Transnational Law

Question 1

Extradition

Answer 1

The formal process by which a state delivers an individual within its custody to another state that intends to prosecute or sentence that individual. (Determined by Treaties)

This is the preferred way of moving someone from the quested country to the requesting country (over rendition and Kidnapping)

Question 2

Rendition

Answer 2

A state, by executive decision, may privately hand over an individual within its custody to another state without official inquiry or review.

Question 3

Jurisdiction to Prescribe

Answer 3

The ability of a state to apply its substantive law to specific individuals or incidents.

Question 4

Jurisdiction to Adjudicate

Answer 4

The ability of a state to subject individuals or entities to its judicial or administrative processes.

Question 5

Jurisdiction to Enforce

Answer 5

The ability of a state actually to oblige individuals or entities to comply with the law and to sanction non-compliance.

Question 6

Jurisdiction Generally - Basis for Jurisdiction

Answer 6

Courts of a state may exercise jurisdiction with respect to a person alleged to have committed a crime if the relationship of the state to that person makes the exercise of jurisdiction reasonable. Basis for jurisdiction include:

1. Nationality -
2. Territoriality – The person committed the crime in the state
3. Physical Presence – The person is physically present in the state
4. Passive personality – The victim is a national of the state
5. Protective Principle – Offenses directed against the security of the state or that threaten states interests (such as espionage)
6. Universal – The crime in question is of sufficient concern to the international community at large that any national court anywhere can prosecute

Question 7

Conditions to Extradition

Answer 7

Double Criminality – Extradition is usually granted only for serious offenses criminalized by both the requested and requesting states.

No extradition without a treaty
o However, in the past countries have “self-helped” by kidnapping someone on foreign soil

Only the State department may make extradition requests on behalf of the US.

Once made, the request becomes subject to a judicial hearing (Not a trial) in the requested state.

The requested state may defer extradition if that state is prosecuting the individual in question for a crime over which that state’s courts have jurisdiction to adjudicate

Question 8

Opino Juris

Answer 8

A sense of legal obligation

Question 9

Jus Cogens

Answer 9

The principles which form the norms of international law

Question 10

Sources of International Law

Answer 10

Three Primary Sources:
1. International Treaties (conventions, protocols, covenants, etc) (Purely Consensual)

2. Customary International Law (Statutes in Int’l court of justice, behavior/conduct of states) - How do states act out of a sense of legal obligation?
3. General principles of law within national legal systems (common principle of law that are recognized by a broad number of states)

Two Secondary Sources:

1. Judgments by international and national Courts
2. Works of eminent publicists

Question 11

Treaties

Answer 11

a. Virtually all of international law today is based on international treaties. They are by far the first, best indicator of the content of international law
b. Treaties are like contracts between multiple states
c. Treaties only apply to the states that consent to them
d. Entry into Force Provisions - – Those provisions say that the treaty only enters into force (becomes fully binding) once a certain number of states have become treaty parties.

Question 12

Treaty Vocabulary

Answer 12

Adoption - State takes a vote to adopt a treaty

Authentication - Adopted text is formally accepted as binding

Signature - When the executives/representatives of a state sign it

Ratification - Document goes to national legislatures which can adopt it legislatively through ratification

Accession - Countries that don’t ratify can submit it to domestic legislatures to enact into domestic law (same result as ratification)

Entry Into Force - When a treaty becomes fully binding

Denunciation - Leaving a bilateral treaty (It no longer exists)

Withdrawal - Leaving a multilateral treaty (Other states are still in the treaty)

Question 13

Pacta Sunt Servanda

Answer 13

Agreements must be kept

Question 14

Uti possidetis juris

Answer 14

As you possess under law

- Ex. Island of Palmas Case

Question 15

Recognition

Answer 15

The capacity to engage in international relations

Question 16

Stateless Person

Answer 16

A permanent tenant with no security, stability, or place. The ultimate form of disenfranchisement. You are a perpetual wanderer

Question 17

Jus in Bello

Answer 17

How you legally wage war

Question 18

Jus ad Bellum

Answer 18

When you can legal wage war

Question 19

Foreign Cubed Case

Answer 19

Wrongdoer, Wrongdoing, and Victim are all foreign to the jurisdiction

Question 20

Kindler v. Canada Facts

Answer 20

Kindler was convicted of Murder in Pennsylvania and given the death penalty. After trial he escaped to Canada. He was captured and the Canadian Minister of Justice surrendered Kindler to the US without first seeking assurances that Kindler would not be put to death. Minister wanted to discourage foreign murderers from seeking haven in Canada in order to escape death penalties abroad.

Question 21

Kindler v. Canada Holding

Answer 21

Court found that it was not cruel or unusual punishment because the potential execution would be taking place in the US under US law against a US citizen for an offense that took place in the US.

Question 22

Kindler v. Canada Dissent

Answer 22

Canada has made a commitment to support human dignity and the abolition of the death penalty. They can’t on one hand give a commitment to abolishing the death penalty to the international community and on the other hand extradite a fugitive without seeking assurances that he won’t be put to death.

Question 23

Question from Kindler v. Canada

Answer 23

To what extent should law made internationally that we have either chosen to avoid, or that we can’t join (because it’s not formal hard law), or is made in jurisdictions of which we can’t be a member. To what extent is our national consensus of who we are, to be informed by international law and “law like stuff” that is not formally binding.

Question 24

US v. Burns and Rafay Facts

Answer 24

Burns and Rafay were accused of Murdering Rafay’s family in Washington State. They were arrested in BC and were going to be extradited. The Minister of Justice did not seek death penalty assurances.

Question 25

US v. Burns and Rafay Holding and Reasoning

Answer 25

Holding: Absent exceptional extraordinary circumstances, assurances are always required for an extradition from Canada to be constitutional

Reasoning: Seems to follow the dissent in Kindler. Canada has been at the forefront of denouncing the death penalty internationally, which is at odds with allowing Canadian Citizens to be extradited to the US where they will face the death penalty.

Question 26

Soering v. United Kingdom Facts

Answer 26

Soering, a German, was detained in England pending extradition to the US for murder charges in VA. Soering alleged that his extradition (and possible death sentence) would breach Art. 3 of the European Convention of Human Rights which read that “No one shall be subjected to torture or inhuman or degrading treatment or punishment.” The UK government did not believe that the risk of death penalty was sufficient to bring article 3 into play. The UK believed that since at least 4 of the 5 mitigating factors for avoiding the death penalty applied to Soering, it was unlikely (but not impossible) that Soering would be put to death. However the VA commonwealth attorney made it clear that he would indeed seek the death penalty

Question 27

Soering v. United Kingdom Holding

Answer 27

The likelihood of the exposure to the death penalty for the defendant would breach Article 3 if he were extradited. Article 3 doesn’t prohibit the death penalty explicitly, but each case must be liked at differently.

Question 28

Roper v. Simmons Facts

Answer 28

17-year-old Christopher Simmons committed murder and was sentenced to death. He did not argue his innocence, but rather that it was unconstitutional to sentence a minor to death.

Question 29

Roper v. Simmons Rules

Answer 29

Rule - The execution of a minor is cruel and unusual punishment under the 8th amendment.

More important Rule for this class - International law and foreign practice, particularly when near-universal in support of a common doctrine or policy, may be considered in interpretations of the Eighth Amendment to the United States Constitution by American courts.

Question 30

Roper v. Simmons Reasoning

Answer 30

Foreign or international law can confirm the existence of a national consensus. The majority judgment sets up a clear test or definition of the use of foreign and nonbinding international law in ascertaining our constitutional principles.

Test:
Is there a national consensus on a Constitutional matter? If the answer is yes, then the court can consider non-binding foreign and international law to confirm that intuition.

Question 31

Roper v. Simmons Dissents

Answer 31

Dissent – O’Connor - Genuine national consensus against the juvenile death penalty has not been developed and there is no justification for an age-based constitutional rule

Dissent – Scalia - We should never look to international law for the answers, especially if we have not ratified the international treaties that we seek to use in our argument. It’s not that other countries don’t put minors to death, they just say that they don’t. A jury can withhold the death penalty after considering a specific case and its circumstances.

