International Law Exam 2
Alien Tort Statue
Alien Tort Claims Act (ATCA), also known as Alien Tort Statute, U.S. law, originally a provision of the Judiciary Act of 1789, that grants to U.S. federal courts original jurisdiction over any civil action brought by an alien (a foreign national) for a tort in violation of international law or a U.S. treaty. Ie someone who is not a US citizen can bring a case to the US court that the court will have to look into if the case violates international law or a US treaty "committed in violation of the law of nations or of a treaty of the United States."
Extraterritoriality effect of us domestic law
A countries own domestic law laws including constitutional laws can also apply extrateritorally to affect other state agents US giving green light to torture in Guantanamo Bay and Cuba and other US run facilities outside of the US → made America look really bad US extraterritorial laws prohibiting corruption and money laundering. The US Foreign Corrupt Practices Act (FCPA) became law in 1977, enabling US authorities to prosecute people suspected of bribery of foreign public funds, even if the offences were committed outside of the US.
Schooner Exchange Case
A public armed ship, in the service of a foreign sovereign, with whom the government of the United States is at peace, and having entered an American port open for her reception, on the terms on which ships of war are generally permitted to enter the ports of a friendly power, must be considered as having come into the American territory, under an implied promise, that while necessarily within it, and demeaning herself in a friendly manner, she should be exempt from the jurisdiction of the country. Two Maryland citizens owned a vessel that was forcibly seized under the decrees of Napoleon, the French emperor. The vessel sailed into an American port and the citizens filed a libel action to reclaim it. The district court denied the libel for lack of jurisdiction. The appellate court reversed and ordered the vessel be restored to the citizens, who claimed to be the vessel's sole owners. The French, through its reigning emperor, Napoleon, had an interest in the vessel and sought review. Can an American citizen assert, in an American court, a title to an armed national vessel, found within the waters of the United States? → answer NO The court found that the vessel was a national armed vessel commissioned by, and in the service of the emperor of France. The court found that the United States was at peace with France and permitted the vessel to enter the ports as a friendly power. The court held that when the vessel entered American territory, it did so under the implied promise that the vessel was exempt from United States jurisdiction and enjoyed sovereign immunity.
Non Self Executing Treaty
A treaty where all of the provisions do not agree with the domestic law → so in this case either the domestic law must change to agree with the provisions of the treaty, so the treaty can be implemented
Self Executing Treaty
A treaty where the provisions within the treaty completely agree with the domestic laws within the state, in this case the treaty can be implemented without changing any provision or changing the domestic law ie making it a self executing treaty
Alien Tort
Allows non-US citizens to sue the US for violations of the law of nations or customary international law "Jurisdiction of any civil action by an alien tort only, committed in violation of the law of nations or a treaty of the united states"
US declaration
America; or (c) disputes arising under a multilateral treaty (1) all parties to the treaty affected by the decision are also parties to the case before the court or (2) the United States of America specifically agress to jurisdiction; and provided further that the declaration shall remian in force for a period of five years and thereafter until the expiration of six months which notice may be given to terminate this declaration Issues → US declaration domestic jurisdiction (self-judging clause/reservation) → can be seen in the US vs. Bulgaria case → in this case Bulgaria comes back and takes America's reservation Self judging reservation vs. Art 36(6) " in the event of a dispute as to whether the court has jurisdiction the matter shall be settled by the decision of the court"? US declaration: vandeburg amendment (Arthur vandeburg Michigan): multilateral treaties (P.72)
Certian expenses of the UN 1962
Article 17, paragraph 2, of the Charter of the United Nations provides that : "The expenses of the Organization shall be borne by the Members as apportioned by the General Assembly." On 20 December 1961, the General Assembly adopted a resolution requesting an advisory opinion on whether the expenditures authorized by it relating to United Nations operations in the Congo and to the operations of the United Nations Emergency Force in the Middle East constituted "expenses of the Organization" within the meaning of this Article of the Charter. The Court, in its Advisory Opinion of 20 July 1962, replied in the affirmative that these expenditures were expenses of the United Nations. The Court pointed out that under Article 17, paragraph 2, of the Charter, the "expenses of the Organization" are the amounts paid out to defray the costs of carrying out the purposes of the Organization. After examining the resolutions authorizing the expenditures in question, the Court concluded that they were so incurred. The Court also analysed the principal arguments which had been advanced against the conclusion that these expenditures should be considered as "expenses of the Organization" and found these arguments to be unfounded.
Vienna Convention on Counsular Immunity
Article 36 of the Vienna Convention on Consular Relations, to which 170 nations are party, requires a nation arresting or detaining a foreign national to afford the detainee access to his or her consulate and to notify the foreign national of the right of consular access.
