TransNat Outline Part Two

Actors: State Clubs and Non-State Players
Sunday, September 30, 2012 2:47 PM
Introduction to Part Two
Proliferation of Nation States: Statehood Revisited
State recognition: Taiwan

James Crawford, Creation of Sates in International Law (2006) UN General Assembly letter 11 August 2006 Universality is a core principle of the United Nations General Assembly resolution 2758 (XXVI) has not resolved the issue of the representation of the people of Taiwan Taiwan is a sovereign state and a constructive member of the international community Taiwan is a vibrant democratic society and an active international partner WTO (23 Nov. 2001) Accession of the Sperate Customs Territory of Taiwan, Penghu, Kinmen, and Matsu Protocl Taiwan Relations Act (1979) Congressional Findings and Declaration of polciy Implementation of United States policy with regard to Taiwan Application of Taiwan of laws and international agreements The American Institute in Taiwan Taiwan instrumentality Defintions Admission of Palestine as a member of UNESCO Stefan Talman, The Constitutive Theory versus Declaratory Theory of Recognition: Tertium non Datur? (2004) Constitutive Effect Declaratory Effect Confrimation of the Objective legal situation
State Succession: The Break-up of the USSR Antonio Cassese, International Law (2005) Rein Mullerson, The continuity and Successsion of States, By Reference to the Former USSR and Yugoslavia (1993) Introduciton Russia - Successor Stateto the Soviet Union or its Continuation Conclusion Agreemnts Establsihing the Commonwealth of independent States (armenia, azerbaijan, belarrus kazakhstan, russian federation, ukraine, Turkmenistatn, etc (1991) ILM Background Declaration by the Heads of State of the Repblic of Belarus, the RSFSR and Ukraine Agreement eastblaishign the commonwealth of independent States
Intergovernmental organizations
IO's are what's really different about the modern era
Part II. Evolution Page 1
IO's are what's really different about the modern era They are outside the Wesphalian system Lots of them - numerically iportnat The United Nations Does the UN matter in typical legal practice Ex: sue domestic corporation under alien torts act for violations of human rights laws How to show No treaties- corporations not bound Look to customary international law And use UN Material as ammo to show this is customary law UN Security Council sometimes freezes assets of clients
Immanuel Kant, On Perpetual Peace (1795) Here is where the original idea for the UN is usually located Can't create a super stae- in westhpalia states don't recognize super state Contra sovereignty But could have an agreement amongst nations in which they agree to forgo wars, soe disputes with peaceful means and have amechanism to enforce it The League of Nations (1919=1946) The creation of the Un Antonio Cassese, International law Note: emphasizes that Meant by founders as a political club We often look at these things as legal douments (and it is) But Primary Function: A Political world order in which the big powers unabashedly play the lead role and preseve the world order Driven by attempt to organize world in a way that prevents future war Thus security council with veto powers So see how the political reality drives this
Charter of the United Nations Purposes Make international peace and security Note: not rule of law Develop friendly relations among nations Establish platform for international cooperation Principels Settle disputes peacefully No Non-intervention - un will not interfere with domestic things Have to be a state to be admitted Organs General assembly Everyone has a seat here Powers: Often soft "it may"
Often soft "it may" Elects members of other organs Budgetary Even if sot - still a lot of power GA resolutions usually not binding Unless matter specifically binding But that's an expression of an opinion by the world community Secretariat Security Council 5 permanent Victoriolus powers form wwII Veto power 10 rotating A lot of power Resolutions are binding internaitonal law (Article 25) Determines if there's a threat to internatioanl security Then can decide on measures Can authorize use of force Eco-Soc (Economic and Social Council Internatioanl Court of Justice (ICJ) Article 103 Supremecy clause type thing Charter prevaisl against other itnernataional agreements What did US do 41 days after signign the UN Charter? Nuked Japan Reparation for the injuries suffered int eh Service of the United Nations (ICJ 1949) F: Diplomat murdered UN envoy deployed to keep peace in Israel/Palestine (Not in case) Palestine governed under mandate of league of nations Brits given mandate to run occupying government (Ottoman empire had broken down) But ran it sort of effectively Israel declared indpendnce may 14th, 1948 Immediataley war with surrounding arab countires UN got involved, sent diplomat to seek peace solution Radical isreali faction that didn't want UN involved Case was decided while Israeli's application to the UN for membership So at the time of the events, Israel not yet a member, but will be soon What is the core question: Can the UN bring a claim for reparations? A state could - established intenraitonal law that if a citizen is damaged by a different state, his nation can bring a claim under interntational law See Harry Roberts Options for what the UN is: Could just be a bunch of states sitting together- a talking club with some rules, but nothing with legal personality, nothing that is an entity in its own right
own right Yes: UN has legal personality Note: WTO agreement says the WTO is - the UN charter is silent Necessary So that they can make a legal claim like what's here Couldn't protect personel But nee to protec them because need to send them i.e. it has to be that way, therefore it is that way Has rights and obligations The organization's charters Reads almost like a state constituion And constituions usually constitute something That indicates an entity that is creaed If they can make agreemetns with states, hire peopele Objective personaltiy - it's there Even vis-a-vis non-members This fly's against the idea of consent b/c israel isn't a member yet
MR: still - court goes pretty far out here: What happens when the UN acquires legal personaltiy? Now- someoen on the world stage other than a state The state has acquired competition States no longer amongst themselves Once you recognize legal personaltiy for itnerntaional organizations- states are no longer alone on the world stage They compete No longer the Wstphalian system Court probably didn't think of this But really changes the composition fo the world legal order In what sense is the UN still different from a state? No territory No population Does it have sovereign power? Only has powers in the Charter, none others Compare sovereign states- all powers not prohibited by international law No residual power For example: if wanto claim sovereignty, can't just appeal to customary law, need text Sweden or UN could make claim Not saying reparations would be paid twice MR: this case is loosely reasoned
Note on the 'certain expenses" case If you're in the UN , and you don't lie what they're doing, you can't just say no You can use internal powers, processes to change it But not judiciable stuff- internal decisions When yoou're in it, you're in it Bound by the system
Guest Speaker: United Nations BIO Works in Legal Office Overview of UN System Very political organization 6th Committee - the legal committee 5th Committee- approves the budget 6 organs according to charter In reality, many more Secretariat Head quarters based in NY Offices away from HQ ICJ But also other tribunals and special courts Peace Keeping Forces
Role of Legal officer Office in UN secretariat Advises secretary general Functional immunity Anything UN officers do in offical functions has imunity Under convention Limited immunity For local staff, contractors Under conetion No choice of law Procurement: Can complain to UN if lose out on bidding for procurement contract But conditions to be met Very new UN Relationship with other coutnries set by treaty Convention on the Privilgeges and Immunities of the United Nations: Note: here- treaty between natiosn and an internatnaionl organization
The Purposes, Structures, and Powers of International Organizations: Comparing the UN, OECD and WTO The Organization for Economic Cooperation and Development (OECD) Convention on the Organisation for Economic Co-operation and Development (Paris December 1960) Agreement Establishign the World Trade Organization (1995) Note: internationl Standard Settign Organizations
Questions Why do we have Ios? What is their purposes( See UN Art1: OECD Preamble, Art. 1: WTO Premable, art III
Premable, art III UN: Peace OECD: increase wealth amongst wealthy countries WTO: bring down trade, facilitiate world trade Why do states and other enties join? International cooperation Cost: Not cheap- have to contribute to operating charges Give up some indpendence Have to comply with rules of club i.e. if you join th eUN, give up right to go to war at will Join the WTO: give up subsidies, customs tariffs How do IOS come into being and what is their legal stauts? Almost always come into being via treaty Treaty usually does what UN charter does More like a constitution - builds an entity Who can be a member of these Ios? Is membership defined globally, regionally, by subject matter or by a comibnidation of these (oand other?) Criteria? UN - open to all nations who will comply Somone open only regionallly, What are the Principle organxs? Is there a standard pattern? (Compare graphs provided for all three orgnaizations at the end of this chpater (See UN Art. 7; OECD arrts 7-11; WTO arts IV, VI) Usually large club + smaller executive committee( like the security council) Beauracy Secretariat (UN) Differences: some have judicail branch, some don't Note: OECD has no judicial branch
How do Ios make decisions? By (Qualified?) majority? Consensus? How do votes count? Are Ios (internally) democratic) (see UN arts. 18, 27; OECD Art 6; WTO Art IX? Often 1 nation one vote But see UN - that for GA, but relaly sec council members more powerful Some naitons weight the vote See World Bank - weighted by financial contribution What underlying facts and considerations do the voting structures and procedures reflect? Each reflects different puproses Security Council - world powers So about military and poltiical power balanced against democracy These aren't per se democratic insitutions
Non-Governmental Organizations Played only a small role in Westphalian order Proliferation lately Because of cheaper global communication networks Exist on national and international level Types of things All over political spectrum See trade advocates Human rights Increasing official recognization of NGO's Benefits
Steve Charnovitz, Non Governmental Organizatiosn and International Law (April 2006) Who NGOs are and What they do Shape international law Sometimes trigger treaty making with activism Sometimes particiapte in disputes via amicus briefs Clubs- usually chartered Must acquire legal personality in at least one country Legal status of NGOs No official international standing Based in one coutnry (or several countries) NGO personality NGOs as consultation Partners The Legitimacy of NGO Participation Do a lot of things govenremtns don't do that should be done Publicity/transparency Publish a lot of reprots and things Provide expertise Small governments often lack expertise Represent global view of things Particularly important for environemental matters Governemtns have perspective of local consitiuency Democratic processes? Second-bite at the apple for special interest If fail through the state - then some NGO can pop up supported by a small section of the population Problems with NGO's Lots of them, how to manage Legitiamcy Not democratic Biased Often overrepresent western rich countries
Note: NGO's status with UN UN certifies certain NGO's Given access to things then
World Trade ORganiation: EC- Asbestos - additioanl procedure adopted under rule 16(1) Note: The Special Case of the Red Cross
Individuals
Rights (Protections)
Rights (Protections)
Most important rights Obligatons for individuals mostly in criminal law, but some viil law Individuals become endowed wihtown rights and obligations: this is the end of the Westphalian system Westphalian system Did not direclty recognize indivduals Did not direclty sanction individuals (for the most part) But there were anti-slavery provisions But never gave them direct access Today: individuals paly a very significant role in the international system States are no longer among themselves Compete with Clubs (Ios) NGOs, and individuals Also- international economic actors- corporations James Hathaway, Rights of Refugees under Itnernational Law Precurser to human rights: Inter War Minotiries Treaties System, run by league of nations, protecting minorities that ended up in particular states After WWI: redrew boundaries of Europe In many instances, parts of populations from one countries ended up on other side of the border States recognized they wanted to porect populations against their own governments Compare Harry Roberts (foreigner in another country) Here: citizens within a country Idea that international law should protect the ctiizens agaisnt heir own govenrment is arevolution Still needed special enforcement mechanism and no direct representation for individuals So not a full fledged human rights mechanism yet
The Emergence of the Global Human Rights Framework