Question 32

Abbott v. Abbot Facts

Answer 32

Timothy Abbott (plaintiff) and Jacquelyn Vaye Abbott (defendant) had a child, A.J., in 1995 and moved to Chile in 2002. The couple separated in 2003. Chilean law granted Jacquelyn daily care and control of A.J., but granted Timothy regular visitation rights and a ne exeat right—a joint parental right that Timothy could use to prevent Jacquelyn from removing A.J. from Chile. While the custody case in Chile was still pending, Jacquelyn had taken A.J. to Texas without consent from Timothy or the Chilean court. Jacquelyn filed for divorce in Texas and sought full control over A.J.’s place of residence. In 2006, Timothy filed suit in the United District Court for the Western District of Texas, seeking a court order mandating that A.J. be returned to Chile, pursuant to the Hague Convention on the Civil Aspects of International Child Abduction (Abduction Convention). Jacquelyn argued that a right of custody must be capable of being exercised. Therefore, as a ne exeat right cannot be exercised unless and until the other parent attempts to remove the child from the country, a ne exeat right is not a right of custody. The district court denied Timothy’s request, holding that Timothy’s ne exeat right was not a right of custody. The United States Court of Appeals for the Fifth Circuit affirmed, holding that the return of the child is not a remedy for a violation of a ne exeat right.

Question 33

Abbott v. Abbott Rule

Answer 33

A ne exeat right is a right to custody. Under the treaty, a unilateral decision to remove the child violates that custodial right.

Question 34

Paquete Habana - Question and Analysis

Answer 34

Question: How do you prove custom? What is the evidence?

Analysis: One way is by looking at the number of states that act a certain way out of a sense of legal obligation. The longer the duration, the more likely it is a customary norm

Another way is the language that states use – Imperative vs. Conditional language

How do states that don’t adhere to the norm act? Are they ashamed? Do they do it in secret?
(Ex. Prohibition on torture is a customary norm, yet torture exists. But states generally do it in secret or say that they’re not torturing.)

Question 35

Medellin v. Texas Rule and Analysis

Answer 35

Rule: A decision of the ICJ does not automatically constitute binding law in the US

Analysis: In order to provide clarity, we have the change the assumptions in our domestic ratification processes. Congress must show the special intent to render the international treaty fully self-executing so that when enacted, it supersedes all other domestic law that it touches to be immediately operative. This can happen in two ways

  1. Congress Says So - “by enacting the treaty, we commit to ensure that it is automatically operational and executed. Any other domestic law that might present a contradiction is to be changed.”
 2. Better way is to say - “We’ve done our homework, here’s a list of every other statute on the federal books that relates to the subject matter of this new international treaty we just ratified”

Since Medellin: Senate has altered pro-forma language that is used when a treaty is submitted to congress. That language explicitly references the intent of self-execution.

Question 36

Island of Palmas Case Facts

Answer 36

An island was in dispute between the US and Netherlands

i. US bases claim on Treaty of Paris where they acquired land from Spain (whose claim is rooted in discovery)
ii. Dutch claim is based on occupation and use – They had contracts with the Princes of the island and conducted a lot of economic activity there via the East India Trading Company

Question 37

Island of Palmas Case Rule

Answer 37

Territorial sovereignty over land may be gained by a State which is not the first discoverer of the land if that State peacefully and continuously possesses the land for a period of time.

Uti possidetis juris – Disputes arose out of decolonization. Independent states emerged from empires and those states conflicted with each other. Doctrine says that in the interest of stability and certainty in the international legal order, newly independent states coming out of decolonization are presumed to inherit the boarders and territorial understandings that were imposed on them in the colonial period.

Question 38

Nottebohm Case Facts

Answer 38

Nottebohm was a German national who received citizenship through Liechtenstein through naturalization and performed substantial business dealings in Guatemala. Nottebahm was arrested in Guatemala. Guatemala said that Lichtenstein doesn’t have standing to assert diplomatic protection for Nottebohm. Guatemala said the grant of nationality that Lichtenstein gave to Nottebohm was illegitimate.

Question 39

Nottebohm Case Holding/Rule

Answer 39

Citizenship granted through naturalization requires a real affective, genuine connection with a nation. There needs to be a nexus and the court says that is lacking. Therefore, whatever Guatemala did, Lichtenstein cannot assert diplomatic protection over him.

Question 40

Barcelona Traction Facts

Answer 40

Barcelona Traction, Light and Power Company, Ltd. (Company) was a corporation organized under the laws of, with a registered office in, Canada. Several citizens of Belgium (plaintiff) were shareholders in the Company. Belgium brought suit against Spain (defendant) in the International Court of Justice (ICJ) on the ground that the Spanish government violated international law and caused injury directly to the Company and indirectly to its Belgian shareholders by reducing the value of their shares. Belgium argued Spain should be held responsible for these injuries to its citizens.

Question 41

Barcelona Traction Holding, and Things to Note

Answer 41

Holding: Under int’l law, corporate nationality is based on the place of incorporation

Note: Just because a state is the one of which you’re a national, doesn’t mean that it has to exercise diplomatic protection over you. It’s discretionary.

Note: If the incorporating country is doing the wrong, equity permits a third-party state to bring a claim on behalf of shareholders.

Note: ICJ says that if you want to play the game of transnational business, you have to accept the risks of it falling apart. International law is not an insurance policy when your business doesn’t work out.

Question 42

Prosecutor v. Krstic Facts and Holding

Answer 42

Facts: Krstic is a Bosnian general who’s charged with aiding and abetting the genocide of roughly 7000 Bosnian Muslim men of military age in Srebrenica. The goal of the surge is to attach land to ethnicity (Ethnic cleansing). Purify the land (violent form of gerrymandering). Krstic claims that he didn’t commit genocide because he only killed the military age, Muslim, men.

Holding: The court imports an elasticity into the definition of genocide and the “wipe out” component to say you don’t have to wipe out the group indiscriminately. If the targeted group is substantial to the population as a whole genocide could apply.

Question 43

US v. Belfast

Answer 43

a. Convention Against Torture (CAT) requires prosecution or extradition and operates extraterritorially.
i. Torture act is the domestic ratification of the torture convention. Under the “Rational Relationship Test” as long as the ratification bears a rational relationship to the treaty, it’s valid. (Rejects the mirror-image rule)
ii. CAT is the floor, and not the ceiling on legislation. A broader interpretation does not defeat the spirit of the CAT

b. From Medellin we learned that everything has to be self-executing, and here we learned that there only needs to be a rational relationship. It’s a contradiction, but the CAT itself permits that

Question 44

Azanian People’s Case

Answer 44

a. South Africa allowed for amnesty for penal and civil action (Two Conditions)
i. Full Disclosure of all facts relating to the offense
ii. Offense was associated with a political act

b. Azanian people were against amnesty, they wanted offenders to be liable
i. They claim that int’l law requires SA to prosecute and use customary international law to support their argument

c. Why this case matters
i. Plaintiffs rely on customary international law to seek litigation outcomes
ii. Recognition of how under Article 17 of Rome Statutes – truth commissions and trials are not on equal footing. Trials are preferred

Holding: Customary international law does not have a duty to prosecute, especially in a state’s attempt to police violence in its own borders. Intrastate violence is subject to lower scrutiny in regards to international law.

Question 45

Jesner v. Arab Bank Background and Facts

Answer 45

a. Looks at what evidence a court will use to determine what is/is not a customary international norm

b. Paradox – Tension between humanitarian aid, and human rights perspective.
i. Humanitarian aid is allowed into a restricted area and sees horrible things. They promise to the “warlord” that they won’t talk about anything they see. However later they’re subpoenaed to testify against that warlord.

Facts – Arab Bank is national bank of Jordan accused of funding terrorism

Question 46

Jesner v. Arab Bank Question, Holding, and Rule

Answer 46

Question: Is terrorist financing a customary international crime?
i. This is important because ATS only triggers if it is

Holding: Different definitions of terrorism share a common kernel of prohibited behavior
i. Widespread and systematic uses of violence against civilians to secure a political outcome are broadly prohibited.