Reparations for injuries suffered in service un advisory 1949
As a consequence of the assassination in September 1948, in Jerusalem, of Count Folke Bernadotte, the United Nations Mediator in Palestine, and other members of the United Nations Mission to Palestine, the General Assembly asked the Court whether the United Nations had the capacity to bring an international claim against the State responsible with a view to obtaining reparation for damage caused to the Organization and to the victim. If this question were answered in the affirmative, it was further asked in what manner the action taken by the United Nations could be reconciled with such rights as might be possessed by the State of which the victim was a national. In its Advisory Opinion of 11 April 1949, the Court held that the Organization was intended to exercise functions and rights which could only be explained on the basis of the possession of a large measure of international personality and the capacity to operate upon the international plane. It followed that the Organization had the capacity to bring a claim and to give it the character of an international action for reparation for the damage that had been caused to it. The Court further declared that the Organization can claim reparation not only in respect of damage caused to itself, but also in respect of damage suffered by the victim or persons entitled through him. Although, according to the traditional rule, diplomatic protection had to be exercised by the national State, the Organization should be regarded in international law as possessing the powers which, even if they are not expressly stated in the Charter, are conferred upon the Organization as being essential to the discharge of its functions. The Organization may require to entrust its agents with important missions in disturbed parts of the world. In such cases, it is necessary that the agents should receive suitable support and protection. The Court therefore found that the Organization has the capacity to claim appropriate reparation, including also reparation for damage suffered by the victim or by persons entitled through him. The risk of possible competition between the Organization and the victim's national State could be eliminated either by means of a general convention or by a particular agreement in any individual case.
The Case of Certian Norwegian Loans
Before World War I, Norway (defendant) and two Norwegian banks issued bonds to certain French nationals. France (plaintiff) claimed these bonds had clauses promising and guaranteeing payment in gold. However, Norway subsequently passed legislation allowing payment with Bank of Norway notes instead of payment in gold. France proposed that an international dispute-resolution mechanism should resolve the claims of French nationals seeking repayment of these bonds in gold. France and Norway had previously declared acceptance of the International Court of Justice's (ICJ) compulsory jurisdiction under Article 36(2), even though the French Declaration contained a reservation limiting ICJ jurisdiction to matters outside the French national jurisdiction. France brought the claims involving the Norwegian bonds issued to French nationals to the ICJ. Norway objected, arguing that the claims of these French nationals were within the jurisdiction of the Norwegian courts and that these claims were a matter of Norwegian law. Accordingly, I have reached the conclusion that the Court should reject the Norwegian objections in so far as they relate to the first and third paragraphs of the French Submissions on the merits; and allow the Norwegian objections in so far as they relate to the second, fourth and fifth paragraphs thereof. Norway has asked the Court, in the Submissions of May 23rd, 1957, to deal with the merits. This is a conditional request, which would come into operation only if the Court decided that the claim was admissible. As the Court is taking the position that it is not competent to deal with any part of the dispute, it is not desirable that I should proceed to discuss the merits, although my own view is that they should be dealt with in so far as they relate to the first and third paragraphs of the French Submissions. In dealing with the points of jurisdiction and admissibility, it has been necessary for me to look at the merits from time to time, and to make certain observations with regard to them. It was not intended in making these observations to indicate in any way what my opinion would be in the event that it became necessary to consider and dispose of the merits.
Charming Betsy Case
Case; in 1880 a American vessel sailed from baltimore under the name Jane, with a cargo of flour, was then sold to J,S who was born in the united states and was moved to St.Thomas as a infant, became a burgher. J,S took a oath of allegiance to Denmark, JS then took the vessel "Betsy" and cleared her for Guadulope → the vessel was then captured by the French → then recaptured by America, American who stole the vessel sold it in America, this sale violated the law of the US of intercourse between the US and France, sale was asserted as being a cover for this violation ie JS said the recapture was illegal Violated the laws of nations and neutral laws or neutral commerce further than is warranted by the law of nations as understood in this country Rule; An act of Congress ought never to be construed to violate the law of nations if any other possible construction remains, and consequently can never be construed to violate neutral rights, or to affect neutral commerce, further than is warranted by the law of nations as understood in this country. Conclusion of case: The Court held that the forfeiture was erroneous because, although claimant was an American citizen, claimant acquired commercial privileges that were attached to domicile in a foreign country. Although the vessel was not forfeitable, defendant had acted within his duty and was not assessed the unspecified damages. Thus, Court affirmed the order requiring defendant to provide claimant with restitution for a vessel, cargo, and costs because, under the non-intercourse law, the defendant was not entitled to confiscate the vessel. Ie JS may have been American but had comercial privileges for a foreign country for the vessel → ie American man, foreign vessel
How does the ICJ work
