Case Chart Flashcards

Question

# Case Chart Cambodia (Khmer Rouge)

Answer 1

PRK and DK both want Cambodia's UN seat. Arguments on both sides (USSR supports PRK; US supports DK) based on (1) the way PRK took power through armed aggression (US) and (2) the extend of its effective control of Cambodia (USSR). Shows importantance of legal arguments in recognition of new gov'ts. Credentials Committee defers decision in 1997 and no one occupies seat. Cambodia holds elections in 1998 and UN accepts resulting regime.

Answer 2

Who gets seat at UN when two rival gov'ts exist & one claims power through 'revolutionary' means? 1949 Revolution (US favored old gov't who flees to Taiwan)/ Lie Doctrine EFFECTIVE CONTROL TEST: which of the two gov’t is able to fulfill the obligations of the membership to the IO? Which has effective authority within the territory + habitual obedience by the blk of the population. # of Recognitions or individual objections are irrelevant. / Dicta: Representation is essentially a unilateral political decision by the recognizing gov’t. No legal duty to recognize a new gov’t

Answer 3

UN-Haiti Agreement to monitor Dec. 1990 elections. UN certified as free & fair. Aristide's election signaled end to Duvalier dictatorship. Enabled OAS to claim that all its members were now elected gov'ts & est. a policy for extraconstitional takeovers, ie coups (1991 OAS General Assembly Resolution 1080) But Aristedes ousted by military coup shortly after. OAS & UN condemned coup. Aristedes gov't continued to represent Haiti at UN and OAS. UN Sec. Council imposed severe economic sanctions and authorized use of force to restore Aristedes to power (US troops). At last minute before US troops invated, Aristedes was allowed to return to power.

Answer 4

Army seizes power from democratically elected president. Security Council condemps coup; General assembly continues to seat delegation from deposed gov't. SC authorizes Nigerian-led West African force to reinstate deposed president.

Answer 5

Zelaya tried to amend the country's constitution to allow him to run for another term. Honduran supreme court found unconstitutional. Zelaya tried to get military to do it anyways but military chief refused. Attorney general got warrant to detain Zalaya, which military used for arrest and deportation. Honduran congress confirmed Zelaya outser. OAS Gen Ass and UN Gen Ass denocunced coup. Honduras elected new persident subsequently

Answer 6

Taliban controlled 90% of Afghanistan territory but its delegation not seated at UN bc of protests by US, instead 'Northern Alliance' was seated though it controlled only 10%. Taliban only recognized as gov't by Pakistan, UAE, & Saudi Arabia. W/ 2001 US invasion of Afghanistn, Northern Alliance given control over county. Then 2001 pol. settlement est. a new Interim Authority. 2003 Constitution and 2004 new Gov't seated at UN

Answer 7

When members of IO delegate responsibilities to its subbodies to make decisions that carry more weight than expressions of go't sentiments that appear in the Conventions sometimes. Ex. ICAO delegates authority to its Council which alone has power to pass International Civil Aviation Standards & recommendations. Process = ICAO passes standard & if a majority of member states register objections (inc impracticability), standard won't enter into force. This has never happened. Compliance is very high.

Answer 8

(Issue: whether IOs have int'l legal personhood (instead of just through member states UN Charter Art 104) UN deemed a legal person but limited to duties in Charter. When charter silent on IO personhood, CIL applies. / / To bring claim against state, must be legal person. As legal person, UN is allowed to bring claims against non-member states (Israel) for murder of UN diplomat. / / Take Away: UN has legal personhood as a result of GA asking a question + ICJ advisory opinion + GA acceptance of advice / Sec. General + implementation of by a state.

Answer 9

ICJ found Ethiopia and Liberia did not have standing against South Africa over the discriminatory policies South Africa used Nambibia. Believed to be a low point for the ICJ dispute resolution bc denied standing + SA refused to comply

Answer 10

Unilateral declaration of independence prohibited by law? No (both under IL and SC Res 1244). BUT Avoids questions of: whether Kosovo now a "state," whether other states can recognize Kosovo, and whether Kosovars could declare independence based on right of self-determination or "remedial secession." And whether state can unilaterally declare independence in int'l law

Answer 11

Treaty interp of Name of Macedonia in relation to Macedonia's entrance to NATO. Breach of the Accord was not justified in response to breaches by Macedonia. . Result? Greece still blocking macedonia’s admission to nato.

Answer 12

2010 ICJ Expert Opinions (#1 - Def of statehood depends on treaty (cf. dissent - universal definition); #2 TBD) Filed candidacy for membership to the UN (UN Charter Art. 4). SC at impasse. UNGA passed Res calling "non-member observer" state in 2012. Palestine has joined UNESCO in 2014 and ICC in 2015.

Answer 13

[State formation by Peace Agreement] South Sudan created by Referendum as the final stage of the implementation of 2005 Peace Agreement between Government of Sudan and Sudan’s People’s Liberation Movement. Territory along administrative colonial lines. Issue over border states. UN recognized

Answer 14

Insurgents ‘Interim Transitional National Council’ declaring itself the only legitimate gov’t of Libya & began seeking diplomatic recognition form other states. By July, about 30 states recognized then July 15, United States recognition broke with a decades-long policy of not recognizing governments (but only states) and instead simply maintaining relations with the powers in control of a state. UN didn’t change its policy regarding the seating of the Libyan delegation until the fall of the Qadhafi regime in the fall. TNC is now accepted as legitimate gov’t of Libya

Answer 15

Which government do we recognize (Assad or NCS)? US recognized NCS. CIL prohibits states from intervening in the internal affairs of other states, but verbal condemnations and sanctions are not considered interventioDebate whether: 1. recognition of NCS is illegal intervention 2. Supply arms is illegal intervention, 3. Whether Assad’s committing human rights matters.

Answer 16

2012 new gov't. US recognized in 2012 (first since 1991). IMF recognizes in 2013

Answer 17

the women’s movement NGOs changed the dynamic of the conference from coercive population control to women’s empowerment.

Answer 18

1) ILO, Convention Concerning Occupational Safety and Health and the Working Environment (1981) / 2) GA, Draft Code of Conduct on Transnational Corporations (never adopted by GA) / 3) OECD Guidelines for Multinational Enterprises (1976 (not taken seriously), 2000) / 4) Weissbrodt, UN Commission on Human Rights, Norms on the responsibilities of transnational corporations and other business enterprises with regard to human rights (2003) / 5) John Ruggie, UN Human Rights Council, Report of the Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises (2008) / a) 2011: Completed set of Guiding Principles to implement the Respect, Protect, and Remedy Framework / 6) Direct corporate participation in int’l lawmaking / 7) Corporate codes of conduct (self-regulation) / a) Code of Conduct for Private Security Providers (58 private military contractors)

Answer 19

IMPLIED PREEMPTION THROUGH FEDERAL LEGISLATION / Facts:Burma sanctions on government procurement in MA found unconstitutional under Article VI Supremacy Clause b/c they were found to be preempted by federal statute, which sought a “soft glove”, not an “iron fist” approach to Burma sanctions. / Rule: This undermined the President’s constitutionally determined authority to conduct foreign policy – the President’s maximum power to persuade rests on his capacity to bargain for the benefits of access to the whole national economy without exception for enclaves fenced off willy-nilly by inconsistent political tactics.