Rule: Foreign corporations cannot be sued under the ATS
i. Note – This is the only case of ATS litigation against a corporation where the executive did not try and intervene

Question 47

Morrison v. National Australia Bank Facts

Answer 47

FL company owned by Aussie bank. FL company did sleazy stuff. Aussie stockholders sued Aussie bank in NY.
Securities & Exchange Act provides no cause of action unless there was a domestic transaction (contractual sale in U.S. or sale involving corporate entity on domestic market)

Note: This is a foreign Cubed case

Question 48

Morrison v. National Australia Bank Holding, Test, and Takeaways

Answer 48

Holding: Section 10(b) of the Securities Exchange Act of 1934 does not provide a cause of action for misconduct relating to securities traded extraterritorially on foreign exchanges.

Key Thread - Extraterritoriality: How far can states reach to involve themselves in bad things that happen elsewhere

Test: Transaction Test – If the initial purchase/Sale was made in the US or if the security is listed on a domestic exchange, US courts have jurisdiction

Major Takeaway: Congress can pass legislation giving our federal courts jurisdiction over everything. In absence of explicit extraterritoriality, it’s up to the courts to interpret if our laws apply extraterritorially.
- There is a presumption against extraterritorial application without clear Congressional intent or language

Question 49

Daimler AG v. Bauman

Answer 49

Facts: The plaintiffs alleged that Mercedes-Benz Argentina (MBA), a Daimler subsidiary, collaborated with Argentinian forces to kidnap, torture, and kill MBA workers during an Argentinian war

Question: Can a court assert general jurisdiction over a corporation if the corporation’s affiliations with the forum state are not so continuous and systematic as to render the corporation at home in the state?

Holding: No, A court can only assert general jurisdiction over a corporation if the corporation’s affiliations with the forum state are so continuous and systematic as to render the corporation at home in the state.

Question 50

Bond v. United States

Answer 50

Facts: Bond’s husband impregnated her friend, so Bond puts chemicals on her friends mailbox. Federal government charges Bond with mail theft and using chemical weapons.

Constitutional Question: Can Congress’ power to do what is necessary and proper to enact an international treaty give Congress the power to trespass onto the rights of the states? (Court’s don’t answer this question - They instead look at Congressional intent when passing the Chemical Weapons Implementation Act.)

Important Point: We could pass federal legislation criminalizing any minor offense. In Bond, the international nature of the Chemical Weapons Convention as being the underpinning to the domestic legislation, limited the penal reach of the domestic statutes. By adopting this domestically, the impetus behind the legislation was the global protection of civilians from chemical weapons by violent actors.

Another Important Point: We think of international criminal law enforcement as desirable.
i. Remember - Every int’l treaty that criminalizes something undesirable, but in order for them to be effective those treaties have to migrate home and be domesticated. This means that enforcement lies in the hands of federal prosecutors. Here, the federal prosecutors zealously used an int’l treaty to engage in something overreaching.

  ii.	The one int’l crime that doesn’t have a standalone convention is CAH. If we had a federal statutes, the definition  of CAH could expand to things like gangs 

   iii.	International criminal law, when bought home, is simply criminal law with all of its problems and faults

Question 51

RJR Nabisco v. United States

Answer 51

Background: RICO assembles a series of preexisting crimes (predicate offenses) covering everything from mail fraud to murder
i. If federal prosecutors can show that any one of those individual predicate offenses is committed in a racketeering, organized crime context, then it moves into a different category of criminality and can be prosecuted at an enhanced level.

Facts: RJR allegedly 1) provided material support to intl terrorism & 2) money laundered. RICO violation (predicate offenses (1, 2) + Occurred in patterned systematic organizational group behavior. Civil suit for foreign action with alien Plaintiff.

Holding: The RICO Act applies extraterritorially if the predicate racketeering act applies extraterritorially.

Second Holding: Second piece of RICO is civil damages – Court holds that a private plaintiff must prove a domestic injury to maintain a civil cause of action based on RICO. This is a narrower approach than the criminal side of RICO.

Question 52

Nestle v. Doe

Answer 52

Facts: Six individuals from Mali alleged that they were trafficked into the Ivory Coast as child slave to produce cocoa. Nestle and Cargill, U.S. based companies, do not own or operate cocoa farms in Ivory Coast, but they do provide farms in IC resources and buy cocoa from them. The Does sued Nestle, Cargill, and others under the ATS.

Holding: Justice Thomas applies the preexisting jurisprudence on the ATS to simply say that the slavery claims bought are not litigable for the reason that they lie beyond the remit of the ATS.

Question 53

Kiobel v. Royal Dutch Petroleum

Answer 53

Foreign Cubed Case

Facts: Kiobel filed suit in United States District Court against Dutch, British, and Nigerian petroleum corporations (oil companies) (defendants). The complaint alleged violations of the Alien Tort Statute in the early 1990s for aiding and abetting the Nigerian government in atrocities including rape, murder, and property destruction against citizens protesting oil exploration overseas.

Holding: Under the presumption against extraterritorial application, United States law does not apply extraterritorially, unless the law itself clearly provides for such application.

Touch and Concern Test: The claims have to “touch and concern” the US. If they sufficiently touch and concern the US, the presumption against extraterritoriality may be ousted.

Important: This does not discuss whether a corporation can be held liable, it only focuses on the procedural part (extraterritoriality)

Question 54

Samantar v. Yousuf

Answer 54

Facts: Ps are suing under the ATS. Defendant is in VA. D’s defense to the lawsuit is the FSIA. He argues that as a “state actor” he should be immune under the FSIA. He’s so embedded in the instrumentalities of a foreign state, that he is essentially a foreign state.
a. This is not a case determining if an exception to the FSIA applies. This case is about who and what is covered under the FSIA

Question: Does FISA apply to individuals?

Holding: No. Here the court takes a plain language interpretation of the statute.

Important Footnote: SCOTUS says just because Samantar can’t rely on the FSIA to stop the litigation, doesn’t mean that he can’t evoke a theory of personal immunity which is central to customary int’l law.

Question 55

OBB Personenverkehr AG v. Sachs

Answer 55

Facts – This is a Tort suit in US for injury that happens in Austria.

Question – Does the FISA commercial activities exception apply?

Holding – There needs to be some jurisdictional nexus for US courts to hear a case, that nexus is lacking here. We don’t want to encourage forum shopping

Question 56

Germany v. Phillipp

Answer 56

a. Here, Germany says that the commercial exception is only applicable to aliens and not domestic citizens.
b. Holding - The takings exceptions apply when the taking is not domestic. In this case, the taking is purely domestic

Question 57

Bank Markazi v. Peterson

Answer 57

Facts - Respondents, victims of Iran-sponsored acts of terrorism, brought suit against Iran. To enforce judgments they obtained by default, respondents moved for turnover of about $1.75 billion in bond assets held in a New York bank account - assets that, respondents alleged, were owned by Bank Markazi, the Central Bank of Iran. . Bank Markazi contended that Congress had usurped the judicial role by directing a particular result in the pending enforcement proceeding

b. Here the court says that Congress isn’t telling the judiciary what to do, but simply passing a law.

c. They’re sensitive to the fact that int’l affairs is the realm of the political branches and not courts
i. The judiciary tends to be more restrained in the international context

Holding: Congress permitted to determine whether victims get damages and how much instead of court. Permitted b/c deference to Congress’ authority over foreign affairs and transnational harms

Question 58

Animal Science v. Hebei

Answer 58

Facts: US vitamin C producers accused Chinese sellers of engaging in price fixing. Chinese sellers argued that Chinese law required their price fixing. The Ministry of Commerce of the People’s Republic of China (the ministry) filed an amicus brief supporting the motion of the sellers and interpreting Chinese law to require the price and quantity fixing.

Note: The defendant is trying to position itself as a state instrumentality by saying they have no choice in the price fixing because they’re part of a governmental regime that compels them to do that.

Holding: A foreign government’s interpretation of its own domestic law is not binding or authoritative, it’s simply a consideration.