Court of Justice. Selection of judges: Art. 9 → at every election they shall be not only one person elected and individually posses the qualifications required but als that int he body as a whole the representation of the main forms of civilization and of the principal legal systems of the world should be assured Art. 10 → those candidates who obtain an absolute majority of votes in the general assembly and in hte security council shall be consiered as elected Any vte of the security council wheer for the election of judges or for the appointment of members of the confess envisaged in article 12 shall be taken without any diction between permanent and non permanent members Majority vote (9 excluding ad hoc judges needed for quorum) Judges can not exercise any political or admistrative function or engage in another occupation of a profesional nature Judges must be independent judges elected from among persons of high moral character who posses the qualifications required in their respective countries for appoitnement to the higher judicial offices or are jurisconsults (learned in international law) Judges nominated by their own country 15 judges (9 years in office per judge Although judges are elected without regard to nationality under a current understanding the regional distribution of judges: africa (3), asia(3), Latin America (2), Eastern Europe (2) w. Europe and others (5) President and vice-p of the icj are elected by the judges themselves for a 3-year term and can be re-elected compromis (voluntary jurisdiction) or compromissory clauses int treaties p 3/16/23 Have jurisdiction to decide the complaints consent for all parties involved? Local remedies exhausted, time factor Art 92. → ICJ is a independt org and is not part of the UN system Statue of international court of jusitice is annexed Jurisdiction: Jurisdiction → territorial principle: the primary basis for jurisdiction. A state is generally free to apply its legislation to any person within its territory including forgien nationals effects of decisions: ICJ effects of judgement → art 59: the decision of the court has no binding force except between the parties and in respect of that particular case Article 60: the judgement is final and without appeal in the event of dispute as to the meaning or scope of the judgemenet the court shall construe itupon the request of any party Article 61: an application for revision of a judgement may be made only when it is based upon the discovery of some fact of such a nature ast o be a decisive factor which fact was, when the judgement was given unknown to the court and also to the party claiming revision always provided that such ignorance was due to negligence The application for revision must be mate at latest within siz months of the discovery of the new fact No application for revision may be made after the lapse of ten year from the date of judgement Article 26 → court may from time to form one or more chambers composed of three or more judges as the court may determine for dealing with particular categories of cases; for example, labor cases and cases relating to transit and communications
UN security council
Created a structure of individual responsibilty under international law Ad hoc international law tribunals → take away the sense of immunity for those who commit international crimes Two were created in the 1990's; one was made with jurisdiction over crimes commited in Yugolsalvia and one with Jurisdiction over genocide and related crimes in Rwanda the ICTR
Diplomatic and Consular immunity
Customs + codification + treaty → diplomatic immunity → diplomats can only be asked certain questions in court waiver of diplomatic immunity Dimplomatic immunity→ three theories: representative character theory, extraterritoriality, ex-territoriality theory, functional necessity theory Functional immunity Personal immunity (priavate acts and transactions) Vienna convention on diplomatic relation, 1961 in force 1964, 193 states (2023) including the US signed in 1961 and ratified in 1972 3 features of this treaty: conset of both sides, reciprocity, immunity from judicial and administrative procedures, inviolabilty (diplomats legal status of the person, his/her residence and communications) persona nongrata nad waiver of diplomatic immunity Diplomatic immunity: diplomatic crime Counsular officers: functional immunity → vienna convention on consular relations, 1963 in force 1967, 181 states (2021), including the US (1963 signed and 1967 ratified) → connected to the Khashoggi case Diplomatic immunity protects the location of a diplomatic mission from search. Diplomatic personnel are immune from criminal prosecution as well as most civil suits in the host country. Ie a diplomat can commite crimes in a host country without being prosecuted Article 31 of the Vienna Convention on Diplomatic Relations grants diplomats immunity from all civil lawsuits except for those that involve "private immovable property." Consular immunity; Consular immunity privileges are described in the Vienna Convention on Consular Relations of 1963. Consular immunity offers protections similar to diplomatic immunity, but these protections are not as extensive, given the functional differences between consular and diplomatic officers. In codifying the "consular functions" principle, the Vienna Convention maintained the basic difference between consular and diplomatic' 6 immunities: "consular personnel enjoy immunity from legal process only in respect of official acts, whereas diplomatic agents have full personal inviolability and immunity from legal process."' 7 Consular officers and consular employees shall not be amenable to the jurisdiction of the judicial or administrative authorities of the receiving State in respect of acts performed in the exercise of consular functions. 15
Methods of Conflict Resolution
Direct two-party negotiona comissions of inquirt → fact finding (presents facts and focues on factual development that leads to the findal verdict CJ → conflict resolution methods; direct two-party negotiation, commissions of inquiry → fact finding ( presents facts and focuses on factual development that leads to the final verdict), good offices→ third party ( third party over a convenient location that can facilitate negotiation, known facilitation), mediation, conciliation(third party → known for providing a solution(non-binding), → compulsory adjudication is binding though
Rome Statue and the US