Answer 20

Oregon statute limited inheritance right unless home country of national respects the right to inherit _ this statute was overturned because it crossed the line into federal foreign policy. State courts would have had to pass judgment on a variety of other country’s inheritance regimes. / The Court balances the degree to which the statute intrudes on foreign affairs against the degree to which the exercise of the state power fall within traditional state powers.

Answer 21

5-4 Court finds implied preemption through treaty. / Facts: A treaty wanted to solve Holocaust claims in a particular way, but California passed special reporting requirements in regards to companies somehow involved in the Holocaust. / Ginsburg dissent: Zschernig should be restricted to its facts, there must be specific language in the treaty prohibiting state action for preemption to kick in.

Answer 22

Rome treaty (EU formation) controls; no later-in-time rule for national legislation. Italian court had said nationalizing industry okay via legislation because later-in-time but Art. 189 said "shall be binding…directly applicable." on states. THESE CASES REPRESENT STRONG MONISM. 'direct effect' expanded so that individuals were guarantors of rights á la US bill of rts

Answer 23

Rome treaty has direct effect [Reasoned from object/purpose of the treaty]. Held: Functioning is of direct concern to interested parties; those parties are not just gov't but PEOPLES (per preamble). Fact that it endowed institutions with sovereign rights affecting member states AND citizens supports this.

Answer 24

5 holdings: (1) Invisible Radiation Test: “invisible radiation” from 10th Am. prohib the treaty as unconstit? (BUT “we must consider what the country has become” _ uphold Bond) (2) National Magnitude Test: How important is this issue to the national interest? (3) Treaty power = extra-constitutional (4) Presumption in favor of holding treaties constitutional (5) Narrowest holding: Birds not just in one state, so it was an interstate issue

Answer 25

Civilian wife murders military husband on base in UK. The terms of a treaty (saying US military will have jurisdiction over crimes on the base) cannot abrogate a U.S. citizen's constitutional rights (to jury trial). Plurality decision.

Answer 26

SCOTUS held that 4th Amend. (protection from search and seizure) was inapplicable to searched by US agents of property outside the US owned by an alien. PEOPLE vs. PERSONS distinction as specifying citizens vs all humans.

Answer 27

Challenge to NAFTA's legitimacy: NAFTA not concluded by a&c of Senate (instead, by congressional-executive agt). Court holds with respect to international commercial agts (like NAFTA; based on commerce clause), which "treaties" must be concluded with a&c of Senate is nonjusticiable political question

Answer 28

"Imperil the amicable relations between governments and vex the peace of nations" if court subjects acts of state to the jurisdiction of US courts. Illustrates separation of powers rationale for AoS doctrine

Answer 29

Can President Unilaterally terminate a mutual defense treaty? Non-justiciable Q. In absence of constitutional provisions, this is a political standard.

Answer 30

Algiers Accord. US Pres (via sole exec order) nullifies pending US citizen claims against Iran in US crt (tribunal instead) in exchange for release of US hostages. US claimants sue, claiming Pres' action unconstitutional. Court upholds Pres' action, relying on history of congressional acquiencence implying liberal authority for the Pres to enter sole executive agreements on certain issues. IEEPA + Hostages act = Youngstown APPROVAL category (highest)

Answer 31

Later in time rule "a treaty may superede a prior act of Congress, and an act of Congress may supersede a prior treaty."

Answer 32

A statute can only supercede a treaty if it expresses Clear Statement to supercede Treaty by enacting statute. Application: Congressional Anti-Terrorism Act (ATA) was passed after UN Headquarters Agreement. ATA listed Palestine Liberation Organization (PLO) as terrorist group so US sought injunciton to close office. UNGA issued resolution declaring US obligated to keep office open. While ATA was passed later in time, it did not evince a clear intent to supercede the statute, so the PLO offices remained open

Answer 33

CHARMING BETSY: Where fairly possible, a United States statute is to be construed so as not to conflict with international law or with an international agreement of the United States.

Answer 34

(1) (a) An act of Congress supersedes an earlier rule of international law if the purpose of the act to supersede is clear or if the act and the earlier rule or provision cannot be fairly reconciled. (b) That a rule of international law is superseded as domestic law does not relieve the United States of its international obligation or of the consequences of a violation of that obligation. (2) A provision of a treaty that becomes effective as law of the United States supersedes as domestic law any inconsistent preexisting provision of a law or treaty of the United States. (3) A rule of international law or a provision of an international agreement of the United States will not be given effect as law in the United States if it is inconsistent with the United States Constitution.

Answer 35

U.S. fails to advise Paraguayan national on death row of rights under VCCR. ICJ issues temporary injunction and instructed US to "take all measures at its disposal to ensure Breard was not executed pending a final decision." Question goes to SCOTUS; State Department files amicus brief in support of injunction. SCOTUS denies stay of execution because (1) Breard procedurally defaulted his claim under the VCCR; (2) procedural rules of domestic forum govern the implementation of international treaties so ICJ interpretation gets "respectful consideration" but not more. (3) AEDPA=later in time rule that limits VCCR b/c no treaty claim unless raised in state court. Secretary of State requests pardon from VA govenor; denied. US tells ICJ it took "all measures at [its] disposal."

Answer 36

ICJ: AEDPA application=breach; Failure to stay pursuant to ICJ order=breach. NEW HOLDING: Breard interpretation not okay because it undermines convention. Also, provisional orders binding on both executive and judiciary. Here, provisional order to take all measures again issued. SCOTUS: rejects efforts to enforce compliance with prov order. ICJ: forwarding the ICJ order w/o so much as a plea for a temporary stay=breach. SC/Exec both failed to implement

Answer 37

Government entering into treaty is binding on the states. However, ICJ decisions are not binding on the states.

Answer 38

Breach requires reparation in an adequate form; that varies with circumstances. HERE it requires review and reconsideration. US Claims to give effect through executive clemency but court says review/reconsideration of whether the violation caused prejudice against the convict.

Answer 39

Note: Ct assumes but doesn't decide that VCCR creates judicially enforceable rights / (1) In interpreting treaties, great weight is given to the interpretation of govt depts charged with treaty negs and enforcement; / (2) ICJ Avena decision entitled to 'respectful weight,' but does not overcome 'plain import' of Art 36; / (3) Domestic procedural rules generally govern treaty implementation (TF, procedural default rule from Breard governs); / (4) Where treaties do not supply a particular remedy to breach (here, suppression of incriminating statements), Cts won't create one.

