Case Chart

Question 1

Case Chart

Aouzou Strip (Chad-Libya)

Answer 1

Border dispute. Determined the Strip was in Chad, relying on colonial maps and a 1955 treaty between France and Libya. This case demonstrates the fundamental principle of stability of boundaries (uti posseditis) and “persistent objector” within State practice: Chad consistently complained to UN bodies when Libya encroached on the Strip, whereas Libya never formally complained of Chad’s use of the land.

Question 2

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Rainbow Warrior

Answer 2

Bombing of Greenpeace boat in NZ. Ruling: 1) France issues apology 2) France pays NZ $7 million in compensation (middle ground between parties’ preferences) 3) French service agents imprisoned to Hao (Fr Polynesia) to serve remainder of NZ sentences. 4) France lifts trade sanctions on NZ butter. 5) Any disagreements about this ruling go to binding arbitration. A subsequent panel found France breached #3, but just got a formal condemnation

Question 3

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Cyprus Conflict

Answer 3

Cyprus, Great Britain, Turkey and Greece make treaty that Cyprus will form independent state. Example of (1) a treaty where parties agree to future use of force arguably beyond self defense–does this violate jus cogens? (2) binding treaty signed when Greek and Turkish Cypriot leaders were unelected with no standing under international law and (3) negotiation of treaty at Zurich/London without Cyprus precluded its free choice–void as coercive? Now “frozen” conflict; satisfies no one completely, but relatively stable

Question 4

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DRC v. Rwanda

Answer 4

Unilateral statements are only binding if made in clear and specific terms. Must communicate reservations & revocations of reservations to all parties of convention. (Issue: whether DRC can sue Rwanda in the ICJ because Rwanda had promised to withdraw reservation to Art. IX of Genocide Convention, which gives ICJ Jx over Disputes).

Question 5

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Norway v. Denmark

Answer 5

Uniltateral statement made by Norwegian minister, “we will not interfere with Danish plans concerning Greenland” is binding

Question 6

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Nuclear Tests (France)

Answer 6

Unilateral statement depends on the intention to be bound of the speaker and should be governed by the principal of good faith. (Issue: whether France was bound to stop nuclear testing in South Pacific)

Question 7

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Settlement of FRY conflict

Answer 7

Treay was not invalidated even though Bosnian Serbs only came to the negotiation under the threat of air strikes

Question 8

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SS. Wimbledon

Answer 8

“The right of entering into international engagements is an attribute of state sovereignty… [therefore] the limitations under a treaty cannot be renounced as impermissible infringements on that state’s sovereignty” (Issue: Germany cannot renounce Treaty of Versailles); new gov’t can’t renounce old gov’t obligations

Question 9

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Reservations to the Genocide Convention

Answer 9

Majority: allow as many states possible to join HR treaties if an objecting state believes reservation is against O&P, then reserving party is not party to convention with that state; if obejcting states says no inviolation of O&P, then reserving party is party to the convention / Dissent: traditional rule, you need consensus to a reservation in a multilateral convention OR not memeber to treaty

Question 10

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DRC v. Rwanda

Answer 10

Reservation to Art. IX compatible with O&P Concurrence: 1951 opinion too sweeping, therefore majority view only applies if the reservation is to a “procedural” provision

Question 11

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Hull Doctrine

Answer 11

Prompt adequate and effective (Issue: Mexican/American War)

Question 12

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North Sea Continental Shelf

Answer 12

No time needed to CIL to form, just the uniform practice of specially affected states. All the meachanisms that work together to create CIL. Ex one of ways that CIL can change: Trumans’s Conscious Breach (seed of new rule if followed by other states conscious breach); same piece of evidence for both practice & opinio juris? US says no. Other states/scholars say maybe (practice must be “sufficiently dense” to infer opinio juris

Question 13

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Paquete Habana

Answer 13

US Seizure of Cuban fishing vessels during war time. Court reviews CIL as it gradually developed (via time, continuation of practice, etc.); focus on practice of Western European countires–especially England and France. Holds seizure of coastal fishing vessels during war unlawful under international law. CIL = federal common law

Question 14

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Nicaragua v. U.S.

Answer 14

Deviations, like breaches or exceptions, from the recognized rule confirm the rule (Issue: whether the U.S. illegally assisted the contras in attempting to overthrow Nica’s govt.)

Question 15

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SEDCO v. Iran

Answer 15

Under CIL, compensation for full value is required if property is expropriated. UNGA Resolution can be evidence of CIL, esp. if supported by arbitral practice and scholarship. GA Res can’t overturn CIL unless unanimous consent.