Eastern republic of Urugruay by Act No. 17.510, of 27th June 2002 ratified by the legislative branch, gave its approval to the Rome statue in terms fully compatible with uruguays constitutional order. While the constitution is a law of higher rank to which al other laws are subject, this does not in any way constitute a reservation to any of the provisions of that international instrument It is noted for all necessary effects that the Rome statute has unequivocally preserved the normal functioning national jurisdiction of the international criminal court is exercised only in the absence of the exercise of national jurisdiction Ukraine is nota state party to the rome statue, but it has twice exercised its perogatives to accept the courts jurisdiction over alleged crimes under the rome statue occuring on its territory pursuant to article 12(3) of the statue The Rome Statute of the International Criminal Court is the treaty that established the International Criminal Court. It was adopted at a diplomatic conference in Rome, Italy on 17 July 1998 and it entered into force on 1 July 2002. As of November 2019, 123 states are party to the statute. Founding treaty of the ICC
US executive agreements and international law
Executive agreements can be classified according to the authority → most common one is ex ante congressional executive agreements → are concluded by the president pursuant to prior statutory authorization and then reported to congress for its information but not for a vote Small category → ex post → congressional executive agreements which are negotiated by the executive branch and then adopted by the majority vote of the house and the senate with the presidents signature like ordinary legislation Also sole executive agreements by the president themselves Franklin Rooselvet entered solo agreement with Great Britan
Banco Nationale de Cuba v Sabbatino (SCOTUS, 1964)
Farr, Whitlock & Co. contracted to buy sugar from a Cuban corporation. The corporation loaded the sugar on to the S.S. Hornfels, but in response to President Eisenhower reducing the Cuban sugar quota, Cuba issued a decree taking possession of the sugar. The Cuban government would only allow the sugar to leave Cuba if Farr, Whitlock entered into a new contract with Banco Nacional de Cuba, an instrumentality of the Cuban government. After the sugar left Cuba, Farr, Whitlock refused to pay Banco Nacional. Banco Nacional sued in the U.S. District Court for the Southern District of New York to recover payment. The court granted summary judgment for Far, Whitlock, holding that Cuba's taking of the sugar violated international law. The U.S. Court of Appeals for the Second Circuit affirmed. May the courts of the United States refuse to give effect to decrees of a foreign sovereign government where the decree violates common international law? No. In an 8-1 decision, Justice John M. Harlan wrote the majority opinion reversing the lower court. The Supreme Court held that it will not decide the validity of a decree by a foreign government absent a treaty or other agreement. It did not matter that the taking violated customary international law. The majority noted that a judicial decision on this issue without a treaty would strain U.S.-Cuba relations. Justice Byron R. White wrote a dissent, stating that he would decide the case on the merits, absent any specific objection to examining Cuba's law under international law.
ICJ compromise
ICJ Compromis: A compromis to submit a dispute to arbitration can be made ad hoc by two or more states, or it can be on the basis of a reciprocal declaration made under the Statute of the International
ICC composition
If the crime is related to those listed under the unversality princple - surrender to the ICC ICC → crimes against peace; namely planning preperations initiaton or waging of a war of agression or a war in violation of international treaties, agreements or assurances, or participation in a common plan or consipracy for the accomplishment of any foregoing; (crime of agression) The ICC is composed of four organs: the Presidency, the Chambers, the Office of the Prosecutor and the Registry. Each of these organs has a specific role and mandate. The ICC has four principal organs: the Presidency, the Judicial Divisions, the Office of the Prosecutor and the Registry. The President is the most senior judge chosen by his or her peers in the Judicial Division, which is composed of eighteen judges and hears cases before the Court. The principle of complementarity is implemented by the ICC through Articles 17 and 53 of the Rome Statute, it provides that a case is inadmissible before the ICC if it is currently under investigation by a state with jurisdiction over it. Complemtarirty rule to national courts (art. 17 on the issue of admisiblity) A. the case is being investigated or prosecuted by a state which has jurisdiction over it, unless the state is unwilling or unable genuinely to carry out the investigation or prosecution; The case has been investigataed by a state which has juridiciton over it and the state has decide dnot to prosecute the person concerned unless the decision resulted from the unwillingness or inability of the state to genuinely prosecute;
What indictment was passed to make it legal to hold an individual responsible for their international war crimes
In 1945 Roosevelt created an indictment to make it so that individuals who commit international war crimes can be held responsible for their crimes whether or not these crimes were legal under the domestic law this is how the nazis were able to be prosecuted
State of Missouri v Holland Case
In December 1916, the United States and Great Britain entered into a treaty to protect a number of migratory birds in the U.S. and Canada. Congress passed the Migratory Bird Treaty Act in 1918 in order to facilitate enforcement of the treaty. When Ray P. Holland, the U.S. Game Warden, threatened to arrest citizens of Missouri for violating the Act, the state of Missouri challenged the treaty. The state argued that the constitution gave Congress no enumerated power to regulate migratory bird hunting, and thus the regulation of such hunting was the province of the states according to the Tenth Amendment. Did the treaty infringe upon rights reserved to the states by the Tenth Amendment? In a 7-to-2 decision authored by Justice Oliver Wendell Holmes, the Court upheld the exercise of the treaty power and found no violation of the Tenth Amendment. The Court reasoned that the national interest in protecting wildlife could be protected only by national action. The Court further reasoned that the Supremacy Clause (Article VI, Clause 2) renders treaties the "supreme law of the land," a finding that trumps any state-level concerns with regard to the provisions of any treaty. The Supremacy Clause further implied that the treaty provisions were not subject to questioning by the states under the process of judicial review.
