on Civil and Political Rights) Enforcement
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- US involved in the one where a state can complain of another state, committee looks at it and gives the "bad" state a report with its recommendations
- The other version we aren't involved in is where a citizen (private person) in the state can actually complain to the committee (after exhausting other remedies) the committee will investigate and report back to the state. |
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Customary Int'l Human Rights Law
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The restatement has a list of what is CUSTOMARY:
GSM/TAD - Genocide - Slavery (slave trade) - Murder (disappearing someone) - Torture (degrading treatment of punishment) - Arbitrary arrest (detention) - Discrimination (systematic racial) - Others that may come in... Comments: NOT COMPLETE and |
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Questions concerning Int'l Human Rights Law
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Where do we get these "unalienable rights"?
- state (the gov't) - int'l law (treaty/custom) - God - nature Essentially, there is an argument about where these "human rights" come from. God, Gov't, how cna they be fundamental if the gov't who gave them can take them away, are they takeawayable - essentially it goes back to natural law. Do we believe that some laws exist and states are bound by them WITHOUT consent? (jus cogens) Or are we on the other side saying the only rights are those created by gov't. |
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USE OF FORCE
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THE LAST SECTION
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War Powers under US Law
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Congress' War Powers: To declare war, raise and support army, provide and maintain navy
President's: Commander and Chief of army and navy War Powers Resolution: Attempting to strike balance between the Congress and President's powers regarding war. Review: - goal is collective judgment before war - president should "in every possible situation" consult with Congress - after sending in troops president should send a report to congress within 48 hours - terminate war after 60 days unless congress has extended it to 30 more days or to real war - Pres. has to get them out if Congress tells him to (unconstitutional - but could pass a law) - toothless agreement, no sanctions if Pres doesn't comply - War is not longer legal, internationally, unless it is a defensive one. |
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Boumediene v. Bush
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Analysis: Court extended the writ of habeas corpus (attack by the person in custody on the legality of that custody) to CUBA (gitmo) and noncitizens because Constitution tells you not to suspend it and you did in §2241. So, anwhere we have DEFACTO control (we had plenary control of Gitmo), not just de jure you have writ of HC. DTA is not good enough replacement for habeus corpus for the noncitzen detainees.
Dissent: You shouldn't have allowed this. Gave more rights to noncitizens in Bou than to citizens in Hamdi. SCOTUS shouldn't have power to decide something like this (a matter of war) during wartime. Taking the Marbury powers TOO far... tsk tsk tsk. |
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Use of Force: Law before WWII
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- Sovereign states had a RIGHT to go to war. Legal thing, few limits.
- State of war as legal status - carries rights and responsibilities. - belligerents; those fighting - 3rd party neutrals: those who didn't pick a side and could trade with both parties (non participants and non discrimination economically) - Coercion; not war - Alternative lawful uses of force; - Historical Doctrines: Self-defense and Caroline case, Reprisal and Naulilaa Case - Retorsion; you treat our citizens bad, we will treat yours bad. - Prohibiting War: own slide. |
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Before WWII: Alternative Lawful Uses of Force
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Alternative lawful uses of force:
- self-defense; right of national governance - reprisal; after giving party who wronged you chance to make amends you could go punish them back in proportion to what they did to you. - pacific blockade; block people from shipping things out of their country by putting navy there. - justifiable intervention; to free some missionaries - naval demonstration; show off your navy |
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Self-Defense: Caroline Case - Waterfall
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Americans shooting at Brits, Brits took our ship, set it on fire, and sent it over a waterfall
- Self-defense when of "necessity... is instant, overwhelming, and leaving no choice of means, and no moment for deliberation." Proportionality. |
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Reprisal: Naulilaa Case
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Portuguese accidents killed Germans during WWII (supposed to be neutral). Germans responded by killing a few hundred people.
- violation + demand/opportunity to redress + proportional reprisal = NOT THIS SITUATION - the "old" international justice system (take matters into your own hands) |
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Retorsion
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Getting back at a country that treated your citizens badly while they were in that country.
- we will mistreat your citizens back |
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Prohibiting War (pre-WWII)
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Kellogg-Briand Pact (1928)
- War is now illegal; the legal version of it, not necessarily those things SHORT of war - Short of war things in bigger spotlight now - eternal question; how to enforce "not enforcing" war? - Self help the only way to solve problem when war is brought to YOU |
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Use of Force: Law after WWII
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- Charter of Int'l Military Tribunal; making "agressive war" a crime (crime against peace) - but provides for enforcement through individual responsibility and punishment
- UN Charter; Main focus and goal of charter is to PRESERVE PEACE, security and justice (but justice is sometimes violent!?!). 2(4) - "all members shall refrain from threat or use of force" (main part of charter and broader than Kellogg), can't intervene with domestic issues in other states - stay away, Art. 51; "nothing shall impair the inherent right of individual or collective self defense if an armed attack occurs while waiting for security counsel to back you up." - Questions No use of force EXCEPT for Art. 51 - if there is any preemptive right under Art. 51 it would have to be very narrow. Only allowed to attack if attacked (hard rule). 2(4) and 51 don't mesh well - not clear how far you can take 51 before you violate 2(4). No art. 51 rights for threats to US citizens abroad. |
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Use of Force: Exceptions to Prohibition
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- Prohibition: 2(4) All members shall refrain from threat or use of force against the 1) territorial integrity or 2) political independence of ANY state. (but Art 51 does allow self defense).