Answer 40

Note: Ct assumes but doesn't decide whether (a) VCCR is self-executing; (b) VCCR creates judicially enforceable private rights. / (1) Pres lacks Const. authority to decide whether a treaty is self-executing/non-self-executing (power to resolve claims disputes w/foreign states only extends to civil claims); / (2) Grant of juris to ICJ for Vienna Conv. disputes doesn't give ICJ decisions authority; UN Charter Art 94: members "undertake to comply" w/ICJ via their political branches, but Cts are not required to give it binding weight; / (3) To be self-executing, a treaty must (i) be passed via Art. III process; and (ii) indicate it is self-executing either in the text or via 'some other indication' of intent of the parties; / (4) RTFR, Stat. 907: Presumption that self-executing treaties do not create a private right of action, absent explicit language to the contrary.

Answer 41

Plaintiffs claim title to property in FL on basis of grant from Spain. SCOTUS: Grants not valid as domestic law until congress passes legislation confirming (Contract between nations, not leg act); Cf. US v. Percheman (1833): SAME TREATY but Spanish version; held to be self-executing. Treaties should generally be treated as a legislative act unless addresses it itself to the political and not judicial dept.; if addresses itself to political, has to be implemented through legislation.

Answer 42

In concurrence, CJ Burger references Roman, English and early American law in rejecting constitutional challenge to Georgia's law criminalizing sodomy, states that prescriptions against sodomy have "ancient roots" and that "condemnation of those practices is firmly rooted in Judeao-Christian moral and ethical standards."

Answer 43

Overruled Bowers v. Hardwick, Justice Kennedy held the Texas statute criminalzing homosexual conduct was unconstitutional, referencing international & comparative law. Burger's references were selective. Cited:British 1957 repeal of law punishing homosexual conduct. European Court of Human Rights invalidating of Northern Ireland laws against homosexual conduct under ECHR. Dudgeon v. United Kingdom Other nations' practice, "accepted as an integral part of human freedom in many other countries." SCALIA DISSENT: I don't like foreign law

Answer 44

Held juvenile death penalty unconstitutional per 8th Am. Cited ICCPR (signatory) UN CRC (NOT signatory); builds case for int'l opinion including via pratice of states (note: GREAT on CIL formation because shows some states doing the act but disavowing it). SCALIA DISSENT: Don't know if you noticed but we didn't sign CRC... probably for a reason. Maybe it's this. Our law needn't conform. And for ICCPR: We reserved on killing kids because we do that.

Answer 45

(1) 'Foreign cubed' incidents are recognized under ATS (unclear if this is still true after Kiobel); / (2) Torture (even of own citizens) was prohibited by CIL at time of govt act, TF can serve as a cause of action under the ATS. / Cites to UN Charter, UDHR, GA Resos, Am. Conv. on HR, ICCPR, constitutions of countries (incl. US and Paraguay), absence of asserted 'right to torture,' evidence of opinio juris.

Answer 46

DEA kidnapping case. / (1) ATS is purely jurisdictional. / (2) Clarity of CIL rule must be analoguous to clarity of 1789 paradigm wrongs in order to create a private COA. Arbitrary detention not sufficiently "specific, universal, and obligatory." / (3) Also consider practical consequences when determining whether CIL creates COA. Suggests other limits to creation of COA, not considered here (e.g., exhaustion of domestic remedies, case-specific deference to Exec policy decisions, fnc).

Answer 47

FSIA provides only route to obtain jx over a state; can't use ATS to get there without an FSIA exception

Answer 48

Violation of VCCR actionable under ATS? ALLEGED Tort=”detention w/o being informed of avail of consular notification/acces” but crt rejected.

Answer 49

Apartheid by non-state actor\_actionable ATS; BUT NOTE: cruel/inhuman /degrading treatment is. (Widely embraced through CAT; recog’d in 3rd restatement FRL (different b/n CIDT & torture=intensity); in Detainee Treatment Act).

Answer 50

Aiding and abetting liability recognized under ATS b/c (1) it is well established in a number of intl criminal treaties and (2) the Rome Statute establishes the requisite specificity of MR requirements: (A) providing practical assistance w/substantial effect; (B) w/the purpose of facilitating the commission of the crime.

Answer 51

Act of state doctrine did NOT apply. / Unanimity of opinion in re: genocide, as jus cogens violation of international law, not akin to universally-condemned acts such as genocide, war crimes, enslavement, and torture. / As opposed to controversial nature of expropriation in Sabbatino, or minor violation of unlawful detention and failure to grant passport in Underhill

Answer 52

(1) Act of State Doctrine binding under stare decisis and SOP principles, but not required under IL, sovereignty, or US Const.; Balancing test: would a ruling impermissibly interfere w/Pres. powers to conduct foreign relations? / (2) B/c rules on expropriation are very unclear, Ct refuses to rule on its legality in the absence of an "unambiguous agreement [e.g., a treaty] regarding controlling legal principles" (Cts more qualified to pass on well-established principles of IL which do not involve impt intl policy decisions); / (3) Note possibility of 'Berstein exception' for Exec acts that take a specific position on the case at hand.

Answer 53

US citizen cannot bring suit against Venezulan Govt under US law (unlawful detention, assault & battery).

Answer 54

4 Justice plurality held Act of State only applicable to "sovereign acts," NOT to repudiation of purely commercial obligation owed to a foreign sovereign or one of its commercial instrumentalities. THIS and above case (First National) illustrate two sources of circuit splits

Answer 55

Plurality adopted the Bernstein exception [only notable thing about this case]

Answer 56

Court determined that the policy of US federal courts would be to honor the Act of State Doctrine, which dictates that the propriety of decisions of other countries relating to their internal affairs would not be questioned in the courts of the United States (Congress did NOT like)

Answer 57

should look to IL to find the standard for accessorial liability / mens rea for aiding/abetting in ATS actions is purpose/specific intent rather than knowledge

Answer 58

Facts: family of peace activist who was run over and killed by military bulldozer in Gaza strip filed ATS action against bulldozer manufacturer. / Held: Act of state doctrine DID apply. Military orders are official acts of the sovereign.

Answer 59

(1) ATS does not grant juris for extraterritorial acts where it would otherwise not exist (e.g., for genocide there is a specific statute granting US courts jurisdiction); / (2) Mere corporate presence in US (of a foreign corp) is not sufficient to grant extraterritoriality under "touch and concern" test (Morrison). / Dissent Test: 1) Tort occurred on US soil; 2) D is US national; or 3) D's conduct substantially and adversely affects an important US ntl interest (incl. distinct interest in not becoming a 'safe harbor.')