What was a big moment regarding the the prosecution of individuals who commit war crimes
In the 20th century with the prosecution of German Third Reich war criminals in Nuremberg after world war 2 these individuals were tried for violating the laws of war, this can also be seen in the tokyo trails, as well as in the case of Peter Hagenbach who violated the laws of war in 1482, 12 german soulders were prosecuted and executed because of these violations in the Leipzig trials
International Law and Municpal Law US
International law; In principle, international law operates only at the international level and not within domestic legal systems—a perspective consistent with positivism, which recognizes international law and municipal law as distinct and independent systems. municipal and international law form a single legal system, an approach sometimes referred to as monism. Such a system, according to monists, may arise either out of a unified ethical approach emphasizing universal human rights or out of a formalistic, hierarchical approach positing the existence of one fundamental norm underpinning both international law and municipal law. Municipal law is internal law within the state or city for example and international law is applicable to all states if the domestic law agrees with the international law ie self executing or not self executing international laws
The Soering Case
Jens Soering (defendant) was an 18-year-old German citizen. There was evidence that Soering had certain mental issues. The United States charged Soering with two capital murders committed in Virginia. The murders were punishable by death. Soering was arrested in the United Kingdom and jailed pending extradition to the United States. The United Kingdom, having abolished the death penalty, asked the United States to commit to not imposing the death penalty upon extradition. The district attorney in Virginia signed an affidavit stating that if Soering was convicted he would inform the judge of the United Kingdom's wish that the death penalty not be imposed. Soering applied for a writ of habeas corpus in the United Kingdom, but the courts rejected the petition because the British secretary of state had not yet exercised his discretion to extradite Soering. Soering then petitioned the secretary of state. The secretary of state rejected the petition and ordered Soering's extradition. Soering filed an application with the European Court of Human Rights, claiming a violation of Article 3 of the European Convention on Human Rights, which prohibited "inhuman and degrading treatment or punishment." Specifically, Soering contended that the death row conditions in Virginia violated Article 3. While the proceedings were pending, the United States stated that it would seek the death penalty for Soering. The Soering case raises the issue of non-refoulement, which engages state responsibility by the act of removal of an individual to a state where he or she will be exposed to a certain degree of risk of having her or his human rights violated.2 The decision in Soering affirms the extraterritorial applicability of human rights guarantees within the ECHR as well as the absolution prohibition against torture under Article 3. The European Convention for the Protection of Human Rights and Fundamental Freedoms is widely regarded as the most dynamic and effective of the various international human rights instruments. Its impact on the judiciary of the twenty-three Western European Member States, as well as its pace-setting role for other international mechanisms for the protection of human rights, has recently been confirmed by the unanimous judgment of the European Court of Human Rights in Soering v. United Kingdom. In its judgment delivered on July 7, 1989, the Court held that the United Kingdom would act in violation of article 3 of the Convention if it extradited the applicant to the United States, since he would there be faced with the possibility of being sentenced to death and experiencing the "death row phenomenon." Article 3 prohibits torture and inhuman or degrading treatment or punishment. The Soering judgment and the preceding report of the European Commission of Human Rights indicate, however, that other substantive and procedural guarantees in the European Convention may, under certain conditions, present obstacles to extradition.