Question 16

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TOPCO v. Libya

Answer 16

Res. 1803 reflects CIL, not CERDS Res 3171 because of voting record. UNGA resolution with consent from a majority of mixed states confirms CIL while formulating and specifying it in scope.

Question 17

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World Bank Guidlines

Answer 17

Recourse for expropriation must be prompt (without delay), adequate (fair market value) and effective (currency used by investor). Exception: in the case of non-discriminatory nationalization and state of emergencies, compensation may be determination through negotiation or arbitration.

Question 18

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Chorzow Factory

Answer 18

“It is a general concept of law that every violation of an engagement involes an obligation to make reparations”

Question 19

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Abbott v. Abbott

Answer 19

State Dept. level of deference = “great deference” comes from Curtiss Wright, “speaketh with one voice”. How the U.S. interprets treaties

Question 20

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Aaland Islanders

Answer 20

[Secession] Can Aaland Islands secede? No. Finland, which was allowed to secede, was an historical nation AND oppressed by Russia, so it had external right to self-determination. Aaland Islands did not suffer persecution by Finland, so Finland keeps it but w/extra language & culture protection. / Rule: Typically, the grant of the right to a portion of its population to determining its own political fate is exclusively the right of a sovereign State. You don’t get external self-determination if your internal self-determination isn’t being threatened.

Question 21

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Conference on Yugoslavia

Answer 21

EC established Badinter Comm’n to receive requests for self-determination (new states). Comm’n issues 5 opinions on SFRY: (1) SFRY is no longer a state/in dissolution so okay to redraw borders w/in territory, (2) no changing borders unless states agree; serbs in BH & Croates entitled to rights of minorities, inc right to choose nationality, (3) all external frontiers must be respected, internal borders can only be changed by consent, not use of force, (4) Macedonia isn’t a state yet bc referendem showing will of people excluded ethnic & religious minorities. (5 omitted from DRW) (6) Macedonia’s application to the EC for statehood will only be accepted if accepts name proposed by Greece & promises not to make territorial claims against Greece.

Question 22

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South Ossetia & Abkhazia (see also page 144)

Answer 22

South Ossetia was entity short of statehood, but Abkhazia was a state-like entity. Neither should be according recognition because of their lack of respect for the human rights of ethnic Georgian minorities. (EU International Fact-Finding Commission on the Conflict in Georgia). Russia invaded to help South Ossetia secede but move not supported by int’l comm or law

Question 23

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Burkina Faso v. Mali

Answer 23

Principle of uti posseditis applies to African decolonization (as it did to Latin America). Although the end of European colonization highlights questions as to legitimacy of traditional international law (and, as a result, its traditional concepts such as uti posseditis), the interest of stability outweighs the right of peoples to self-determination.

Question 24

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Quebec

Answer 24

[Secession] Can Quebec Secede? No. International law establish the right of self-determination is normally fulfilled through internal self-determination. The right to external self-determination only arises in the most extreme of cases/under carefully-defined circumstances. No incompatibility bc right of “people” to achieve full measure of self-determination operates within parent state’s right to territorial integrity. James Bay Cree people reserved right to secede if later oppressed; complicated because the land they live on was given to Quebec as an incentive/encouragement to stay a part of Quebec - would their secession weaken Quebec’s obligation to remain a part of Canada?

Question 25

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Cambodia (Khmer Rouge)

Answer 25

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.

Question 26

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China (People’s Republic of China)

Answer 26

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

Question 27

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Haitian Election of Aristide & Subsequent Coup

Answer 27

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.

Question 28

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Sierra Leone Coup after Democratic Election

Answer 28

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.

Question 29

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Honduras’s Coup - Zelaya

Answer 29

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

Question 30

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Afghanistan & Taliban

Answer 30

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

Question 31

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IOs & Internaitonal Administrative Law Making

Answer 31

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.

Question 32

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Reparation for Injuries Suffered in the Service of the United Nations (Bernadotte Reparation Case)

Answer 32

(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.

Question 33

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Namibia

Answer 33

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

Question 34

Case Chart

Kosovo

Answer 34

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

Question 35

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Macedonia - Greece Name Dispute

Answer 35

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.

Question 36

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Palestine

Answer 36

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.

Question 37

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South Sudan

Answer 37

[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

Question 38

Case Chart

Libya

Answer 38

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

Question 39

Case Chart

Syria

Answer 39

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.