Answer 60

SCOTUS bypassed revisitation of HOLLAND in favor of federalism-based clear statement rule. Constitutional values at play: executive's foreign relations power (diminishing; exec deference skipped as in MORRISON and KIOBEL); federalism; treaty status cf. normal legislation. NOTE: In light of recent restrictions on commerce clause power (See US v. LOPEZ), prospect of treaties having greater reach than legislation is becoming more important.

Answer 61

There is no rule in IL prohibiting jurisdiction based on the flag the ship flies (effects test), & what is not prohibited by IL is permitted (positivist) â†’ Concurrent juris. REVERSED by Int'l Marine Commission Conf &\ ultimately by UN Convention on Law of the Sea (flown flag) . Unambiguous ommissions count as state practice for formation of CIL.

Answer 62

U.S. custom law (not CIL) did not reach foreign vessels outside of U.S. waters because "[t]he laws of no nation can justly extend beyond its own territories, execept so far as regards its own citizens" An extraterritoriality jur to prescribe would be against sovereignty. Rat'l: Comity, not CIL

Answer 63

US antitrust law cannot govern a foreign corp's behavior in a foreign country. Fact that the P is a US nat'l is not sufficient to grant juris to prescribe under traditional territorial test.

Answer 64

US antitrust law governs an agreement forming an int'l aluminum cartel, even though most cartel-related activities occurred outside US. Effects Test: US has juris to prescribe law for acts which (1) are intended to affect imports and (2) did affect imports.

Answer 65

Does US antitrust law extend to BofA's attempt to block a US timber importer in Honduras? Yes. Balancing test considers: (1) effect (actual or intended); (2) scope of the effects; and (3) balance of US interests v. foreign interests in asserting juris. Factors to consider: nationality of parties, locations of corps/principle place of business, effectiveness at achieving compliance in US vs. other forums, relative significance of effects in US vs. elsewhere, extent of specific intent to harm US interests, foreseeablity of such harm, relative importance of violations occuring in US compared w/violations occurring abroad, and comity considerations.

Answer 66

London reinsurers messing around with US primary insurance. / (1) Acts clearly pass steps 1 & 2 of Effects Test; / (2) As to balance of interests, no conflict of comity exists "where a person subject to regulation by two states can comply with the laws of both" (RTFRL Stat. 403), TF no reason to decline juris.

Answer 67

Title VII of Civil Rights Act doesn't extened outside territory of US even though statute contained broad provisions extending its prohibitions to, e.g, "any activity, business, or commerce"–boilerplate is INSUFFICIENT to overcome presumption against extraterr. "Unless a contrary intent appears...meant to apply only within the terr jx of US"

Answer 68

"An act of Congress ought never to be construed to violate the law of nations if any other possible construction remains."

Answer 69

Where the injury is to a foreign P and occurs entirely outside the US, US interests are not strong enough to pass step 3 Balancing Test for juris to prescribe (cites 'serious risk of intereference w/a foreign nation's ability to regulate its own commercial affairs').

Answer 70

Upheld extraterritorial assertion of EC competition law to acts of conspiracy which occurred in US, but whose implementing conduct was in EC territory ("direct, substantial, & foreseeable"). Nominally different from effects test because conduct itself must take place inside borders; conduct defined broadly.

Answer 71

US law applies to a US citizen living in France. [court order to appear; he ignores; sanctions upheld]

Answer 72

"No principle of comity demands that a state ignore the crime of treason committed outside its territory" Joyce was convicted and hanged because he issued German propoganda and then he was shot by a British soldier in the leg on the Danish frontier. Stands for the principle that you can try for crimes of your citizens outside of the country.

Answer 73

US could, under protective principle of IL, prosecute foreign national on foreign vessels on the high seas for possession of narcotics.

Answer 74

Canadian citizen tried/convicted for crime of making knowingly false statement under oath in visa application. Protective principle--\> legitimate interest in info regarding persons seeking entry; lying=affront to sovereignty of US.

Answer 75

Illegality of the abduction / mode of arrest is irrelevant to the trial itself. Argetina and Israel had settled the dispute over the violation of territoral sovereignty prior to conviction. Male captus, bene detentus. See also p. 358

Answer 76

Example of the use of passive personality principle. Used to indict under "conspiracy to kill U.S. nationals abroad."

Answer 77

D charged with bombing a Phillippine Airlines flight. Flight wasn't a US aircraft; no US citizens on board. Universal jx available when 1) universal condemnation by community of nations and 2) where crime occurs outside of state or where no state is capable or competent to punish (current US test). 2d circuit gave jurisdiction, but NOT under universal. I.e. terrorism _ basis for universal jurisdiction. However, jx available under PROTECTIVE PRINCIPLE and under Montreal convention for suppression of unlawful acts against safety of civil aviation

Answer 78

leader of serb army–commanded massacre–secretly indicted, then lured across border. HELD: entered of own will; ruse to get him there didn't constitute abduction. ABSENT an extradition treaty which this violates, even luring _ abuse of process. Later committed suicide in jail cell so no appellate record.

Answer 79

Messenger sent to Lima w/ warrant to demand Ker by virtue of extradition treaty. Messenger disdained treaty process and kidnappy instead. SCOTUS rejected Ker's claim that he should be released—"such forcible abdution is no sufficient reason why the party shuoldn't answer when brought within the jx of the court which has the rt to try him for such an offense." premised on 1) lack of governmental involvment; 2) lack of gov't protest. cf. Alvarez Machain

Answer 80

Abudction did not violate US-Mex extradition treaty because treaty was not exclusive means of establishing jurisdiciton over individual; treaty did not expressly state that was only means (i.e., 'can't kidnap').

Answer 81

Specialty. Does Webster Ashburton (US-UK extradition treaty) prohibit prosecution of defendant for a crime other than that which he had been extradited? YES–IF brought within jx of court by virtue of extradition treaty. Must be released and given reasonable time to return before being charged with crime not cover

Answer 82

English police located defendant in South Africa. Decided not to seek extradition, but persuaded South African police to arrest and return forcibly under pretext of deportation to New Zealand via Heathrow. Then arrested. HELD: Courts have discretion not to exercise jx over a defendant unlawfully procured. One opinion suggests IL violation, but holding apparently not compelled by IL.

Answer 83

Two men IDing themselves as South African police seized a member of the military wing of the anti-Apartheid National Congress \*in Swaziland\*. Bound, gagged, brought to South Africa and charged with treason. Swaziland didn't object. Ebrahim argued abduction/rendition violated IL; thus court=incompetent. HELD: Roman-Dutch common law dictates that court lacks jurisdiction to try a person brought before it from another state by means of state sponsored abduction. Fundamental legal principles. When state is part, must come w/ clean hands; can't if abduction --\> presence. Ebreahim got compensation in subsequent civil proceeding

Answer 84

Arrest of leader of worker's party in Kurdistan. Ocalan expelled from Syria in '98, stopped in Greece, Russia, Italy, and then taken to Kenya. Met by Greek ambassadors. Kenya alleged improper entrance/security risk. Advised he was free to leave country. Kenyan officials picked him up, drove him to airport. The car containing Ocalan left a convey, and he was taken to an aircraft where Turkish officials were waiting for him. Flown to Turkey, charged, convicted of terrorism by national courts. ECtHR REJECTED claim of Art. 5 violation—FIRMLY locates nature of abduction concern in state sovereignty, not individual rights, insofar as it relied on the finding that Kenyan authorities didn't object and no diplomatic tension arose.