Bricked amendment
John w bricker amendment proposed in the 1950s Proposed constitutional amendment to limit the treaty power of the untied states government. Treaties could not be self executing without the passage of separate enabling legislation through congress Treaties are found to be non-self executing because → the agreement manifests an intention that it shall not become effective as domestic law without the enactment of implementing legislation
Second Hickenlooper Amendment
Law preventing courts from applying the act-of-state doctrine to claims involving the taking of property by a foreign sovereign. Because of this case → 2nd hickenlooper amendment: Bernstein letter The court of appeals7 reversed. It held that the Hickenlooper Amendment applied only to cases where the actual property expropriated or proceeds of its sale had come into the United States and was the subject of the suit. Therefore, the decision of the Supreme Court in Banco Nacional de Cuba v. Sabbatino' was controlling, and the court would apply the act of state doctrine and refuse to look into the validity of Cuba's confiscation of First National City's property in Cuba. Banco National de Cuba: act of state doctrine US supreme court agrees: the act of state doctrine Act of state doctrine typically arises when country a is alleged to have committed a wrong within its own territory. In this case, a party is not permitted to question Country a's act in a lawsuit in country b court Case would have to be reversed to use the forgein sovergien immunity act Because of this case → 2nd hickenlooper amendment: bernstein letter
London Charter Numbereg Trials
London Charter; Nuremberg trial, London Charter 1945 → art.6 leaders, organizers, instigators and accmplices participating in the formulation or execution of a common plan or conspiracy to commit any of the foregoing crimes are responsible for all acts perfomed by any persons in execution of such plan The London Agreement, signed August 8, 1945, established an International Military Tribunal for the trial of Nazi war criminals. The Charter of the IMT (Nuremberg Charter) was annexed to the London Agreement, and explained the constitution, jurisdiction and functions of the Nuremberg Trial. Tokyo trials;The Tokyo War Crimes Trials took place from May 1946 to November 1948. The IMTFE found all remaining defendants guilty and sentenced them to punishments ranging from death to seven years' imprisonment; two defendants died during the trial In a contrast to the trials at Nuremberg, in which photographs and videos of Nazi atrocities were put on public display, the Tokyo Trial was characterized by limited discussions of details. Also unlike Nuremberg, the Tokyo Trial did not receive near as much attention from the American press or citizenry For the members of the International Prosecution Section, the Tokyo Trial presented a unique opportunity to pursue criminal liability of the Japanese leaders not only for aggression but also for war crimes that commonly accompanied the Japanese conduct of war.
Ried v Covert Case
Mrs. Covert killed her husband on an airbase in England. Pursuant to a "status-of-forces" executive agreement with England, she was tried and convicted by US court-martial without a jury trial under the Uniform Code of Military Justice (UCMJ). She petitioned a writ of habeas corpus on the grounds that the conviction violated her Fifth & Sixth Amendment rights to be tried by a jury after indictment by a grand jury. Do American citizens abroad retain the rights granted to them by the Bill of Rights thus rendering Article 2(11) of the United State Code of Military Justice unconstitutional? U.S. citizen civilians outside of the territorial jurisdiction of the United States cannot be tried by U.S. military tribunal, but instead retain the protections guaranteed by the United States Constitution. In a decision authored by Justice Hugo Black, the Court held that U.S. citizen civilians abroad have the right to Fifth Amendment and Sixth Amendment constitutional protections. The Court agreed with the petitioners, concluding that as United States citizens they were entitled to the protections of the Bill of Rights, notwithstanding that they committed crimes on foreign soil
Medellin v Texas Case
Not all international law obligations automatically constitute binding federal law enforceable in United States courts. A distinction is recognized between treaties that automatically have effect as domestic law, and those that--while they constitute international law commitments--do not by themselves function as binding federal law. A treaty is equivalent to an act of the legislature, and hence self-executing, when it operates of itself without the aid of any legislative provision. When, in contrast, treaty stipulations are not self-executing they can only be enforced pursuant to legislation to carry them into effect. In sum, while treaties may comprise international commitments, they are not domestic law unless Congress has either enacted implementing statutes or the treaty itself conveys an intention that it be "self-executing" and is ratified on those terms. What is meant by "self-executing" is that the treaty has automatic domestic effect as federal law upon ratification. Conversely, a "non-self-executing" treaty does not by itself give rise to domestically enforceable federal law. Whether such a treaty has domestic effect depends upon implementing legislation passed by Congress. Medellin had been convicted and sentenced in Texas state court for murder, was one of the 51 Mexican nationals named in a decision of the International Court of Justice (ICJ) as being entitled to reconsideration of their convictions based on violations of Vienna Convention on Consular Relations art. 36(1)(b), Apr. 24, 1963, 21 U.S.T. 77, 596 U.N.T.S. 261. The President issued a memorandum determining that state courts were to give effect to the ICJ decision. Relying on the ICJ's decision and the President's Memorandum, Medellin filed an application for a writ of habeas corpus in state court. The Texas Court of Criminal Appeals dismissed Medellin's application as an abuse of the writ under state law, given Medellin's failure to raise his Vienna Convention claim in a timely manner under state law. Does the decision of the International Court of Justice and the subsequent memorandum of the President constitute directly enforceable federal law that pre-empts state limitations on the filing of successive habeas petitions? → NO The Supreme Court held that neither the ICJ decision nor the President's memorandum constituted directly enforceable federal law that would preempt state limitations on the filing of successive habeas petitions. The pertinent international agreements, including the Optional Protocol Concerning the Compulsory Settlement of Disputes to the Vienna Convention, Apr. 24, 1963, 21 U.S.T. 325, T.I.A.S. No. 6820 and the United Nations Charter, did not provide for direct enforcement of ICJ judgments. Nor could the President unilaterally execute a non-self-executing treaty by giving it domestic effect, as the power to implement such a treaty fell to Congress.