Question 59

Manco Contracting v. Bezdikian

Answer 59

a. The Court shows a lack of deference to the executive in refusing to admit a state department report

b. Holding/Rule: In order for a foreign judgment to be enforced, it must be conclusive.
i. To be conclusive, there needs to be due process. But the appeals court won’t micromanage unfairness so much that the defendant gets a de novo trial.

c. Question – How much should national boarders mean in terms of externalizing losses and rendering them unrecoverable in the places where they occurred.

d. Important – CA statute is the floor of the enforceability of foreign judgments. The base norm is that a court in Country X will enforce a judgment from Country Y if it is conclusive
i. There are a lot of conventions regarding international civil procedure. (Ex. The Hague Convention on Enforcement of Foreign Judgments – Says if a state signs the treaty, automatically any national judgment obtained in that state will automatically be enforceable in another state that is a party to the treaty. There is no need to show conclusiveness.)

Question 60

Texaco v. Libya

Answer 60

Facts - In 1973 Libya nationalized the rights and property of Texaco and California Asiatic oil companies. Those rights had previously been granted to them through deeds of concession with the Libyan government. The oil companies requested arbitration, which was their right under the deeds of concession, but the Libyan government refused to participate. Libya claimed that the nationalizations were acts of sovereignty and therefore not subject to arbitration.

Issue: Libya wants to nationalize without any compensation

Holding – In favor of Texaco on 3 regards:

  i. The deeds of concession are binding on the parties
  ii. Based on Sovereignty
  iii. Could be deduced from present status of int’l law

Reasoning: The right to nationalize is not questioned and is regarded as an expression of national sovereignty. However, there are limits to nationalization, particularly when it comes to aliens of the state. Nationalizations cannot prevail over an “internationalized contract” entered into between a state and a foreign private company. A state can’t unilaterally nullify the rights of a contracting party without the party’s consent.

Question 61

Methanex v. United States

Answer 61

Facts: Canadian producer of methanol who invested in U.S. market brought claim challenging CA’s ban on MTBE, a methanol derivative. Methanex claimed three breaches of Chapter 11 of NAFTA. 1) National Treatment (not in our reading), 2) obligation to accord minimum international standards of treatment to protected investors, 3) obligations against expropriation without paying compensation.

Holding: Tribunal rejected all three of these arguments. The arbitrators focus on the relationship between Methanex and California; Methanex knew what they were getting into a foreign market and California made no promises to Methanex.

Damages: Remedy under Chapter 11 of NAFTA is money damages

Costs: Methanex is required to pay the litigation costs. (Besides US, most other legal systems have a “costs follow the cause” rule)

Question 62

Loewen Case

Answer 62

Facts: Canadian funeral home company found in breach of K for $10m claim. Judge failed to curtail P’s lawyer’s use of inflammatory xenophobia to rile up jury. $500m punitive award

Holding: – Arbitral panel found that the process and verdict were “improper and cannot be squared with minimum standards of fair and equitable treatment” but dismissed Loewen’s claim because the claimants had not satisfied the “local remedies” rule by not exhausting all remedies available in the jurisdiction.

Note: The arbitrators thought that this case was “too hot to handle.” Tort reform was going on and arbitrators take a passive-aggressive approach to avoid entering a tense national debate.
i. Worried that the NAFTA/USMCA would lose legitimacy if they intervened

Question 63

Treaties

Answer 63

a. Virtually all of international law today is based on international treaties. They are by far the first, best indicator of the content of international law
b. Treaties are like contracts between multiple states
c. Treaties only apply to the states that consent to them
d. Entry into Force Provisions - – Those provisions say that the treaty only enters into force (becomes fully binding) once a certain number of states have become treaty parties.

Question 64

Steps to a Treaty

Answer 64

a. Someone identifies a problem and realizes that they can’t deal with it on their own
b. A group of nations start writing down the key points on which they agree
c. They put together definitions, provisions, etc., and circulate a draft
d. Then they take a vote to adopt the treaty
e. Then authentication – The adopted text is formally accepted as binding
f. Then Signature – The executives or representatives of the states sign it

g. Then Ratification – The document goes home to the national legislatures which can adopt it legislatively through ratification. The state is then a party to the treaty.
i. Ratification generally has a shelf life. This is to make sure that states don’t delay the ratification.
ii. Three Categories of states that don’t ratify
1. States that run out of time
2. States that didn’t exist
3. States that weren’t at the conference and didn’t sign.
iii. Those three categories can still join the treaty through accession (submitting it to domestic legislatures to enact into domestic law. This achieves the same result as ratification)
iv. After ratification a state officially becomes a state party to the treaty and are now bound to it
v. In between ratification/accession and the treaty going into effect, states are still bound by the treaty and have an obligation to fulfill it.

Question 65

US-Canada Extradition Treaty

Answer 65

a. Political acts are exempted, but not things like murder, kidnapping, placing explosives etc.
i. Murder and similar crimes remove the political aspect of your act and you become like any other criminal

b. Art 2 – Requires double criminality (The act has to be illegal in both states)

c. Art. 7bis - The requested state may temporarily surrender a person who has been convicted and sentenced in the requested state, in order that the person sought may be prosecuted in the requesting state.
i. This does not divest the courts in requested state of jurisdiction over any appeal or habeas corpus application relating to the conviction or sentence that otherwise may be available under the laws of the requested state.

d. Art. 13 - If a requested state receives two or more requests for the extradition of the same person, it shall determine to which of the requesting states it will extradite the person sought.
i. The State should consider the possibility of a later extradition between the requesting states, the seriousness of each offense, the place where the offense was committed, the dates upon which the requests were received, and the provisions of any agreements between the states.

e. Art. 17bis - If both contracting parties have jurisdiction to prosecute the person for the offense for which extradition is sought, the executives of both states will meet and the requested executive will decide to extradite or not. The requested state shall consider:
i. The place where the act was committed or where the injury occurred
ii. The respective interests of the contracting parties
iii. The nationality of the victim
iv. The availability and location of the evidence

Question 66

International Covenant on Civil and Political Rights (ICCPR)

Answer 66

a. Art. 6 – 4 Important provisions
i. Every human has the inherent right to life
ii. Death sentences may be imposed only for the most serious crimes
iii. Anyone sentenced to death shall have the right to seek a pardon
iv. Death sentence shall not be imposed on persons below 18 or pregnant women

b. Art 7 - No one shall be subjected to torture or cruel, inhuman, or degrading treatment or punishment. No one shall be subjected without consent to medical or scientific experimentation

c. Reservations by the United States
i. US reserves the right, subject to Constitutional constraints to impose capital punishment on anyone other than a pregnant woman, including minors.
ii. US Considers itself bound by article 7 to the extent that the 5th, 8th, and/or 14th amendment prohibits cruel and unusual punishment.
iii. US reserves the right to treat juveniles as adults
iv. Provisions of Article 1 through 27 are not self-executing

Question 67

Vienna Convention on the Law of Treaties (VCLT) - Reservations (Outline is probably better for this one)

Answer 67

Art. 19 – Reservations – A state can choose to not follow part of a treaty

  i. Test for Reservations: The reservation is fine so long as it does not defeat the object and purpose of the treaty
          1. What determines this? 
  ii. Some treaties can forbid reservations, but in general they are permitted
  iii. When states indicate that they are making reservations other states can respond in various ways
          1. Accepting the reservation
          2. Issue a reciprocal reservation (Say that they want the same thing) 
          3. Object to the reservation (and do one of two things)
                 a. Object on principle (State doesn’t actually care)
                 b. Object and consider the other state to not be a party to the treaty in regards to their relationship
                          i. If enough states do this – the reserving state has garnered enough hard objections that defacto it’s no longer a party to the treaty. 
   iv. Advantages of Reservations – Brings more parties onboard
   v. Disadvantages – Leads to uneven enforcement, makes it more complicated

Question 68

Vienna Convention on the Law of Treaties (VCLT) - Interpretation

Answer 68

Art 31 - Treaties are to be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light if its object and purpose

  1. This keeps out things like parol evidence, side conversations, etc. 
  2. It is only if the ordinary plain interpretation leads to a result that is manifestly unreasonable OR leaves the meaning ambiguous or obscure that under Article 32, supplemental means of interpretation can be bought in (This is the parol evidence rule of int’l treaty law) 