Answer 85

Held act of bringing in from abroad did NOT involve "force or deception"; nonetheless suggested (evidence of opinio juris) that international ethical norms, and practical considerations (imperils & corrodes peaceful coexistence) meant int'l abduction=illegal and court should decline to compel an accused to undergo trial under such terms.

Answer 86

Borsnian Serb indicted on 28 counts of crimes against humanity, grave breaches, and war crimes arising from acts of rape, murder, torture, sex humilitiation, etc. D aleged he was abducted from home by armed, masked men; smuggled into B&H, and transferred to NATO custody. Initiial efforts to get info about arrest denied; eventual evidentiary hearing. Trial chamber ordered prosec to turn over all relevant reports/materials w/r/t arrest, including info on steps it had taken to obtain info. Prosecutor said: "no other info in my custody/control." Court ordered states to provide info; prosecutory IMMEDIATELY entered into plea agreement and dropped 27 or 28 charges.

Answer 87

Nikolic was kidnapped by US in collaboration w/ "unknown individuals" and brought to Bosnia. ICTY determined that it had jurisdiction because 1. necessity of establishing JDX those accused of universally condemned offenses outweighs territorial sovereignty, and 2. interest of international community in prosecuting perpetrators of those crimes outweighs the HRs of the accused.

Answer 88

After irregular rendition, El Masri sued in US seeking damages; gov't defended on basis of state secrets. US gov't may prevent disclosure IF reas danger it'll expose military matters implicating national security. Despite wide discussion in media, etc. (undermining claim of secrecy), 4th Circuit upheld governemtn claim because he'd need to produce evidence exposing how sensitive intelligence operations are carried out.

Answer 89

Owner of ship allegedly stolen comes into US waters flying French flag. "a principle of public law, that national ships of war, entering the port of a friendly power open for their reception, are to be considered as exempted by the consent of that power from its jurisdiction." Multiple rationales (sov equality; territorial jx; comity; limited to warships/security related, etc.). ABSOLUTE theory of sovereign immunity.

Answer 90

Affirmed holding that vessels owned by foreign governments are immune, EVEN IF commercial. Here, the State Dept. "recognized and allowed" Peru's claim of immunity. Court: State Dept's determination "must be accepted by the courts as a conclusive determination by the political arm of the gov't that the constituted retention of the vessel interferes with the proper conduct of our foreign relations."

Answer 91

Presented courts with State Dept. communication accepting MX's claim of ownership; expressing NO opinion as to immunity. Court: judiciary shouldn't "deny an immunity which our gov't has seen fit to allow, or allow an immunity on new grounds which the gov't hasn't seen fit to recognize." LATITUDE to exec. Here, ownership vs. possession was relevant distinction. Because only owned but not possessed, NO immunity. Added to critiques of FSI doctrine.

Answer 92

Represents common law doctrine of sovereign immunity: US citizens sued French officials to recover boat that French navy seized. Held no jx over foreign state / its diplomats . Rat’l: diplomatic relations (remedy at this point = diplomacy or other state’s courts, e.g. France)

Answer 93

Heir of original owner of paintings sued Austria for return b/c taken by Nazis in violation of international law. Defendants argued that as of 1948, they would've enjoyed immunity from US courts. FSIA didn't retroactively divest of immunity. HELD: FSIA evinces congressional understanding that all new claims regardless of when act took place will be covered.

Answer 94

American sues apartheid South Africa for delay in rendering medical service after car crash in country, which resulted in permanent disability. Held no jx under FSIA bc no direct effect of South Africa’s conduct in US.

Answer 95

till not in force yet, First Mondern Multilateral instrument to address immunity issues. Establishes default immunity with enumerated exceptions. Does include an exception for commercial activity, which is determined in accordance with practice of the state of the forum

Answer 96

Commercial exception: If gov’t acts like a private player (not a regulator of the market), then its actions are commercial. Bond issuance = commercial. Direct effect US: Bank accounts bc place of perf. of K obligations

Answer 97

Commercial exception: US Whistleblower @ tortured by Saudi police; Denied exception, found immunity bc police power is sovereign. Concurrence found operating hospital to be commercial but no direct US impact. Harm to US citizen abroad _ sufficient effect in US. Critique should have brought up under Prong 2.

Answer 98

Kuwait enjoyed sovereign immunity in a suit involving torture, and court rejected claim that UK courts failed to secure plaintiffs' right not to be tortured under ECHR. (Tried once in the UK too, which also granted sovereign immunity)

Answer 99

Torture victim couldn't sue Saudi Arabia because of state immunity, but COULD sue 3 officials allegedly involved. Thus torture is covered by FSI as a matter of CIL

Answer 100

Commercial exception: (Nigerian airplane K dispute. Clarifies Weltover rule) Commercial=K dispute. Effects? Performance of K obligation _ Payments out of NY bank acct by US corp. Suffering financial loss in US from financial tort _ sufficient effect in US.

Answer 101

Implicit Waiver / Terrorism Exception: This is before terrorism exception exists. Victims of Lockerbie bombing tried to claim that jus cogens violation was an implicit waiver of immunity. SCOTUS rejected.

Answer 102

Mens Rea requirement for supporting torture. Knowing donor to Hamas who knows that they engage in hostilities. IF you contribute to organization's nonviolent activity, while knowing they engage in terrorism, then you contribute to the terrorist activities. Doesn't make sense to hold that you must INTEND for contribution to be used for terrorism. YET can't be held liable for acts of violence NOT authorized by Hamas (official act-esque requirement)

Answer 103

Commercial exception: reward from US for capturing former Peruvian official now criminal. Yes commercial bc exchange of money for information. US Gov’t negotiating reward _ insufficient effect

Answer 104

Sovereign Immunity = CIL, not rule of comity. Under CIL, violations of jus cogens, int’l human rights or war crimes don’t deprive state of immunity. Rat’l immunity rules are procedural, not on the merits

Answer 105

Commercial exception: for K disputes examine nature, not purpose, to determine if commercial; when K is indistinguishable from ordinary private party business, then K is commercial. Direct effect must be immediate consequence of act. Negotiations in US with a US Corp w/ Payment made into US per K = Sufficient effect.

