International Law 1) Lawyer role speaking in a lay context: Relate to Comprehensive Test Band Treaty and will be a mix

of law and politics !t will involve the presidential campaign coming "p #) Law of Treaties: $ay be on %ienna Convention or may be broader a) Read the text of the treaty and annex on conciliation of the treaty b) &rticle on the Treaty '(ee list) c) Look at treaty and c"stomary law ')orth (ea Case) *) Related to some (overeign !mm"nity or &ct of (tate in a legal sense a) +anis (ection dealing with )ational +"risdiction b) ,id the co"ntry have the power to legislate 'ie -oreign Corr"pt &ctions act) ,on.t /"st look at )ational +"risdiction and the ability to legislate on this0 look at other aspects of sovereign imm"nity This exam does not lend itself to !R&C $ost weight is to !ss"e and &nalysis Break down the iss"es and know what it is ,on.t state the iss"e only ,isc"ss the iss"e and apply the r"le to the partic"lar iss"e I. II. III. IV. V. VI. VII. Nature of Public International Law 3 Use of Force 4 a) The exam will not have a lot on this except the Comprehensive Test Band Treaty is an attempt to restrain the "se of force on weapons Treaties as Sources of International Law 7 Customary International Law Sources of Le!al "ules# $eneral Princi%les of Law& Natural Law& '(uity )* Nort+ Sea Continental S+elf Cases )4 a) This was looked at as to proced"res of how legal r"les are applied in international law Law of Treaties ), a) 1 ( what difference does it make whether the 1 ( is party to this since it states c"stomary law0 b"t disp"te settlement is still not c"stomary law b) %ienna Convention on Treaties )7 -!reements t+at .in/ States *0 Com%re+ensi2e Test .an/ Treaty *4 a) This will be in the exam International 3is%ute Settlement *4 a) )orth (ea Continental (helf Case were parties who were willing to accept decisions ')ational 2onor and co"ntries were not going to go to war 3 did not implicate honor of co"ntry and how it wo"ld be seen in the world) b) Compare )icarag"a v 1 ( to co"ntries that don.t want to participate c) This co"ld broadly be attached to Comprehensive Test Band Treaty and the bad press in the 1 ( for not getting involved

VIII. I1. 1.

d) 4hy go to disp"te settlement and what makes a case appropriate with disp"te settlement 1 ( v !ran and 5lsie Case 1I. National 5uris/iction *7 a) Re6"ired +anis Book: pp *#17**8) +"risdiction based on territory0 "niversal interests0 etc b) Comity #9 c) -or"m non conveniens 'not in depth) #97#: 1II. So2erei!n Immunity 3) a) ;rovided with f"ll text and reviewed cases that ill"strated before and after b) &bsol"te sovereign !mm"nity to (trict sovereign imm"nity and why commercial activities don.t apply '(ee case and paper written) 1III. C+oice of Law 3, 1IV. -ct of State 3octrine 34 a) (ho"ld be mentioned b"t not as important as (overeign !mm"nity b) (abatino is important case here 37 c) !mportance has declined since the <8s0 still comes "p occasionally 1V. 3i%lomatic Immunity 6 Consular Immunity 6 3i%lomatic 7ission 40 1VI. "ole of Le!al -/2iser 4)84* a) (ome ideas will come indirectly into the final 1VII. 9oso2o an/ :ector Feliciano S%eec+ 4)

T+e Nature of International Law: &) T+e :istory of International Law: The principle of !nternational law is that =nations o"ght to do to one another in peace0 the most good0 and in war0 the least evil possible > Motesquieu 1748 1) Contrast ;"blic w? ;rivate Law: a) ;"blic !nternational Law concerns the political interaction of states 'this class) b) ;rivate !nternational Law relates to legal aspects of the international 'economy) and conflicts and cooperation among national 'legal systems) #) Contrast w? !nternational B"siness Law: a) !nternational Law deals primarily with treaties b) !nternational B"siness Law has an emphasis on b"siness organi@ations in vario"s foreign co"ntries This also deals with treaties *) -n International Law Sam%ler: These cases foc"s on a domestic application of an international r"ling The Golder Case 'p *): This case dealt with the 5"ropean Commission of 2"man Rights 'agreed to by the Co"ncil of 5"rope) This Commission allowed claims by individ"als to be screened by them to see if they sho"ld be looked into for additional consideration Areat Britain0 which prides itself as a model co"ntry for defendants rights was taken to task beca"se the British system did not allow the prisoner to make a claim or see a lawyer The gist is that in Areat Britain0 once yo" are in /ail0 yo" are s"b/ect to an administrative system instead of having access to a lawyer Aolder was acc"sed of taking part in a prison riot0 and was denied access to an attorney Aolder0 after he was released from prison bro"ght charges against Areat Britain The 5"ropean Convention of 2"man Rights 'article <0 9 B C8) applied above the r"les that Areat Britain wo"ld apply according to the findings of this case There is an obligation0 by Areat Britain to comply to the opinion !f Areat Britain did not adhere to this r"ling and the convention of the treaty0 the other states which had signed on to the 5"ropean Convention cannot force compliance directly0 b"t co"ld p"t press"re on them indirectly Therefore the state can also p"t press"re on its citi@ens to adhere to the law as well Filartiga v. Pena-Irala 'p 18): Tort"re is pretty m"ch o"tlawed by c"stom and international law 'derived from c"stom) The 6"estion is how can a party in a foreign co"ntry get /"risdiction in another co"ntry The co"rts held that foreign citi@ens were "nder the /"risdiction of federal co"rts in the 1nited (tates in cases like this Tort"re of another person took place in a co"ntry o"tside the 1nited (tates0 and the 1nited (tates took /"risdiction of the case This was /"stified as the tort"rer is =an enemy of all mankind > International Law as Contracts: $ost international law conflicts don.t get into /"dicial trib"nals !nternational law conflicts are "s"ally disc"ssed by looking to treaties !nstead of looking at co"rt decisions0 they are looked at by how the treaties were formed0 intent0 were the obligations contract"al

!!

Use of Force# "etaliation an/ "e%risal: Look at this with a view toward Bosnia and Dosovo &) T+e Use of Force an/ -rticle *;4< 'p E197E*8) 1) Lo" 2enkin: Concl"sion is that we m"st look to formali@ed r"les and follow them This approach to Dosovo #) $ichael Reisman: Concl"sion looks at individ"al cases for world order0 and /"stifies yo"r actions in each case !n the case of Dosovo0 this allows that we can go direct to the problem and solve it *) The Dey to intervention and the s"spension of sovereignty of a nation are: a) 2"manitarian !ntervention: '1) Aenocide: The killing of a race of people 4hat abo"t activities that are not criminally illegal0 b"t the end is the sameF '#) ;rotection of )ationals: ;rotect o"r own nationals 'i e Aranada) '*) Dosovo: This is an exception where there was no genocide0 b"t the people were oppressed and not allowed to live 'or in some cases were killed) as h"man beings b) (elf7,etermination: &llow people to determine their own destiny '1) 4hat abo"t minority rights v ma/ority rightsF This is where the law and political science come together E) Gnce it is decided to take actions0 what actions are allowedF a) )ecessary actions b) ;roportional to what was needed 'no over7action) 'H"goslavia: Gnce basic str"ct"re was in/"red them (erbs gave "p 4as there /"st eno"gh damage to the infrastr"ct"re or too m"chF) C) 4hat is the legal norm of what is allowed '&rticle #'E))F 2ow do we reconcile exceptions to the norm 'i e (peed Limit analogy: 5veryone speeds0 and yo" get ca"ght ) 4hat are the limitsF <) B) T+e Unite/ Nations an/ .osnia 'pp EI:7E9E) C) C+arter of t+e Unite/ Nations 'pp I1#7I1* and pp I1I7I#*) This is an agreement between states 'Treaty 3 Contract between nations)0 that is a constit"ent instr"ment 'constit"tion) of an international organi@ation Article 2 (4): &ll members m"st refrain '(tate to state) from the threat of "se of force against territorial integrity or political independence of any state0 or in any manner inconsistent with the p"rpose of the 1nited )ations Article 2 ( ): )othing contained in the present charter shall a"thori@e the 1) to intervene in matters which are essentially w?! the domestic /"risdiction of any state or shall re6"ire the $embers to s"bmit s"ch matters to settlement "nder the present Charter

Article !: ("premacy Cla"se: That this treaty tr"mps any other agreement This is a thorn in the side of other international organi@ations 'i e !$-) Article "#: )othing shall impair the inherent right of individ"al or collective self7defense if an armed attack occ"rs against a $ember of the 1) 1) #) *) E) Cha$ter #% P&r$ose and Princi$les 'p I1#7I1*) Cha$ter "% The 'ec&rit( Co&ncil 'pp I1I7I1:) Cha$ter )% Pacific 'ettle*ent of +is$&tes 'pp I1:7I#8) Cha$ter % Action with ,es$ect to Threats to the Peace.reaches- of the Peace- and Acts of Aggression 'pp I#87I#*)

4ar0 ;eace0 and the 1nited )ations 'p E19) &) The 1se of -orce and &rticle #'E) 'p E19) Charter of the 1nited )ations 1) &rticle #'E): &ll members m"st refrain from "sing force #) &rticle C1: ;ermits a state that is attacked to respond ,oes &rticle C1 differ from the law in its absenceF (ome arg"e there is an inherent right of self defense Gther.s wo"ld say it is not limited to self defense !f this &rticle is read strictly0 a state has the right to self defense "ntil )&TG takes over and gives the state direction as to f"rther action *) &rticle C#: Collective self defense 'e g )&TG) collective self defense by several states This was "sed in the C"ban $issile crisis as the basis for the actions that the 1 ( threatened to take Lo"is 2enkin0 =The 1se of -orce: Law and 1 ( ;olicy> 'p E#8): 2enkin disc"sses h"manitarian intervention 1) Can we /"stify what was done by the 1) in DosovoF The main arg"ment bro"ght forth was h"manitarian #) !s this standard practice by 1)F The /icarag&a Case 'p E*8) This was a s"it against the 1 ( to withdraw and pay reparation to )icarag"a for its "se of force The 1 ( was not there and this was an ex parte case The arg"ments that they 1 ( was s"pposedly made were really straw men The case was arg"ed how the co"rt perceived the 1 ( wo"ld answer 4itnesses were not bro"ght "p to the !C+ in a fair way +"dge (heibel in his dissent felt that this was not fairly heard and several witnesses were not allowed to testify The co"rt tried to make it appear that this was a contested case The "s"al wo"ld be that the 1 ( wo"ld be seen as defa"lting 2owever0 the co"rt wrote fiction v what act"ally was )GT arg"ed by the 1 ( The opinion el"des to the idea that there is =c"stomary law to the "se of force> and it is similar to &rt #'E) of the 1) charter There really isn.t m"ch written on this0 so it is ass"med by the !C+ that the charter =created c"stomary law on the "se of force >

"ole of Le!al -/2isors to Forei!n 7inistries: 1) 9oso2o: a) &ctions of )&TG made things worse0 by enco"raging atrocity b) 4ar is only over if collateral damage 'hospitals0 bridges0 etc that were "sed by civilians) This is tr"e in every war c) There is revisionism in Dosovo There were not as many atrocities by (erbs against the &lbanians as claimed or portrayed This shows how g"llible we are to news d) 1nder 1) and DE ma/or atrocities are now being attrib"ted by &lbanians against the (erbs and are being watched by occ"pying forces