Art 32 - Supplemental Interpretation - Includes things like

  1. Preparatory work, Draft Treaties, Annotations and notes made during negotiations, Conversations that occurred but were not recorded, Circumstances in which the treaty was concluded 
  2. There are several official languages for each treaty – each official version is as authoritative as the other

Question 69

Vienna Convention on the Law of Treaties (VCLT) - Amendments

Answer 69

Art 41
i. Like reservations, except they’re more collaborative

ii. Amendments are allowed if the amendment in question doesn’t affect the enjoyment by the other parties of their rights under the treaty AND if the amendment itself doesn’t derogate from the effective execution of the object and purpose of the treaty as a whole.
1. Can’t force someone who would be especially affected by the amendment to abide by the amendment

iii. In multi-lateral treaties, there is a basic floor that can’t be changed by amendment (except for unanimous consent)

Question 70

Vienna Convention on the Law of Treaties (VCLT) - Ways a Treaty is invalid

Answer 70

i. The agent representing the state didn’t have proper authority

ii. Error/Mistake
1. If the error or mistake formed a basic essentiality of the state’s consent to the treaty, the treaty is invalid

iii. Art. 49 - Fraud
iv. Art 50 – Corruption
v. Arts. 51/52 – Duress/Coercion
vi. Art. 53 – The treaty conflicts with Jus Cogens

Question 71

Vienna Convention on the Law of Treaties (VCLT) - Breach of a Treaty

Answer 71

Art 60
i. Presumptive remedy for breach is termination. You are no longer a party

ii. Other party has the right to either suspend or terminate treaty
iii. Not every breach leads to termination – Breach must be fundamental to the treaty in order for suspension/termination to apply
iv. Only remedy is to go back to where you were before you committed to the treaty. There’s no award of damages (unless liquidated/stipulated)

v. International law recognizes the doctrines of impossibility, changed circumstances, frustration of purpose, impossibility
1. If the circumstances fundamentally change in ways that are unforeseen at the time of the making of the treaty, then the treaty can be set aside

Question 72

Vienna Convention on the Law of Treaties (VCLT) - Who Can Sign a Treaty?

Answer 72

i. States – The major makers of international law

ii. Certain international organizations that have international legal personality (16 UN organizations such as WHO, General Assembly)
1. These orgs can make international treaties because states delegate to them as part of their “articles of incorporation” the power and ability to make treaties and be bound by them

Question 73

Vienna Convention on the Law of Treaties (VCLT) - Leaving a Treaty

Answer 73

Denunciation – Leaving a bilateral treaty (Treaty no longer exists)

Withdrawal - Leaving a multilateral treaty (Other states are still in the treaty)

Question 74

Genocide Convention

Answer 74

a. Article 6 of Rome Statute is basically cut and pasted from this

b. Protects 4 groups (Nationality, Race, Ethnicity, Religion)
i. Soviets refused to include social, occupational, or political groups
ii. Canadians and British were opposed to “cultural” genocide
iii. US concerned with how Jim Crow interfaced with the convention and had reservations about race

Question 75

Rome Statute - Article 6 (Genocide)

Answer 75

i. Protects based on Nationality, Race, Ethnicity, Religion
1. Nationality – Determined by passport
2. Race – Very Subjective
3. Religion – Also complicated
4. Ethnicity – The most complicated
a. Rwanda Tribunal ruled that ethnicity can be subjective and the prime piece of evidence it turns to are the ethnic identity cards in Rwanda.

ii. Components
1. Actus Reus – The actual violence
2. Mens Rea – Highest requirement of any crime. Requires the intent to wipe out in whole or in part of a group (Where the state has control)
a. Ex. Nazi violence only attained the level of genocide at the Wannsee Conference where the “Final Solution” is implemented

iii. There can be no genocide without a state policy/plan.

Question 76

Rome Statute - Article 7 (Crimes Against Humanity)

Answer 76

i. Same Actus Reus as genocide (Ex. The actual murder)

ii. Contextual Element – Requires a widespread and systematic attack against a civilian population
1. Needs to be part of a plan, policy, or ideology and not just a random act of violence

iii. The goal is to capture the moral difference between killing the losing uniformed soldier in war and killing civilians
iv. Actus Reus – Committed as part of a widespread and systematic attack against a civilian population with the perpetrator having knowledge of the widespread and systematic attack
v. It’s an absolute defense to genocide to say “I murdered this person because I didn’t like him.” Genocide must show that the perpetrator killed that person as part of a broader policy/plan to wipe out a national, religions, ethnic, or racial group and the person they killed was part of that group, and the motivation behind the killing was eliminating

Question 77

Six important things about Crimes Against Humanity (Rome Statute - Art. 7)

Answer 77

1. Jurisprudentially – CAH have emerged to cover some of the conduct that was sought to be placed within the frame of genocide but legally couldn’t be.
   a. Ex. Discriminatory, persecutory conduct with an animus, but no intent to eliminate the group entirely would be CAH but not genocide
   b. Includes what would be genocide, but not one of the four required groups (Race, nationality, religion, ethnicity) – For example based on political views. CAH is not limited to any specifically mentioned group
2. Defining “widespread and systematic”
   a. This can mean either a massive one-time attack, or something that may be less intense but occurring over time
   i. Very Important – To convict for CAH, the attack against the civilian population does not have to occur in the context of an armed conflict.
3. CAH originated in the framework of earlier cases – When the court began to grapple with the difference between CAH and War Crimes, they figured that it was the difference between combatants and civilians
   a. ICTY ruled that a “mixed population” of civilians and combatants is sufficient to find a CAH
4. When you look at the list of CAH in the Rome Statute, you will see that the definition reflects one of the broader expansionary growth areas of the subject of int’l criminal law (Forced Marriage, sex/gender-based violence, and other categories that relate to criminality that were not contemplated a generation ago)
5. The individual CAH each have their own actus reus requirement
   a. Ex. Genocide is a much more solid legal definition; a CAH is a set of acts that occur as part of a widespread/systematic attack on a civilian population. But each individual CAH has their own requirements. It’s more of an umbrella category of violent attacks undertaken as a part of a plan or policy
6. What is a plan or policy?

Question 78

Rome Statute - Article 8 (War Crimes)

Answer 78

i. Must be committed in an armed conflict. (Need to prove the existence of an armed conflict unlike Genocide and CAH which do not have that requirement)

ii. Art. 8 lays out the “how” of legally waging war (Jus In Bello) – Violations of that “how” are war crimes. The how is refracted through the Hague and Geneva
1. Hague explored the “What” – What tactics and weapons can you use?
a. Ex. Exploding Bullets and Chemical Weapons
2. Geneva Conventions dealt with “who” and identified 4 protected classes
a. Shipwrecked
b. Sick and Wounded
c. POWs
d. Civilians

iii. War Crimes Represent 3 Values:
1. Discrimination (Or lack thereof) – between combatants and civilians
2. Proportionality – The violence you deploy, must be proportional to the treats or violence that the enemy presents to you
3. Humanity – Not using weapons that are “inhumane”

iv. 5 things about Laws of War
1. They only apply in armed conflict (Two types)
a. International Armed Conflict (State A invades State B)
b. Non-International Armed Conflict (Two Subtypes)
i. Civil War
ii. Conflict between state and non-state actor
2. International Law prohibits more in int’l armed conflict than non-int‘l armed conflict.
3. Definition of Armed Conflict
4. Article 8 – Focuses on widespread war crimes. This is because we’re interested in huge crimes that generally come from an abusive policy. We’re less interested in one-offs.
a. We’re interested in the policymakers that violate the laws of war and their leaders/officials.
5. International Criminal Tribunals have discretionary sentencing.