Answer 106

Can SEC reach extraterritorially when case involves foreign parties' purchase of shares in a foreign company, traded on the foreign market? (F cubed)? HELD: Presumptionagainst extraterritoriality applies regardless of whether there's a risk of conflict between American statute & foreign law. FOCUS test. CONCURRENCE: Presumption shouldn't become a rule against extraterritoriality

Answer 107

Commercial exception – SEOs: a majority of corps’ shares must be directly owned by State to qualify as a state under FSIA

Answer 108

Boeing and MCDD wanted to merge; would make it worldâ€™s largest aerospace company and second largest defense supplier. Only rival would have been Airbus Industrie, a four-nation (France, Germany, Britain, Spain) consortium based in France. If EC determines that merger is not compatible with European common market, can fine. US FTC determined that would not significantly decrease competition or create a monopoly in the global aircraft market. / Protracted fight ended in concessions by Boeing in exchange for the ECâ€™s approval of the merger.

Answer 109

Five instances when British soldiers killed civilians in Iraq + one civilian died in British prison. European Convention’s jurisdiction essentially territorial, Bankovic exception does not apply to five civilians, but does to British prison.

Answer 110

ECHR decided European Convention on Human Rights applies extraterritorially only in exceptional circumstances, when state exercises “effective control of relevant territory” or “some or all of the public powers.” Kosovo conflict, NATO bombed Yugoslav radio/TV station – claim that this violated right to life inadmissible.

Answer 111

Turkey undertook cross-border military operations in Iraq. Dictum: if Turkey exercised, temporarily, effective overall control of a particular portion of the territory of northern Iraq” and at the relevant time victims were in that area, then they were in the jurisdiction of Turkey. Extends the concept of extra-territoriality to areas in which the State exercised, TEMPORARILY, effective overal control of a particular portion of the area.

Answer 112

Britain already undertaking steps to eliminate terrorism-combatting methods used in Northern Ireland that violated ILHR; court considers their legality anyway under EU Convention HRs Art. 3. Ill treatment must meet minimum level to fall under Art. 3. Prohibits torture irrespective of victim’s conduct; no derogation. Distinction between torture v. cruel/inhumane/degrading treatment is level of intensity in suffering inflicted. Methods here were cruel/inhumane/degrading but not torture.

Answer 113

HR groups brought case against Israel’s General Security Service (GCS) for methods used against Palestinian interrogees. Ruled: shaking is a prohibited investigation method. General authority to establish directives respecting use of physical force cannot be implied from necessity defense – ad hoc endeavor, allows escape from criminal liability, serves no normative purpose.

Answer 114

The European Convention on HR prohibits in absolute terms torture and inhuman or degrading treatment or punishment. There is no derogation that is permissible even in the event of a publc emergency threatening the life of a nation.

Answer 115

Evidence procured by torture may not be admitted into British court, not only because it is unreliable, but also because it is barbaric, illegal and inhumane. "It has no place in the defence of freedom and democracy, whose very existence depends on the denial of the use of such methods"

Answer 116

Trinidad and Tobago made a reservation to ICCPR’s First Optional Protocol, saying UNHRC cannot interfere in death row inmates. Death row inmate Kennedy claimed ICCPR violation, T/T argued UNHRC lacked jurisdiction due to its reservation. Majority: T/T in violation of ICCPR, refusal to consider communications from a particular class of individuals constitutes impermissible discrimination. Dissent: cannot apply if state’s accession to treaty was dependent on reservation. Trinidad and Tobago's reservation restricting the Human Rights Committee from receiving communications relating to any prisoner awaiting the death penalty was invalid and severable because it singled out a certain group of individuals for lesser procedural protection than the general population.

Answer 117

Domingues received death sentence for crime he committed at 16 years old, argued that US reservation to ICCPR Art. 6 allowing execution of juveniles is void. NV SC rejected argument; SCOTUS denied cert.

Answer 118

Eight, Fourteenth Amendments prohibit execution of offenders \>18yr. old at time of crime – disproportion. Evolving standards of decency, consistency in trend towards abolition of practice, rejection by majority of U.S. states and seldom use by rest.

Answer 119

“Laffaire du foulard.” 2003 Stassi commission banned ostentatious religious displays but allowed discreet ones.

Answer 120

Honduran government held responsible for failure to use due diligence to prevent, investigate, and punish a forced disappearance committed by persons whose identity could not be positively established but who were probably state agents. A HRs violation that cannot be directly imputed to the state because it was committed by a private actor can nonetheless lead to international responsibility of the State due to lack of due diligence to prevent or respond to it.

Answer 121

Lack of a European consensus justifies a wide margin of appreciation for Turkey / / Dissent: no member States have ban extended to university education, which is intended for less vulnerable young adults

Answer 122

The interference at issue (religious freedom to wear a headscarf) was justified in principle and proportionate to the aims pursued (sustaining pluralist democratic society). No violation of Art. 9 of the European Convention on Human Rights. MARGIN OF APPRECIATION

Answer 123

Prohibited primary school teachers in Switzerland from wearing the headscarf

Answer 124

Begum sought permission to wear jilbab as opposed to offered three choices of uniform at school, saying it was more modest; permission denied. All judges agreed that to the extend there was an interference with Begum’s manifestation of her religion, it was justified

Answer 125

FSIA does not apply to individual foreign officials / –Sovereign immunity and official immunity are not coextensive in US law / –Court admits this might prompt “artful pleading” of an official rather than a state / –Samantar leaves the door open for immunity to be granted through common law, just not / through FSIA but if the State itself is a required party in the suit, the case may be / dismissed under Fed. Rule Civ. Pro. 19

Answer 126

Ticking time-bomb not an excuse for threatening torture under ECHR.

Answer 127

A foreign state must itself own a majority of a corporation's shares if the corporation is to be deemed an instrumentality of the state under the FSIA. Israel did not have direct ownership of shares in either of the Dead Sea Companies at any time pertinent to this action. Rather, they were, at various times, separated from Israel by one or more intermediate corporate tiers. As indirect subsidiaries of Israel, the companies cannot come within the statutory language granting instrumentality status to an entity a "majority of whose shares or other ownership interest is owned by a foreign state or political subdivision thereof."

Answer 128

HRC Responds to US's RUDs by saying: (1) it can judge the validity of RUDs; (2) RUDs cannot violate O&P (VCT); (3) no RUDs on peremptory normal (3) no reservation to non-derogable provisions; (4) RUD invalid if undermines whole treaty. AND they are severable, but obligations of treaty continue to stand.