<

!!! Treaties as Sources of International Law: 'pp #87*9) .asic Sources of Law in t+e US# =ritten Law 1) Constit"tion #) -ederal Law *) (tate Constit"tion E) (tate Law Inter%retation of t+e =ritten Law 1) -ederal Co"rt R"lings for -ederal Law a) 5xception is /"risdictional diversity cases #) (tate Co"rt R"lings for (tate Law and -ederal Law interpretation *) Co"rt application of Common Law: Co"rts deal with this based on prior decisions rather than written laws '+"dicially made r"les) Secon/ary -reas of -ut+ority '2elp instit"tions to f"lfil other roles 1) Law Review &rticles #) &L! Restatements *) Treatises &) Sources of International Law 'p #8) 1) Treaties: 'e g 1 ( Constit"tion was a treaty among the states) This is an agreement between co"ntries There are vario"s types of treaties and can be as simples as a contract between co"ntries Treaties can also be constit"tional 'e g 1nited )ations Charter !$Treaty0 etc ) &ll treaties are not constit"tional a) 4hat most !nternational Law involves written r"les and a way for the exec"tive branch to enforce the r"les b) 4eak area is "s"ally interpretation via /"dicial r"lings #) 'tat&te of the International Co&rt of 0&stice- Article !1 : To be a party to this allows the co"ntry to be a plaintiff in the case and choose the /"dges0 and r"les To be a defendant yo" need something f"rther by the way of consent This is done via a declaration of what classes of cases yo" agree to be a defendant in Ho" may also do this case by case &lso this can be agreed to be treaty '! agree to settle any disp"te in the !C+) The !C+ applies to co"ntries who by: a) !nternational Treaties0 conventions0 charters b) !nternational C"stoms c) Aeneral principles of law recogni@ed by =civili@ed nations > These are basic 'e g J"estion regarding estoppel which is a basic concept that is accepted in almost all legal systems) The co"rt can extract a r"le like this d) The !C+ decisions are only binding on the parties before the !C+ *) The above is a common sense approach to !nternational Law B) - Treaty Sam%ler 'p ##) Ty%ical Treaties# FCN Frien/s+i%& Commerce& Na2i!ation are t+e basis treaties Internationally

The Treaty Between the +ews and the Romans 'Circa 1<8 BC) 'p ##): This was a m"t"al defense treaty The idea here is that there is a history to treaties0 and that things really have not changed over the years 1) Reciprocal good faith always seems to have been one of the key components in ens"ring the obligatory force of treaties This is like a modern contract with offer0 acceptance and the keyK consideration #) 4ritten -orm: (o no one can say yo" said this 2owever0 there can still be ambig"ity *) Religion: There is a basis "s"ally from nat"ral law or religio"s law The ;eace of 4estphalia '1<E9) 'p #E): This was a treaty between -rance and (weden to end the *8 year wars and creates a lasting peace The center of this war was the right of princes and people to choose to be Catholic or ;rotestant 1) Re7established peace #) -ree choice of religion *) Re7establishment of the 5states of the 5mpire &) (tate agree to limit their sovereignty in order to ass"re their sovereignty B) The Treaty of ;aris '1I9*) 'p #9): This was a treaty between -rance and the 1nited (tates for fishing rights0 b"t also was the first to recogni@e the 1nited (tates as a sovereign power 1) Recognition of the 1nited (tates: #) 5ffect on *rd parties: ,ebts0 binding other co"ntries0 restit"tion of ceased property0 etc *) $aritime !ss"es: definition of bo"ndaries E) ;eace of ;aris and the 1 ( Constit"tion: 1nwillingness of the -rench to get involved in internal and international conflict of settlement with other co"ntries The Cession of &laska '19<I)'p **): This is a contract for the p"rchase of land 1) ,eals with residence of the territory: There was an offer0 acceptance and consideration The Dellogg7Briand ;act '1:#9)'p *<): This did not work !T was a treaty against war0 b"t d"ring the period it was signed all co"ntries were preparing for war There was no way to in the pact set "p to implement it This created no real obligations 2elsinki &ccord on 2"man Rights was written with a determination for it to work for 2"man Rights0 even tho"gh they weren.t legally binding on co"ntries Timing is everything in some of these acts 1) 2ard Laws: &re meant to be followed #) (oft Laws: Conse6"ences of non7compliance are not spelled o"t clearly and they only are a preferred o"tcome 2owever0 these types of laws are t"rning o"t to be prod"ctive beca"se of the determination to make the r"les work

!%

Custom an/ t+e Non8Consensual Sources of International Law 'pp <<7::): &) Customary International Law 'p <<) 1) &ll treaty provisions need to be interpreted and0 if treaty interpretation is not to be p"re discretion0 some g"idance from other forms of law is called for #) Treaties never bind all states0 and there needs to be some r"les of more general application T+e Pa(uette :abana 'p <<): & coastal fishing vessel off the coast of C"ba was sei@ed as a pri@e of war d"ring the (panish7&merican 4ar This was basically taken as by a pirate ship that was commissioned by the co"ntry The pirates wanted their c"t 4hat is relevant in this case is how civilians are treated d"ring the time of a military conflict J"estion: Co"ld the vessel be sei@ed d"ring military conflict The co"rt said no &nalysis of the co"rt: (ome treaty obligations contin"e0 even d"ring the time of war (ince there was not treaty0 the co"rt concl"ded that there are c"stomary r"les that say yo" can.t sei@e a civilian ship The two ways of looking at c"stom are 1) Practice: This is what is normally done 'practices of states) #) Opinio Juris: This is identified by practice in most cases 5xceptions: (tate.s may say things that are binding0 b"t they go against what has normally been done The co"rt looked at the core practice of states and looked at how fishing vessels were treated over the years This co"rt went back C88 years 'to 1E8* &,) and what was approved by the Ding of 5ngland '2enry !%) The co"rt looked at a cross7section of states and how they treated fishing vessels d"ring times of armed conflict They looked for decrees of the vario"s governments over time They looked at treaty r"les as examples of practice They referred to inconsistencies in treaties by reviewing how the -rench treated the ,"tch and how that was breached and terminated in 1<IC There was an ab"se of good faith of the agreement They reviewed r"les that the 1 ( was not a part of and what they were a part of !n the r"les that the 1 ( was a part of they looked at what the 5xec"tive branch of Congress has decreed 'especially if this was in direct opposition or breach of a treaty 3 if it was in line with c"stomary law) This case is cited primarily: 1) =!nternational law is part of o"r law and m"st be ascertained and administered by the co"rts of /"stice of appropriate /"risdiction0 as often as 6"estions of right depending "pon it are d"ly presented for their determination > #) =-oreign m"nicipal laws m"st indeed be proved as facts0 b"t it is not so with the law of nations > a) There are still times when experts are relevant 2ow will the foreign law be applied v local law T+e Lotus Case 'p I<): Cases was between -rance and T"rkey and they agreed to let it be decided by the Co"rt at the 2ag"e The 6"estion is has T"rck

violated the Convention of La"sanne This involved a collision at the high seas The T"rks ceased the Captain of the -rench vessel and wanted to try him Both co"ntries looked to /"risdiction by looking at who the victims were '!n the 1 ( we wo"ld look at where the crime took place or what the nationality of the defendant) -rance said that they wo"ld be the appropriate co"ntry to prosec"te since the crime took place on The 2ag"e decided in favor of T"rkey )otes: 'p 9I) 1) ;ositivism and the )at"re of !nternational Law: ;ositivism is that all international legal r"les are based on state consent The co"rt r"led that T"rkey.s state sovereignty is a f"ndamental principle for !nternational Law #) B"rden of ;roof: !n this case0 the idea was the pres"mption that the b"rden of proof was on -rance -rance had to prove that there is a r"le of c"stomary international law restricting T"rkish independence rather than making T"rkey prove that its prosec"tion was sanctioned by international law *) Reversal of the R"le in Lot"s: 2igh (eas Convention of 1:C9 provides that in cases involving collisions on the high seas0 only the flag state or the national state of the acc"sed may prosec"te the officer in case of a collision on the high seas T+e Te>aco6Libya -rbitration 'p 99): !f there are disp"tes0 they shall be settled by arbitrators R"les that are to be applied come from international settings This is an ex parte proceeding beca"se Libya wo"ld not participate The arbitrator normally wo"ld take the complaint allegations as tr"e 2owever0 in international cases 'as here) the co"rt went thro"gh a f"ll fact finding proced"re to determine the o"tcome )otes: 'p :I) 1) =$ixed> !nternational &rbitration: 2ere the ,eeds of Concession between the 1 ( oil companies and the Libyan government provided that an aggrieved parry co"ld re6"est the ;resident of the !nternational Co"rt of +"stice to appoint a sole arbitrator if the other party ref"sed to make an appointment to a *7/"dge panel #) !ndivid"als and !nternational Law: The &rbitrator re/ected the positivist doctrine of the 1:th and early #8th cent"ries that held that international law co"ld only bind states )ow individ"als and private corporations can be s"b/ect to international law *) The Role of 1) Aeneral &ssembly Resol"tions in $aking C"stomary !nternational Law: a) The Libyan arg"ment rested on the fo"ndations of the 1:I* and 1:IE 1) Aeneral assembly resol"tions proclaiming a )ew !nternational 5conomic Grder ')!5G) The legal 6"estion for the &rbitrator was whether these )!5G resol"tions had any legal force especially in the light of 1) Aeneral &ssembly Resol"tion 198* 'L%!!) if 1:<# !n 1:<# the 1) was trying to get a consens"s0 and the resol"tion was adopted with only a few negative votes b) 1:IE resol"tion did not reflect the kind of consens"s of the 1:<# 1) resol"tion The conse6"ence is that the 1:<# resol"tion still was the r"le of law

18

E) 5val"ating Aeneral &ssembly Resol"tions: !n looking to the votes of states on Aeneral &ssembly resol"tions0 sho"ld the votes of some states be given proportionality greater weight C) The 5fficacy of the &rbitral &ward: Libya agreed to pay Texaco MI<$$0 The )ew Hork Convention on the Recognition and 5nforcement of -oreign &rbitral &wards provides for the recognition and enforcement of many foreign arbitral awards 0 and is "sed in commercial cases

11

Sources of Le!al "ules# $eneral Princi%les of Law& Natural Law& '(uity: 'pp ::71#:) &) General Princi$les of Law: 1) !nternational Law '!L) is relatively new #) (o"rce for !L comes from the ma/ority of the members states of the 1) and other alliances a) Legal /argon is not always "sed for these areas b) ,etermining the iss"e at hand will then help to determine how the iss"e will be decided c) %ienna Convention on the Law of Treaties: Article 53: & treaty is void if at the time of its concl"sion0 it conflicts with a preemptory norm of general international law 'p IC*) d) %ienna Convention on the Law of Treaties: Article 64: !f a new preemptory norm of general international law emerges0 any existing treaty which is in conflict with that norm becomes void and terminates 'p IC<) *) The &$B( Case: This case dealt with an agreement that was made prior to an antitr"st agreement made by the 5"ropean Comm"nity '&rticles 9C and 9< Treaty of Rome) !n this case the commission is investigating on how prices are set The claim is that the information that is being so"ght is protected by attorney7client privilege There is no treaty provision for this s"b/ect The /"dgement of the co"rt does not have a dissenting opinion 'it isn.t known if there was a division in the co"rt) The key to this case is that the advocate general looked to a general principle of law where the Treaty of Rome did not address attorney7client privilege The /"dges tried to fashion a r"le o"t of what member co"ntries do in this regard The 5C+ felt that they only needed to consider the member states positions to come "p with a general principle of law 5C+ looked at f"ndamentals that they fo"nd in all or nearly all legal systems in the 5C The findings were narrow0 they agreed on the attorney7client privilege0 b"t did not extend it to comm"nications of both in7ho"se co"nsel and foreign lawyers not accredited by an 5C member nation B) /at&ral Law% 0&s Cogens: & Legal thing that parties by agreement cannot change 'i e making an "nconscionable contract conscionable 1) Things0 by law0 that parties can /"st not change 'these are known as Cogen R"les 3 e g "nconscionability laws) #) !t is only part of the c"stomary 'general) !nternational Law0 is not c"stomary !nternational Law *) %on %erdross =Forbi//en Treaties in International Law> 'p 18:) he states that the following are 0&s Cogens: a) Treaty binding a state to red"ce its police or its organi@ation of co"rts b) Treaty binding a state to red"ce its army in s"ch a way to render it defenseless against external attack c) Binding a state to close its hospitals or schoolsKor in other ways to expose its pop"lation to distress