Need to understand the status of these thigns, not the indivdual articles Note: no sovereign immunity in this area
Universal Delcaration of Human Rights (GA Res. 217)(1948) Largely the work of Eleneor Roosevelt What is this thing in legal terms General Assembly Resoltuion (1948) No binding legal force General assembly has no itnerntaional law making power Legal status: Not a treaty Not a bindign UN Resolution Functions: Creates a text htat looks and souns like a treaty But soft Maybe influential Effects
Effects Makes it more difficult for a country to be blase about human rights violatiosn So countyr has to go in front of the GA and apologoize/ explain So it's like a personal promise- still a sort of moral obligation What sorts of rights are in here: Typical Right, liberty, slavery i.e. stuff you find in constituions/ declarations since the age of enlightenment Social welfare Housing Work Protections against unemployment Rest and leisure education Democratic rights RM: what do we think about these These are nice thigns - not going to happen One view Put in the bill of rights sort of stuff- actually enforceible But this goes well beyond western veiw Includes soic-econoic rights
International Covenant on Civil and Political Rights (in force 1976) Legal Status: Treaty (a real treaty!) But not self-executing So no internal force (in US) Binds member states vis-a-vis other states to abide by these human righs What kinds of rights does it have? First half of the UN delcaration Includes the liberal defense of western types rights Does not include the Socia Welfare This is put in a sepearte treaty So split of delcaration into two UN convetntions b/c western side really digs these politicalrights While eastern bloc much more into the social and cultural rights Not a clean split -not all west on one side and all east on the other But trend in that direction Lots of countries sign up to both But coutnries did just sign onto one, and not the other What do we do with this/ how do we enforce it? Optional Protocol to the Internaitonal Covenant on Civil and Political Rights (1976) An annex treaty to the ICCPR Creates an institution/compalint mechansims for enforcement of ICCPR Members of ICCPR don't need to submit to this sytem, but can sign on US never signs on to this About half of the people who sign onto the ICCPR sign the optional
About half of the people who sign onto the ICCPR sign the optional protocol Individuals can: Submit complaints Court decides in written procedure
Toonen v. Australia (Human Rights Committee, Comm 488/1992: 4 April 1994) Austrial signed optional protocol to the ICCPR F: Province in Australia crminilizes homosexual acts in private Rules Exhaust domestic remedies Files complaint Power of the Huma rights committee: Not making a decision in the sense of a jdugment Only giving their views An advisory opinion from an expert body Forces member state to respond Note: All written procedure This is radical Indiviaul launches compalint agaisnt own government in internaitoanl forum under internatioanl law Mechanism holds governemtns repsonible in itnernatioanl forum under internatioanl law
The European Convention on Human rights

European convetion for the Proteciton of human rights and fundamental freedoms (1950, in force 1953) Note: very different form above: Regional Convetnion Not done by the European Community, instead the Council of Europe Larger than EU - includes Russia, Turkey Enforcement: collective enforcement - a Court Every member state delegates a judge Court has power to: Indiviuals can complain - their state or another state Exhaust domestic remedies Actual internal review Results final, binding udgment that states actually do abide by Case of Smith and Grady v. The UK (Euorpean corut of human rights 1999) Violates human rights Gays in the army Privacy Asking about sex life Etc. very intrsuive Dismissal from armed forceds
Dismissal from armed forceds They've people have chosen a career in the army, not easing for them to find jobs after dismissal Court's approach Civil law tradition - very structured way Describe what's hahpepnign Article implicated Article 8: everyone has a right to privacy Except: In accordance with the law Yes Except to the extent it is necessary in a democratic soceity for national security Are we eithing this article- do we have a problem Can the government justify it's actions Legitiamte purpose? Keep armed services read Justifiable in a democratic society? They mean a liberal society, not a democratic socirety Liberal, enlightened society that calls for certain values Court is certain these are the values to enforce Puaralism, tolerant, broad mindedness So given the intensity of intrustion, UK must come up with some compelling reasons Level of review: higher than abuse of discretionultimatle; we would call it strict scrutiny Utlimatley court says they're not buyign the arguemnt Court puts gays as protected category Result: heavy invasion into sovereign perogative of the state Now integrate uk armed services This system is sort of super-constiuional-super national And it's activitst to the point that would freak out US judges So signign onto a human rights system like this subjects you to massive intrusions in state sovereignty
The Inter-American Human Rights System The African Human Rights System
Responsibilities
Internatioanl criinal law
Malcolm Shaw- Int Law losing powers leaders held responsible for wwI But these crimes weren't as bad as we saw in WWII Nerve gas and things Still conencted to war fare, not holocaust sized offensive So there wasn't that much real will to do that 1945 Abuse of state power in eruope has been massive Bad guys so clearly bad- enough world consenus to do something about it
Bad guys so clearly bad- enough world consenus to do something about it Charter of Nuremberg Tribunal Not a show trial Some acquitted Most hung US wanted to show that Law scould handle this One surviving particpatn: Thomas Maryland Legal nature of document: Treaty But deals with non-members Can you do this: can you make a treaty agreeign to do something to a 3rd party No- international law requires consent of those involved But when you win a war- victor's justice That's how the cookie crumbles when you start a war What does this thing do? Establishes a tribunal Differs from standard dmoestic criminal law? Sets up individual resposnbiliteis for crimes doen in official capacities In international law, officials acting in official capacity usualy get immunity These nazi's don't This would have been unthinkable 50 years earlier But today, this is what the internatioanl criminal court does Starting war of aggression as a crime for individuals The International Criminal Court Rome Statute of the Itnernational Criminal Court (adopted 1998, in force 2002) Modern version of the nuremberg trial What is the legal status of this: Multileateral treaty Own legal perosnality Not UN entity, indpendentas US not a party Clinton signed But Bush withdrew That's the right thing to do if you do not intend to ratify Rules Subsidiary jurisidciton/prosecution means Preference for member states themselves to prosecute the itnerntaitoanl criminals If they do, the ICC stays back If the meber states don't, ICC steps in Or if you're just faking the prosecution
Situation in the Democratic Republic Of the Congo in the Case of The Prosecutor V. Thomas Lubanga Dyilo (ICC) Conscription and Enlistiment of Children under 15 or using them to Participate Actively in Hositlities Q: why is this deicsion so long Can't handle a lot of cases like this So although while a big success to have one of these trials
So although while a big success to have one of these trials The weight of the system is enormous Money invested may be totally out of proportion to the actual effect Could put more money on the ground
Kadic v. Karadic (2d 1995) Here: Fed Corut endoreses tort liability of an individaul under itnernatioanl law Hooks here 2 federal statutes Alien Torts Act Non citizens have standing in federal court for violations of international law Individuals, non-state actors, can be liable for tort in international law Even when acting in a pivate capacity - don't need to be state actors If this is the sort of violation that sounds in internatioanl law when done by idnividuals War crimes, genocide, slavery
f: Massive human rights abuses commited, arguably tby the heads of states Tort law sutis in american district court Foreign plaintiffs/victims Events on foreign soil US has nothing to do with this case 2 statutes at place Alien Tort Claims Act 1789 Dormant for a long time Came back in 1980 District courts have jurisdiction for any alien, in tort only commited in violation of international law or a treaty of the US Question here: jurisdiciton - can the court proceed to tdiscovery, the merits Federal Torture Victim Act Threshold issue re: Jurisdiciton: (Alien torts act) Alient Torts claim act jurisdiction establisehd when An alien sues For a tort Committed in vioaltion of the law of nations D: only applies to tort Court: no- tort liability, even for individauls
Theshold issue: is Akrdzic a state actor (Torture Victims Act) Is Sprska a state? Because international law applies only to state actors
Jose Francisco Sosa v. Humberto Alvarez-Machain (Souter 2004) Summary:

Jose Francisco Sosa v. Humberto Alvarez-Machain (Souter 2004) Summary: Court affirms Alien Tort Claims Act alive But merely jurisdistical No cause of action directly in ATCA But not still born Cause of action comes from background common law Cause of actions only for hardcore vioaltions of international law Violations have to be as serious and uncontested as thigns like priacy were in 1789 So for Human Rights violations, if hardcore, that's okay But no judicial adventurism Like can't include racial discrimination So cases like Karadic are okay Alvarez-Machain has no claim here Issues: unkind court and weird posture of cliam Problem with his case: Didn't claim they crossed border and abducted Instead, claim centered on him being held without due process for a 24 hour period Couldn't locate this in international law Note- clearly a treaty between the united states was violated But didn't make that argument Follow-up from Mexican Abduction case F: Note: first time SCOTUS faces ATCA Important things about the ATCA from here: The ATCA gives you a jurisdiciton only - does not create a cause of action Note: in Kadic, Unocal, and other cases thought the ATA implied a cause of action Where the cause of action comes from: Comes from common law (federal common law) i.e. a cuase of action from outside the Alien Torts Act What are the causes of action Have to be violations of international law, not limited to 1789, but the violations have to be as clear and generally accepted as those in 1789 So we can have things like Rape Torture Genocide But can't push the boundaries, nothing seriously debatedable Court is being politically cautious- critimiscism over ATCA cases Q: is does anything change in Kadic in light of this? Causes of action: mass rape, murder, torture, summary execution, war crimes So no doubt about these In fact cited in footnote with approval Q: how much further beyond this stuff can you go? This is what we're talking about with aiding and abedding and bsiness enterprise First generation of Alien Torts Acts cases
First generation of Alien Torts Acts cases Agaisnt individuals Clear violations of international law Later: People started suing corporations
International Business Entities