Question 79

Rome Statute - Article 8 (The When of Waging War)

Answer 79

1. Two Ways – Jus ad Bellum
   a. When the UN Security Council authorizes force
   b. Self Defense
2. If the force doesn’t fit within these two, it’s a crime of aggression.
3. In the 1990s there was discussion of HAI – Humanitarian Armed Intervention
   a. High watermark – NATO bombing of Serbia in 1990s
   b. Low Watermark – 2003 US Invasion of Iraq

Question 80

ICTY - Need Information

Question 81

Rwanda Tribunals (ICTR)

Answer 81

Rwanda had three levels of Justice (International level - ICTR, National level - Rwandan Courts, Local Level - Gacaca)

Gacaca (Justice on the grass) – Largest Tier of Justice:
1. Rwanda turned to this informal style dispute resolution to deal with the reality that a significant percentage of Rwandans were involved in genocide. Focused on local autonomy

2. Set up a neoliberal court system to replace traditional Gacaca
   a. Mandatory participation
   b. Lawyers bought in for prosecution but not defense
   c. Procedure was created
   d. Members of gacaca were elected and a minimum percentage of seats were set for women
   e. Punishments – Incarceration and community service
   i. Plea Bargain – Lesser sentence was available with a confession. Reduction was based on when you confessed
3. Implicated roughly 1 million people

Question 82

Shrimp-Turtle Dispute

Answer 82

Facts: US implemented a ban on commercially fished shrimp (Section 609 of the Endangered Species Act) due to the impact on sea turtles (which are endangered species). Section 609 required a turtle excluder device to be able to sell shrimp. Plaintiffs sue US which clams that Exception G applies because turtles are exhaustible natural resources

Holding: Body says that in an originalist sense, exhaustible doesn’t apply, but it would be absurd to conclude that a living species cannot become exhausted by overuse or carelessness, or improper methods.

  i. “Relating to” means “Primarily aimed at” 
  ii. Also held that there was no offense to national treatment on its face, but when implemented, there was non-permitted preferential treatment. (Inverted most-favored nation – If you restrict some, you have to restrict all)

Question 83

General Agreement on Tariffs and Trade (GATT) - Article 20 (Exceptions)

Answer 83

General Exceptions (2 components)
Chapeau (Hat) – General Language - The measure in question cannot constitute, arbitrary or unjustifiable discrimination and it cannot be a disguised restriction on international trade 

Specifically listed Exceptions

1. B – Environmental measures that are necessary to protect human, animal, or plant life
2. G – Protection of exhaustible natural resource

Question 84

NAFTA/USMCA - Chapter 3 (Ban on Tariff and Non-Tariff Barriers)

Answer 84

Steps to challenging a domestic trade restriction
i. Ask: Is this a tariff, or a non-tariff barrier?

ii. Key Question: Show that the barrier is discriminatory between nationals and non-nationals who make a “like product”

iii. The person challenging the government restriction has the burden of proof of showing the barrier violates national
treatment.

iv. Then the presumption flips to the state that adopted the measure who has the right to show that it fits an exception

Note: There is no private remedy, except under Chapter 11 (Investment)

Question 85

NAFTA/USMCA - Chapter 11 (Investment)

Answer 85

1. Protects investors from one NAFTA state that invests in another NAFTA state through a series of protections (National treatment, investors can’t be subject to proceedings by government officials that amounts to a “shocking” volation of customary int’l norms.)
2. This is the only part of the NA framework in which individual companies can directly sue a government of another NAFTA state for regulatory activities it undertakes that the investor alleges impairs the value of its investment.
3. The definition of an investor is broad – It can be someone who invests an enormous amount of money, or someone that opens a small bank account.

Question 86

5 Specific Protections for Investors under Chapter 11 of NAFTA/USMCA

Answer 86

a. National Treatment Obligation
b. Most favored nation treatment
c. Minimum standard of treatment – No investor can be treated in a way that departs from fair and equitable treatment under customary international law
d. Performance Requirements (Don’t need to know)

e. Ban on expropriation (direct or indirect nationalization, takings, or process-based measures that are tantamount to expropriation). Expropriations are impermissible UNLESS four criteria are met
i. For a public person
ii. It’s on a non-discriminatory basis
iii. It involves a level of due process, notice, and transparency
iv. You have to compensate for economic loss. That compensation needs to be fair market value

Question 87

NAFTA/USMCA - Chapter 20 (General Framework of Dispute Resolution)

Answer 87

Step 1 – State going to bat for a producer can request a consultation

1. If that doesn’t work, the commission party can request a meeting of the NAFTA commission which can foster negotiation and mediation
2. If that doesn’t work, the commission can request an arbitral panel and that’s where the lawyers come in.
3. The panel issues an initial report which contains findings of fact, and the panel determines if there’s an inconsistency between the legislation and the principles of national treatment. The disputing parties then have the ability to comment on the report, then the arbitrators issue a final report.
4. The Final report becomes implemented and if there’s no compliance, benefits can be suspended (AKA Retaliation)
   ii. Note: There is no private right of action, the corporation cannot sue. (Except Chapter 11 - Investment)

Question 88

NAFTA Environmental Side Agreement - Basics

Answer 88

a. Pushes basic principles of transparency and proceduralism
b. Does not set any substantive standards about what domestic environmental law should look like.

c. Article 5 - The heart of the agreement is not creating new law, but effectively enforcing the domestic law that they already have on the books
i. Private people are able to file submissions to the secretariat of the agreement. The submissions point out examples of governmental authorities not enforcing their own environmental laws
1. Why? Commitment to environmentalism OR an individual/corporation who feels that their competitors have some advantage due to lax enforcement.

Question 89

International Court of Justice Dispute Resolution

Answer 89

The ICJ resolves state-to-state disputes in two ways (Contentious Cases and Advisory Opinions):

  i. Advisory Opinions – Non-binding. The ICJ is asked to clarify what exactly international law has to say about a particular topic/issue. 
          1. Can be requested by a number of designated international orgs. (General Assembly, Security Council, WHO)
          2. US doesn’t have an analog to this 
          3. These are influential (Ex. Advisory opinion on nuclear weapons - Said nukes are not permissible except in extreme self-defense)

ii. Contentious Cases –binding on the parties

Question 90

ICJ Jurisdiction

Answer 90

Three Paths:
i. Both states agree on an ad-hoc, opt-in basis (Consensual in the moment)

ii. Treaty Clause – There are several treaties with a clause referring disputes to the ICJ
1. After the Avena Case, Bush withdrew our treaty clause to Vienna convention

iii. Grant of General Jurisdiction – A state can grant GJ to the ICJ,
1. Grant of GJ can only be invoked against another state if two conditions are met:
a. If the state has given a grant of general jurisdiction AND
b. If you’ve given the same grant
2. States can give GJ but reserve some areas (Canada and fisheries)
3. At first, a large number of states granted GJ, but that number has declined
a. US had one until the 80s when we were sued by Nicaragua
4. Grants of GJ cover “Contentious Cases” which are 3/4 of ICJ cases

Question 91

ICJ Remedies

Answer 91

Civil Damages, recommendations, specific performance (No penal punishment)

Question 92

International Criminal Court - General Notes

Answer 92

a. Came into effect in 2003 with roughly 120 state parties. (No militarily powerful state is a party to the ICC)

b. Was created to make a permanent institution that would end impunity through judicial processes
i. In 20 years has issued only a handful of judgments

c. Focused on individual (not state) criminal responsibility
d. Established by the Rome Statute which is a photograph of the core elements of customary int’l crimes

e. Core International Crimes – Behavior criminalized at the national level (Murder, Assault, Sexual Violence, etc.) but with a particular type of criminality. (3/4 Characteristics)
i. Collective Crimes – Implicate massive numbers of perpetrators and victims
ii. Crimes of the State (or state-like actors) – Take the form of an official policy or plan
iii. Crimes of Conformity (not deviance) – Committed massively by groups in which the individuals participating are conforming to social norms.