1#

E) 5us 3is%ositi2ion: ,ispositive ;rovisions: -ill a gap between the parties0 6"alifying an "ndefined term in a contract0 'i e what is a reasonable time periodF) These are r"les that the law provides0 b"t others can agree to change 'i e & contract has to be accepted within I days0 b"t parties decide # weeks is more appropriate There is nothing wrong with this ) C) 23&it( 'p 1##) 1) Statutes of t+e International Court of 5ustice: &rticle *9: 'p I*C): This &rticle says that the co"rt can decide a case0 if the parties agree0 on the e6"ity of the matter a) Contra .onos 4ores: &gainst good morals The idea is that the law reflects /"stice and fairness #) T+e Cayu!a In/ians Case: This is an arbitration between the 1( and Britain regarding the Cay"ga !ndians Treaties between )H state and Cay"ga in 1I9:0 1I:80 and 1I:C agreed to ann"ities between the Cay"ga and )H $ost Cay"ga ended "p in Canada and )H state said that the treaty was with the Cay"ga of the 1( only The co"rt looked to /"stice and e6"ity and looked past the treaty and looked at e6"ity There were no general r"les of !L and dealt with what was fair to the !ndians The idea here was principles of /"stice and fair play The Canadian Cay"ga also got a proportionate share of the ann"ity The !ndians did not see themselves and being in )H state v Canada *) T+e 7euse Case:

1*

%! &)

B)

C)

,) 5) -) A)

2)

/orth 'ea Continental 'helf Case 'pp 1#:71E<) and write a page on each sides position !nternational Co"rt of +"stice &rticle *< 'p I*E) parties can0 by agreement0 have the co"rt decide a sit"ation 1) 2ow to handle a /oint case in the !C+ 'proced"ral) entitles a /"dge from each co"ntry in the disp"te &ll signed Aeneva Convention0 b"t Aermany did not ratify 3 most likely beca"se they didn.t agree with certain sections of the Convention 1) !f Aermany didn.t ratify it their actions did not constit"te ratification0 especially since other # parties did not rely on Aermany.s actions0 no estoppel #) &rticle < does not codify the e6"idistance principle0 or crystalli@e the principle beca"se it was not in place at that time !f principle has developed since the making of the article0 yo" need to look at its "sage0 especially look at the "sage among the parties that have ratified the Convention 1) &lso0 on behalf of ,enmark and the )etherlands look for parties that are not parties to toe Convention have entered into an agreement "sing the principle in 6"estion with concaved coast Co"rt concl"ded that there was not a c"stomary 'general) principle of "se that wo"ld incl"de the e6"idistance principle "nder &rticle < Aermany.s main arg"ment was ad/"sted e6"itable share B"t the co"rt also re/ects this and says that their /ob was not to establish bo"ndaries already relating to the coast of the Co"ntries and not determine what the areas were Review &rticle 9*0 Convention on the Law of the (ea '1:98s) 'p II<) &rticle < Aeneva Convention had no teeth !t can be attacked beca"se 1) Reservation: Co"ntries can reserve their ratification in certain areas #) &greement: The Treaty prefers agreements between parties and not the r"les of the treaty *) (pecial Circ"mstances: There is a reservation that there may be special circ"mstances The !C+.s decision shows that a Co"ntry that depends on an alleged international c"stom practiced by other Co"ntries m"st prove to the !C+.s satisfaction that this c"stom has become so ordinary as to be legally binding on the other parties

1E

%!! Law of Treaties '(ession 1) Casebook pp 1EI71I# C+a%ter 4# International Law an/ 7unici%al Law 'p 1EI) A) Treaties in 4&nici$al Law Foster ? 'lam 2. Neilson '19#:) 'p 1EI) -sa@ura 2. City of Seattle '1:#E) 'p 1C8) Sei FuAi 2. California '1:C#) 'p 1C*)

526 CA'2 (5/78 F7, FI/AL) 7issouri 2. :ollan/ '1:#8) 'p 1CI): Congress had enacted $igratory Bird
Treaty &ct to protect them The idea was to stop them from being killed & lower co"rt it was fo"nd that Congress did not have the a"thority to do this in an earlier $igratory Bird &ct Birds were the property of states The 1 ( had concl"ded the Treaty with Areat Britain ? Canada !s the world any different now that a treaty s"pports the new actF The ("preme Co"rt said yes 1) 18th &mendment 'power of the state to form laws) is not a limitation on treaties #) Treaty overr"les state laws .ric@er -men/ment '1:E8s): Led a fight limiting the presidents. ability to enter into treaties Treaties sho"ld only deal with matters of international concern Certain basic freedoms sho"ld not be abridged by treaties This died with Reid v Covert which dealt with crimes by 1 ( citi@ens o"tside the 1 ( Co"ld they be tried in the other co"ntry or in the 1 ( This exposed dependents of servicemen to military co"rts The ("preme Co"rt held that at least some of the provisions of the Bill of Rights limits the Treaty making of the exec"tive branch T2!( 5(T&BL!(25, T2&T T25 B!LL G- R!A2T( L!$!T( T25 &B!L!TH TG $&D5 &AR55$5)T( GR TR5&T!5( 4!T2 GT25R CG1)TR!5( =+itney 2. "obertson '1999) 'p 1<8) ,eal was that if we negotiate a better deal with 2awaii then the ,ominican Rep"blic sho"ld get the same deal Congress had assessed tariffs differently in both cases The co"rt tried to harmoni@e the inconsistent pieces of legislation0 b"t if they co"ldn.t the later in time treaty r"led The rationale is that Congress knew abo"t the original treaty The ,"alistic approach of this case is that we make different deals internally than externally FCN ;Frien/s+i% Commerce an/ Na2i!ation Treaty< are "s"ally bi7lateral: These incl"de three provisions: '1) -riendly relationsN '#) deals with commerce and national treatment cla"se 'is that we will treat yo"r nationals as well as o"r own) 7FN ;7ost Fa2ore/ Nation Pro2ision< 4e will treat yo"r b"sinesses and people as favorably as any other co"ntry This is "s"ally a provision of a treaty 'e g !f we negotiate a lower tariff with any other co"ntry we will give yo" the same deal) Self8'>ecutin! Treaty ;3ualistic a%%roac+< 'e g $isso"ri v 2olland) sometimes 'not always) treaty is directly applicable in the 1 ( w?o exec"ting legislation

1C

1) Can.t tell by looking at the treaty if it is self7exec"ting0 no magical words This especially beca"se other co"ntries don.t have self7exec"ting treaties 'e g 1nited Dingdom) #) $ay look at what type of treaty it isF 'e g ;awnbroker case in (eattle or criminal prosec"tion) 'a) Sei Fujii v. ali!ornia "sed the 1nited )ations Charter when there was no clear c"t Treaty that dealt with this problem Look to hearings before Congress to fig"re these o"t 'b) Asa"ura v. it# o! Seattle said that the Treaty with +apan was self exec"ting and therefore needed no special act by Congress 5xec"tive &greements and the Constit"tion: Treaty is written in the Constit"tion in two different ways: Both are !nternational &greements &rticle !! '#): This re6"ires that =advice and consent> of the senate Treaties are agreements between states in written form and governed by international law 1) Treaty by the (enate or legislation: 'a) ;revio"s &"thori@ation: 'b) ("bse6"ent &"thori@ation: 'e g trade agreements0 agreements of the $onetary -"nd This is negotiated and then GD.d by Congress) #) Presi$ential Po%er: 'independent of acts of Congress) Look to the powers granted to the ;resident 'Recogni@e ambassadors0 settle claims of &merican )ationals with -oreign co"ntries0 and concl"de acts of hostility with foreign powers '1s"ally fo"nd in history) &rticle %! '#): 5xec"tive &greements: Unite/ States 2. .elmont '1:*I) 'p 1<#): R"ssian corporation maintained a deposit with a 1 ( bank Bolsheviks came to power and nationali@ed all corporations The 1 ( finally recogni@ed R"ssia and "nder this recognition the (oviet 1nion gave to the 1 ( the property that was held in the 1 ( and this was done to pay 1 ( citi@ens for what &mericans had owned in R"ssia 4hat did the 1 ( get 'did they get anything at allF) The ("preme Co"rt held that the 1 ( became the owner of the property 'nationali@ed the property in the 1 ( ) This was in direct deference to )ew Hork (tate Law which did not allow nationali@ation of private property Unite/ States 2. Curtiss8=ri!+t '1:*<) 'p 1<C): ;owers of different branches of government are not the same when in the international area (tates cannot make agreements with other co"ntries0 only the -ederal government can do this 4e don.t want a sit"ation where o"r government cannot act when other governments can There is not as m"ch scr"tiny when the -ederal government deals in international affairs as when it deals with states 2owever0 Reid v Covert says there are still limits to the -ederal governments ability to deal in international areas Law of Treaties ;Session *< Casebook pp IE87I<C '%ienna Convention on the Law of Treaties) =%ienna Convention on the Law of Treaties: Conse6"ences of ;articipation and )on7;articipation> '1:9E) 3to be distrib"ted

1<

Vienna Con2ention on t+e Law of Treaties Part I# Intro/uction

&rticle 1: (cope of the present Convention &rticle #: 1se of Terms 'a) &reat#: =an international agreement concl"ded between (tates in written form and governed by international law0 whether embodied in a single instr"ment or in two or more related instr"ments and whatever its partic"lar designation > 'd) 'eservation: =a "nilateral statement however phrased or namedK0 when signing0 ratification0 accepting0 approving or acceding to a treaty0 whereby it p"rports to excl"de or to modify the legal effect of certain provisions of the treaty in their application to that (tate> &rticle *: !nternational agreements not within the scope of the Convention &rticle E: )on7retroactivity of the present Convention &rticle C: Treaties constit"ting international organi@ation and treaties adopted within an international organi@ation

Part II# Conclusion an/ 'ntry into Force of Treaties

'ection #% Concl&sion of Treaties This section is formal is not "s"ally enforced 2owever a signat"re alone is possibly not eno"gh to be bo"nd ) &rticle <: Capacity of (tates to concl"de treaties &rticle I: -"ll powers &rticle 9: ("bse6"ent confirmation of an act performed w?o a"thori@ation Article 18:Gbligation not to defeat the ob/ect and p"rpose of a treaty prior to its entry into force 'T2!( !( ;RGB&BLH T25 $G(T %GL&T!L5 &RT!CL5 !) T2!( (5CT!G)) 'ection 2% ,eservations Article 1(: -orm"lation of reservations 'ection !% 2ntr( into Force and Provisional A$$lication of Treaties &rticle #E: 5ntry into -orce Article )5:;rovisional &pplication '4ill comply with all provisions 'ass"med) before entry into force