Question 40

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Somalia

Answer 40

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

Question 41

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Cairo Population Conf.

Answer 41

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

Question 42

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Workplace Cond. In South Asia Apparel Factories

Answer 42

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)

Question 43

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Crosby v. Nat’l Foreign Trade Council

Answer 43

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.

Question 44

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Zschernig v. Miller

Answer 44

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.

Question 45

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American Insurance Association v. Garamendi

Answer 45

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.

Question 46

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Costa v. Ente Nazionale per L’Energia

Answer 46

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

Question 47

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Van Gend en Loos v. Nederlandse

Answer 47

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.

Question 48

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Missouri v. Holland

Answer 48

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

Question 49

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Reid v. Covert

Answer 49

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.

Question 50

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US v. Verdugo-Urquidez

Answer 50

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.

Question 51

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Made in the USA Foundation v. U.S.

Answer 51

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

Question 52

Case Chart

Oetjen v. Central Leather Co.

Answer 52

“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

Question 53

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Goldwater v. Carter

Answer 53

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

Question 54

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Dames & Moore v. Reagan

Answer 54

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)

Question 55

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Cherokee Tobacco

Answer 55

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

Question 56

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USA v. PLO

Answer 56

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

Question 57

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R.FL § 114 Interpretation of Federal Statute in Light of International Law or Agreement

Answer 57

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.

Question 58

Case Chart

R.FL § 115 Inconsistency Between International Law or Agreement and Domestic Law

Answer 58

(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.

Question 59

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Breard v. Greene

Answer 59

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.”

Question 60

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LaGrand (Germany v. United States)

Answer 60

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

Question 61

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Torres v. Oklahoma

Answer 61

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

Question 62

Case Chart

Avena

Answer 62

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.

Question 63

Case Chart

Sanchez-Llamas v. Oregon

Answer 63

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.

Question 64

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Medellin v. Texas

Answer 64

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.

Question 65

Case Chart

Foster v. Neilson

Answer 65

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.

Question 66

Case Chart

Bowers v. Hardwick

Answer 66

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.”

Question 67

Case Chart

Lawrence v. Texas

Answer 67

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

Question 68

Case Chart

Roper v. Simmons

Answer 68

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.

Question 69

Case Chart

Filartiga v. Pena-Irela

Answer 69

(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.

Question 70

Case Chart

Sosa v. Alvarez Machain

Answer 70

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).

Question 71

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Argentine Republic v. Ameranda Hess

Answer 71

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

Question 72

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Mora v. NY

Answer 72

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

Question 73

Case Chart

In re South African Apartheid Litigation

Answer 73

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).

Question 74

Case Chart

Khulumani v. Barclay Ntl Bank

Answer 74

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.

Question 75

Case Chart

Presbyterian Church of Sudan v. Talisman Energy, Inc.

Answer 75

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

Question 76

Case Chart

Banco Nacional de Cuba v. Sabbatino

Answer 76

(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.

Question 77

Case Chart

Underhill v. Hernandez

Answer 77

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

Question 78

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Alfred Dunhill v. Republic of Cuba

Answer 78

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

Question 79

Case Chart

First National v. Banco Nacional de Cuba

Answer 79

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

Question 80

Case Chart

W.S. Kirkpatrick v. Environmental Tectonics

Answer 80

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)

Question 81

Case Chart

Presbyterian Church of Sudan v. Talisman Energy

Answer 81

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

Question 82

Case Chart

Corrie v. Caterpillar

Answer 82

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.

Question 83

Case Chart

Kiobel v. Royal Dutch Petroleum

Answer 83

(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.’)

Question 84

Case Chart

Bond v. US

Answer 84

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.

Question 85

Case Chart

Lotus

Answer 85

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) → 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.

Question 86

Case Chart

Apollon

Answer 86

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

Question 87

Case Chart

American Banana Co. v. United Fruit Co.

Answer 87

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.

Question 88

Case Chart

Alcoa

Answer 88

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.

Question 89

Case Chart

Timberlane

Answer 89

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.

Question 90

Case Chart

Hartford Fire Insurance Co. v. California

Answer 90

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.

Question 91

Case Chart

EEOC v. ARAMCO

Answer 91

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”

Question 92

Case Chart

Murray v. Schooner Charming Betsy

Answer 92

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

Question 93

Case Chart

F. Hoffman LaRoche v. Empagaram

Answer 93

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’).