Opening questions Are corporations liable for intenrational alw Can you do it beyodn actual perpetrator and hold liable for aiding and abedding Summary More murky water here Corporations acquire their own international rights See Barcelona Traction - corporations deserve some minimal protections under international law standards But still through the state - states must esposue claims
Rights
Case concernign the Barcelona Traction, Light and Power Company, limited (Belgium v. Spain (ICJ 1970) Summary Yes corpoartions have rights But only home state may espouse claims F: Company goes under because spainish governemnt doesn't authorize transfer of funds Company is candaien, but lots of beligiun shareholders Note: Canada could have sued ICJ Can Belgium sue spain Under international law, the right to diplomatic protection for coproaiton is limied to home of corporation (where incorproated, maybe wehre headquartered) Does not extend to coutnries with sharehodlers That would be lots of companies Important Corporations matter Deserve protection under internaitonal law Home governemtn can sue on their behalf But can't act indpendently, have to make their governemtn do something Treaty Between the United States of America and the Argentine Republic Concerning the Reciprocal Encouragement and Protection of Investment (1991) Corporations get a lot of rights through bilateral treaties MFN Natioanl Treatmnet Tax equality With these rights, corporation can represent itself - go to arbitration itself, etc Bilateral investment treat -this changes things from the case above Facilitate foreign investment by protecting foreign investors
Facilitate foreign investment by protecting foreign investors Rights these treaties get: Management can come in and out Get work visas Can bring in perosnell worldwide Protection against appropriation Fair compensation Due process Legal remedites National Treatment Most Favored Nation Have a remedy outside of your home country Corporation can take coutnry to binding arbitration So now, under bilateral treaties, corporations have direct rights So corporations acquire rights in internaitonl law Almost like human rights on the economic side Soceite Colas Es and others v. France (Eruopean Court of Human Rights 2002) Corporations have indiviaul, human rights So corporationsget right to due process F: French corproaiton subject to searches by own country Went beyond warrant French company wins You are legal entity, have human rights to due process
Responsibilities
Here- the emphasis not done on cirminal law, mostly on civil and tort liablity, almost all action in the US Steven R. Ratner, Corporations and Human Rights: a Theaory of Legal Responsibility (2001) Outlines reasons corporations should be held accountable under internatioanl law Soft law Try to induce corpoations to sign up to UN program asking them to keep self respsonbile, reporting requirements 50 of the largest 100 economies in the world are corporations So clearly need to deal with what they do q: is private litigation through tort law the best way to do that? Reactive liablity? Well, we may have nothing else The Un Global Compact UN Global Compact- Ten Pricniples John Doe, Individual and As administrator of the estate of his deceased child baby doe I and on behalf of all others similarly situated v. Unocal Corp (9th cir 2002) Summary Yes corporations can be liable under ATCA and inteernatioanl law Can even be liable as aiders and abbetors (b/c recognized under itnerantioanl law Is there enough issues to overturn SJ for corporation Yes, enough to go back to trial So now: the plaintiffs have a lot of alw on their side
So now: the plaintiffs have a lot of alw on their side So unocal went on to settle F: Victims of miliatry action in own coutnry seeking remedies for human rights violations Can't sue their own military Soverieng immunity, politicall impossible Can't sue in US because of sovereign immunity So maybe sue corporation in cahoots with them Bu tthey didn't violate directly Need aiding and abedding liablity Basically only potential forum is US, only potential defendant is corparotion Note: issues before supreme court Aiding and abbedding Suing corporation for these violations PP: summary jdugment 12-b 6 Court: yes- this cause of action survives Thus yes, can sue corporations for aiding and abedding This pusehs the limits of the law and the facts
John Imlet Myanmar: Resource company has to go where the resources are Have to be adventerous in terms of poltiical risks Had success entering countires earleir than competitors Foru reasons this case should be interest
Reactions Assuming everthing he said was right about nothing bad happened with the pipeline, They did know slave labor used in connection with the railroad project a few hundred miles away Was that aiding and abedding Do we want to hold companies liable for investing in coutnries with these sorts of governments
Note on challenges to the Alien Tort Statue: kiobel and ExxonMobil Note on the Chevron v. Ecuador Litigation Note: corproate liablity once again infront of supreme court 2nd circuit says no corporate repsonsiblity under human rights/ internatioanl law Q: can corpraotiosn be sued under ATCA Also quesiton if ti can be applied extraterritoriality at all See assumption of against extraterritorialtiy jurisdiciton And the ATCA doesn't' say so So SCOTUS has asked the parties to brief this question And if the court finds that the ATCA doesn't apply extraterritoriallly, it becomes defunct
extraterritoriallly, it becomes defunct Reimann thinks they'll do this They'll say it applyies extraterritoraitlly, bu tneed some link to the US Domestic something Can corporations be sued under the act? Reimann thinks this remains- lots of itnernaitoanl law now about corporations
Note: See enforcement of interntaional Human Rights flowchart on CTools
Interaction: States in the Contemporary Global Context

Monday, October 08, 2012 1:23 PM
Preliminary notes: See Ctools overview of Ch. VIII Authoriyt: The Erosion of Sovereignty and the Expansion of Jurisdicitonical claims Changes of sovereignty Now recognize some intenrtioanl law that is permanent, can't be changed Happened because sovereign coutnries delegate a lot of sovereign power to international organizations Situations where sovereignty not respected Overall: states no longer exercsiing sovereignty across the board in the Westphalian way Expansion of Jurisdictional Claims So in some areas, ahave asserted sovereignty more aggressively by saying have jurisdiction beyond their border So in some cases sovereignty beign cut back while in other ways becoming more assertive
Peremptory Norms (Jus Cogens)

Vienna Convention on th0eLaw of Treaties Article 53: treaties in Conflict with Peremptory Norm of General International Law (Jus Cogens) A treaty is void if it , at the timeof its conlcusion, int conflicts with a preremptory norm of general internataionl law Hathaway, the Rights of Refugees under International Law Jus Cogen Not a soruce of law These are made in normal way of itnerntiaonl law, treaties, custom, etc Just some norms of internatioanl law, so fudnamental that we render them nonderogable- states cannot derrogate from them i.e. can't make a treaty counter to one of these- if you do, it's void Some stuff in itnerntaionl law, that if sufficiently consolidated is removed from the agreed consent of states States then can't say they don't consent What are these norms The hardcore human rights protections Slavery Genocide Warcrimes Extra-judicial killing I..e the stuff from nuremberg and subsequent See also Kardic v. Karadic Beyond this - disputes: Racial discrimiantion Normativeist say yes, positivist say no What is the effect of Jus Cogen Not so much that it prohbits active, concious derrogation Main impact: visible in cases like Unocal In litigation, when you invoke these Ups the psycholagical ante in the ligitagion Creates pressuesure- accusign them of nuremberg type stuff Other thing it does: Takes arguemnt that this is recognized ntenrtiaonl law, there is a treaty, etc, off
Other thing it does: Takes arguemnt that this is recognized ntenrtiaonl law, there is a treaty, etc, off the table Show stoppign arguemnt on this No consitent self-practice, etc What kind of arguments are like this in a domestic litigation? Like constitutional arguments Shows you're complaining about serious stuff- breaking fundamental rules of the legal order This is a bigger gun Jus Cogens norms are like constiutional norms of international law If you recognize norms that are removed from derrogation, tha's like consitoutional law Not subject to change by will of legisaltive majority Removed from usualy political process Fundamental values of legal order Gives more weight to the proceedigns Do they do a lot of work In ATCA litigation, they do See Sosa If you compalin of Jus Cogens violatiosn, that's okay Understand Jus Cogens are about rank, not where the norms come from And think about what this does to the sovereignty of states It has limited it in a certain way Certain things removed from sovereign choice Note: just because it seems important in your legal system, doesn't mean it's jus cogens
Articles on Responsibility of States for International Wrongful Acts (international law comission 2001) Chapter III: Serious breaches of obligations under peremptory norms of general international law
The Delegation of Sovereign Powers

Waging War: The United Nations System of Collective Security

Big deal Previously - states can wage just war at will Now Give up right to wage aggressive war Exceptions Self defense Authorized by security council Attempt to prevent conflicts like WWII How is this supposed to work If something bad happens, go to security council to authorize use of force Note: major inroads on sovereign rights Used to be albe to use military force, just within certain laws of war Now: give that up- must use peaceful means, not using aggression or threat of aggression This part of sovereignty has been delegated to the security council The security council: if they determine threat to itnernational peace and authority may take ajust about any steps 40: non force sanction -embargos, etc 41: if 40 fails, authorize use of miliatry force
41: if 40 fails, authorize use of miliatry force When miliatry foce authorized- orignal idea was that member states would make forces avialable to UN comman system Really what happens, telsl member states to go out there and get 'em Exception: article 51: Self defense Inherent right of idnivaula or collective self defense if an armed attack occurs agaisnt a member of the UN Indivual or colelctive So an come to the aid of yoru ally If not authoirzed by 41 or 51 when using force, then violation of international law
David Bederman, International Law Frameworks Charter of th eUN The 2003 Invasionof Iraq Q: can the US justify iraq invasion under article 51, collective self defense No Pre-emptive strike may be allowed But requries Imminent No other means left Q: but maybe necessity (terrorism) means you can't rely on article 51 anyone q: was the action authorized by the security council? Here- resolution was political compromise to give both participants and objectors policatal coverage Q: is it legal under UN charter or in international law to intervene internally to prevent humanitarian disasters US charter doesn't say anything about it q: is that document final and conclusive - can't go outside of it/ can't do anything not provided by document, or is it more open ended (if silennt, not addressed, look elsewhere) Reimann - this si an open quesiton States have done thisk, see Kosovo and Nato Grey zone People said probably illegal, but nobody was going to stop them Time line Aug 190 Iraq invades kuwait Aug 1990 Resolution 660: SC condmens, demsnds withdrawl Nov 1990: resoltuion 678: final opporutnity, for iraq, then use all necessary means Jan 1991: First Gulf War April 1991: Resoltuion 687 Formal cease fire, conditons imposed on iraq Nov. 2002: Resoltuion 1441 (Citing 678, 687), Iraq in "material breach", "final opporutnity to comply" Security Council Remains Sezied" Mar. 2003: Second Gulf War If you're the state departmetn and you want to justify 2nd iraq war as in compliance of international law: Self Defense: Once can show self defense, no need to appeal to security coucnil Can the US justify based on 51:
Problem -no armed attack against US So wording of 51 doesn't halp you But can argue pre-emptive self-defense Article 51 is silent on this But lots of international law, some right to pre -emptive military rights But threat must be imminent and resposne necessary Must have no other recourse Note: this is what's invoked by israel all the time It's just a question of timing Franck: hard to make arguemnt striek against US emminent Too far away Can't plausibly make this arguemnt Could say: producing weaposn of mass destruction, could give that to terrorist Article 51 is too narrow, have to take out terrorist early But this is moving beyond the UN Charter, nad you're pushing But plausible arguemtns-rogue states with WMDs, willing to give to terrorist Security council authorized: US Reasing of resolutions: Material breach of regimeunder 687, as noted in 1441, authorizes unilateral action, authorization of 678 back in effect So Security council has authroized Other side: Scope of those earlier resolutions had to do with protection of Kuwait That's all used up We did that If you breach 687, 678 is only about the liberation of Kuwait If you want new authorization, gots to go get that "we remain sezied of the matter" Who is right Reimann: this sins't a clear vioaltion of itnernatioanl law, the US reading is plausible at least Problem: drafting 1441 is a disaster Should have come to a clear resoltuion and said what the deal is But that's a stupid law professor perspective- there's a lto of politics What happened on the Sec. council US and UK ready to go to war, saying going to take the motherucker out, what are you going to do about it French and Germsans said no Russians and Chinas said they'd veot eveyrthing So, decided to draft something to keep things open Something half can say authorizes, others say doesn't To give plasuible deniability to everyone So this was a compromise, probably the only thing security council could do Real problem: security council couldn't reach agreement what to do Fact that security counicl doesn't reach agreement, the world can't act This is the problem with the securiyt appartatus- all the eggs in one basket So what do you don when the Sec Council system is shut down?
So what do you don when the Sec Council system is shut down?
Frederic L. Kirgis, ASIL insights Security Council Resoution 1441 on Iraq's Final Opporutnity to comply with disarmanement Obligations (Nov. 2002) William Taft IV and Todd Buchwald, Premption, Iraq, and International Law (AJIL 2005) Thomas m. Franck, What happens now? The United Nations after Iraq (2003) The Caroline Incident and the Right to Anticipatory Self -Defense UN Report: A more secure World: Our Shared resposnbility; Reprot of the High Level Panel on Threates Challenges and Chains (2004) Reimann overview This is anarchonistic b/c of security council permanent members But unlikely to change anytime soon If added more permanent members with veto power would probably we worse Big powers wouldn't assent to getting rid of veto power Important to see how the security council stuff breaks away some sovereign power
Regulating Trade: The World Trade Organization

Sonia E. Rolland, WTO Law: an Overview What dos the WTO do? International organization Lots of organs Including Dispute Underlying agreements are multilateral and pluralateral treaties Legal personality 150 members Almost all trade volume around the world Main purpsoe Platform to negotiate and enforce trade agreements to faciliate world trade
Structure of the WTO