Part III# Bbser2ance& -%%lication& an/ Inter%retation of Treaties

(ection 1: Gbservances of Treaties Article )6: ;acta s"nt servanda Article )7: !nternational law and observance of treaties 'cannot apply domestic law 0 internationally0 over international law) 'ection 2% A$$lication of Treaties 'ection !% Inter$retation of Treaties Article 31: Aeneral r"le of interpretation 'Contract Law: 4iliston7 E corners r"le7 look to the doc"ment) Article 3): ("pplementary means of interpretation 'Contract Law: Corbin 3 Look o"tside the contract 3 shared intentions of the parties) T2!( !( )GT & R1L5 G5%!,5)C5: 4e can look o"tside the original agreement to see if the meaning is ambig"o"s T2!( !( & ,!R5CT!G) TG L&4H5R( G) 2G4 TG 4R!T5 T25!R BR!5-( GR CG1RT( G) 2G4 TG 4R!T5 T25!R G;!)!G)( &rticle **: 1I

'ection 4% Treaties and Third 'tates

Part IV# -men/ment an/ 7o/ification of Treaties Part V# In2ali/ity& Termination& an/ Sus%ension of t+e B%eration of Treaties ;9'C P-"T<
'ection #% General Provisions 'ection 2% Invalidit( of Treaties 'ection !% Ter*ination and '&s$ension of the 7$eration of Treaties 'ection 4% Proced&re : 'ection "% Conse3&ences of the Invalidit(- Ter*ination or '&s$ension of the 7$eration of a Treat( :

Part VI# 7iscellaneous Pro2isions

9ienna Convention on the Law of Treaties '(hort version 1) ,eclaration of the general assembly is easier to pass0 b"t is not binding on members a) Aenerally its recommendations #) !tOs a treaty on treaties *) $ost r"les are codifications on the law of treaties E) Codifies co"rt decisions and c"stomary international law C) Treaties are s"preme law <) ;arts of the treaty: a) &rt # 3 Terms b) &rt * 7 4hat agreements are incl"ded c) &rt E 7 )on7retroactivity d) &rt C 7 !nternational organi@ations ;art # 7 ,etails with respect to formation a) &rt 19 7 Gbligation not to defeat the ob/ect y p"rpose of a treaty prior to its entry into force b) &rt #8 7 Reservations are accepted "nless a state raises ob/ections in 1# months ;art * 7 5ntry into force a) &rt *1 7 Aeneral r"le of interpretation 7 text"al interpretation y shared expectations of the parties 'intent of the parties) b) &rt *# 7 ("pplementary means of interpretation 7 need for this was beca"se there were &frican states in partic"lar who were not independent0 b"t had previo"sly been "nder the r"le of some other co"ntry and s"b/ect to those treaties negotiated by those other co"ntries c) &rt ** 7 !nterpretation of treaties in two or more lang"ages 19

;art C 7 4ay to get o"t of the convention !f the provision is not in the convention0 yo" canOt "se it Based on contract law a) &rt <# 7 -"ndamental change of circ"mstance b) &rt <C 7 ;roced"re c) &rt #I 7 (tate can not claim itOs internal law as an exc"se to not perform the treaty d) &rt E< 7 ,oes not look at a co"ntries domestic affairs to determine if they are bo"nd by treaties 4ill look behind it in order to preserve democratic associations ,oes provision of its internal laws look at proced"ral or s"bstantive laws e) &rt E# 7 Aot to find the basis in part C for getting o"t of a treaty !f not in part five0 can Ot create f) &rt C* B <# 7 +"s cogens 7 Treaties that violate /"s cogens r"les are not permitted '1) +"s Cogens 7 Legal things that parties by agreement canOt change0 i e making an "nconscionable contract conscionable Things that by law the parties can /"st not change g) &rt <8 7 & material breach0 remedies listed are not the only remedies possible Radical breach of the treaty0 allows the others in the treaty to make the same radical change 'i e b"ilding of missiles) h) &rt <# 7 -"ndamental change of circ"mstances0 civil law view0 different from o"rs ;arty to the treaty adversely affected can terminate or s"spend witho"t damages ;arty invoking f"ndamental change0 canOt have been responsible for the change i) &rt <C B << 7 Gnly relate to part C

1:

%!!! -!reements t+at .in/ States T+e 'astern $reenlan/ Case 'p C:) This case shows that there are two types of agreements that bind a state: 1) Gentle*en:s Agree*ent: Binding on the person making the agreement 'while in office)0 b"t does not bind the state long term 'e g Clinton agrees to something while he is in office ) Typically this will be between state banks and etc as to !$- These have a moral binding force on those who participate in the agreement Change of administration0 they are not bo"nd )GT CG)TR&CT1&L ;RG$!(5( #) Agree*ents that ;ind the 'tate: 7ay a Treaty be Unwritten: Hes The %ienna Convention Law of Treaties applies to the relationship to the two states involved There was ca"tion regarding how this relationship wo"ld work "eser2ation to t+e $enoci/e Con2ention Case p C8): 4hat to do abo"t reservations to this treatyF ,esire was to get maxim"m participation The Aeneral &ssembly asked for an advisory opinion to settle what reservations may be correct The !+C treats this as an instr"ment that as a m"ltilateral agreement with a whole b"nch of bi7lateral relationships $"st look at the bi7lateral relationships 4here a treaty is not specific on whether reservations are allowed are not0 in this convention the test is whether the reservation is an ob/ect or p"rpose of the convention This ob/ect and p"rpose is in the eyes of the beholder The s"ggestion is that it is for the states involved to decide !n the Bellows case the co"rt held that there is a character as to whether specific areas co"ld be considered ob/ect and p"rpose of the coverage 'i e can /"dges and police be one in the same 3 (wit@erland case 'Bellows) Co"rt of h"man rights said that this was incompatible with the treaty0 even tho"gh the treaty was not specific There co"ld be a reservation0 b"t if the reservation was incompatible with the convention0 the (tate was bo"nd to the treaty w?o the reservation This is only if the Treaty was not specific %ienna Convention on the Law of Treaties ' Section *# "eser2ations) 'p IEE) -rticle ) : 2ow do yo" form"late a reservationF -rticle *0: & competent entity of the state m"st accept the reservations -rticle *): Legally if yo" reserve an area of the Treaty the effect is that another state who accepts the whole treaty0 does not have to adhere to the area reserved to the reserving state only 'this partic"lar area is not enforced between these two states) P-"T V: This is the problem !s this area invoked if there is a reservation and what happens if there is a reservation to the following &rticles: 'Gne view is that if a (tate reserves this comp"lsory disp"te settlement0 these areas are not invoked) The 1( has said if we become a party0 and reserve these areas0 yo" are playing games with all of the other areas that wo"ld trigger these articles Therefore the 1( position is that they reservation of the other side wo"ld be expanded to all of &rticle C 1D says that any reservation to these articles wo"ld void the whole Convention The 1D said therefore0 that the reserving co"ntry is not a party to the treaty at all

#8

1) &ccept?&ccept 'no problem) #) &ccept?Re/ect: -rticle *06*): a) Re/ection expands the scope of the reservation ')ot /"st re/ect certain articles0 b"t expands to all of &rticle %) b) Re/ects as an incompatible with ob/ect and p"rpose of the convention c) ,o we rely on these provisions '(ection C) as c"stomary international lawF Look to contract law -rticle 4,: -rticle 44: -rticle 47: Cordell 2"ll 'p *:): The Cordell7Lothian &greement +a*es < 4oore v. ,egan 'p 1I#): Thr"st is that the ( C raced to make a decision to decide the iss"es beca"se of time constraint The ( C kept the iss"es very narrow so they wo"ld not overstep and make a precedent that they wo"ld set -acts: &t the time !ran sei@ed the hostages0 the 1 ( was trying to p"t press"re on !ran to release the hostages The (ec of (tate and Treas"ry said that s"its by contractors who had done b"siness in !ran sho"ld be allowed in 1( co"rts & very strict r"ling was form"lated as to when yo" can attach foreign states assets This is a federal long arm stat"te The co"rt defined when attachment can take place over a foreign co"ntries asset This is made harder0 the co"rt m"st be convinced that there was an emergency The !55;& gave the ;res the power to relax this provision and easier to s"e !ran who had breached a contract in !ran The ( C said that the 5xec"tive &greement was no good and the b"sinesses m"st take the claims to an arbitration trib"nal in the 2ag"e to make s"re that assets wo"ld be paid some f"nds were held by banks 'This was p"rs"ant to an exec"tive agreement that all laws"its in the 1( wo"ld be dropped when the hostages were released) 4as the exec"tive agreement that ;res made with !ran binding and co"ld exec"tive orders to be entered to end laws"itsF 4as Ronald Reagan the president or +immy Carter when the exec"tive agreement was implementedF This was resolved when ;res Reagan reiss"ed +immy Carter.s exec"tive orders ,ames $oore s"ed the government to prevent the enforcement of the 5xec"tive Grders so they still have assets attached The ( C had to look at this de nova The co"rt disc"ssed 6o&ngstown 'heet and T&;e and the 3 pron*e$ anal#sis of the president.s power v the legislat"re.s power ;resident acts 1) 4ith s"pportive legislation of Congress '!nternational 5mergency 5conomics ;owers &ct 3 this is what this law does) #) 4ith Congress sitting o"t *) 4ith Congress saying no Co"rt will try to find some kind of congressional approval The key part of the decision t"rns to the Constit"tionality of the 5xec"tive Grder and Treaty with Congress sitting o"t ,oes the ;res have a"thority The ( C finds precedence where the ;res actions are allowed '1 ( v ;ink '1:E#)) Thr"st of the arg"ment is that even tho"gh there was a long precedent that the

#1

government co"ld settle claims against foreign co"ntries0 after 1:I<0 the scheme was that the Co"rt sho"ld re7examine whether the 5xec"tive Branch can still do this '-oreign (overeignty !mm"nities &ct) Article ! of the Constit&tion and role of the Co"rt is that the ;resident.s 5xec"tive Grder alters the /"risdiction of the -ederal Co"rts The co"nter is that the Congress only has a"thority to do this The Co"rt r"ling says that the president can change the s"bstantive law by doing this0 or is this a proced"ral change which the ;res is a"thori@ed to do 'e+nquist says this is a new s"bstantive r"le for the case Unite/ States 2. PLB 'p 198) was this a violation of a treaty obligation of the 1 ( with the 1 ) by congress There was a conflict between the &nti7terrorism &ct of Congress and the Treaty R"les set forth The co"rts fo"nd that the ;LG office was not to be closed This was a great decision in that the Treaty prevails0 b"t this is a very "n7impressive finding beca"se the intent of Congress was really to override the Treaty0 b"t didn.t say it =nited 'tates v. Alvare>-4achain '1::#) Co"rt r"led that the kidnapping of a $exican Citi@en in $exico by agents of the 1( government was not to be constr"ed as an act covered "nder terms of the 1:I9 $exico 5xtradition Treaty: =The lang"age of the Treaty0 in the context of its history0 does not s"pport the proposition that the Treaty prohibits abd"ctions o"tside of its terms > The interpretation was resisted by +"stice (tevens0 writing for the minority0 who cited the lang"age of the :th Circ"it approvingly: The pro 'p :E of s"pplement) ;%. *0, of t+e te>t boo@< =nited 'tates v. Alvare>-4achain& ) 4 F3/ )*44 was su%erce/e/ by )07 F3/ )?) (?th Cir #?? ) Cert. so&ght to '.C. and denied T,2AT6 'i*&lation ,oes it -a"e sense at t+is $ate !or t+e .S to /eco-e a part# to t+e 0ienna onvention1 all 2earin* to Or$er 3nvite 'ic+ar$s to spea" As" 4uestions Or$er o! questions to co-e 5oo" to past +earin*s on t+e 0ienna onvention !ro- t+e 76s 3sn7t t+is custo-ar# international la%1 &+e real question is $o %e %ant to /e le*all# /oun$ in all areas o! t+e 0ienna onvention1 Political 3ssues8 )79469189)5 Article 2 8 3nternational 5a% an$ o/servance o! treaties Article 4)8 Provisions o! internal la% re*ar$in* co-petence to conclu$e treaties :,oes t+e violation o! $o-estic la% re*ar$in* co-petence to conclu$e treaties to t+e treat#1 ;+at are t+e rules t+at are inclu$e$1 ;+at a/out provisions t+at violate /ill o! ri*+ts1 <=ecutive >ranc+ $oes not +ave t+e co-petence to -a"e a