The Tate Letters
On May 19, 1952, the State Department announced in the Tate Letter a new policy with regard to the filing of suggestions of immunity in suits against foreign sovereigns. The letter indicated that the Department would begin to follow a restrictive theory of sovereign immunity. This meant that it would file a suggestion of immunity if the case arose from acts of the foreign government or its agents which were of a purely governmental character (jure imperii), but would deny immunity in instances where the acts engaged in were of a commercial or proprietary nature which could be carried on by any individual or corporation (jure gestionis). Ie states were less lenient with immunity to foreign government agents
Murray v Betsy case
RULE: An act of Congress ought never to be construed to violate the law of nations if any other possible construction remains, and consequently can never be construed to violate neutral rights, or to affect neutral commerce, further than is warranted by the law of nations as understood in this country. FACTS: Claimant brought the action against defendant to recover for the erroneous forfeiture of a vessel and sale of cargo. The court held that the claimant was entitled to restitution, for a cargo and vessel, and costs because defendant was not entitled to confiscate claimant's vessel and cargo under an act suspending the commercial intercourse between the United States and France. On appeal, defendant challenged the ability of claimant to bring an action for the forfeiture because claimant was an American citizen that had engaged in prohibited trade. ISSUE: Was the forfeiture of the vessel proper? ANSWER: No CONCLUSION: The Court held that the forfeiture was erroneous because, although claimant was an American citizen, claimant acquired commercial privileges that were attached to domicile in a foreign country. Although the vessel was not forfeitable, defendant had acted within his duty and was not assessed the unspecified damages. Thus, Court affirmed the order requiring defendant to provide claimant with restitution for a vessel, cargo, and costs because, under the non-intercourse law, defendant was not entitled to confiscate the vessel.
Extradition
Rule 4 of Federal Rules of Civil Procedure; courts in one country can request assistance from a court in another country → assistance from tribunals this request is done by submitting a "letter rogatory" Countries often cooperate in transnational criminal investigations → Mutual Legal assistance treaties or (MLAT's) are designed to facilitate co-operation In 2018 the US created the Overseas Data Act or CLOUD so the US can enter bilateral treaties for processing cross-border requests for communications data Ultimate form for mutual legal assistance is extradition Only rules for courts; 1) person to be surrendered is the individual sought, 2) the allegations satisfy a standard of probable cause, 3) any requirements of the applicable extradition treaty are satisfied, under the "the rule of non-inquiry" the court does not undertake any independent reviews of the merit charges Extradition can only be pursued to an arrest warrant issued by a court of competent jurisdiction → must satisfy the requirment of dual or double criminality → crime must be categorized as a crime when it is committed Speciality → a defendant can only be charged in the requesting state for the crimes in which she or he is extradited → can not do a bait and swithc must charge the person for the crime they are being accused of commiting Soering case example is an example of extradition Political offense exception → not obligated to extradite an individual/ subject charged with political offenses
Monism vs. Dualism
Specifically, monist theory prioritizes the desirability of a formal international legal order to establish the rule of law among nations, while dualist theory prioritizes the notions of individual self-determination and sovereignty at the state level. Ie monism → international law should rule over nations and duality → individual self determination on a state level
UN anti terrorism act 1987
The Congress finds that— (1) Middle East terrorism accounted for 60 percent of total international terrorism in 1985; (2) the Palestine Liberation Organization (hereafter in this chapter referred to as the "PLO") was directly responsible for the murder of an American citizen on the Achille Lauro cruise liner in 1985, and a member of the PLO's Executive Committee is under indictment in the United States for the murder of that American citizen; (3) the head of the PLO has been implicated in the murder of a United States Ambassador overseas; (4) the PLO and its constituent groups have taken credit for, and been implicated in, the murders of dozens of American citizens abroad; (5) the PLO covenant specifically states that "armed struggle is the only way to liberate Palestine, thus it is an overall strategy, not merely a tactical phase"; (6) the PLO rededicated itself to the "continuing struggle in all its armed forms" at the Palestine National Council meeting in April 1987; and (7) the Attorney General has stated that "various elements of the Palestine Liberation Organization and its allies and affiliates are in the thick of international terror". (b) Determinations Therefore, the Congress determines that the PLO and its affiliates are a terrorist organization and a threat to the interests of the United States, its allies, and to international law and should not benefit from operating in the United States.
ICJ Advisory Opinions
When it receives a request for an advisory opinion the Court must assemble all the facts, and is thus empowered to hold written and oral proceedings, similar to those in contentious cases. In theory, the Court may do without such proceedings, but it has never dispensed with them entirely.
Posonby Ruling UK
The Ponsonby Rule requires that every treaty signed by the United Kingdom subject to ratification should be laid before Parliament for 21 sitting days (although they need not be continuous). The FCO interprets the Ponsonby Rule as applying to acceptance, approval and accession as well as to ratification.