World Trade Organization Agreements Overview Give up a lot of rights Right to make special deals Right to regulate outflow and influx of foreign goods Right to Consensus How does this work Almost all decisions have to be unanimous Not clear it does work In order to say no, must be present at the meeting Small developing coutnries don't have the man power at geneva to be present at every meeting Agreement Establishing the WTO (1995) Article I Establishment of Organization Article II Scope of the WTO Article IX Decision-Making
Article II Scope of the WTO Article IX Decision-Making The General Agreement on Tariffs and Trade Article I General Most-Favoured-Nation Treatment Makes billateral treaties have mulitlateral effect If you give a trade favor to one country, must extend it to every other member No special deals Article III National Treatment on Internal Taxation and Regulation Treat imports the same as domestic goods once inside your country Article XI General Elimination of Quantitati ve Restrictions Article XX General Exceptions General Agreement on Trade in Services Article I Scope and Defintion Article II Most-Favoured Nation Treatment Article XIV General ExceptionsARticle XVI Market Access Article XVII National Treatment The Shrimp-Turtles Case (US-Shrimp) (AB) Appraising Section 609 Under Article XX of the GATT 1994 Article XX(g): Provisional Justification of Section 609 Exhaustible natural resources Why this case is important Small countries score a victory against US Environmental policies NGO's let to file amicus briefs Plaintiff countries not all for this Dispute resolutiona nd appellate body relied on general internatioanl law Treaty interpretation Procedural Posture First- Panel (DSU) Comes to recommendation AB Note: AB decisions adopted if no consensus not to accept So this is almost unthinkable Principle Argument of Claimants as to why the US is in violation? Article XI: General Elimiantion of Quantitative restications No restrictions other than tariffs So here- restrictions Need to show justfied through article XX Case: XX(g) applies But fails chapeau Arbitrary discrimination - treaty countries differently De Facto - treatying countries in very diffent circumstances alike Cultural divide US: likes formal equality - just treat alike But also not really treating eveyr country alike Gave some coutnries more time to implement More powerful arguments: demandign same policy and not just any equally effective policy, and not allowing shrimp trawled in complaince from non complying coutnries Need due process like stuff Reads chapeau as good faith clause Can't abuse these excpetions Riemann: US gave up more sovereignty than they thought
Riemann: US gave up more sovereignty than they thought Must coopearte See references to negotiatiosn and shits in the opinion Give up right to act unilaterally Similarities with first Alvarez-Manchein case Mexico: Extradition treaty is a platform for cooperation
Making Law: :The European Union

Overview Look at how the law making power of the EU has restricted the soveriegnty of tis members 2 hold outs in western europe Switzerland Just being swiss Norway Lots of oil money, doesn't want to share Also a couple of Bulkan states- too much unrest Largest market in the world Quasi federation with 23 different languaes Great supplier of jobs for translators Cases here are the defining cases All basically occurred under former article 117 These treaties are piled on top of each other. European Court of Justice Doesn't decide these kinds of cases, gives a binding opinion/recommendation Art. 117 of the Treaty of Rome (now article 267 TFEU) Art. 10 of the Treaty of Rome NV Algemene Transport- En Expeditie Onderneming Van Gend & Loos v. Netherlands Inland Revenue Administration (European Court of Justice 1964 Overview Direct effect itn eh member states (rank left open) Creates rights (And obligations) of ctizens Issue: does the treaty have direct effect in the Netherlands And if it does, can indivduals make a direct claim under the treaty against its own state? Summary: Text: looks non-self executing But Court: direct effect does not turn on domestic constituional order Reimann: this is deviation from usual rule: Court: by joining European Community given up that right, this court interpets the treaty And here: this treaty has direct effect b/c new international legal order, not usualy type treaty Aricle 12 gives individual rights b/c ECJ doesn't trust states to enforce agaisnt each other, wants indivuals/commercial actors to be polciing this Reimann: integral part of estalbished legal order of member states Reimann: why didn't people freak out about this? Flew out of the radar screen - was a small little organization type thing at this point But before too long, turned the treaty into something quite different
But before too long, turned the treaty into something quite different By 1980, the deal was done, too far to go backwards European Econioomic Community EEC Art. 12: Member states shall referain from introducing between themselves any new customs dusties on imports or exports or any charges having equivalent effect and from increasing those which they already apply in their trade with each other Netherlands institutes tariff against some belgium products Netherland: No Jurisdiction for the court here 117: has jurisdiction for interpretation of treaty But this isn't a question of interpreation, it's a question of whether the treaty obligation is part of dutch domestic law that can be enforced by dutch court And does it give individuals a cause of action Reimann: where have we seen this before: Is this self-executing or not/ i.e. does it have direct effect/ does it penetrate domestic legal order Usually look to the constituional order of the countries Court: we have jurisdiction Does this article 12 have direct effect? Issues Talks only about member states, not individuals Says states "shall" Marshall wouldn't find this self-executing Court finds direct effect b/c it's aboslute "shall" And gives indivudals a direct right to invoke Reimann: why does the court want individuals to have standing Flaminio Costa v. ENEL (European Court of Justice 1964) Overview Supremeacy over national law Trums even subsequent national law Even as a matter of domestic law (EC law is an integrated part of the domestic legal order) This means that natioanl legisaltors are unable to deviate foerm EU law- locked in forever Issue: Can Italy disregard treaty obligations with subsequent domestic legislation? EU Treaties can't be superceded by domestic legislation Compare US: treaties have same level as doemstic legisaltion, so last in time rule applies For EU law: Would defeat purpose of community law if states could legilsate out of it Community would erode- states could have subsequent legisaltion and So EU law is higher than domestic law Constituionalizing EU law
Amministrazione Delle Finanze Dello Stato v. Simmenthal (European Court of Justice 1978) Overview:
Issue: who makes the decision that a domestic law conflicts with EU law? Must Italy get subsequent law off books? i.e. must go to Italian legal instiutions to get rid of conflicitn glaw (constiuional court or legislature) Court: automatic- ultimately enforced by everybody- every judge in EU has to give EU
law direct, supreme effect with indivual rights Must not get formally reviewed in domestic instituions Oveveiw of thsese cases Almost no textual support for this supremeacy Recent treaty wrote it in, but nothing in the original treaty Based on the structure of the EC/EU Eric Stein: wrote about constiutionalization of EU law- peple hadn't realized it(1978) Step from international alw to suprernational law Law above the states- more than just cooridnation Supremacy that states can't do anything about Open Quesitons: after Simmenthal Are positive oblgifations (of member states) direclty enforceable (by private indiviuals)? Does EC law have direct effect between private parties (horizontal effect)? Effect of EC law outside of Treaties (regulaitons, directives)? Compare US US Cosntiounal law Federal law And treaties State law European Union European Union alaw Natioanl Cosntional law (maybe same as Euroepan Union law, but maybe below) Natioanl Law (Federal/state)
The Evolution of the European Regime of Civil Jurisdiction and Judgment Recognition
Brussels Convention on Jurisdiction and the Enforcement of Judgment in Civil and Commercial Matters (1968) Why here: example Free Judgment recognition A treaty Rules for jurisdiciton and jugdgment enforcement Basically ensure full faith and credit for civil and commerical judgments thorugh Europe Council Regulation (EC) No 44/2001 of 22 December 2000 on Jurisdiction and the Recognition and Enforcement of Jdugments in Civil and Commercial Matters EU - turnign treaty regime int o bidnign rgeuglations So now has direct effect in member states End of horizontal cooperation, now top down direction from Brussells What's happening: movement from horiztonal coooperation to top-down direction US equivelaent would be like a model act for state legislation that goes on to be turned into a federal statute with supremeacy
Eric Stein: Delegation of Sovereign Powers and Democratic Legitimacy: Fundamental problem: bound by deicsions made by international organizations Filled with unelected buearucrats Democracy problem: Unelected Nobody's voted for them Who do they answer to? The people who sent them?
Who do they answer to? The people who sent them? So there is a chain of legimitacy, but it is long, not very transparent, hidden by public view Not subject to democractic or constiutional control Further away instiutions are are harder to control Lack of transparency
Limitations of Sovereign Immunity

Three kinds States: Foreign sovereigns (States etc Internaional level: Germany v. Italy Domestic level: Fisa e.g. Weltover Acts: Certain acts of foreign governemnt Domestic Level: act of State Doctrine Persons: Immunity of certain persons cahrged w// Governemtn Functiosn Interntaionl leel: e.g. Belguim Arrest Warrant Domstic Level: Pinochet
Foreign Sovereign Immunity

Issue: when one state allows Germany v. Italy F: Italy allowed some citizens to sue Germany for atroscities commited by Nazi Regime Germany: Sovereign Immunity From where: Customary International Law Consistent state practice Sufficently long period of time Italy: agrees there is this rule of sovereign immunity as establisehd customary interntiaonl law Question here: is there a jus cogens exception to this for atrocities (crimes against humanity) -today these are called Jus Cogens Violations Was it consistent state practice for a sufficeintly long period of time Reimann: to win this argument Italy must show it is consistent state practice not to allow sovereign immunity when Jus Cogens invovled When this case was brought, no consistent state practice Court here: No exception to sovereign Immunity Reimann: should there be an exception fro Jus Cogens Violations argument not to: Open the flood gate to the kinds of litigation sovereign immunity wants to prevent But difficult to miantain in situaitons where governemtn admits to violations and admits to Jus Cogens vioaltions argument to allow exception: Jus Cogens is non waivable - no derrivation is viable So given their rank, maybe See Princz case (n note Dissenting opinion Internaitoanl law is now ranked, and Jus Cogens is th ehighest A state invoking internatioanl law on its side (sovereign immunity) for vioation of itnerntaionl law that is supposed to be higher Implicit waiver of sovereignty to commit violations of Jus Cogens Part II. Evolution Page 28
Implicit waiver of sovereignty to commit violations of Jus Cogens become a criminal, not awarded normal rights in civil society But we don't' do this domestically - still get procedrual rights
Republic of Argentina v. Weltover (Sovereign Immunity of States:bonds, place of performance NY) Sovereign immunity in US almost exclusively turns on FSIA FSIA: Foreign Soverieng Immunities Act Tries to judicialize a formerly political game Statute- poorly drafted Gate keeping issue: what is a foreign state 1604: foreign state State itself Agencies or insturmentaliteis sperate legal persons Organs Political subdivisoin Private entity majority owned by state, organ or political subdivision Issue with socialist companies See what happens if suing chinese owned company Better have an exception Fundamental rule 1604: subject to existing internatioanl agreements, a foreign state shall be immune from jurisdiction fo the federal courts and the states unless exception: Exceptions 1604: treaty 1605: Waiver Probably want to put waiver in contracts Commercial activity Most litigated exception This is cusotmary internaitonal law: no sovereign immunity for commercial activity Property taken in violation of international law Succession rights and real proeprty in the US Tort (in the US) With excpetions to discretionary acts Arbitration If arbitration clause - that's probably enforceable Terrorist states (Designated No soverieng immunity to designated terroirst states Special maritime rules 1607: coutnerclaims Once start suing someone, open yourself to coutner cliams Note: no genreal exceptions for violation of fundamental rights Issues: Commercial activity? Direct effect? Commercial activity: Argentina: we're regulating currency, not commercial activity PlaintiffS: raising capital, issuign tyrpcial commerical debt Court: look at nature of acts, not purpose: Garden variety debt
Garden variety debt Any time acting like a commercial actor, waiving sovereign immunity Test: commercial acvitity if a private party could do the same thing Here: private parties could do this Note: this expands this Private parties can buy things (procurement) But maybe not fighter jets Reimann: if other rule: if risk of sovereign immunity when raising capital - that would increase cost of raising capital for thse organs effects in US Must be more than deminimis, but needn't be substantial Here: place of performance was New York- should have paid into NY bank account Note: effect in US, not effect on US (or people) Yes, default in US Reimann: should this be enough? Doesn't this put offending party at the mercy of the plaintiff?
The Act of State Doctrine