##

treat# t+at violates t+e onstitution1 Or $oes it onl# $eal %it+ t+e co-petence o! on*ress1 ;+et+er it is ever -ani!est t+at t+is instru-ent -ust +ave t+e a$vice an$ consent o! t+e Senate /e!ore it can /e rati!ie$1 3S an e=ecutive a*ree-ent enou*+1 2o% $oes a !orei*n assess i! an instru-ent +as /een conclu$e$ properl#1? ;+at a/out -utual -ista"e in $ealin*s /et%een ) countries1 Article #18O/li*ation not to $e!eat t+e o/ject an$ purpose o! a treat# prior to its entr# into !orce Article 2"8 Provisional Application8 ,ispute Settle-ent8 Part 08 A-en$-ents an$ Mo$i!ication o! &reaties Article ")8 ,enunciation o! or %it+$ra%al !ro- a treat# containin* no provision re*ar$in* ter-ination@ $enunciation or %it+$ra%al. :provision assu-in* t+at #ou can %it+$ra% A -ust *ive 1) -ont+s? ;+at is t+e a$vanta*e o! usin* ot+er -eans o! *ettin* out o! a treat# i! #ou can presu-a/l# o! *ettin* out o! t+e treat# /# ot+er %a#s A /reac+@ etc. ? &+ere -a# /e protracte$ ti-e@ even t+ou*+ #ou !eel t+ere is a !aster %a# o! *ettin* out o! t+e treat#. .nless #ou $on7t su/ject #oursel! to t+is Article. 2o% controversial is t+e clai-1 &23S 3S A BAP F3553CB 5A.S< Article )@8 >reac+ Article )28 Fun$a-ental c+an*e o! circu-stances For-ation an$ 3nterpretation8 3193) Article !#8 Supple-entar# -eans o! interpretation Article !28 3nterpretation o! treaties aut+enticate$ in to% or -ore lan*ua*es

#*

!L Com%re+ensi2e .an on t+e Nuclear Testin! Tr eaty 1) ;resident or his representative goes to Treaty meetings and agrees or disagrees to take the treaty to the (enate for advice and consent or ratification #) ;resident s"bmitted treaty to the senate 'thro"gh the exec"tive clerk of the senate) a) Treaty is accompanied by a report from the (ecretary of (tate b) !t is "p to the ;resident when to s"bmit the treaty to the (enate *) The (enate Committee on -oreign relations considers all Treaties a) &lso can go to other (enate Committees based on the s"b/ect matter of the treaty b) 2earings are held if there is a desire to move on it 'otherwise the treaty will die) '1) Report is generated and this is "s"ally done bi7partisanly '#?* ma/ority is needed) E) The (enate can consent to ratification completely or condition the ratification with reservation 'This may mean that the treaty wo"ld have to be re7 negotiated) C) ;ostponements are also possible for ratification by the (enate '&rticle 19 of the %ienna Convention on the Law of Treaties) !n the case of a postponement the 1( has an obligation not to defeat the ob/ect and p"rpose of a treaty) <) The senate does not ratify !t gives its advice and consent to ratification by the ;resident The ;resident does not have to ratify after the (enate gives its. advice and consent Com%re+ensi2e Test .an/ Treaty: 'R5%!(!T5,) a) This shows the diffic"lty of negotiating something when co"ntries come to logger heads over specific areas b) The treaty was an "neasy compromise and was imperfect c) There were certain provisions that almost doomed this treaty from the start '1) Re6"iring the co"ntries that are n"clear powers to /oin the treaty to enforce it '#) They also said that if yo" signed the treaty0 b"t did not ratify it0 the co"ntry co"ld not violate the intent of the treaty d) (ome sticking points to the treaty: '1) Re6"irement that *?C of (tates m"st agree that an inspection was necessary 'p #1 para E<) Co"ld this be watered down 4hat is an ab"se of the right of inspectionF This was never defined '#) Composition of the exec"tive co"nsel '*) Re6"irement for entry into force 'a) Can be simple or sophisticated 'i e 51 classification of co"ntries) 'E) Limits on reservations 'C) (anctions 4hat are they going to beF 'a) Trade barriers 'b) )o pay for !ntellect"al properties

#E

'c) $ost wo"ld probably not work 4hat ever they are m"st have a very good likelihood of s"ccess 5conomic sanctions do not "s"ally work 'd) Try to make the sanction that there is so m"ch benefit for participating that the loss of the benefit by p"lling o"t wo"ld be highly detrimental to the co"ntry p"lling o"t The diffic"lty here is that there is a dis7balance between co"ntries as to how they wo"ld be affected Gnce a violation is fo"nd there are more intr"sions into a co"ntry '<) Composition of inspection team observers 'a) 4hat will the observer add to the party Aives competence to the inspection -rom the receiving side they are viewed as spies 'b) !t is easier if everyone is inspected the same at reg"lar intervals There are no pres"mptions that something bad took place )otice of withdrawal

#C

International +is$&te 'ettle*ent :p. )17D)44? A? P&;lic International Ar;itration :p. )17? The !C+ 'est 1:EC) and its predecessors ';C& 3 ;ermanent Co"rt of &rbitration est 19:: ? ;C!C+ 3 ;ermanent Co"rt of !nternational +"stice est 1:#1) have never had a heavy caseload: #0 *0 or E ad/"dicated cases a year have been typical 2owever0 these decided cases have been a very infl"ential so"rce of international law in the #8th cent"ry T+e 3o!!er .an@ Case :p. ))1?: The ,ain;ow 8arrior Case :p. ))5?: B) The International Co&rt :p. )34?: 1) The 0&risdiction of the International Co&rt :p. )34?: #) Contentio&s Cases at the International Co&rt 'p #*C): T+e 7ini(uiers an/ 'cre+os Case 'p #*C): T+e 3i%lomatic an/ Consular Staff Case 'p #EE) C+ambers at t+e International Court 'p #I<) T+e 'lsi Case 'p #I<) US 2. Iran 'p Bo"ndary !ss"es: 1) ,iplomatic B Cons"lar (taff Case: #) +"risdiction "nder -riendship treaty between !ran B 1 ( 0 %ienna Convention of 1:<1 on ,iplomatic Relations B 1:<* on Cons"lar Relations a) !ran never showed 3 defa"lt !ran felt it was an on going #C yr history that the !C+ sho"ld look at !C+ re/ected this in that it was only asked to r"le on present iss"e 5ven tho"gh defa"lt0 !C+ still had to iss"e a /"dgement 4hy go to !C+ 7 for p"blic s"pport0 s"pport on recommended interim meas"re of protection b) ,iplomats 7 m"st be reciprocity in that their own state and the state they are visiting m"st recogni@e diplomatic stat"s

#<

National 5uris/iction '(ession 1) ';rinciples) 'pp <8:7<#I) Text 'pp *#17**8) International 5uris/iction Falls un/er one of t+e followin! as a basis. T+ere can be o2erla%s. Territory '5ffects in the territory): The general r"le according to +"stice 2olmes is that the character of an act as lawf"l or "nlawf"l m"st be determined wholly by the law of the co"ntry where the act is done 4ithin yo"r own territory yo" can reg"late the cond"ct of anyone no matter where they are from 'e g 5veryone m"st observe the same speed limits and driving reg"lations) Nationality: & state can order citi@ens of that co"ntry to do certain things no matter where they are in the world 'e g register for the draft0 etc ) $o2ernment Interest 'a few): 4here a government interest is s"fficient so that a co"ntry can reg"late something anywhere no matter where the act takes place and who does it 'e g false visa or passport0 or co"nterfeiting a co"ntry.s c"rrency0 or a crime committed against a diplomat of the ;resident) Uni2ersality 'a few): This is the catch7all ;iracy wo"ld be the prime area where the /"risdiction wo"ld fall !f yo" are o"tside yo"r co"ntry.s /"risdiction yo" m"st fly a flag0 etc !f anyone is fo"nd to be a pirate 'radio station0 ships0 h"man rights are violated 'in some cases)0 etc ) wo"ld 6"alify There can be overlap and conflict with other co"ntries 4hat to do if there is conflict The analysis is the following: 1) Check or re7check to see if there are competing claims #) !s there conflict or overlap re6"iring the same actions ',o two or more sovereigns re6"ire the same action to be taken) a) !s one sovereign re6"ires action and the other sovereign is silent b) !s there direct conflict between two sovereigns 'L is re6"ired by one co"ntry and H action s re6"ired by the other co"ntry) '1) 2ow do yo" sort this o"tF Gften it is the state of the territory that prevails '5 g -r"eha"f Corp '1( Company) had ma/ority ownership in a plant in -rance The -rench company entered into a contract with China This was a time when -rance was trying to improve relationships with China and 1( was not 1( government gave an order to -r"eha"f that their s"bsidiary co"ld not deal with China -rance was trying to improve relations with China & -rench director of the s"bsidiary went to the -rench co"rts and said that they were going to breach the contract and this meant that -rench policy in regards to China wo"ld be violated The -rench government p"t the -rench s"bsidiary "nder receivership of -rance and -rance ordered the s"bsidiary to perform the contract 1( was not happy &fter contract was performed the s"bsidiary was p"t back the way they were 1( co"ld have fined -r"eha"f in the 1(0 b"t chose not to '#) ;rod"ction of doc"ments in one co"ntry is demanded and there is blocking doc"ments in another co"ntry from being s"bpoenaed The 1( "s"ally does not ask the law to be violated 2owever0 a party can apply to an a"thority in another co"ntry to have the doc"ments