Answer 129

During war against al Qaeda (Afghanistan, Iraq, etc.), Bush administration detained 1000s. U.S. Army Field Manual guided interrogation policy. January 2002 Yoo memo argued GC do not apply to al Qaeda/Taliban militia; Rumsfeld advised humane treatment nonetheless. August 2002 Bybee memo argued CAT requires intent and intensity to torture, good faith belief negates intent. Also argued unconstitutional to apply CAT to interrogations taken pursuant to executive’s commander in chief power. Sept. 2002, Joint Task Force (JTF) commanding officer sought permission to supplement Manual with psychological interrogation techniques from Survival Evasion Resistance and Escape (SERE) training; all four military branches raised concerns. April 2003, Rumsfeld approved some but not the harsher SERE techniques. Still, abuse at Guantanamo and Abu Ghraib / + black sites continued. December 2005, Bush passed McCain’s Detainee Treatment Act. July 2006, UNHRC disagreed with US under ICCPR Art. 40. January 2008, CAT disagreed with U.S under Art. 2. / / 28/141 deaths in U.S. custody suspected/confirmed homicides.

Answer 130

Rule against retrospective legislation should be no defense if the act committed was known to defendant to be a violation under his own domestic law. Ex post facto does not apply to Nurember because international law is the result of treaties and customs that have received international acceptance and because the perpetrators knew that their actions were crimes in every state. Had to be connected to the crime of aggression. Nullum crimen sine lege.

Answer 131

One view is that Khmer Rouge did not commit genocide because the Khmer weren't being targeted specifically because of their membership in the Khmer ethnic group. Other view is that there must be specific intent to destroy a group in part or in whole but the specific motive behind that destruction is immaterial. Also issues of nullum crimen sine lege.

Answer 132

Need to establish specific intent (dolus specialis), not just act of genocide – not just targeting members of group due to their membership, but discriminatory intent Bosnian massacre was genocide because it had the required intent (Only the massacre at Srebenica was held to constitute genocide because it was committed with an intent to destroy a protected group in whole or in part AS SUCH)

Answer 133

command responibility--How far up the chain of command can we prosecute under ICC art. 28?

Answer 134

Ireland accused UK of using interrogation practices that reached the threshold for torture under Art. 3 of ECHR. The court held that the interrogation techniques used were cruel and unusual but not torture. Torture differs in meaning from cruel, inhuman and degrading treatment based on the difference in the intensity of the suffering inflicted

Answer 135

Superior is guilty if knew or had reason to know of actual or impending crimes / Superior not permitted to remain willfully blind to acts of subordinates

Answer 136

If no effective attempt by a commander to discover and control criminal acts, such a commander may be held criminally liable for the lawless act of his troops / / Yamashita death sentence upheld

Answer 137

Masetti: if victim will die anyway, accused not morally blameworthy; no reason law should kill accused – otherwise victim will have died for nothing / / Duress should go towards mitigation of punishment, not a complete defense

Answer 138

ICTY lawfully established under UN Charter Ch. VII

Answer 139

Difference between Hutus and Tutsis created by Belgian colonizers; minority Tutsis deemed noble and majority Hutus deemed inferior working class / / Mysterious crash of president’s plane gave extremists Hutus excuse to start genocide; 5-800k (\>3/4 of Tutsi population) killed by 1994 / / Tutsi Rwandan Patriotic Front established new regime

Answer 140

Khmer Rouge killed 1.5 million people before being ousted by Vietnamese forces and replaced with Vietnamese-installed regime

Answer 141

Example of SC referring a situation to the ICC. STANDARD INCLUSION CLAUSE= nationals from a state outside of Libya which are not from a party State will not be subject to the exclusive jurisdiction of that State for all alleged acts or omissions arising out of or related to operations in Libya ((Basically how the US protects citizens from going to the ICC)

Answer 142

Claims that the ICTY does not have jurisdiction because the SC does not have the power to make such a tribunal, that it impinges on the right of the sovereign, that SC can't address behavior of individ, that the ICTY is not democratic. ICTY rejects all of them. EXAMPLE OF FURTHER EROSION OF UNC 2(4).

Answer 143

90 military prison guards for 7000 detainees / -October 2003 ICRC confidential report detailing abuses / -January 2004 leaked photos triggered internal investigation resulting in critical report

Answer 144

See chart pg. 790-92

Answer 145

Balancing test to see if state measures constitute expropriation: degree of the measure’s interference with the right of ownership + power of State to adopt its policies, as well as measure’s duration / State has right to adopt measures having a social or general welfare purpose – such a measure must be accepted without imposition of liability unless measure disproportionate to need expressed / These circumstances do not constitute expropriation of LG&E / Rejects notion that necessity defense only applicable in circumstances amounting to military action and war / Here, state exempted from liability under necessity defense – essential interests of the state were threatened and this was the only way to respond to the crisis

Answer 146

US firm sought to construct hazardous waste landfill in central Mexico. Received federal permits, later municipal government obstructed project. Metalclad claimed indirect expropriation. Held: indirect expropriation includes incidental interference with the use of property which has the effect of depriving the owner, in whole or in significant part, of the use of reasonably-to-be-expected economic benefit of the property. No other tribunal adopted this view; taken much narrower view

Answer 147

Key element of fair and equitable treatment is the requirement of a stable framework for the investment + expectations that were taken into account by the foreign investor to make the investment (expectations derived from conditions offered by State at time of investment and were relied upon by investor when deciding to invest). fair and equitable can also require treatment additional to or beyond that of CIL / In this case there is an objective breach of the fair and equitable treatment due under the BIT

Answer 148

Dicta: government’s intention less important than the effects of the measures on the owner of the assets

Answer 149

Duty to provide fair and equitable treatment breached only when government’s acts amount to an outrage, to bad faith, to willful neglect of duty, or to an insufficiency of governmental actions so far short of international standards that every reasonable and impartial man would recognize its insufficiency / Governments insist on this standard; investors want higher standard

Answer 150

Upheld Neer standard, rejecting Enron and other decisions stating that fair and equitable can also require treatment additional to or beyond that of CIL

Answer 151

Measures adopted must be the only way for the state to safeguards its interests; state must not have contributed to the situation of necessity Contribution to crisis was not sufficiently substantial – long time coming. Other similar situations states renegotiated, adapted, and postponed, but kept essence of intl. obligations intact. Argentina’s defense rejected; CMS compensated \>$100million

Answer 152

Art. XI of BIT / threshold requirement / -doesn’t qualify measure / Art. 25 of AoSR / an excuse only relevant once decided there has otherwise been a breach of substantive obligations / measures subject to CIL / Error of law to assume XI/25 the same / ICSID Art. 52 only gives limited jurisdiction

Answer 153

Ten days after Lauder, same facts: contract revision constituted a compensable expropriation; damages of $269million

Answer 154

State did not expropriate claimant’s property when it eliminated claimant’s exclusive right to operate a TV station

Answer 155

Rule: self-defense is only legal when an attack is ongoing. Must be based on reasl necessity, "the danger is instant, overwhelmning and leaving no choice of means, and no moment of deliberation." and action taken in response is not "unreasonable or excessive." (Facts: British army set fire to and towed into Nigara Falls a U.S. private vessel)

Answer 156

The U.S. must take urgent measures necessary to have the status of Gitmo determined

Answer 157

Habeas Corpus applies to all detainees (including non-U.S. nationals)

Answer 158

Does US executive have authority to detain those who qualify as enemy combatants? / -AUMF authorizes president to use all necessary and appropriate force (Rascoff: not possible to read this AUMF narrowly). / -Detention established part of war. / -Detention may last no longer than active hostilities (GC). / -AUMF does not authorize indefinite or perpetual detention for purposes of interrogation. / / Government’s claim that no Taliban detainee entitled to POW status in violation of Third Geneva Convention.

