International Law:
Summary of Unit 2
Fall 2006
Mr. Morrison
States and their formation
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Qualities of Statehood
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Territory
Population
Government
Independence/Ability to Conduct Foreign
Relations
Also, possibly, willingness to observe
international law and human rights
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Types of jurisdiction
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To Prescribe (to make rules or laws)
To Enforce (to carry out rules or laws)
To Adjudicate (to decide cases)
Note that the “prescriptive jurisdiction”
about which we are talking is different
from “judicial jurisdiction” of courts
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Prescriptive Jurisdiction of
States
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Traditional bases
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Territorial
Nationality
Protective (limited to “important State
interests”—counterfeiting, fraud, etc.)
Universal
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Additional jurisdictional issues
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“Active/passive” (or the “effects
doctrine”) expands jurisdiction to cover
acts that affect the territory or citizens
of a country
Many Civil Law countries legislate to
cover acts of their citizens everywhere
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Conflicts of jurisdiction
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Situations can arise in which 2 or more
countries claim jurisdiction over same
conduct
Each can exercise jurisdiction, the issue
is how to reconcile this
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Conflicts of Jurisdiction
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Restatement of Foreign Relations Law
of the US, 3rd, sec. 403 calls for a rule
of reasonableness
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In exercising jurisdiction
In deferring to the other State if it has a
stronger interest
But—conflicts can still occur
This view is broadly accepted elsewhere
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Jurisdiction to enforce
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Largely territorial
Alvarez Machain or Ker v. Illinois
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US courts do not test in criminal trial the
international legality of seizure of criminal
defendant abroad
But there may be diplomatic or other
consequences
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Jurisdiction to adjudicate
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See the Conflicts of Laws course
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Nationality
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Nationality indicates belonging to a
State
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Nationality confers right of State to protect
and right of the national to claim protection
Citizenship may be a narrower concept,
indicating political rights as well
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Bases of nationality
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Nationality by birth
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Acquisition of nationality
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By place of birth (ius solis)
By parentage (ius sanguinis)
By naturalization
Nationality is a matter of national law
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Nationality Decrees in Tunis and Morocco, PCIJ
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But there must be some minimum connection
Nottebohm Case
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Rights and duties of nationals
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Rights
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To enter the State of nationality
To have protection of that State
Duties
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Subject to jurisdiction of State
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US Law on Nationality
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Citizenship by birth
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In the U.S., U.S. Constitution, Amendment
XIV, sec. 1
Outside of the U.S. to 2 U.S. parents
Outside of the U.S. to 1 U.S. parent, if that
parent lived in the U.S. for 5 years
(detailed)
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US Law on Nationality
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By naturalization
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Must renounce prior citizenship
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But some countries don’t accept that
Acts renouncing citizenship
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Formal renunciation
Voting, military service in foreign country
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Dual nationality
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Multiple nationality can occur
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If within a State of nationality
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Can create conflicting obligations
Cannot claim diplomatic protection of
another State of nationality
Predominant nationality rule
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A Digression: Extradition,
Deportation, Exclusion
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Extradition—removal of person to face
charges abroad
Deportation—removal of an alien from
the State
Exclusion—denial of entry to an alien
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Extradition
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Extradition treaties
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Usually enumerate or describe offenses
covered; other offenses are not covered
Political offenses exception
Rule of speciality—trial only for offense
charged in extradition papers
Under US law there must be a treaty or
statute to support the extradition
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Extradition (limits)
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Many Civil Law countries will not
extradite their own citizens, but will try
them at home for the offense abroad
Many European (and some other)
countries will not extradite if capital
punishment is a possiblity
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State responsibility
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A State that violates international law
incurs State Responsibility
Consequences
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It must cease its breach
Other States may take countermeasures
It may pay reparations
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State responsibility
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International Law Commission adopted
Draft Rules on State Responsibility in
2001
UN General Assembly accepted its
report, but did not call diplomatic
conference to write a treaty
Status of draft rules?
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State responsibility rules
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A state is responsible for—
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Acts of an organ of the State (art. 4)
Conduct of a person who is authorized to
act for the State (art. 5)
Conduct of organs placed at the disposal of
a State by other States (art. 6)
Conduct directed or controlled by the State
(art. 8)
. . . more
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State responsibility rules
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A state is responsible for—
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Persons exercising governmental power in
the absence of official gov’t (art. 9)
Some acts of an insurrectional movement
(art. 10)
Acts acknowledged and accepted by the
State (art. 11)
Acts in aid of wrongful acts of other States
(arts. 16 et seq.)
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But no responsibility for
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Self-defense (art. 21)
Countermeasures (art. 49 et seq.)
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Limited to non-performance of obligations
Protection of human rights and
humanitarian law obligations
Proportionality (art. 51)
Notice and other conditions (art. 51)
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Consequences of State
responsibility
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Duties to continue to perform duties
and to cease violations (arts. 29-30)
Reparations (art. 33)
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Restitution
Compensation
Satisfaction
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Other interntional obligations
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Liability for transboundary harm from
hazardous activities
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Draft on Prevention adopted 2001
Draft on Liability still under consideration
by the International Law Commission
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