#I

removed lawf"lly "pon application The proced"re has to be gone thro"gh &) 5uris/iction 'p <8:) To prescribe 7 To make a r"le 1) Princi%les of 5uris/iction 'p <8:) a) T+e Territorial Princi%le 'p <18): 5ffect in territory Territorial tie 'where it happened) is stronger than the nationality ties 'of what nationality are yo") A*erican .anana Co. v. =nited Fr&it Co. '1:8:)'p <18) b) T+e Nationality Princi%le 'p <1E) .lacA*er v. =nited 'tates '1:*#)'p <1E) c) 'ffects Princi%le 'p <1I) =nited 'tates v. Al&*in&* Co. of A*erica '1:EC) 'p <1I): e6"al to a ("preme Co"rt case in that the ("preme Co"rt co"ldnOt get a 6"or"m when they heard it so it went back to the #nd circ"it 1 ( and Canadian company made an illegal agreement not to ship prod"ct in the 1( '1) Co"rt looked at intents of parties to limit 6"antity into the 1 ( '#) 5stablishes the 5ffects ,octrine '(ee restatement *rd E8*) 2ffects +octrine: The cond"ct is by a non7national b"t has an effect in the territory '!n &l"min"m case the effect was the higher prices and limited s"pply of al"min"m in the 1() J"estions that were answered were '1) what is the international law r"le Gr '#) does can the (herman &nti7Tr"st &ct be applied even when the cond"ct was applied o"tside the 1() 1( Co"rt said that if there is an effect on the territory the laws of that Territory is applied (eems like every co"ntry in the world has a basis for /"risdiction which all other co"ntries find exorbitant !n :: cases o"t of 188 'even if someone is transient they probably have ties to the state &lso look to nationality of person 'e g if a contract is made with a national of another co"ntry0 yo" may have to go to the other co"ntry) #) "esol2in! Conflicts of 5uris/iction 'p <##): a) T+e .alancin! Test 'p <##): Ti*;erlane L&*;er Co. v. .anA of A*erica '1:I<) 'p <##): National 5uris/iction '(ession #) 'Comity: -or"m )on Conveniens) b) International Comity 'p <#I): Commit is the recognition which one nation allows within its territory to the legislative0 exec"tive0 or /"dicial acts of another nation0 having d"e regard both to international d"ty and convenience0 and to the rights of its own citi@ens or of other persons who are "nder protection of its laws Bartford Fire Ins&rance Co. v. California 'p <#I): The 6"estion was whether 1( antitr"st law applied to activities of London reins"rers who allegedly promoted an illegal restriction '"nder 1( law) to the terms of commercial general liability ins"rance pollicies available in the 1 ( Gpinion: = even ass"ming that in a proper case a co"rt may decline to exercise (herman &ct /"risdiction over foreign cond"ctK0 international comity wo"ld not

#9

co"nsel against exercising /"risdiction in the circ"mstances alleged in this caseK> 'a) +"dge (o"ter arg"ed that he did not have to engage in a comity analysis0 deciding to defer or not to the 1nited Dingdom0 its law or co"rts !n his view there was not =tr"e conflict between domestic and foreign law> since0 tho"gh British law permitted the activities allegedly made illegal by the 1 ( 0 Britain did not order the London reins"rers to violate 1 ( antitr"st law 'b) ,issent: said more attention had to be paid to comity0 that the relevant notions of comity here concerned =international choice of law principles> and that the Rest *rd says0 =a nation having some basis for /"risdiction to prescribe law sho"ld nonetheless refrain from exercising that /"risdiction with respect to a person or activity having connections with another state when the exercise of s"ch /"risdiction is "nreasonable> This case makes it "nclear in determining extraterritorial applicability of a stat"te c) Forum Non Con2eniens 'p <*9): ,octrine that allows a co"rt which has /"risdiction over a case to decline to hear the case o"t of fairness to the parties if there is another co"rt available which is more convenient Pi$er Aircraft v. ,e(no 'p <*9) 3 Fin$in*s: -ile in co"rt that is most convenient to hearing case ;Os can not pick their co"rts based on which one will apply the most favorable law for them Proce$ure: California lawyers representing (cottish heirs to (cottish citi@ens killed in the crash of a (cottish aircraft made their legal secretary0 Aaynell Reyno0 the personal representative of the estate of the (cottish decedents (he then s"ed the 1 ( man"fact"rers of the plane and the plane.s engine in California (tate co"rt ,s removed the action to federal district co"rt in ;a 4here the plane had been man"fact"red and finally asked the ;a -ederal co"rts to dismiss the action on the gro"nds of for"m non conveniens to permit the case to be tried in (cotland Reyno ob/ected that litigating in (cotland wo"ld defeat one of her principal ob/ects in bringing the s"it to the 1 ( 0 vi@ 0 sec"ring more favorable 1 ( s"bstantive law The ( C held0 that =Kthe possibility of a change in s"bstantive law sho"ld ordinarily not be given concl"sive or even s"bstantial weight in the for"m non conveniens in6"iry > '.C. felt that the essence of *aAing the for&* non-conveniens decision was answering the 3&estion of convenience Gne of the ;enefits of dis*issing on the gro&nds of for&* non conveniens was not having to make complicated choice of law determinations0 a benefit that wo"ld be entirely lost if the co"rt0 before the facts were proved0 had to determine which law wo"ld apply in a 1( co"rt and which in a foreign co"rt The consideration0 b"t where0 as in this case it co"ld not be said that "sing (cottish law wo"ld violate the =interests of /"stice> it was not eno"gh that ; might simply win a smaller damage award ;er the fact pattern in this case0 the ( C observed that since the real parties in interest0 the (cottish heirs0 were not located in the 1(0 there was little reason to ass"me that the choice of 1( co"rts was made to s"it plaintiff.s real convenience $"ch of the relevant evidence and many of the cr"cial witnesses

#:

were located in Areat Britain The (C decided that the for"m non conveniens determination sho"ld be made at =all relevant p"blic and private interest factors0> held that the trial co"rt had not ab"sed its discretion by finding that (cotland0 which had =a very strong interest> in trying the litigation0 sho"ld be the place of trial In ,e% =nion Car;ide Cor$oration Gas Plant +isaster at .ho$al- India 1( #nd Cir &ffirmed the decision of the federal co"rt for the (o"thern ,istrict of )ew Hork that !ndia was the proper for"m for litigation involving the deaths of more than #8808880 the worst ind"strial accident in history 4eighing the $rivate interest factors0 the circ"it co"rt held: =The plant has been constr"cted and managed by !ndians in !ndiaKThe vast ma/ority of material witnesses and doc"mentary proof bearing on ca"sation of and liability for the accident is located in !ndia0 not the 1(K The records are almost entirely in 2indi or other !ndian lang"ages "nderstandable to an !ndian co"rt witho"t translation The witnesses for the most part do not speak 5nglish b"t !ndian lang"agesK These witnesses co"ld be re6"ired to appear in an !ndian co"rt0 b"t not in a co"rt in the 1( > P&;ic Interest was disc"ssed as: =!ndia has a greater interest than does the 1( in facilitating the trial and ad/"dication of the ;s claimsK !ndia.s interest is increased by the fact that it has for years treated 'the s"bsidiary) as an !ndian national0 s"b/ecting it to intensive reg"lations and governmental s"pervision of the constr"ction0 development and operation of the Bhopal plant0 its emissions0 water0 and air poll"tion0 and safety preca"tionsK $oreover0 plaintiffs have conceded that in view of !ndia.s strong interest and its greater contacts with the plant0 its operation0 its employees0 and the victims of the accident0 the law of !ndia0 as the place where the tort occ"rred0 will "ndo"btedly govern > ,"ties to look to: 'ociall( I*$osed +&ties: 'e g Torts) ,efines the d"ty the , owed the ; and showing that the d"ty was violated Ca"sation and damage follow These can be negligence0 strict liability Pro*ise +&ties: 'e g Contract"al) & promise to do something that is vol"ntarily made Then move to the socially imposed promise ''e g implied warranty) These can be express0 implied Te>t ;%%. 33083,)< B) +"dicial Conflict and Cooperation 1) Comity0 Constit"tional Limits0 and -or"m )on Conveniens 'p **1) #) !nternational Legal Limits to (tate +"risdiction 'p **:) *) -oreign +"dgments and &wards 'p *E*) E) +"dicial &ssistance and 5xtradition 'p *EI)

*8

So2erei!n Immunity '(ession 1) Casebook 'pp <C97<99): Text 'pp *C17*<8): The 'chooner 2Cchange v. 4cFaddon '191#): !t was a principle of p"blic law0 that national ships of war0 entering the port of a friendly power open for their reception0 are to be considered as exempted by the consent of that power from its /"risdiction Foreign 'overeign I**&nit(: This shields foreign sovereigns from the /"risdictional reach of m"nicipal co"rts on the theory that to implead the foreign sovereign co"ld "pset the friendly relations of the states involved ;re 1:I< 'before the act) 1) Tate Letter '+ack Tate 71:C#) 7 %iew of the state department was to not recogni@e absol"te imm"nity0 b"t limited imm"nity a) Aovernments wo"ld en/oy sovereignty when they were doing things governments do0 b"t not when they were doing private or commercial acts b) Areat weight 7 4hen a /"dge receives a s"ggestion of sovereign imm"nity from the state department0 they wo"ld dismiss the case0 not beca"se they had to b"t as co"rtesy to state department !f no s"ggestion the co"rt wo"ld p"rs"e the case 9ictor( Trans$ort Inc. v. Co**issariat General '1:<C): This case ill"strates that the co"rts wo"ld view commercial activities by a state The co"rt wo"ld deny imm"nity if the state did not s"ggest imm"nity &s a res"lt the s"ggestions of imm"nity by the state department became very important for states Therefore0 even tho"gh they weren.t bo"nd in law to follow advice from the 5xec"tive Branch0 the 1( co"rts did in fact begin to hear and decide cases bro"ght against foreign sovereigns for their commercial activities #) Foreign 'overeignt( I**&nities Act of #? ) '-(!&) a) ;rovides that s"b/ect to existing international agreements to which the 1( is a party at the time of enactment of this &ct a foreign state shall be imm"ne from the /"risdiction of the co"rts of the 1( and of the (tates except as provided 'in the &ct) b) 5xception: exposes a foreign sovereign to s"it when the foreign government engages in commercial rather than p"blic activities *) ,esp"es -(!& a) Took the government o"t of making s"ggestions for sovereignty Aovernment may file amic"s brief0 b"t rarely does E) -(!& 7 -ederal long arm stat"te over foreign governments a) -(!& operates in7persona P1**8 b) ,oes not depend on any amo"nt in controversy P1**8 c) !tOs a non7/"ry action0 this is it there is no /"ry possibility P1**8 d) &gainst a foreign state P1**8 e) !f the foreign state is the ;0 they have to reach the MIC0888 amo"nt in controversy P1**#

*1

C) ,efinitions P1<8*: 4hen does a foreign state incl"de or not incl"de an agency or instr"mentality '&gency or instr"mentally will be separate and engage in b"siness activities0 foreign state does p"blic activities) a) !s this a commercial activityF b) !s this activity carried o"t in the 1(F c) !s there imm"nityF !n many cases the foreign sovereignty 'defendant) will have to provide proof that they are an agency or instr"mentality of a state '1) ;res"mption of imm"nity (hifts b"rden to ;laintiff "nder P1<8C for list of what is not imm"ne 5xceptions 'a) P1<8C'a)'1): 4aiver cla"se: is the waiver broad eno"gh to be a waiver of imm"nityF The implication is to"gh 4hen can yo" say that something is done 'b) P1<8C'a)'#): &pplies to torts and contracts !T is based on a commercial activity 'defined in P1<8*'d)) Look at the nex"s to the 1nited (tates 'c) P1<8C'a)'*): This is straight forward to remove a lien on real property -oreign sovereign m"st deal with o"r co"rts 'd) P1<8C'a)'C): Tort provisions: however this is more narrow beca"se the tort m"st occ"r or at least the loss m"st occ"r in the 1( 'e g airlines) 5xception to the exception: !f it is a discretionary act0 or a foreign controlled press makes "ntr"e statements0 they my not be liable d) P1<8<: 5xtent of liability '1) 5xception: )o p"nitive damages "nless this is for a death '#) Certain kinds of acts: Terrorism0 etc there are p"nitive damages e) P1<89: (ervice of processN time to answerN defa"lt: Ao by the stat"te '1) (ervice of process is also notice normally in the 1( This stat"te says that yo" get /"risdiction over the , by P1<8C !f yo" try to serve process w?o following r"les yo" will lose the case all together 'This is an affront to the foreign policy of the 1() 'a) $ay give notice and delivery by giving it the (ecretary of (tate or delivery by normal mail !f prearranged then can serve the foreign ambassador or any means agreed "pon $ay need to present in a translated form (end to secretary of state (end to foreign sovereign.s attorney '#) !f an instr"mentality of agency 'e g b"siness of foreign co"ntry) can give process normal way f) +"risdiction: '1) Gver -oreign (tate for ad/"dication: '#) P1<8:: meant of the +"dgement: &lways start with pres"mption of imm"nity 'a) P1<18: 5xceptions to the imm"nity from attachment or exec"tion Can enforce against a foreign sovereign for terrorism0 etc '"nless 5xec"tive Branch says otherwise) *#