Answer 159

Mother of Br. national held at Guantanamo compelled UK gvt. to inquire into his reason for detention. Held: IHL does not impose any duty on a state to protect (including by diplomatic intervention) its citizens overseas when in distress. Criticized US policy in dicta (legal black holes).

Answer 160

Military Commissions Act (2006)’s provision revoking writ of habeas corpus for all detainees and limiting their remedies to review by DC Circ. COA is unconstitutional

Answer 161

Example of federal courts ordering release of detainees following Boumediene

Answer 162

Congress did not intend in th AUMF that the international laws of war were to extraterritorially limit the President's war powers. The international laws of war have not been implemented domestically, and therefore are not a source of authority in U.S. Courts. Later in time statutes (MCA) exceed the bounds of the laws of war.

Answer 163

The UK's Parliament passed legistlation on indefinite detention of a suspected foreign terrorit without access to counsel. Held that the law was not narrowly tailored enough as required by the European Convention.

Answer 164

Supreme Court upheld a convicition before a secret military commission. Analysis used on both sides of Hamdan

Answer 165

An indepdent and impartial tribunal (ICCPR Art. 14) prohibit of military officers on special natironal security courts.

Answer 166

Military commissions established to try detainees at Guantanamo inconsistent with laws of war. Rejected U.S. position that GCs don’t apply to the conflict with al Qaeda – Common Art. 3 does apply.

Answer 167

Most significant judicial opinion concerning legality of targeted killings and status of irregular combatants. NGOs argued killing of 210 people in OPT were immediate threat, could not be arrested. 125 innocent civilians killed in operations. NGOs argued killings were illegal extrajudicial under ILHR, or impermissible killing of civilians under IHL. / / Held: only law of intl. armed conflict applies. If civilian directly participates in hostilities, still a civilian but loses protection during participation.

Answer 168

Conflict between the UN Principle of non-interference in Art. 2(7) and the desire to protect human rights in Art. 1 chapter, 1(3). Issue #1 - Condemnation of Apartheid. India complains to UN about South Africa's treatment of Indian citizens. GA Res 616B calls on SA to conform law with UN Charter. SC Res 134 calls on SA to end Apartheid (as a threat to international peace and security). Issue #2 - UN Sanctioning Process: GA Res 1761 requests states apply sanctions/cut off diplomatic ties with SA, establishes special committee to report to GA on apartheid and requests SC consider Art. 6 Expulsion. SC Res 181 (1963) adopts arms ban but bc not adopted under Chapter VII, it's not considered legally binding. Bc SC wasn't doing Art 6 Expulsion (France vetoed), some states began a Credentials challenge (1974) which succeeded in rejecting credentials of South Africa & then asked SC to give recommendation that would allow UNGA to do an Art 5 susepension of rights & privileges (diff than expulsion). This request didnt go anywhere. Then SC Res 418 (1977) adopts Chapter VII ban on arms sales to SA. Issue #3 - UN as Forum for Treaty Making: International Convention on Suppression and Punishment of Crime of Apartheid drafted in UN (1973) (Apartheid Convention): allows individual officials to be held criminally liable for carrying out apartheid. Convention was opposed by western states; supported by Russia and developing states. No person has every been charged with crime of apartheid. / Issue #4 - ICJ & the Namibia Case (1966): When South Africa extended racially discriminatory policies into Namibia, 1960 Ethiopia & Liberia sue South Africa in ICJ for violating League of Nations Mandate (ICJ previously opined that Mandate still in force; south africa rejected this opinion). Despite earlier decision, ICJ decided Ethiopia/Liberia didn't have an interest in the claims, which undercut perception of ICJ effectiveness in developing countries (they stopped including ICJ in dispute settlement provisions in treaties, didn't submit to jx through compromi agmt, or issue declarations under Art. 36(2)). --\> Namibia case demonstrates barriers to ICJ's role in dispute settlement

Answer 169

Argentine government undertook reforms to restart stagnant economy, including new currency, new foreign exchange regime, new BITs including with US. Inflation fell, foreign investment grew. Privatized state-owned entities. 1998, economy began to unravel again, new measures included postponing renegotiated tariff adjustments, abolished peso-dollar convertibility. Foreign investors claimed government’s measures produced devastating consequences for their investments; government argued any loss was result of firms’ business decisions.

Answer 170

2002 Memo: US argues that 1) torture requires the specific intent to inflict severe mental pain or suffering and that intent couldn't exist if the purpose of the torture was to gain information, 2. that the necessity defense applies, 3. that self defense applies, and 4. that an interrogators aren't guilty if they are acting under presidential orders. 2004 memo: withdrew 2002 memo, repudiated intent requirement and self-defense excuse. Obama: all memos repudiated. The techniques described in the 2002 memo are now regarded as torture by the DOJ (again).

Answer 171

SC 660: constituted breach of peace, demanded withdrawal | SC 661: broad economic sanctions | SC 662: annexation null & void, called on states not to recognize | US: 661 + Art 51 permit force for compliance with embargo| SC 678: acting under CH. VII demands that Iraq comply fully with SC 660 and subsequent resolutions \_Authorizes all necessary means to uphold SC 660 + US: consistent with inherent right of self defense affirmed in 51 | SC 686: terms for formal cease fire, \_Implement resos, rescind annexation, cease hostile actions, \_SC 678 remains valid until Iraq complies with above | SC 687: disarmament and inspections, upon acceptance of terms formal cease fire effective

Answer 172

SC 1441: acting under Ch. VII, recalling 678 all necessary means: i. Recalling 687 declared ceasefire based on acceptance of terms, ii. Decides Iraq has been and remains in material breach, iii. Decides to convene immediately upon report in order to consider the situation and need for full compliance

Answer 173

46/127 states entered 150 reservations to ICCPR / / Allowing reservations encourages more states to sign onto generality of obligations / / Treaties generally mere exchanges of obligations between States that allow them to reserve inter se application of rules of general international law, human rights treaties different: are for the benefit of persons within state’s jurisdiction, CIL and jus cogens provisions not subject to reservations / / No automatic correlation between reservations to non-derogable provisions and reservations which offend against object/purpose, but state has a heavy onus to justify such a reservation / / Reservations to provisions designed to give guarantees (ex: remedies) not acceptable – integral to structure and efficacy / / Reservations made to avoid changing national law worrisome – no real intl. obligations undertaken

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