- Protection of nationals exception - Anticipatory self-defense exception - Intervention and Counter-intervention exception |
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Protection of nationals exception
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Your countrymen are held hostage in foreign country; what can your gov't do to rescue them, if:
- imminent threat of injury to nationals - failure by state they are in to protect nationals - all you can do is what is necessary to protect nationals (this seems to be allowed - but not sure how it works under 2(4) and 51.) |
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Anticipatory self-defense exception
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Caroline/Webster
- imminent threat - proportional response Dinstein/Waldock - Convincing evidence of attack (mounted or imminent) - Interceptive, and not simply preventive (unlike webster) When can you pull the trigger? Preemptive easier if larger-scale attack coming? Or is the strict "until an attack occurs" standard the one? |
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Intervention and Counter-intervention exception
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Using your forces to fund others who are waging an aggressive war inside another state (indirect aggression)
- GA Declaration says, no go, that equals aggression. The assistance and furtherance of the war is the problem. - Nicaragua case: ICJ said only exception for 2(4) is Art. 51 (self-defense). Providing weapons and supports do NOT amount to an armed attack that triggers art. 51 self defense. - So no force, what CAN you do? Ask security counsel (unlikely), go to ICJ (unlikely), economic sanctions (help from others) |
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Use of Force: Fighting Terrorism
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- Problem: How to define it. "One person's terrorist is another person's freedom fighter."
1) Define it broadly and say - NO. 2) Identify specific acts that count as "terrorism" and prohibit those (13 conventions - today's approach) - Security Council Resolution (2001): strong stmnt defining state's ability to take actions or keep their resources from being used to support terrorism - acts against civilians with the intent to cause death and terror are not justifiable EVER - When is state held responsible: Considered act of state if acting on the instructions of, or under control of the state. Providing weapons not "effective control" or "overall control" which covers a broader set of circumstances. Harboring probably doesn't qualify. - Questions concerning terrorism: Reprisal GONE under the charter. Questions on whether or not US was allowed to go into Afghanistan with use of force while looking for terrorists. - Convention against Torture; If a state is harboring and the person found, if the state doesn't give the person up it goes to "competent authorities" |
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Use of Force for Humanitarian Intervention
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- Charter provisions: 2(7) Can't interfere within domestic jurisdiction of any state (Westphalia principle - don't mess with other's affairs)
- Problem: So when can we go to another state to help for humanitarian reasons? |
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Positions that may allow intervention:
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- Positions available:
1) Clear breach - humanitarian intervention is END of discussion and breach of charter 2) excusable breach - excuse (heat of passion killing, excuses you based on circumstances) 3) legally justified under customary law - broadest position, not only excused from killing in heat of passion but JUSTIFIED in it. Little prohibition with this view. 4) Justified but codification needed - 2 or 3 okay but they need to be embodied in charter which is difficult with China there (opposes humanitarian intervention) |
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Critique and Questions of Humanitarian Intervention
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- "slippery slope into the abyss of anarchy" if we reinterpret 2(4) to allow governments to use force to "stop what it believes to be an extreme violation of fundamental human rights"; Thomas Franck
- SOMETIMES other states condone use of force for humanitarian reasons without UN approval, but must be MAJOR - state therefore loses right to claim exclusive jurisdiction over its internal affairs when it lets them go down the crapper |
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Developing Criteria for Lawful Intervention
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1) Was there ongoing abuse?
2) Was the abuse severe? 3) Were there prior attempts at a diplomatic solution, including via the UN? 4) Was the intervention successful? 5) Did the beneficiaries support the intervention? 6) Was the intervention limited to stated purposes? 7) Did the intervenor reveal ulterior motives? |
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Use of Force: Collective Security
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- Charter provisions: If 1) threat to the peace, 2) breach of peace, and 3) acts of aggression the Security Council has collective action authority. Their authority is binding on other states (25). Can be sanctions (41). Or force (42) (no 41 prereq). 43 authorizes standing army, but there is none now.
- Problem: Sometimes the Council can't work - they are involved or object to intervention. A constant problem - one member vetoes. GA cannot take over if SC in a stalemate. GA can discuss and recommend, but that is it. Shut its mouth when SC working on something. GA can appeal to member states if SC in stalemate. - Questions regarding collective security: SC gets to take anticipatory steps of force, not member states. |
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2(4)
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2(4) - "all members shall refrain from threat or use of force" (main part of charter and broader than Kellogg), can't intervene with domestic issues in other states - stay away,
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51
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Art. 51; "nothing shall impair the inherent right of individual or collective self defense if an armed attack occurs while waiting for security counsel to back you up."
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