Banco Nacional De Cuba v. Sabbatino (Harlan 1964) Restatement of th eForeign Relations Law of the United States 3d Section 443 Act of State Doctrine: Law of the United STates
The Expansion of Jurisdiciton

New grouds for Jurisidiction 2 traditional basis Territorialism Nationalism Modern Effects Doctrine Protective Principle Restatmetn of the Law Third Foreign Relations Law of th eUS 402: Bases of Jurisdiction to Prescribe The Effects Doctrine US v. Alumininum Co of America (1945) (US . Alcoa) Can take Jurisdiction (contrary Holmes in American Bana) if the acts or the ffects take place in US F: Foreign D's acting abroad But acts have effects on american Market Now recognized that the terrirotirality of effects on the receiving end are a proper base for jurisidciton Issue: doesn't deal with issue Problem isn't that you're allowed to do it, problem is if you want to do this as a matter of federal legislation Learned hand side steps this Effects must be Substantial Intended real 15 US Code 6a: Conduct involving Trade or Commerce with Foreign Nations German Antitrust Statutre Eropean Regualiton unfair competion
The Protective Pricniple (see terrorism) US v. Yousef (2d 2003) F: Foreign natioanls abroad Plan to blow up Amerian Planes Court: acts directed against security and soveriegnty of the US Because aimed at foreign policy, goes to core of governemtn policy Controversey: How far to do you push it
The Passive Personality Principle (victim based jurisdiction) Can evoke jurisdiction b/c victims were yoru nationals More debated than Protective Principle and effects test (ditto for universality) Attorney General and the Government of Israel v. Adolf Eichman (Int'l Law Reports 1962) Issue: jurisdiction over German Naitoanl, dong nothing in Israel, no effects in Israel, protective pricniple doesn't work b/c israel doesn't exist How to justify Invokes Lotus Principle: Strong notions of sovereignty in Israel Link between state of israel and victims of the holocaous Reimann: but these weren't Isaeli citizens, no Israel at the time State claims Ethnic/religious connections Special relationship between Israel and the Jewish People Historical link between Holocaust and the state of Israel Israel is a Jewish state Who else is going to do it- we've got him, we're in the best position
US v. Yunis (DDC 1988) F: Jordanian Airliner hijacked abroad A few american passengers Is it good enough that there are some US Ctiizens as victims? Passiverpersonal pricniple- developed for hostage takings Reimann: what if it wasn't an airplane hijacking, more of a traditional crime. i.e. bank robbery, gunman kills 2 American tourists Issue: don't want to surprise people for violating things They didn't know were laws governing them Issue: what if not a borderline case, def a crime, Passive Persoanltiy is a risky source of Jurisdiciton If you take the rule to ts limit- then you can end up with lots liability in foreign coutnries Everyoen would walk around with risk of being subject to foreign jurisdiction Limits Heinous crime Internationally recognized Problem: line drawing problem
The Universality Principle

Certain crimes so universallyrecognized, (vioaltions of Jus Cogens Human Rights norms) that whoever captures them can go and proceed on them World wide open season Note: line drawing problem
Note: line drawing problem Problem: what if you don't already have them, can you get an arrest warrant on this gorund, try to catch them on this groun Probably not Then motivation for states to go on world wide hunts for people for commiting crimes Attorney General and the Government of Israel v. Adolf Eichmann (1962) 3rd Restatmetn of Foreign Relations Law404: Universal Jurisdcition to Define and Punish Certain Offenses US v. Yunis (1988) German Code of Crimes Agianst Itnernaitonal Law (2002) Addendum: Erga Omnes (universal) Obligations Comes from Barcelona Traction case Some norms of itnernational laws between parties If you want to invoke them you have to be in that special realtionship if you want to have standing Q: are the norms of itnernaitonal law that relate to all states- give all states standing i.e. they didn't do it to me, they did it to the world at large Example: US boycotting /sanctioning because of pipeline throug afghanistan based on soviet invasion of afghanistan - US said - this is Erga Ommnes Reimann: little analytical power, just out there as an assertion Universal Jurisdction strikes Reimann as the only place this works Because for these sorts of things, we give rules Erga Omnes effect Erga Omnes and Jus Cogens Jus Cogens- about rank of the law and making no derrogable In this sense constiutionalized Erga Omnes- about the ffects of norms, who can complain about their vioaltiosn, who has standing Note: Kadacic case Kadacic not in US prison No US victims Nothing directed against security of US What are we left with: Universal Jurisdiction Problem: recognized in criminal proceedings, but not clear can base a tort law suit on it Almost always see these applied in criminal setting, very little Butlwiggle room - lotus princple background for both criminal and civil
Could argue need to do it because no forum elsewehre
Problem: 7 basis for jurisdiciton Lotus prinicple- do what you want But now also 6 positive, affirmative pricnples Traditonal terrorital Traditonal natioanlity Effects Passive personality Protecive prersonalitky Universality Lots of options to exercise jurisdiciton Problems: Could have lots of coutnries, asserting different basis for jurisdiciotn over the same incident Parralel proceedign Judgment recognition problems
Judgment recognition problems
Comity Limitations on the Exercise of Jurisdiction These cases all deal with problem above Deal with Comity (and other things) Remember- used comity to recognized jduments from the courts of other coutnries Here: - use comity as deference- we could take jurisdiciton, but maybe we shouldn't Q: when and why should we defere? Timberlane v. Bank of America (9th Cir 1976)(we now know the anittrust laws can be applied to acts abroad (contra American Banana by way of ALCOA), american players (P and D), effects on US maniarket, forseeable, manifest F: antitrust allegations Whether Sherman Act applies extraterritorially to acts happening in Honduras Holmes (American Banana): nope - no acts abroad covered Hand (ALCOA): use the effects doctrine- but need to draw line Where are the lines Lower court: direct and substantial 9th circuti- not good enough Three part test for applyign Sherman act extraterritorially Does the alleged restraint affect, or was it intended to affect, foreign commerce of th eUS Ois it of type an dmagnitude as to be cognizable as avioaltion fo the Sherman Act As matter of international Comity and fairness, hsoudl the extraterritoiral jurisdiciton of the US be asserted to cover it Factors: totality of circumsanstacnes (pg 582 Degree fo conflict with foreign law Natioaltiy or allegience of th eparties Locaitons or pricnpel places of business Signficance of effects in the US Forseeability of such effect Relative importance Reimann: these go in all sorts of different directions
Restatement on Foreign Relations: 403 Limitations on Jurisdiction to Prescribe (codifies Timberlane) Lots of factor above Bad thing Inderminacy high b/c these factors can go in all directions Issue: different jduges looking at same rule and same facts could come up with different resoltuions It's a rule of reason/ mulitfactor test Look at everything then decide whether or not to take up the case Hartford Fire Insurance Co. V. California (1993) f: Question: whetehr "There is in fact a true conflict between domestic and foreign law As long as can comply with both our and theres, no conflict, dispaate punsihemnts doesn't count Only if theres a true conflict, no balancing No multifacctor test, no balancing, no comity
Only if theres a true conflict, no balancing No multifacctor test, no balancing, no comity Reimann: would be a rare case where you msut do something under foreign law that violates our law Given rights from one country isn't supposed to give you rights elsewhere Scalia's concurrence/dissent Scalia wouldn't apply antitrust extraterritroriality but too late for that Wants to keep timberlane alive Charming Betsy rule- don't construe federal statue that violates international law unless you have to Here- violation of internaitoanl law Reimann: clealry no violation of itnernaiotnal law b/c of effects test, etc So when Scalia says charming betsy says intenraitonal law says not to apply, he's just wrong Reimann- that's a C exam This sisn't the Charming Betsy Rule at all He doesn't understand the difference between Internaitoanl law and Comity Comity: (Sides with Timberlane balancing test) - maybe majority is too harsh See also RST F P Scalia doesn't want to apply anttrust law
Ahlstrom Osakeyhtio v. Commission (Wood Pulp, Jurisidciton (European Court of Justice
F Hofflmann-LA Rouche LTD v. Empagran SA (Scotus Breyer 2004) F: Internatioanl vitamin fixing cartle Largely euopean producers of vitamin components Conduct b foreign parties done abraod But clearly effects on US vitamin market (also intended So would be there uner ALCOA, Timberlane, And Hartford Should our antitrsut laws apply to Conduct abroad By foreigners Effects in other coutnries But from tehsame acts that also caused domestic harm But are they liable for the foreign effects in US courts F CUBED Whole thing is based on comity Problem: so condcut causes effects in a lot of other coutnries Question: can US take jurisdiciton over the parts of the vioaltions effecting foreign coutnries 6a: suggest the Sherman act applies To acts that have an effect int eh US That cause a casue of action Problem: congress dind't think about effects in foreign coutnreis Does the broad langauge cover entirely foreign effects Can we get jurisdiciton Effects: not aplibcable here Passive Personaltiy: no americans harmed Protective: not directed against US State Universaltiy: antitrust not unviersal human rights norms Basically: no traditional soruces of jurisdciton Reimann: the opinion Breyer should have written Yes, language of 6A says this would cover But , Charming BetsyPart II. Evolution Page 34
But , Charming Betsy This is close to vioaltion of itnernaiotnl law- much clsoer than Scalia in Hartford Instead, court gets into Comity Busienss Not a good idea, b/c different antitrust laws Lets defer to these coutnries, they can handle their own markets Note the claimant countries: weak legal remines, hard time reigning in itnernaitonal antitrust violations That's why these coutnires came here to try and get this forced
Hartford and F Hofflman Hartfod Effects in US covered by US antirsut laws
F Hofflemn Won't cover effects in other coutnries Spriti of scalia consent in Hartford
Morrison v. National Australia Bank (Scalia 2010) F: SEC rule 10(b) Class action for securities fraud Fraud based on acts in florida, but
How far do we go, jurisidcition wise, with our securities reuglation We apply antitrust laws territoriality, so courts of appeals had sort of done the same thing with securiteis Applyies extrattoriteiarleity if acts in US, or Substantial acts, central to the action Core to the case, not just a stop over Effects in US, Fairly substantial Ripple effecs won't do it Balancing in Court of appeals, Said effects weren't substantial Scalia: Your result is right, but for much more categorical reasons Goes all the way back to holmes, embraces a STRICTLY TERRITORIAL APPROACH Federal statutes applies only to the territority over which the US has plenary juridsidcition To go beyond that, need a strong message from congress See 6a of the Sherman act, Blackmer(sp?) case - statute appleis to US citizen wherever they roam But if statute is silent, applies only to the US Here: applies to actions I Traded in US Sales conducted in the US (if not traded on SU stock exchange Does not applie to things with Effects Acts Strict territorialtity On the rise Scalia says this rule makes sense, avoid international conlfict Sends clear message to congress to give them a clear rulel Concurring opinions Say construction is too narrow But still majroity of court says connectons to US have to be pretty high What we have up to this poitn
What we have up to this poitn Expansive groudn rusles to apply our laws territoirlity Then three reactiosn Balance on comity (timberlane) Priamry look to see if they can apply both laws and if no conflict, we apply our laws Strict territoritliasm (we just don't apply our statutes abroad, see Morrison) Reiman: does this add up to a coeherent appraoch? No, it's allad hoc As best as he can piece ittogether, it looks like this: We apply terrotiraitlity if: Morrison: does this statute give any indiction to support extraterritorial jurisidcition? No?- > then statute does not apply No comity issues now Clear rules mfers Yes, clear intentioanl intents-> one of two things Hartford: apply all the time unless true conflict!!!! Conflicts? Foreing licenses not recogniszed Timberlane: we're going to balance everything and decide what to do (arguign based on Scalia's dissent in Hartford Throw it all in, mix it up and decide what to do Messy , litigation intentse, intdetermianate Why is this a hot topic? Alien Torts Claim Act Case before the supreme court May not apply extraterrorialtiy At least not to acts committed extreerortialtiy But that's all the human rights violatiosn, they all took place in some foreign jurisdiction Dodd-Frank Act Mad eclear want some extra-territorial application for F-cubed cases But for SEC, not private parties Attracting foreigners suing based on acts in other coutnries, effects in other coutnries, thigns we don't care about We shouldn't be world courts
Law: Diversification of Sources