Question 93

ICC Procedure

Answer 93

i. Jurisdictional reach of ICC is based on Nationality and Territoriality. The ICC has jurisdiction over crimes committed by a national of a state party, OR crimes committed in the territory of a state party. The ultimate decisionmaker on bringing charges is the prosecutor. (Have been 3)

ii. Cases can get to ICC in 3 ways (Articles 12/13)
1. Referral by a State Party – Most successful of the three routes due to the availability of evidence.
2. Propio Motu (On your own accord) – Chief prosecutor of the ICC can refer a case to himself.
a. This is designed to deal with a group of oppressed people whose state of nationality does not want to do anything
3. UN Security Council – Passing a resolution that refers a case to the ICC
a. Requires majority vote and no permanent member veto
b. Methods 1 and 2 require either nationality or territoriality, 3 does not.

iii. Article 16 – Deferral – Once something is referred, the Security Council can defer it in one-year installments as long as no permanent member vetoes (Has never happened)

iv. Article 17 – Admissibility – ICC only has jurisdiction of a national jurisdiction is unwilling or unable to investigate/prosecute. National jurisdictions have the first “kick at the can”
1. Art. 17 establishes the superiority of the criminal trial as the only way to go forward from atrocities

v. Sentencing – ICC has a 30 year maximum sentence, except in extreme cases where that can become life.
1. 161 indictments in ICTY – Average was 15 years
2. Rwanda Tribunal – 1/3 received life, Average was 20 years
2. Rwanda Tribunal – 1/3 received life, Average was 20 years

Question 94

Alien Tort Statute - Overview

Answer 94

1. ATS gives federal courts in the US original jurisdiction over any claim, bought by anyone, anywhere, that arises out of a violation of international law
2. Gives federal judges the power to determine whether an actor has committed a violation of international law
3. Started off covering only piracy, but has expanded to customary international law

Question 95

Two Central Components to ATS Litigation

Answer 95

Substantive Wrong - Is this a violation of customary international law?

Procedural – Jurisdiction, territoriality, etc.
• Despite the original language, does the ATS have extraterritoriality? (Kiobel)
• Who is the anyone? Can it be a corp? (Jesner)
• Other Procedural Issues – Immunities, Forum Non Conviens, etc.

Question 96

Sosa v. Alvarez

Answer 96

Facts - Plaintiff in Sosa is a serious drug runner in Mexico. Mexico does not want to extradite him so the DEA cross into Mexico, kidnap him, and bring him to US for prosecution. P claims his due process rights were violated.

Question – Is this a violation of customary international law?

Holding – No – Transboundary kidnapping is not. Things that would be are CAH, war crimes, torture, etc. Souter says we’re concerned about global consensus, which evolves

Question 97

Foreign Sovereign Immunities Act

Answer 97

Restricts the original scope of immunities.

Exceptions:

1. Commercial Activities Exception (Major One) - Recognizes that foreign governments may engage in ordinary commercial activities with ordinary individuals that are similar to the kinds of commercial activities that private corporations may undertake. Especially in mixed-market economies
2. Material Support of Terrorism - Congress over time may list states that are determined to be state sponsors of terrorism. In that capacity, Congress may determine that all of those state assets are eligible for lawsuits in American courts
3. Fundamental breach of Jus Cogens Norms (Controversial)

Notes:

1. Most individuals cannot count as foreign sovereigns, but diplomats and heads of state can be.
2. When you sue a foreign instrumentality, you have to circumvent FISA

Question 98

Relationship between State and Territory - How does a state get territory?

Answer 98

3 Ways:
First is Discovery – The major mechanism to attach territory to states in the colonial era.
• This meant the erasure of the people that lived in “discovered places”
• Terra Nullius – Land belonging to no one (even when people were there already)

Second is Contract – Buying/Selling/Giving away of territory
• You can’t contract unless you hold the original title
• Armistice – Surrender agreements after war can come with the cession of territory, (Since WWII this is illegal)

Third is occupation and use – A lot like adverse possession
• A state has title, but then other nationals from other states begin to occupy and use the place. They set up factories, begin farming the land and living there publicly in the name of their particular state. International law recognizes that if occupation/use of territory occurs in the name of a different sovereign, publicly and openly, without contestation from the state that has title, and happens in the name of another sovereign (Not ABC Incorporated, or individuals squatting) – The territory in question moves its title from the original disinterested/incapable title owner to the state who’s affirmatively, publicly, occupying and using the territory.

Question 99

Relationship between State and the People

Answer 99

o Just like title adheres territory to a state, nationality adheres people to a state

o States issue diplomatic protections to its nationals – Your state has the ability if it so chooses to intervene to protect you when you’re in trouble elsewhere.

Three ways nationality generally adheres to a person
1. Birth – You were born there
2. Blood – One/Both of your parents are citizens
3. Naturalization – Applying for and receiving citizenship (Two Ways)
• You’re a high-worth person whose skills are desired in the workplace
• Love

Question 100

What Exactly is a State?

Answer 100

o 4 Factors from Montivedao
1. Permanent Population
2. Defined territory
3. Government
4. Recognition - Capacity to engage in international relations
• This is difficult, because sometimes states don’t want to engage in relations with you. They don’t want to recognize you

Note: First three are objectively measurable, fourth is subjective
• Breakaway states assert the first three characteristics and hope that other states give them recognition.

Question 101

Principles of State Responsibility

Answer 101

• The best way to think about state responsibility is similarly to international tort law.
• The remedy for treaty breach is the remedy the treaty specifies, OR termination.

• State responsibility addresses the obligations that states owe to each other that goes beyond contractual breaches of treaties and falls short of individual criminal responsibility
o You can’t imprison a state, so state responsibility sets up a system of recoverability when a state engages in “an internationally wrongful act”
o Every internationally wrongful act occasioned by a state can trigger state responsibility

• Article 58 of SR Resolution is important because it says that state responsibility is without prejudice to individual responsibility.
o Just because there is individual responsibility, the state is not off the hook (Ex. Bosnia and ICTY – Just because there is individual responsibility, doesn’t mean state responsibility doesn’t exist

Question 102

Proving Breaches of State Responsibility

Answer 102

First Step: Test the ICJ developed in the Nicaragua case – The wrongful act in question – did it occur under the “effective control” of the state?

Second Step: Show that the action is a breach of an international obligation (customary law obligation or a serious breach of a treaty)

Third Step: Defenses (Chapter 5) – Must show that there are no “Circumstances Precluding Wrongfulness”

Fourth Step: Remedies –
 First Tranche of remedies that tends to arise is article 30 – The state is under an obligation to cease and desist in the particular conduct. They also need to guarantee that it won’t happen again (Basically an injunctive order)
 Second Tranche – Articles 31 and 34 (Full Reparation for the Harm) – 3 ways (Not mutually exclusive)
• Restitution – Bringing the aggrieved party back to where they were
• Compensation – Like Substitute damages (writing a check)
• Satisfaction- Court acknowledges the breach and expresses regret
o May seem anemic, but for example in Bosnia, do we want to bankrupt a new state for the sins of a former state? (Versailles issue)

Question 103

Two Major Tenants of International Trade Law

Answer 103

Doctrine of National Treatment
o A core principal that says you cannot discriminate between your nationals and foreign nationals when engaged in the manufacture, distribution, or sale of “like products”

Doctrine of most favored nation
o More aspirational – You have to treat your most favored trading partner in a way similar to how you treat everyone else

Question 104

International Trade - Economic and Emotional Challenges

Answer 104

Economic - Tension between individual self-maximization of profit and “collective externality on the common good.” If we pursue our maximum best in the short run, we externalize those costs to other areas. Especially areas in which costs are difficult to measure.
- Economic externalities are to some extent addressed in int’l trade policy by exceptions to violations of national treatment that are set up under GAAT framework and international trade policies and USMCA

Emotional – Everyone loves free trade until they lose, then there are two options. Improve yourself or seek protection

Question 105

International Trade - How do Governments Keep Competition Out?

Answer 105

1. Tariffs – A duty, tax, or fine imposed when a foreign product comes in. Paying to subsidize the less efficient manufacturer
2. Non-Tariff Barriers – Quotas or subsidies
3. Process-based standards – The most complicated area because they can be legitimate
   o In order for your product to be sold here, you have to prove they’re manufactured in a certain way. (Not using certain chemicals, using certain processes, etc.). Anything that doesn’t conform to this process will be kept out of the country.
   o If your process-based standard is disguised protectionism, it will not survive a judicial process. You must show that your standard maps onto a legitimate rationale. If you’re the only one that can confirm, that’s protectionism

Protectionism can map onto political geography, especially in industries with a heavy physical presence somewhere. The congressional representative of that place is incentivized to be protectionist.