'b) P1<11: 5xceptions to the exceptions 'back to imm"nity) Certain types of property are imm"ne from exec"tion $onetary reserves maintained by the state bank $ilitary property in the 1( ,on.t worry abo"t "ltimately collecting the /"dgement $"st consider this0 b"t often there are many ways to collect +"dgements have long lives and can be renewed 'incl"ding amendments to the -(!& &lso think abo"t enforcement at the same time Pres&*$tion of I**&nit(: 'p <<:) P1<8E of the -(!& pres"mes to grant imm"nity "nless a private plaintiff shows an exception The exceptions are: 'a) the foreign state has waived its imm"nity 'b) commercial activities carried o"t in the 1( or "pon an act performed in the 1( in connection with a commercial activity of the foreign state elsewhere or "pon an act o"tside the 1( in connection with a commercial activity of the foreign state elsewhere and that act ca"ses a direct effect in the 1( 'c) in which rights in property taken in violation if international laws are in iss"e and the property or any property is present in the 1( in connection w? commercial activities +iscover(: !n ;roced"re disc"ssed discovery ;rimarily the basic ca"se of action was what is normally discovered '4ho was present and who did what) ,iscovery can also be available for learning /"risdictional facts 'e g !s an entity owned or an instr"mentality of the foreign state) (imilarly has an entity waived in a contract its imm"nityF &lso needs discovery to determine if the transaction is commercial or not 'To"gh problem is the diffic"lty: ,o we have /"risdiction to determine if we have /"risdictionF) This is often resisted by foreign states Aood /"dges will ride herd on this in -oreign (overeign !mm"nity cases 'The co"rt may recogni@e that in the end they did not have /"risdiction) This partic"larly takes place when state long arm stat"tes are applied P1<8C'a)'#) and 'C) a case co"ld look like a tort case0 b"t co"ld be a breach of contract case 'e g (a"di &rabia cases ')elson) where a person is hired in the 1( be (a"di &rabia to inspect hospitals 4hen the report by the 1( citi@ens was less than glowing0 she was threatened by (a"di 2ospital officials (he came back to the 1( and s"ed The (C fo"nd that (a"di &rabia was negligent in not warning )elson that she co"ld be threatened 'i e implicit in the contract) 9erlinden v. Central .anA of /igeria '1:9*) 'pg <IC) 3ssue: Can a foreign entity s"it another foreign entity in the 1 ( Co"rts ,etermined that this falls "nder the arising "nder theory of /"ris (ystem that ass"res the seller will be paid and b"yer will receive goods & Bank will set "p: Confir*ed Letter of Credit: !f bank is shown certain doc"ments that goods were shipped0 then the b"yer g"arantees to the seller that the credit of the b"yer is good Both b"yer and seller are comfortable with one bank

**

Letter of Credit: (ame set "p b"t b"yer g"arantees with his bank payment and seller g"arantees with his bank proper shipment # banks confirm with each other !n this case there were letters of credit between # banks0 thro"gh a screw "p the banks did not confirm a letter of credit thro"gh a * rd bank Therefore0 the goods were shipped and prices changed ')igeria was paying more than the market wo"ld bear) Res"lt was that the )igerian bank said that "nless yo" consent to a change to the letter of credit 'c"t price) they wo"ld not pay Banks on behalf of the seller wanted to s"e for breach of contract in the 1( beca"se of the -(!& (C said that this is a federal 6"estion0 beca"se we had a proced"re against foreign sovereigns in commercial actions -inding: The Co"rt fo"nd 'see fn p <98) that the rep"diation of the letter of credit =ca"sed no direct0 s"bstantial0 in/"rio"s effect in the 1nited (tates > &nalysis: The key analysis was aro"nd /"risdiction 1nder &rticle !!! of the Constit"tion the co"rt wondered if Congress had overstepped its ability by enacting P1<8E of the -(!& &fter a convol"ted eval"ation it determined that the 1( co"rts co"ld get involved "nder this section ,iversity did not work beca"se there were no companies or 1( citi@ens involved !n the =arising "nder> cla"se '-ederal J"estion cla"se) the co"rt said that the -(!& co"ld open "p the co"rts &rising 1nder does not mean that there has to be a federal stat"te that comes into play for a specific remedy !t can be a state 6"estion P1<8< -(!& also says that on the merits of the claim the 1( co"rts can be open to a case like this TeCas Trading v. /igeria '1:9#)'pg <I8): This case was deciding that the p"rchase of cement by the government of )igeria was =in the nat"re of a private contract for the p"rchase of goods !ts p"rpose 3 to b"ild roads0 army barracks whatever 3 is relevant 4hat constit"tes commercial activity in any partic"lar case is more a 6"estion of /"dicial precedent and discretion than it is one of stat"tory direction 3ssue was whether the )igeria Central Bank en/oyed imm"nity Anal#sis: !t was a s"it on a letter of credit and in iss"ing the letter of credit it was doing whatever any other bank wo"ld do 2owever since there was active government it goes to merits of the case0 b"t not /"ris This case was seen as a two hats case: 1) This was a private p"rchase of cement 'commercial activity) '5ngaging in letters of credit) P1<8C'a)'#) #) Therefore the government.s p"rpose was irrelevant '$anagement of money in )igeria)

Force 7oAure# Aovernment ordered

The private commercial entity had no control 'e g 1( did not want &BC to cover the Glympics in 1((R &BC wanted to claim force mo/"re so they wo"ld not be liable for breach of contract by their advertisers)

*E

C+oice of Law 1) -ill in the blanks 'interpretation) a) !s the only for interpretation of how the contract sho"ld be interpretedF #) Aoverning law a) ,o the parties have capacity to make an agreementF b) !s the contract "nconscionableF *) !s there an implied for"m in the contractF 5uris/iction 'other iss"es to consider) 1) & lot of this is determined by the terms of the contract #) Commercial -cti2ities 1) Choice of law cla"se is "s"ally good evidence that the contract is commercial in nat"re '4o"ldn.t look to governing law if it was strictly a p"blic activity of the government) #) )at"re of the contract rather than the p"rpose of the activity *) 4hat is the nex"s with the 1nited (tates in the activity E) &re the provisions "ni6"e to government contracts or are they more similar to private commercial contracts Argentine ,e$&;lic v. A*erada Bess 'hi$$ing Cor$. '1:9:) 'p <9#): 3ssue: ("it in 1( co"rt by two foreign corporations against a foreign co"ntry to recover damages for a tort allegedly committed by its armed forces on the high seas in violation of international law Facts: Anal#sis: Outco-e: ,ismissed beca"se the -oreign (overeign !mm"nities &ct does not a"thori@e /"risdiction over a foreign state in a sit"ation like this Look at +"ris vs $erits to make determination i e Connections to 1 ( B Commercial &ctivity vs &cts of (tate )igerian cement cases 7 sovereign imm"nity

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-ct8of8State 3octrine '(ession 1) Casebook 'pp <997I88) CalleDo v. .anco*er -acts: This case involved a Bank in $exico that had been nationali@ed The $exican exchange had gone down the t"bes The Calle/os '4ho had abo"t M#88D in C,s in Bancomer) were told that they had to take interest at a m"ch lesser rate than was originally agreed on and they wo"ld be paid in $exican ;esos '4hich were worth even less than 1( MM) !ss"es: Calle/os needed to win "nder (overeign !mm"nity and Commercial activity of the bank -or Bancomer to win they m"st prevail on one or the other &nalysis: (howed that Bancomer had done things 'Reached into) Texas !n this way the Long &rm (tat"tes wo"ld apply 'e g phone calls in to Texas0 advertising in Texas) Calle/os were solicited by Bancomer 4hen this started Bancomer was a private bank0 then it was privati@ed by the government &t the time of s"it0 Bancomer was an agency of the state0 therefore they wo"ld come "nder -(!& Co"rts separated the iss"e in two ways: 1) (overeign !mm"nity: ;roced"re ? /"ris: #) &ct of (tate '"ni6"e actions that only a state can do) ,octrine: !dea is that the co"rts in the 1( will not sit in /"dgment of the acts of other states effective in its territory 'm"st be an act of a state and not a private party breach of contract) 1)L5(( a) !s a doctrine0 not a r"le of law b) Co"rts of one state wo"ld not set in /"dgement of the acts of other states '1) 2as to be an act of state and not a private party breaching c) &dditionally has to be effective in itOs own territory d) &n act that is extra7territorial 'o"t side the borders of the state) is not covered by the doctrine e) 2as to be an action that only states do f) Aenerally there are not exceptions to this doctrine !ss"e in Calle/o0 whether there is a treaty exception in the &ct of (tate ,octrine and whether the treaty was breached !T has been held by some co"rts that there is a treaty exception to the &ct of (tate ,octrine '!nternational $onetary -"nd '!$-) had a restriction on the exchange practice that $exico had implemented) 'see p 1<E for Treaty exceptions) FB. Free on .oar/ Dey is where The obligation of the seller is to place the goods with the shipper &t that place the goods are moved at the risk of the seller or b"yer '-GB ,estination is risk of loss is to the seller ? -GB (hipping ;oint is risk of loss to the b"yer) CIF# Cost Insurance Frei!+t This is a price 6"oted and the loss will be paid by the ins"rer not the seller or b"yer F-S# Free -lon! Si/e: e g The shipment is on one mode of transportation and being loaded on another mode of transportation !n this case the loss is