Sunday, November 11, 2012 1:44 PM
Introduction Compare tradaitonal sources of law Tratties Customs General pricnipels Writings of most immentn publcicist Judicial opinions Now: things much less clear More itnernational law, more things in play
The New Generation of Treaties: "Platforms for internaitonal cooperation"

No longer a contract between states Now a platform for coopeartion between nations More foundational documents for subject specific orders than contracts between the parties Yes, parties agree to them But far away from extradition traety in Alvarez-Machain, or theother bilateral agreemetns Old: Easily manageable Now: Multiparty Global Very raod More like model statutes Put beforeteh world, that you can join A club that is open for membership Worldwide Multi-Party Convetions Increasing imporatnace Issues Lots of members to conventions that still ignore them Should you require compliance before joiing 2 views Aspirational documetns tryign to get everyone to join, don't ask hard questions about compliance But this might mean this isn't really law in action, no real traction Expect to see compliance before jioning See EU High threshold before you can join Genocide Convention (1948 ) History: Strong consensus to do something about genocide after WWII Pretty short docurment
What does it actually do? What obligations does it give rise to? States promise to make domestic law That will force to to prosecute anyone guilty of genocide
Declaratory: Genocide internaiton crime: But hat's not new, knew that since nurmembeug trial But note that this does have itnernaitonal force - vioaltiosn of thigns widely accepted treateis says is a vioaltion of intenatioanl law Reservations
Note on Genocide Case (applicaton of the convention on the prevention and punishiment of the crime of genocide (2007 ICJ) Servia not legally repsosnbile for commititing the genocide But violited its obligation to prevent genocidei Knowledge Dmeonstrated ability to exercise control ALSO CONTINUED FAILURE TO PROSECUTE PEPRETRATORS OF THE GENOCIDE AND TO EXTRADIDE WAR CIRMIANSL CONSTITUTED FURTHER VIOLATIOSN OF THE GENOCIDE CONVEIOSNT The complexity of Multilateral Agreements Declarations and Reservations to the Genocide Convetin Reservations: I don't want this part to apply US Does not accept article IX, subjecting to jursidciton of th eICJ withotu the specific consent of the US in each acse Reimann: a lto of coutnries do this We won't do anything the consitution forbids Reimann: why'd they'd do that? If a treaty conflicts wtit hthe consitution, the constituion wins (some case (covert(Sp?) So we want to avoid that herE: someone on the street corenr screaming "kill all jews" probalby violates the genocide convention Here- we don't want to do that, free speech here Trouble with such a reservation: It makes it unclear what the parties are agreeing to, they'd need to consult constitutional epxerts for each reserving country
Reservations Case (excerpts) Reservatiosn to the Convention on the Prevention and Punishment of the crime of gEnocide (Advisory Opinion) 1951) Can the reseving state be regarded as beign a party to the Convention while still mainating its reservation if the reservation is objected to by one or more of the parties to the Convention but not by others? Traditional sovereitny/contract theory You take or tleave the deal Here: Purpsoe of this sort of treaty is to get as many people onborad as possible So don't want to make it take it o r leave it This sort of treaty Ones trying to get as many people as possible
Ones trying to get as many people as possible Need to be more forgiving But also don't want to allow any resevatiosn Only those ccombiabile with the object and purpsoe fo the convention
Rules Can't reserve anything core e.g. definition of genocide

Other things, more forgiving Jurisdiction of ICJ
Treaty can make clear no reservations are allowed, or limit the srots of reservations See WTO, EU Where beign in is highly prized Here: genocide- need to persuade people to sign on
Vienna Convention on the Law of Treaties Arts. 1921, 23 Rules on reservations See course tools (didn't' type all Reservation Reatry rule (Art 19(a) and (B)( VCLT No Treaty rule-> Default rule: "Compatible with object and prupose of treaty"? Objectiosn (to reservations allowed in pricnple No objection (12 months silince) Accepatnace Clause reserved with reciprocal effect (Art. 21 sec. 1 VCLT) Objection reservation oly No acceptance Clause not resrved not in force between parties Objection declaring treaty not in force No acceptance and Treaty not in force betweent he aprties (Arg. Ex art 20 sec. 4(b) (VCLT Steps of treaty research Chceck for treaty/ies (on the subject matter) Treaty "in force"? Genreally (enough members?) For US ("ratified")? For other coutnry/ies invovled? Ascertain applicalbe version Resrvations? Objections ["Self-executig"?] Issues: Treaty you read may not be the actual treaty in force between two parties to a dispute Must look at their resrvations and objections Version that applies between any two states may be different form te treaty appleid to any two other states Treaty may not even be in force betwee the parties, even if they're both parties to the treaty
parties to the treaty Moral: odn't just take the treaty text, list of membership and say, "here we go!" When a treaty not in force Can't invoke it against that party Ammending multilateral treaties Problem: some maembmers want an updated member, but some don't End up with different versions of treaties See EU Some members of Eurozone, some not Some members of Shannen (sp? Aggreemtn) some not Some are members to advance jurisdicitonal rules and som eare not Vienna Convention on the Law of Treaties arts 30, 39-41 United Nations Charter Arts. 108-109 Interpreting Multlateral Convetions Abbotv. Abott (2010) Hague Convention on the Civil Aspects of intenraitonal Child abduction (convetnion) 1980 US a member Passed provisons thorught the Intenraitonal Child abduction rememdies Act Child must be immediately returend if aducted in violation of "rights of custody" unless certain exceptiosn apply Q: is a ne exeat right a right of custody Ne exeat - from chilean law (habitual residence of child) Ne exeat: authority to consent before the other parent may take the child to another country Court in interperpetign the treaty Looks to text, purpose of treaty Court deicsions of other contracting parties Because want to interpret the treaty as uniformly as possible
The Changing Face of Customary International Law Old stuff still there But overlayed by new things: Fiat by politically powerful actor followed by acquiesence by other world actors, followed by actual state practice i.e. a claim, followed, states do it See Truman Proclimantion The Modern Improtance of Custom Jose E. Alvarez, the Internationalization of US Law (2009) New Modes of Customary Itnerantional Law Making Truman Proclamation on the Continetnal Shelf 1945) Case Concerning Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. US a ICJ 1986 Have to stick to consistent state practice and opinio juris But here- court doesn't actually do it Extracts pricinple from structure of itnerntaiotnal agreemetns
Extracts pricinple from structure of itnerntaiotnal agreemetns i.e. customary internatioanl law making extracted from foudnational interntiaonl law documetns Enzo Cannizzaro and Paolo Palchetti (eds) Customary Internatioanl Law on th eUse of Froce (2005) Custom as sort of a residiual category Customary Itnernational Law in Human Rights Cases in american Courts Dolly Filartiga and Joel Filartiga v. Americo Norberto Pena-Irala (2d Cir. 1980) Activist court: Judge had clear prohbition, human rights issue Court: willing to extract custom not from what nations do, but by what they say Note: no consistent state practice, just state words At a certain point Note: contra paquette habana Flores v. Southern Peru Copper Corporaitn (@d Cir. 2003) Issues Prohbition not clearly established So dispute what experts give you, and streaties, not willing to extract custom from this Politically much more contestable So no customary law against this (intranatioanl pollution) Ian Brownlie, Pricnipels of Itnernational Law Hathaway, The rights of Refugees under International Law (2005) Custmary internatiol law (Ctools) Traditional mode Consistent state practice + Accepted as a matter of law (Paqueete Habana) Additional Modes Will/fiat + Broad acquiesence Derived from fudneamental docuemtns architechts 1 more (missed it) General Pricniples in a New World Order The Case Concerning Oil Platforms (Iran v. US ICJ 2003) General Principles still on the list of sources But have become more problematic because the circle of civilized nations not as small and uniform as it used to be Do you do 193 state research? Do you sample? Here: samples just a bunch of Western Nations Reimann: a little cheap, should probably icnlude contested states, and sample of the various major legal systems Takes more leg work than we see int his opinion Oscar Schachter, International Law in Theory and Practice (1991) The Emergence of International "Legislation"? Resolution 1273 (2001) UN SECuirty resoltuion is bindign interntiaol law (on members of the un) So UN body has power to make international law Origianl idea: with security Council Resoltuion Legilsation in reaction to security threats Temproairly limtied Spatially limtied
Temproairly limtied Spatially limtied But see here 1273: Terrorist fincial support Requires freezing terrorist assets Put on list by Security coucnil Impelmetning laws Often lacked due process No way to deal with being on the list (no appeals) Ptu on list
Broad law, all states Not temporallyt limtie i.e. takes on features of general legislation Q: is the UN security council a legitimate body for this sort of law making Permanet five Note: b/c not reviewable EU refused to implement Went to court of justice, the ICJ said didn't need to b/c of human rights conventions Then security council wnet back and reformed the system
Administrative Regulations
Overveiw: Lots of adminstative bodies producing regulations Instituions usually created through internaitoanl treaty Ctools diagram States establish (by Treaty ICAO Internatioanl Civila Aviation organszation States Conclude Convention on Intenrtiaonl Civil Aviation Issues Under Internatioanl standards and recommendatiosn practices Enforced by states British Caledonian Airways LTD v. Bond (DC Cir. 1981) F: FAA temporarrily groudns all DC-10's by suspending their certificates Problem: Chicago convention- certificates gratned by contracting state must be recognized by other cotnracting states i.e. mutual promise to recognize other contracting coutnries certificates
Court Self executing convetnion No congressional implementation required b/c has everythign you need Rule Basic standards i.e. this part runs its own course FAA requried to comply with Conventions Action must be set aside notes: b/c minimum standards with cerficitates- if above thos estandars, other coutnires have to recognzie Minimum standards from Chicago Convention (regulations in annex)
Minimum standards from Chicago Convention (regulations in annex)
Non-Binding Sources: "Soft Law"? The Restatement 3rd of Foreign Relations Law Hartford Fire Insurance Co. v. California (Scalia 1993) Scalia: here- accurate summary of itnerntiaonl law US v. Yousef (Walker 2d Cir. 2003) Not law Provide evidence of practice of States, only insofar as rest on facutal and accurate descriptions of the past practices of states, not on projections of future trends or the advocacy of the "Better rule" Reimann: reconcile Scalia is relatively harmless- shows you one good use Principle, comity, not really disptued, non-controversial, could cite lights of thigns But handy little formulaiton in restatment, might as well use it
UN General Assembly Declarations and Resolutions in the Courts Flores v. Southern Peru Copper Co. (2d 2003) Non-bidning general assembly declarations Merely advisory Other mulitnational declarations of principle Sometimes called "delcaration" byt real treaties But hthese are not Texaco v. Libyan Arab Republic (Ad Hoc Arbitration Award 1977) Arbitrator tries to figure out when to use and whennot to use non-binding delcarations Who voted for these? Unanimous? Some provisons stating genreality of states have expressed approval Has more wieght Shows unanmious opinion of the world Probably shouldn't be taken lightly Passed by majority but rjected by certain represative groups of state Contra legem for those who rject De lege ferenda value for states which have adopted them Maybe better if there are all sorts of coutnries joining (even if not all) But if a whole blcok is staying out, then less weight (see lif delvoeped coutnries all object) On the merits: Is this a pricnpel that is uniformailty reocgnized Or is this a novle thing where the general assembly articulates a gneeral rule NoteS: this is arbitration award, not as persuasive, but his system sounds good
NoteS: this is arbitration award, not as persuasive, but his system sounds good
Sources Regulating Private Litigation and Transactions Where we are on the map Early 19th Century Internatioanl law concept very braod Law of natiosn (public international law) Laws govenring actors in internatioional setting Late 19th century (hey deay of natioanlisim) Private internatioanl law absorbed by domestic legal regimes 20th century More and more private law eminates back to interntiaonl sphere Through treaties Treatification of private itnernatioanl law Becomes real internatioanl law about it again Main institituion here: Hague Conference on private interntiaonl law 1893 (founded) Create unifromaity in private international law Areas approached by Hague Conference Choice of law Recognition of judemtns A bunch of ancilary procedural matters Mutaul aid in producing docuemnts, etc Over time, lto of mulit-lateral convetions bproduced by Hague, sor tof model laws Private International Law ("Conflict of Laws") An exercise in Private International Law How to serve process: Does covention apply? Both parties members? If applies: find some way Can send process through mail (but might not be acceptable to austrians) But if convention applies, this would be doing this would be vioaltion of convention, judment won't be recognized Note: actually aconvention allows service by mail unless receiving country objects But civil law companies object b/c bleive service should go through legitimate channels So system creates cetnral authority system But austria not a party After service sued, get a certificate showing service made And if don't serve, need How to serve in France Go to central authority for process From there, theytake care of the service Officer competent to serve process? Here: lawyers Very few civil law scoutnries allow this, requrie officer of the court Problem: if convention applies and you don't follow it, might have trouble havign jdument recognized elsewhere
Hague Convetnion on the Srevice Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (1965) Volkswagenwerk AG v. Schlunk (O'Connor 1988) Issue: Americans servve VW of america as agent of VW Germany Germany claims that servign the subsidiary was outside of the covnetion, so process hasn't been served Q: does the hague convention apply here i.e. is this within the scope Here Foreign defendant but service on wholy owned subsidiary Court Must look to domestic law to find if this is a suit "is occasion to transmit a service abroad" Reimann: look at langauge, looks like there is occasion to transmit Court says: Service of process has well established meaning Only if the internal law of the orum state defiens applicable method of servign process as requring tansmittal of docuemtns aborad, then the Hague Service Convention applies Similar to Alvarez-Machnin Treaty looks to create mandaory obligation But court reads it as a triggered (by extradition), and can i.e. convention is a HOW TO DO IT THING, not a MUST DO IT Convention not a promise to sue Internatioanl reaction Not amsued Other parties to treaty
Substantive Private Law Rules