Question 106

Three Major Principles of International Trade Law

Answer 106

1. Transparency - If you’re going to enact a measure that is a limit/barrier to trade. You must be transparent about that. In other words, you must indicate it ahead of time to the global public. You have to try and get all of your other trading partners to be able themselves (especially in process-based measures) to comply with the limits.
   o You must give your rationale, and give your trade partners time to comply
2. Skepticism of unilateralism of trade policy - If you suddenly decide that a manufacturing chemical is bad, probably what’s happening is your domestic industry has a comparative advantage in manufacturing without that chemical.
   o The best way for a measure to restrict trade and survive the scrutiny of int’l trade law is if it takes the form of an int’l treaty
3. Imperfection – International trade law is imperfect, and there are lots of variations

Question 107

Socio-political Organizations that have emerged in International Trade Law

Answer 107

Customs Unions - idea that states should harmonize to some degree their economies. Europe is the most advanced form of this
o Some spaces have a common monetary/fiscal policy, there’s also a physical movement “Schengen” arrangement.

Free Trade Zone - – Like the USMCA, no common political institutions, currency, etc. Push towards integration at the regional level, but each State has their own independent trade policies and relationships

Question 108

Examples of an International Trade Dispute

Answer 108

First Step: Company X, whose products are regulated by Congress in a way that X finds discriminatory, must get its government to complain. (State to state requirement)
o That State needs to argue that the legislative act constitutes either a tariff or non-tariff barrier to trade
o The major legal test to determine if the regulation is improper is if it violates the principles of national treatment (aka is discriminatory in nature). The burden of proof is on plaintiff to classify the barrier and then showing that the barrier infringes on national treatment

Second Step: Regulating the State’s Response (Two levels)  First Level - The regulator might say the measure is neither a tariff nor non-tariff barrier. (Such as a sanitary measures)
o Chapter 7 addresses “Sanitary Measures” which are something that sets health-based standards to keep out products that may be linked to disease or environmental concerns. These are subject to a lower level of scrutiny than other barriers.
o Other classification that the US might say applies here is Chapter 9 – Standards
o Standards – Broader category than sanitary measures. Measures that relate to safety, protection of human/animal/plant life, environmental protections, and consumer protections. A standard will apply to legislation if a number of things can be shown
o First – The state must point to the empirical viability of the standard. The best way to show this is to show that the measure maps onto generally accepted scientific standards.
o Standards must comply with national treatment (Apply equally to everyone)
o Standards must be transparent – Share your tech on how to make the product in a way that doesn’t violate standards.

Second Level – Admit that this is a tariff/non-tariff barrier and claim exception.
o Many of these mirror chapter 7 and 9 but plenty of others (public morality, national security, the environment)
o Burden is on the defendant

Question 109

Trade Litigation - Remedies

Answer 109

1. First remedy is specific performance.
2. Second remedy is retaliation – The winning state in the litigation calculates the amount of economic harm that it is subject to because of the offending regulation at the national level and the winning state has the right to retaliate in a quid pro quo way by adopting domestic legislation on its part that inflicts a similar amount of economic damage.
   o This can be in any market sector, doesn’t have to be the same

The major factor that determines specific performance or not is the domestic political power of the industry in question. If it’s sufficiently strong, it will be able to convince the government to not change their legislation and just suffer retaliation in another market sector.

Question 110

Regional Trade Agreements in the Global Framework

Answer 110

WTO is global and sets a minimum global standard. But the GATT has a specific provision that says you can deviate from most favored nation status if you do so in the framework of a regional trade agreement
o In other words NAFTA/USMCA states have lower tariffs among them than with outside nations. Regional trade agreements can preserve the favored nation-status of countries within your particular regions if that’s negotiated through a public, treaty-based agreement.

Question 111

Use of Foreign Law in American Constitutional Interpretation (Scalia and Breyer)

Answer 111

1. Scalia believes that foreign law has no bearing on the proper interpretation of the American constitution
2. Scalia as an originalist only wants to focus on the meaning of the Constitution when it was adopted. The only relevant foreign law is the pre-1789 law of England, because the framers of the constitution frequently used terms of art taken from English law.
   a. The problem is not that modern foreign law is foreign, but that it’s modern. Scalia objects to modern American legal trends informing constitutional analysis
   b. He believes that looking to foreign law is simply a way for a judge to impose their own values on a case. (Which he has done)
3. Breyer disagrees – foreign law is not binding, but can be very informative. Breyer suggests two ways that foreign opinions can be helpful
   a. First – They can be the source of good ideas, similar to a brief or scholarly article
   b. Second – They can provide object lessons. It can be useful to study how other countries deal with the same issues

Question 112

Major Difference between Common Law and Civil Law Societies

Answer 112

Civil Law - Deductive, accessibility of civil law. Tighter relationship between law and policymakers. They’re more dominant

C/L is unwieldy, has aristocratic tendencies, difficult to figure out, unclear and not determinative. But provides a sense of stability, a linkage between today and yesterday. Doctrines of legal analysis like precedent, stare decisis, argument by analogy.

Question 113

Convergence between Common Law and Civil Law

Answer 113

1 – Growing role of constitutionalization in civil law societies
o The major push point for this is the European convention on human rights which is a constitutional-like document that binds the European space.
o For the first time in a civil law space, a space was carved out for judges to be able to tell states that their national political decisions may not be in accordance with broader human rights standards

2 – Common law where we increasingly here have become tired of the complicated, opaque, inscrutable, randomness and ambiguity of our own legal system
o Increasingly, legislatures have passed more statutes and regulations which remove the legal functions from courts and pushes it back to the legislatures in particular on matters of our daily life

3 – In civil legal systems, the legislature can’t always keep up with new technology and developments. There’s huge areas of law in civil societies have been judge made
o Ex. In France, product liability is almost entirely judge made
o Mexican Context – The first step is not going straight to court. You start with administrative proceedings. If you didn’t get what you wanted there, you just go home.

Question 114

Amparo - Bringing a Claim

Answer 114

An individual can use the key to turn the door to open a courtroom and get a court to judicially review a decision by a government or an administrative entity. Three ways in which an amparo claim can be brought

1. When a governmental agency acts in such a way that violates a constitutionally protected right under the Mexican constitution (whether states or federal). If an individual/entity feels like their rights under the Mexican constitution are being violated by a state agency. Instead of complaining to the state agency, you can now complain to a court as well.
2. When a small S state acts in ways that trespass onto the division of powers, individuals can complain to the big S state.
3. An individual can complain when the federal government is legislating in a way that trespasses onto the sphere given to the small S state.

Question 115

Types of Amparo

Answer 115

1. Direct Amparo – Least important – an individual can challenge a court decision
2. Indirect – More Salient – An individual can challenge actual official conduct/decisions made by a state authority
3. Against a law – Challenge constitutionality of the law in absence of any official action.
   a. Mexican Context – If 5 courts on 5 separate occasions rule that a particular agency has acted in a constitutionally violative way, and annunciates a reason for that, then those court decisions rooting around the annunciation of a constitutional interpretation that invalidates executive authority after 5 of those instances, those rulings crystalize into a legal norm that then becomes defined jurisprudence. (Legal precedent)

Question 116

Binding (Hard) vs. Non-Binding (Soft) International Law

Answer 116

Binding – Also known as hard law – The law to which the state in question has consented and that law in that state is applicable as binding law
o Includes treaties to which a state has ratified as well as customary international law
o In neither Kindler nor Burns is there any binding international law that binds Canada on the question of extradition. Only article 6 that says “may” extradite and gives the government discretion.

Non-Binding – Also known as soft law – Law made internationally that the state in question has not bound itself to
o Ex – Treaties that exist, but that your country did not sign/ratify
o Not law in the classic sense but persuasive authority.

Question 117

Dualism v. Monism

Answer 117

Dualist - Law that is made internationally has to go through a process of national ratification in order for it to be binding here.

Monist - law that is made internationally, is automatically binding on that state

Note: Dualist societies tend to adhere better to the norms that they accept whereas monist societies SAY that they adhere to international law.

Question 118

Positivism vs. Naturalism

Answer 118

Positivism - The idea that law can be manufactured by the people
o Major virtue is democratization – when the majority says this is what the law should be, we make it so. However, majorities can be tyrannical
• The major check on this is constitutions which say that certain things are inalienable

Naturalism – Reflected in core customary norms