Question 94

Case Chart

Wood Pulp Cartel

Answer 94

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.

Question 95

Case Chart

Blackmer v. US

Answer 95

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

Question 96

Case Chart

Joyce Case

Answer 96

“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.

Question 97

Case Chart

US v. Romero-Galue

Answer 97

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

Question 98

Case Chart

US v. Pizzarusso

Answer 98

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.

Question 99

Case Chart

Attorney-General of the Government of Israel v. Eichmann

Answer 99

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

Question 100

Case Chart

US v. Bin Laden

Answer 100

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

Question 101

Case Chart

US v. Yousef

Answer 101

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

Question 102

Case Chart

Dokmanovic

Answer 102

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.

Question 103

Case Chart

Ker v. Illinois

Answer 103

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

Question 104

Case Chart

US v. Alvarez-Machain

Answer 104

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’).

Question 105

Case Chart

US v. Rauscher

Answer 105

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

Question 106

Case Chart

R. v. Horseferry Raod Magistrates’ Court

Answer 106

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.

Question 107

Case Chart

State v. Ebrahim

Answer 107

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

Question 108

Case Chart

Ocalan v. Turkey

Answer 108

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.

Question 109

Case Chart

State v. Beahan

Answer 109

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.

Question 110

Case Chart

Prosecutor v. Todorovic

Answer 110

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.

Question 111

Case Chart

Prosecutor v. Nikolic

Answer 111

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.

Question 112

Case Chart

El-Masri v. U.S.

Answer 112

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.

Question 113

Case Chart

Schooner Exchange v. McFaddon

Answer 113

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.

Question 114

Case Chart

Ex Parte Peru

Answer 114

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.”

Question 115

Case Chart

Mexico v. Hoffman

Answer 115

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.

Question 116

Case Chart

Tate Letter

Answer 116

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)

Question 117

Case Chart

Austria v. Altmann

Answer 117

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.

Question 118

Case Chart

Martin v. Rep of South Africa

Answer 118

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.

Question 119

Case Chart

Draft: UN Convention on Jurisdictional Immunities of States and Their Property

Answer 119

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

Question 120

Case Chart

Republic of Argentina v. Weltover

Answer 120

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

Question 121

Case Chart

Saudi Arabia v. Nelson

Answer 121

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.

Question 122

Case Chart

Al-Adsani v. Kuwait

Answer 122

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)

Question 123

Case Chart

Jones v. Saudi Arabia

Answer 123

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

Question 124

Case Chart

Antares Aircraft v. Federal Republic of Nigeria

Answer 124

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.

Question 125

Case Chart

Smith v. Libya

Answer 125

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.

Question 126

Case Chart

Boim v. Holy Land

Answer 126

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)

Question 127

Case Chart

Guevara v. Peru

Answer 127

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

Question 128

Case Chart

Germany v. Italy

Answer 128

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

Question 129

Case Chart

Universal Trading & Investment Co. v. Ukraine

Answer 129

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.

Question 130

Case Chart

Morrisson v. Nat’l Aus Bank

Answer 130

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

Question 131

Case Chart

Dole Food Co. v. Patrickson

Answer 131

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

Question 132

Case Chart

Boeing-McDonnell Douglas Merger

Answer 132

Boeing and MCDD wanted to merge; would make it world’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 EC’s approval of the merger.

Question 133

Case Chart

Al Skeini v. Sec. of State for Defense

Answer 133

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.

Question 134

Case Chart

Bankovic and Others v. Belgium and 16 Other Contracting States

Answer 134

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.

Question 135

Case Chart

Issa v. Turkey

Answer 135

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.

Question 136

Case Chart

Republic of Ireland v. UK

Answer 136

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.

Question 137

Case Chart

Public Committee Against Torture in Israel v. State of Israel

Answer 137

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.

Question 138

Case Chart

Selmouni v. France

Answer 138

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.

Question 139

Case Chart

A and Others v. Secretary of State for the Home Department

Answer 139

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”

Question 140

Case Chart

Kennedy v. Trinidad & Tobago

Answer 140

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.

Question 141

Case Chart

Domingues v. Nevada

Answer 141

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.

Question 142

Case Chart

Roper v. Simmons

Answer 142

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.

Question 143

Case Chart

L’affaire du Foulard

Answer 143

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

Question 144

Case Chart

Velasquez Rodriguez v. Honduras

Answer 144

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.