UN Convention on Contracts for the International Sale of Goods (1980) (CISG, aka Vienna Sales Convention) 80 member states But no UK or India Issue: looks like international uniform commercial code, but Not comprehensive Not everything to do with salesartic, doesn't cover Consumer transactions Certain goods Impact form ititle, modes of performacne, etc Governs only the formation of contracts and the obligations of buyer and seller Issue: appleis mor eoften than you might think Parties in different state But nationalities doesn't matter Can be same nationaliie See Asante- both delaware corps, but transsnational transaction A few deviations from American Contract rules Article 15, deviationf rom mailbox rule- offer valid when reaches offerree
Article 15, deviationf rom mailbox rule- offer valid when reaches offerree Aricle 18 Article 11- deviationf rom statute of frauds Article 12- countries can deviate from that Asante Technologies in v. PMC Sierra, in (ND CA 2001) Removed to federal court? Since both parties Delaware corps, no diversity jurisdiction, only federal jurisdiction if fedral question Federal question if CISG governs Where is the place of business for Defendant Portland, ore or Britich Columbia Article 10: what has the closes relationship to the contract Communication with BC, faxes from BC Reimann: you could make plenty of arguments everything came through Portland Note: neither party expected the CISG to apply That's bad, shouldn't happen accidently Do your homework, you can select which law to apply Article 6: parties can switch off, opt out of this law
The Contract in Question is Between Parties from Different States

The Effect of Choice of Law Clauses Here: If california law selected- CISG applies, because it's california law Same with BC law, b/c CISG applies there too Reimann: what should parties have done to get out of this, what do you say in your contract? Say : interpreted by Califonria UCC to the exclusion of other courts But note: clear here parties did not intend the CISG So Reimann thinks decision to require this is wrong But here- no meeting of the minds to have CISG apply Where CISG applies Beats UCC b/c supremacy clause Judgment of the Austrian Supreme Court (Oberster Gerichstoff 2001) Courts insist you be clear you're opting out of CISG, doubts construed against you
International Business Contracts

Langbein, Comparative Civil Procedure and the Style of Complex Contracts (1987) American / Common Law Contracts way longer Why this migh tbe so Perfectionism Federalism- greater uncertainty Code law versus case law
Dispute Resolution: Proliferation of Institutions

Sunday, November 25, 2012 8:59 PM
International Litigation Between State: the International Court of Justice Bederman, Interantiaonal Law Frameworks The World Court Organization Jurisdiction Only bound b/c of consent Consent comes in 3 forms (below) Contentious Jurisdiciton: aRt 36 Special agreement in the individual Case (Compromise) Provided in the UN charter or Treaties (Comprimissory clause) General Recognition ("compulsory" ipso facto) Mislead -also voluntary States can generally subject themselves to ICJ jurisdiction Only 1/3 of countries opted in US was once in, opted out b/c of Nicaragua So can ony get US b/c of indivdiual agreement or asporvided in UN charter or treaties notes: Only states can litigate Admissibility Provisional Measures, and Interventions Advisory /opinions Art. 96 un. Charter, art. 65-68 Tempting for General Assembly to have an advisory opinion issued for something where country refused to subject itself to courts jurisdiction Bruno Sima - was Justice on ICJ Chosen by UN Does not serve National Interest
Charter of the United Nations Chapter XIV The International Court of Justice Statute of the International Court of Justice Military and Paramiliatry Activities ina dn Against Nicaragua (Nicragua v. US) ICJ 1984 Illustrates how court deals with jurisdictions question Won't yield b/c of political question in front of security council Court is place of law, security council is a political process US: would rather have security council n charge of this Between Private Parties: Domestic Court Jurisdiction in International Cases Private parties still stuck in domestic court Jurisdiction by Consent: Cohice of Forum Agreements M/S Bremen v. Zapata Off-Shore Co Burger 1972) F:
F: What do the parties do here? Choice of Forum clause: London Picked London b/c: Premiere civil litigation court Big city, easy to get to and from Neutrality London - most experienced maritime court in the world Why is this a problem? US Plaintiff disregards contractual disagreement, sues in US District Court in Tampa Historically, forum selection clasues disfavored, didn't want to stri a court of jurisdiciton Issue: Should the US district court honor the forum selection clause and dismiss the case? Here: Forum Agreement okay Doesn't destroy courts jurisdiciton: Just a matter of whether the court exercises it or not If parties make reasoanble forum sleection, should enforce it, should say we have jurisdiciton but choose not to exercise ti i.e. just enforcing a contractual promise Reimann: rules like this everywhere now? No ICJ for private parties Lots of itnernatioanl commercial trade- don't want one party always having a home game Avoids a lot of trou le to have parties choose forum beforehand Why Germans picked London London would honor exculpatation clauses, American Courts wouldn't Remiann: americans agreed to this bc they're stupid
Swiss Federal Statute oon Private International Law (1987) Common Provisions: Choice of forum Turkish Code on Private International Law and International Civil Procedure Regulation no 44. on jurisdiction and the recogntion of jdugmetns in civil and commercial matters (EU Regulation)
Note on Hague Covneiton on Chocie of Cofrum Agreements Not in force yet, but will be Currently berfore the Senate Needs oly 3 ratificatiosn to come a live Mexico already ratified EU and US have signeed, awaiting ratification International Treaty on forum selection clauses Mostly refelctes m/s Breman
Jurisdiction by Contacts: Fairness Limitations in International Cases