Vienna Convention on Diplomatic Immunity
The Vienna Convention on Diplomatic Relations of 1961 is an international treaty that defines a framework for diplomatic relations between independent countries.[2] Its aim is to facilitate "the development of friendly relations" among governments through a uniform set of practices and principles;[3] most notably, it codifies the longstanding custom of diplomatic immunity, in which diplomatic missions are granted privileges that enable diplomats to perform their functions without fear of coercion or harassment by the host country. The Conference also adopted the Optional Protocol concerning the Acquisition of Nationality, the Optional Protocol concerning the Compulsory Settlement of Disputes, the Final Act and four resolutions annexed to that Act. The Convention and two Protocols were deposited with the Secretary-General of the United Nations. The Final Act, by unanimous decision of the Conference, was deposited in the archives of the Federal Ministry for Foreign Affairs of Austria. The text of the Final Act and of the annexed resolutions is published in the United Nations
Foreign Sovergin Immunity and the act of state doctrine
The act of state doctirine is not applied by courts in cases of war crimes, genocide, human rights violations, acts of terrorism or generally any crimes over which the state has asserted universal jurisdiciton Connected to banco nacional de cuba v sabbatino (1964) Act of State Doctrine Sabbatino→ investor and receiver of US sugar shipment payment Banco National de Cuba: act of state doctrine US supreme court agrees: the act of state doctrine Act of state doctrine typically arises when country a is alleged to have committed a wrong within its own territory. In this case, a party is not permitted to question Country a's act in a lawsuit in country b court Case would have to be reversed to use the forgein sovergien immunity act
ICJ jurisdiction
The first form of jurisdiction granted to the ICJ is known as contentious jurisdiction. This involves resolving disputes between states under international law. No entity other than a state may bring a dispute before the ICJ, and no individual may bring a claim.
What did the geneva convention on genocide do
Trials were followed by the geneva convetion on genocide where it was stated all acts criminlaized that "with the intent to destroy in whole or in part a national, ethnical, racial or religious group as such
Jurisdiction
Universality principle: in dealing with certain crimes, customary international law does not prohibit a sate from exercising jurisdiction over them wherever they take place and whatever the nationality of the alleged offender or victim Nationality principle: a state can legislate to regulate activities of its nationalabroad whether living there or merely visiting Passive personality principle: emphasizes state jurisdiction over act committed abroad against its own nationals by foreign nations (victim jurisdiction) this principle may be contentious in application, most recently it is used to deal with terrorist offenses Protective principle: in certain circumstances, a state may establish its jurisdiction over a foreign national who commits an offence abroad (counterfieting the states money or farbicating its visa documents) Jurisdiction → territorial principle: the primary basis for jurisdiction. A state is generally free to apply its legislation to any person within its territory including forgien nationals
Person non grata
When a diplomat commits a serious crime their host state can waive diplomatic immunity or that the diplomat leaves immediatly ie diplomat can "get away with murder"
Foreign Soverign Immunities Act (FSIA)
While foreign sovereign immunity is typically raised by a foreign state defendant, the act of state doctrine can be invoked by any party in a litigation The act of state doctirine is not applied by courts in cases of war crimes, genocide, human rights violations, acts of terrorism or generally any crimes over which the state has asserted universal jurisdiciton Connected to banco nacional de cuba v sabbatino (1964) Act of State Doctrine limits the role of the Executive branch in suits against foreign governments and governmental entities by precluding the Department of State from making decisions on state immunity. The FSIA codifies the restrictive theory of immunity, incorporating criteria, which the courts had developed in applying the theory, while codifying and applying international law. Under the U.S. legal system the scope of a foreign state's immunity is determined by judicial, rather than executive, authorities. A party to a lawsuit, including a foreign state or its agency or instrumentality, is required to present defenses such as sovereign immunity directly to the court in which the case is pending.
Raphael Lenkin and Genocide
Word genocide was first coined by political lawyer Rapheal Lenkin ICC → crimes against peace; namely planning preperations initiaton or waging of a war of agression or a war in violation of international treaties, agreements or assurances, or participation in a common plan or consipracy for the accomplishment of any foregoing; (crime of agression) Genocide put in with crimes against humanity → criminalized certain acts committed with the intent of destroying in whole or in part a national, ethnic, racial or religious group as such Genocide included; the 1948 Genocide Convention
who are universal criminals
pirates
ICJ Optional Clause
that provision, known as the "Optional Clause," provides that the states parties to the ICJ Statute (currently all the 185 UN member states and Nauru and Switzerland) may at any time file with the UN Secretary-General declarations stating that they recognize as compulsory, without special agreement, ICJ OPTIONAL CLAUSE CHECK ICJ Decleration of Complusorary Jurisdiction The basis of the Court's jurisdiction in contentious cases is given by the State party's consent (Art 36 of the Statute. However, in light of declarations made under Article 36 of the Statute, for the parties to the Statute, the ICJ's jurisdiction has been described as being compulsory.