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enc"mbered by the seller "ntil it is transferred and new terms take over as to responsibility and liability on the goods .anco /acional de C&;a v. 'a;;atino 'p <:1)D)G4 T2!( C&(5 Iss&e: 4hether the so7called act of state doctrine serves to s"stain on a decree of a foreign government who expropriates certain property0 and the rights to the proceeds from the sale of that property Anal(sis: C"bans changed the bill of lading for payment to the Banco )acional de C"ba These were forwarded to C"ba.s bank in )HC The bank in )HC takes the payment to -arr 4hitlock and Co for payment -arr 4hitlock and Co took the papers witho"t paying anything to C"ba and made a deal to pay the original owners of the s"gar shippment 4here there is an asset in )H of a foreign company that has been nationali@ed and receiver can be appointed (abbitino was appointed The Bank representing C"ba comes back and says that they can.t pay it The -arr 4hitlock gets an order to t"rn the money over to (abitino 'who was appointed by the co"rt) Banco de )acional de C"ba is ticked off0 and the shipment is on the way to $orocco & laws"it is bro"ght against (abitino for theft of shipping doc"ments in )HC by (abatino and -arr 4hitlock (abatino drops o"t beca"se of extrinsic agreement0 b"t -arr 4hitlock is still involved 1 ( ,istrict Co"rt: 4hether or not there is an exception to the act of state doctrine C"ba arg"es: they nationali@ed the s"gar within their borders and this sho"ld be recogni@ed by the government C & % 'real party in interest 3 (abatino representing their interest) arg"ed that if what C"ba did violated !nternational Law the 1( had no obligation to apply the act of state doctrine There is a 6"estion if C"ba got title to the s"gar !f they failed to pay0 they don.t get the s"gar ,istrict Co"rt held there is a c"stomary law violation exception the act if state doctrine They said that the acts were '1) retaliatory beca"se the C"ban action was done to get back at the 1( action to c"t ("gar shipments from C"ba '#) ,iscriminatory only applied to the 1( '*) confiscatory beca"se no money wo"ld ever be paid The /"dge said taken all together there was a violation of international law and therefore act of state doctrine did not apply &ppeals Co"rt: &s the lawyer looked at the case he noted the Berstein cases which involved ships that had been taken by the )a@is beca"se they were owned by +ews Later 'after 44!!) former owners wanted the ships back The co"rt of appeals fo"nd that the co"rt wo"ld not look beyond what took place and not at the motive !n a second case similar sit"ation in that case the appeals co"rt0 the attorneys went to the (tate ,epartment who said that the ,ept had no ob/ection if the co"rt wo"ld find that !nternational law was violated The co"rt then determined that the former +ewish owners sho"ld get the ship back 'known as the Bernstein letter) The attorney tried to get a letter like this and s"bmitted it in the co"rt of appeals The co"rt tho"ght this letter was the same as the Bernstein letter 'even tho"gh it wasn.t) and affirmed the decision of the ,istrict co"rt on the basis that the state department had freed the appeals co"rt to make a decision in favor of C & % '(abatino) The (tate ,ept went n"ts and said that he had misrepresented the letter from the (tate ,ept &t that point Banco )acional tried to take this to the ("preme Co"rt The (tate ,ept also s"pported this going to

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the ("preme Co"rt beca"se of the mis"nderstanding of the &ppeal Co"rt in the original letter and they wo"ld indicate the position they wo"ld hold !n this partic"lar sit"ation the ( C did not remand 'which wo"ld have been logical) They sched"led the case for oral arg"ment ( C began the oral arg"ments and took 1 Q days on the case The principle arg"ment was that this violated international law and there was an act of state doctrine exception Concl&sion: The co"rts treated the iss"e as who ever owned the s"gar0 owned the shipping doc"ments and sho"ld collect CalleDo v. .anco*er0 I<E - #d 1181 '1:9C) D)G4 T2!( C&(5 &ct of (tate ,octrine: 1) Aoes to the merits of a case #) !s a doctrine0 not a r"le of law *) Co"rts of one state wo"ld not set in /"dgement of the acts of other states a) 2as to be an act if state and not a private party breaching b) &dditionally has to be effective in itOs own territory c) &n act that is extra7territorial 'o"t side the borders of the state) is not covered by the doctrine E) 2as to be an action that only states d"e C) Aenerally there are not exceptions to this doctrine .anco /ational de C&;a 'know it for exam) pg <:1 1) (abbatino appointed receiver for C & % #) 1 ( s"gar market was a protected market for 1 ( farmers -oreign co"ntries co"ld only sell to the 1 ( if they had a s"gar 6"ota approved by congress and C"ba had a large 6"ota *) 1 ( withdrew C"baOs s"gar 6"ota0 for dislike of Castro Th"s C"ba had to sell on the 4orld market for less E) Castro enacted by exec"tive degree the nationali@ation of all s"gar properties owned by 1 ( nationals C) C & % loaded boats in C"ba water for $orocco C"ban government entered boat and stated that the boat co"ld not leave "ntil they confirmed that the s"gar belonged to C"ba Th"s shipping doc"ments were changed to reflex the ownership to C"ba <) 2ere -arr0 4hitlock is a broker and th"s there is no letter of credit0 only a contract I) There was a bill a laden made to C & % 0 b"t this was changed to C"ba in C"ba 9) C"ba presents the bill of laden via (ociete Aeneral '(A) (A presents the bill to -arr0 4hitlock who keeps the bill of laden &lmost immediately (abbatino and C"ba file s"it forclaim of payment :) Theory of the case is theft of doc"ments by -arr0 4hitlock 18),istrict co"rt determined that C"baOs act occ"rred in C"ban waters and th"s this nationali@ed the payment papers "nder &ct of (tate B"t0 C"baOsOs actions was a violation of international law 11)%iolated !nternational Law three ways:

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a) Retaliatory 7 )ot a valid reason0 accept acts of 1 ( b) ,iscriminatory 7 Gnly was with regards to 1 ( c) Confiscatory 1#)Bernstein Letter 7 Letter from the state department to /"dicial branch0 stating that not applying the &ct of (tate doctrine wo"ld not effect the 1 ( C & %Os 'in case as amic"s 7having an interest) attorney attempted to get this letter0 b"t was denied 1*)&t the ("preme Co"rt level C"baOs attorney arg"ed that a) C"ba did not violate !L b) that violations of !L do not create an exception to the &ct of (tate doctrine 1E)&ct of (tate is not compelled by inherent nat"re of sovereign a"thority or by some principle of !L0 b"t it has constit"tional "nder pinning 'separation of powers is the "nder pinning 3 ,ominate leadership comes from exec"tive branch in foreign affairs and co"rts defer to exec"tive branch) Th"s &ct of (tate doctrine is the r"le 1C)Co"rt does not directly state that violations of !L do not create an exception to the &ct of (tate doctrine0 b"t generally r"les s"ch 1<)Co"rt did not r"le that C"baOs actions were a violation of !L 1I)C & % wins a) &ltho"gh congress afterward enacted an act of congress to f"rther prevent this0 the principles apply and are still relevant

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3i%lomatic Immunity: 1) This can be waived by the state0 not by the individ"al #) Basic idea is that the diplomat sho"ld not be s"b/ected to appearing in co"rt This wo"ld not allow him to do his /ob properly & state can instead consider the diplomatic persona non grata !f he is shipped home the other (tate probably will retaliate Consular Immunity This is determined by yo"r Co"ntry 1) Cons"lar officials are facilitating to"rist and b"siness f"nctions Their contact is less government to government and more b"siness to b"siness #) (ame person can be a cons"lar and a diplomatic at different times *) Gnly goes to him when he is in his official role &nything he does o"tside his cons"lar role he can be prosec"ted for S%ecial "ules: Gther things that can get involved are: ,iplomatic bag0 foreign co"ntry property0 f"rnit"re 'in the diplomatic bag) 5xceptions are re6"irements of carrying ins"rance for a"to accidents !f a diplomat p"rs"es an o"tside profession0 he is not given imm"nity while acting in that capacity :ea/s of States or /i%lomatic missions )ot listed as diplomats0 b"t still en/oy the same imm"nities as diplomats These are special provisions that are listed in the Aeneva Convention

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"ole of Le!al -/2isors to Forei!n 7inistries: #) 9oso2o: e) &ctions of )&TG made things worse0 by enco"raging atrocity f) 4ar is only over if collateral damage 'hospitals0 bridges0 etc that were "sed by civilians) This is tr"e in every war g) There is revisionism in Dosovo There were not as many atrocities by (erbs against the &lbanians as claimed or portrayed This shows how g"llible we are to news h) 1nder 1) and DE ma/or atrocities are now being attrib"ted by &lbanians against the (erbs and are being watched by occ"pying forces *) :ector Feliciano S%eec+: a) ,isc"ssion was abo"t the pillaging of famo"s art by the )a@is b) They had ac6"ired paintings they did not like to sell and barter to get goods and services ,ealers participated in this This was the s"rprising thingKthe art dealers were lackeys of the )a@i regime c) $entioned !)T5R;GL as a vehicle to get information abo"t the art d) ,isc"ssed very little was the difference between law in this co"ntry an other co"ntries 'e g a good faith p"rchaser can get title in some co"ntries b"t not in the 1nited (tates v a bailee 'in that class of goods) who only had possession who sold it to a good faith p"rchaser then the bailee cannot only be held for the cost of the item) e) ,iscovery in the 1 ( is more likely to get information than in the civil co"rts of other co"ntries '!n some cases a s"it is bro"ght in -rance and a parallel s"it is bro"ght in the 1 ( with no intention to bring it to /"dgement in the 1 ( 0 b"t rather to get to discovery) 'e) $ost wo"ld probably not work 4hat ever they are m"st have a very good likelihood of s"ccess 5conomic sanctions do not "s"ally work 'f) Try to make the sanction that there is so m"ch benefit for participating that the loss of the benefit by p"lling o"t wo"ld be highly detrimental to the co"ntry p"lling o"t The diffic"lty here is that there is a dis7balance between co"ntries as to how they wo"ld be affected Gnce a violation is fo"nd there are more intr"sions into a co"ntry 'I) Composition of inspection team observers 'c) 4hat will the observer add to the party Aives competence to the inspection -rom the receiving side they are viewed as spies 'd) !t is easier if everyone is inspected the same at reg"lar intervals There are no pres"mptions that something bad took place '9) )otice of withdrawal

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7errillat& Le!al -/2isers an/ Forei!n -ffairs : Legal Adviser:s Place in Govern*ent : 'Class disc"ssion): !n general the idea is what kind of advice the legal adviser gives 'Be ca"tio"s telling clients that yo" cannot do something The secret of good legal advice0 the way yo" want to do it yo" can.t0 b"t if yo" do it this way 3 yo" can get 9CR of what yo" are trying to accomplish ) Can yo" harmoni@e what yo" want to do with how we do itF $"st be clear and confident it wo"ld work and not expose yo" to litigation later 4hen do yo" "se formsF &merican lawyers do this the best This is d"e to legal systems and legal training that is in this co"ntry 1nited (tates: (tate ,epartment: is similar to &sst (ecy of (tate Career can move laterally into other ,epartments )ot in the -oreign (ervice 2as the opport"nity to be very relevant0 problem is the extraordinary diffic"lty of the legal adviser giving advice to the (ecy of (tate of something that he does not want to do Canada: ;art of the -oreign (ervice: Ho" are a lawyer and then go into the -oreign (ervice of the co"ntry $ix between law and policy is an easier bridge 2owever the ability of the lawyer to give "nbiased advice 'when personal promotion co"ld be affected) is diffic"lt )igeria: &ll legal advice is centered in the &tty Aenerals Gffice Legal advice the foreign ministry comes from o"tside the -oreign $inistry !n )igeria &tty Aeneral is very powerf"l This is maybe good domestically0 b"t not good internationally +apan and Certain Latin &merican Co"ntries: ,iffic"lty in doing this incl"des: the need for sec"rity clearances to deal with classified information0 legislative ob/ection to voting f"nds for o"tside research0 the need to give =political> favoritism assignments $ay not be sensitive to problems 5e*al A$viser reall# -a"es a $i!!erence by many small things they do )ot all wins are big Dnow the people yo" work with and what they need J"ality of legal work sho"ld be in direct proportion to yo"r bill T"rn down some cases if they don.t look like they are winnable or doable ;"t money and effort into other things ,on.t mis/"dge how long it will take to get something done The 8orA of the Legal Adviser% Law and Polic( 4here the lawyer is expected to give legal and policy advice0 separate this o"t Tell client clearly when it is legal advice v yo"r /"dgement regarding policy These are legal iss"es These are mixed "p These are policy iss"es Legal Advising as a Career Gften the kinds of salaries and people yo" attract is how yo" see the problems Ho" will attract those who can attack the problem as yo" see them

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