Asahi Metal Industry v. Superior Court of California O'connor 1987) f:
f: Cali person sues in california That case is settled But second stage litigtaion between taiwanese tire manufcaturer and japanese valve manufacturer Not forum selection clause Does a California court have jurisdiction over these courts P: consents by bringin law suit D- depends on law of forum First case Supreme court says: International cases not exactly like domestic cases Due Process and convenience Convenience: Not just distnace Culture Hardship Foreign policy Implications Might upset foreign nationas with judgments Reimann: maybe not here with japan, super friendly But maybe with a more hostile country Quesiton: should you raise these sorts of questions in court? Probably not Unless State departmetn signs amicus brif Riemann: americna courts more likely to listen to these argumetns than UK Courts Gary b. Born, Reflecitons on Judicial Jurisdiction in Internaitonal Cases 1987 Argument against giving foreign defendants a break on the grounds of the Asahi Inconvenience a two-way street Not a question of have it or don't have it, its about who has it So when nice to wne party re: conveninece of forum, other party But note Asahi: primary party out - no home game for either of them Do have to give foreign litigants due process But should foreign litigants be treated in apreferred way Like O'Connor's Ashahi concurrence suggest No, says Born International Arbitration: Not Just for States No equivalent to ICJ for private parties Introduction: The General Framework of the New York Conventions New York Conetnion on Foreign Arbital Awards Over 140 members, including all important trading nations Note: no world wide jurisdiciton convention (no agreement) but world wide arbitration convention Arbitration clauses, properly drafted, enforce And arbital awards, enforced through state court So if you sign an arbitration clasue and NY convention kicks in , court will enforce arbitration clause i.e. go to arbitration i.e. ahrd to get out of arbitration once you agree to it Lots of coutnries more likely to recognzie arbitration agreemetn than US Court judgmetn See china
See china New York Convetion Regulates only exit points and re-entry of judicail system i.e. exit state system b/c of arbitration Abitration process Award (if any) Re-entry to enforce arbitration award Pros and cons of artibtations Pros Choices (Autonomy) Confidentiality Neutrality of forum Expertise Less acrimony Execution uder the UN-Convention Cost Speed Avoid Sovereign immunity Cons Due process risks Limited discovery No appeal No routine interim relief Lesser role of public policy Two kinds of arbitration Instituional prefabricated) "instant Ad hoc (self-made) "from scratch" Problem: ltos of choices to be made
Between States: An alterative to the ICJ Between Private PARties: What goes to arbitration Between private parties and states: dispute resoltuion between equals Bilateral Invemsntet Treaties US , Argentina Invesemtn treaty BIT- a global network- something like 3k Rights under Bilateral Invesement Treaties Have dispute with governemtn related to investmetn -> can arbitrate International Center for Settlement of Invemsent Disptues (ICSID) CMS Case Trasnmission company v. Argenitne Republic (Arbitration) CMS allegations Expropriation of ivnesment Tribunal: left CMS in control, just devaluation Is this a functional expropriation? Here: Not fair treatment (no equityable) Tribuanl: not sure Folded into Discrimination Argentina defenses Emergency clause See BIT and Tribunal: argentina doesn't get to judge it's an emergency
Tribunal: argentina doesn't get to judge it's an emergency Can take actions, but legitimacy judged by tribunal Who won? CMS awarded some damages But argentina has refused to pay So people went to State governements Now: US says will blcok aid to argentina if they don't pay their debts Notice invocataion of standard internaitonal law cases Public internaitoanl law is an important buidling block in arbitration regime BITS And Financial Cirsi Problem: companies took on obligations they coulnd't actually fulfill once the criss hits Now: disullisuionment Yes proceedign, yes award, But doesn't turn into money
Domestic Effects: Blurring Lines

Monday, December 03, 2012 8:49 AM
Intro Alvarez, Internatiolization of US Law (2009) US unleashed all sorts of itnernatiaonl law domestic effects b/c of Terrorrism and shit like that The Modern Interplay between Itnernational and Domestic Law: a Case Study Article 35: Vienna Convetnion on Consular Access Note: came largely at behest of US Problem: very hard to enforce Difficult to know somoene is a foreign national Extremely fragmented Police Force (at least in US) 15k police agencies in the US
Setting the Stage: The case of Angel Breard Breard v. Greene (Per Curiam 1998) F: ICJ issues provisional order requesting stay of execution pending it's decision Note: see Le Grande these orders are binding US also said it had done what it could do Sec of State faxed vogernor of virgnina suggesti holdign execution Dude doesn't bother Issue: Procedural Default Rule Yet still bound y Vienna Convention on Consular relations SCOTUS: Fed. Statute passed after Vienna Convention on Consular relations Last in time rule for conlficting laws at same level 1996 for federal statute with procedural default rule Article 36(2) "the rights referred to in .. Exercised in conformity with the laws and regulations of the receivign state" i.e. the how to enforce this is subject ot the state Reimann: this case isn't that easy Failed to give consular access/ advise of consular right And now we've failed to fix it b/c of procedural default Problem with this: Really denies Breard his right with finality Don't give him a later chance to make up for it "paragraph 2" regulations must enable full efffect to be given to the purposes for which the rights accorded under this article are intended SCOTUS: constituioanl right itself can be defaulted And if you can default on constituional right, can default on Vienna Consular right
We caused the procedural defualt, so you didn't know, so you didn't raise, and now you can't, so you lose
so you didn't raise, and now you can't, so you lose Usually we'd say tha the US is estopped from evokign that argument b/c its based on your own wrong ( The Second Round: The Brouthers LaGrand La Grand Case (Germany v. US ICJ 2001) F: 2 brothers - German nationals (adopted, grew up in US) 1 already executed View this in lens of European objection to the death penalty 4 questions: Did the US violate Vienna convention by not infomring of consular rights Yes Did they violate the individual right of the arresstees (or is this a right of the State)? Court: this is an individual right "if he so request" Did they violate a human right? Germany wanted a political statement Also, litigation streategy because it's a claim yu can lose (overclaim) so the other side can win a little bit, they won't feel so bad Court: not going there, doesn't reach this question Provisional Measures (from ICJ; i.e. ICJ order): binding ? Court: yes bidning and US failed ICJ: this was pretty lame If you really wantedto stop the execution you had the federal means :SCOTUS Reimann: strong federalism makes this hard But can't sue thisas an excuse to vioalte international law Assurances to Germany they won't do this again Court: can't rpomise never to do it again, this request met by the actions the US has taken in this regard But Court: you ha Issues: Why didn't the US fulfill it's obligation to fulfill the provisional measure Does the US have to abolish the Procedural defualt rules? No, but have to provide efective remedy of means of own choosing to correct these problems Reimann:what dos the cour intimate the US has to do: See Avena: Round three: the Avena Group Case Concerning Avena and other Mexican Nationals (Mexico v. US ICJ 2001) Have to: Provide a process to review these convictions if consular rights weren't given From internaitonal law poitn of view, Beard court was wrong After Avena: US withdrew from Optional protocol giving ICJ jurisdiction Countries are allowed to withdraw: See Vienna Convention on the law of treaties: Article 54 Termination of or withdrawal form a treaty under its provisions or by consent of the parties
by consent of the parties The termainion of the treaty or withdrawal of a party Also article 56: (no consent provision) Denunciation of or withdrawal from a treaty containing ano provision regarding termination, denunciation or withdrawal Need to ask: is this the sort of treaty you're locked into for all eternity? Very few treaties: 12 months notice But the US is not a member of that treaty But that's evidence of Customary International Law
Round Four: Implementing Avena? Sanchez-Llams v. Oregon, Bustillo v. Jonson (Roberts 2006) Effect of ICJ judgment on domestic legal order Options: See CTOOLL Modes/Degrees of deference Full Faith and Credit (ICSID Awars) Recogniation by Legal Oblgiation (Arbitral awards under NY Convention) Recogntiion by Comity (foreign Country Judgments, a la Hilton v. Guyot) Adhoc decision about recognition (WT?O Decisions) What does bound mean? Is this binding precedent for the case now before the supreme court (as far as the treaty interpreation) Court: not bound ICJ statue: only binding to the parties of the case, doesn't bidn the supreme court But should you ollow it as a matter of comity (this is what German Constituional Court did, sorta CharmingBetsy avoidance of conflicts But Roberts Majority doesn't want to do that No reason to deviate from prcocedrual default rule: Adversarial system Last in time (see Breard) Result: in Breach of international obligations Roberts: Political branches have to work this out, I just apply domestic law Reimann: is it right to deny comity to the judgment (even if not recognizing judgment as binding) Here: reasonable people can differ Reasons not to: Don't want to put ourselves at mery of court maybe not suited to resolving these sorts of issues Its designed to resolve disptues between states Reimann: Should have used Charming Betsy Read domestic statue in a way to avoid being in breach That way: Signal to congress you fixed it, and if they don't like it, they can overrule And momentum of side of compliance
Medellin v. Texas (2008 Roberts) Medllin here was a named in ICJ decision (Avena), is there Res Judicada effect on this
Medllin here was a named in ICJ decision (Avena), is there Res Judicada effect on this deicsion? Argument against: But only states are parties in ICJ: can't just say Res Judicada But: Facts are the same Sort of the same party Question is the same And "Full faith and credit" to decisions of ICJ But question: is article 94 Self Executing? If it is, yes, have to Scotus: not self-executing Court: US could veto this at security coucnil Reimann: the court overlooks article 27(3) of UN Charter Each member of the Security Council shall have one vote. Decisions of the sec counc on all non-procedural matters shall be made by an affiramtive vote of nine members including the concurring votes of the permanent members, provided that, in decisiosn under chapter vi a party to a disptue shall abstain form fromving When ratified UN Charter - executive and legisaltiure not itnending to bind state courts in criminal proceeding. Would want stronger indication cognress wants that ICJ doesn't push for it being self-executing Other coutnries aren't treating ICJ judgments as self-executing Breyer's dissent 7 factor test Reimann: 7 factor tests don't work, make everything debatable
Note on the German Constituional Court Can the President Fix it? Presidnet has the power to faithfully execut the law Madellin: Issue isn't faithful exeuction of article 36, justquestion of self -execution of treaty Presidnet doesn't decide if treaty is self-executing or not Can't make something not-self-executing into soemthing self-executing Aftermath: Back in the Hague (again!) (ICJ Rejects Mexico's request to interpret Avena)
Epilogue
Monday, December 03, 2012 7:58 PM
Mathews, Powershift (1997) Slaughter, The Real New World Order The state strieks back A new world order ideal 3 phases Liberal Internationalism UN model Only states, but aspire to quais constiutional order Disputes peacefully resolved Equlaity of all states Commitment to human rights Legal process (ICJ) Multi-lateralism New Medievalism Power Politics Especially after Cold War Return of unilateralism See US actions: empire buidling Transgovernmentalism State power disaggregated State no lgner monolithic Who is running the show now?
Concluding Remarks Exam:

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TransNat Outline Part Two

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Actors: State Clubs and Non-State Players

Sunday, September 30, 2012 2:47 PM

Introduction to Part Two

Proliferation of Nation States: Statehood Revisited

State recognition: Taiwan

Part II. Evolution Page 4

Part II. Evolution Page 6

The Emergence of the Global Human Rights Framework

The European Convention on Human rights

Part II. Evolution Page 11

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

International Business Entities

Note: See enforcement of interntaional Human Rights flowchart on CTools

Part II. Evolution Page 18

Interaction: States in the Contemporary Global Context

Peremptory Norms (Jus Cogens)

The Delegation of Sovereign Powers

Waging War: The United Nations System of Collective Security

Part II. Evolution Page 21

Regulating Trade: The World Trade Organization

Structure of the WTO

Making Law: :The European Union

Part II. Evolution Page 26

Part II. Evolution Page 27

Limitations of Sovereign Immunity

Foreign Sovereign Immunity

The Act of State Doctrine

The Expansion of Jurisdiciton

Part II. Evolution Page 30

The Universality Principle

Judgment recognition problems

Part II. Evolution Page 36

Law: Diversification of Sources

The New Generation of Treaties: "Platforms for internaitonal cooperation"

Part II. Evolution Page 37

Rules Can't reserve anything core e.g. definition of genocide

Part II. Evolution Page 40

Minimum standards from Chicago Convention (regulations in annex)

Part II. Evolution Page 43

Part II. Evolution Page 44

Substantive Private Law Rules

The Contract in Question is Between Parties from Different States

International Business Contracts

Part II. Evolution Page 46

Part II. Evolution Page 47

Dispute Resolution: Proliferation of Institutions

Jurisdiction by Contacts: Fairness Limitations in International Cases

Part II. Evolution Page 52

Domestic Effects: Blurring Lines

Part II. Evolution Page 56

Concluding Remarks Exam:

Part II. Evolution Page 57

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