Question 145

Case Chart

Sahin v. Turkey

Answer 145

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

Question 146

Case Chart

Sahin v. Turkey

Answer 146

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

Question 147

Case Chart

Dahlab v. Switzerland

Answer 147

Prohibited primary school teachers in Switzerland from wearing the headscarf

Question 148

Case Chart

R (Begum) v. Headteacher and Governors of Denbigh High School

Answer 148

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

Question 149

Case Chart

Samantar v. Yousuf

Answer 149

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

Question 150

Case Chart

Gafgen v. Germany

Answer 150

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

Question 151

Case Chart

Dole v. Patrickson

Answer 151

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.”

Question 152

Case Chart

Problem: US’s RUDS and the HRC

Answer 152

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.

Question 153

Case Chart

Protecting Political and Civil Rights: U.S. Use of “Enhanced Interrogation Techniques”

Answer 153

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.

Question 154

Case Chart

US v. Alstoetter et al.

Answer 154

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.

Question 155

Case Chart

Khmer Rouge (was it genocide?)

Answer 155

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.

Question 156

Case Chart

Bosnia & Herzegovina v. Serbia & Montenegro

Answer 156

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)

Question 157

Case Chart

Abu Ghraib (Commander Liability/Responsibility)

Answer 157

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

Question 158

Case Chart

Republic of Ireland v. United Kingdom

Answer 158

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

Question 159

Case Chart

Prosecutor v. Mucic et al.

Answer 159

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

Question 160

Case Chart

In re Yamashita

Answer 160

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

Question 161

Case Chart

Prosecutor v. Erdemovic, Sentencing Appeal

Answer 161

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

Question 162

Case Chart

Prosecutor v. Tadic, Jurisdiction Appeal

Answer 162

ICTY lawfully established under UN Charter Ch. VII

Question 163

Case Chart

Fora For Justice: The Rwandan Genocide of 1994

Answer 163

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

Question 164

Case Chart

Governmental Attacks on Civilian Populations: Khmer Rouge’s Rule Over Cambodia

Answer 164

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

Question 165

Case Chart

Libya

Answer 165

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)

Question 166

Case Chart

SFRY: Tadic

Answer 166

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).

Question 167

Case Chart

Wartime Abuses: U.S. Treatment of Prisoners at Abu Ghraib

Answer 167

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

Question 168

Case Chart

Promoting International Trade and Resolve Trade Disputes: The Banana War

Answer 168

See chart pg. 790-92

Question 169

Case Chart

LG&E v. Argentine Republic

Answer 169

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

Question 170

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Metalclad v. Mexico

Answer 170

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

Question 171

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Enron Corp. v. Argentine Republic

Answer 171

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

Question 172

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Tecmed v. Mexico

Answer 172

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

Question 173

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US (LF Neer) v. Mexico

Answer 173

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

Question 174

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Glamis Gold v. USA

Answer 174

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

Question 175

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CMS v. Argentine Republic

Answer 175

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

Question 176

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CMS v. Argentine Republic

Answer 176

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

Question 177

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CME v. Czech Republic

Answer 177

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

Question 178

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Lauder v. Czech Republic

Answer 178

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

Question 179

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Caroline

Answer 179

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)

Question 180

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Detainees in Guantanamo Bay, Request for Precautionary Measures

Answer 180

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

Question 181

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Rasul v. Bush

Answer 181

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

Question 182

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Hamdi v. Rumsfeld

Answer 182

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.

Question 183

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Abassi v. Sec. of State

Answer 183

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).

Question 184

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Boumediene v. Bush

Answer 184

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

Question 185

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Parhat v. Gates

Answer 185

Example of federal courts ordering release of detainees following Boumediene

Question 186

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Al-Bihani v. Obama

Answer 186

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.

Question 187

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A and Others v. Secretary of State for the Home Department

Answer 187

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.

Question 188

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Ex Parte Quirin

Answer 188

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

Question 189

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Incal v. Turkey

Answer 189

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

Question 190

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Hamdan v. Rumsfeld

Answer 190

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.

Question 191

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Public Committee Against Torture in Israel v. Government of Israel

Answer 191

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.

Question 192

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The UN and Apartheid

Answer 192

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

Question 193

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Resolving Investment Disputes: Economic Turmoil in Argentina

Answer 193

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.

Question 194

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Problem: US and Torture

Answer 194

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).

Question 195

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Gulf War I

Answer 195

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

Question 196

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Gulf War II

Answer 196

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

Question 197

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Human Rights Committee, General Comment 24

Answer 197

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