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. It will involve the presidential
campaign coming up
2) Law of Treaties: May be on Vienna Convention or may be broader.
a) Read the text of the treaty and annex on conciliation of the treaty.
b) Article on the Treaty (See list)
c) Look at treaty and customary law (North Sea Case)
3) Related to some Sovereign Immunity or Act of State in a legal sense.
a) Janis Section dealing with National Jurisdiction
b) Did the country have the power to legislate (ie. Foreign Corrupt Actions
act) Don’t just look at National Jurisdiction and the ability to legislate on
this, look at other aspects of sovereign immunity.
This exam does not lend itself to IRAC.
Most weight is to Issue and Analysis. Break down the issues and know what it is.
Don’t state the issue only. Discuss the issue and apply the rule to the particular
issue.
I.
II.
III.
IV.
V.
VI.
VII.
VIII.
IX.
X.
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 use of force on weapons.
Treaties as Sources of International Law
7
Customary International Law
9
Sources of Legal Rules: General Principles of Law, Natural Law,
Equity
12
North Sea Continental Shelf Cases
14
a) This was looked at as to procedures of how legal rules are applied in
international law
Law of Treaties
15
a) U.S. what difference does it make whether the U.S. is party to this
since it states customary law, but dispute settlement is still not
customary law.
b) Vienna Convention on Treaties
17
Agreements that Bind States
20
Comprehensive Test Band Treaty
24
a) This will be in the exam
International Dispute Settlement
26
a) North Sea Continental Shelf Case were parties who were willing to
accept decisions. (National Honor and countries were not going to go
to war – did not implicate honor of country and how it would be seen in
the world)
b) Compare Nicaragua v. U.S. to countries that don’t want to participate
c) This could broadly be attached to Comprehensive Test Band Treaty
and the bad press in the U.S. for not getting involved.
1
d) Why go to dispute settlement and what makes a case appropriate with
dispute settlement U.S. v. Iran and Elsie Case
XI.
National Jurisdiction
27
a) Required Janis Book: pp. 321-330) Jurisdiction based on territory,
universal interests, etc.
b) Comity
28
c) Forum non conveniens. (not in depth)
28-29
XII. Sovereign Immunity
31
a) Provided with full text and reviewed cases that illustrated before and
after.
b) Absolute sovereign Immunity to Strict sovereign immunity and why
commercial activities don’t apply. (See case and paper written)
XIII. Choice of Law
35
XIV. Act of State Doctrine
36
a) Should be mentioned but not as important as Sovereign Immunity
b) Sabatino is important case here.
37
c) Importance has declined since the 60s, still comes up occasionally.
XV. Diplomatic Immunity / Consular Immunity / Diplomatic Mission 40
XVI. Role of Legal Adviser
41-42
a) Some ideas will come indirectly into the final
XVII. Kosovo and Hector Feliciano Speech
41
2
I.
The Nature of International Law:
A) The History of International Law: The principle of International law is
that “nations ought to do to one another in peace, the most good, and
in war, the least evil possible.” Motesquieu 1748
1) Contrast Public w/ Private Law:
a) Public International Law concerns the political interaction of
states (this class)
b) Private International Law relates to legal aspects of the
international (economy) and conflicts and cooperation among
national (legal systems).
2) Contrast w/ International Business Law:
a) International Law deals primarily with treaties
b) International Business Law has an emphasis on business
organizations in various foreign countries. This also deals with
treaties.
3) An International Law Sampler: These cases focus on a domestic
application of an international ruling.
The Golder Case (p. 3): This case dealt with the European Commission of
Human Rights (agreed to by the Council of Europe). This Commission allowed
claims by individuals to be screened by them to see if they should be looked into
for additional consideration. Great Britain, which prides itself as a model country
for defendants rights was taken to task because the British system did not allow
the prisoner to make a claim or see a lawyer. The gist is that in Great Britain,
once you are in jail, you are subject to an administrative system instead of having
access to a lawyer. Golder was accused of taking part in a prison riot, and was
denied access to an attorney. Golder, after he was released from prison brought
charges against Great Britain. The European Convention of Human Rights
(article 6, 8 & 50) applied above the rules that Great Britain would apply
according to the findings of this case. There is an obligation, by Great Britain to
comply to the opinion. If Great Britain did not adhere to this ruling and the
convention of the treaty, the other states which had signed on to the European
Convention cannot force compliance directly, but could put pressure on them
indirectly. Therefore the state can also put pressure on its citizens to adhere to
the law as well.
Filartiga v. Pena-Irala (p. 10): Torture is pretty much outlawed by custom and
international law (derived from custom). The question is how can a party in a
foreign country get jurisdiction in another country. The courts held that foreign
citizens were under the jurisdiction of federal courts in the United States in cases
like this. Torture of another person took place in a country outside the United
States, and the United States took jurisdiction of the case. This was justified as
the torturer is “an enemy of all mankind.”
International Law as Contracts: Most international law conflicts don’t get into
judicial tribunals. International law conflicts are usually discussed by looking to
treaties. Instead of looking at court decisions, they are looked at by how the
treaties were formed, intent, were the obligations contractual.
3
II.
Use of Force: Retaliation and Reprisal: Look at this with a view toward
Bosnia and Kosovo
A) The Use of Force and Article 2(4) (p. 418-430)
1) Lou Henkin: Conclusion is that we must look to formalized rules
and follow them. This approach to Kosovo
2) Michael Reisman: Conclusion looks at individual cases for world
order, and justifies your actions in each case. In the case of
Kosovo, this allows that we can go direct to the problem and solve
it.
3) The Key to intervention and the suspension of sovereignty of a
nation are:
a) Humanitarian Intervention:
(1) Genocide: The killing of a race of people. What about
activities that are not criminally illegal, but the end is the
same?
(2) Protection of Nationals: Protect our own nationals (i.e.
Granada)
(3) Kosovo: This is an exception where there was no genocide,
but the people were oppressed and not allowed to live (or in
some cases were killed) as human beings.
b) Self-Determination: Allow people to determine their own destiny.
(1) What about minority rights v. majority rights? This is where
the law and political science come together.
4) Once it is decided to take actions, what actions are allowed?
a) Necessary actions
b) Proportional to what was needed (no over-action) (Yugoslavia:
Once basic structure was injured them Serbs gave up. Was
there just enough damage to the infrastructure or too much?)
5) What is the legal norm of what is allowed (Article 2(4))? How do we
reconcile exceptions to the norm. (i.e. Speed Limit analogy:
Everyone speeds, and you get caught.) What are the limits?
6)
B) The United Nations and Bosnia (pp. 479-484)
C) Charter of the United Nations (pp. 712-713 and pp. 717-723) This is
an agreement between states (Treaty – Contract between nations),
that is a constituent instrument (constitution) of an international
organization.
Article 2 (4): All members must refrain (State to state) from the threat
of use of force against territorial integrity or political independence of
any state, or in any manner inconsistent with the purpose of the United
Nations.
Article 2 (7): Nothing contained in the present charter shall authorize
the UN to intervene in matters which are essentially w/I the domestic
jurisdiction of any state or shall require the Members to submit such
matters to settlement under the present Charter
4
Article 3: Supremacy Clause: That this treaty trumps any other
agreement. This is a thorn in the side of other international
organizations (i.e. IMF)
Article 51: Nothing shall impair the inherent right of individual or
collective self-defense if an armed attack occurs against a Member of
the UN
1)
2)
3)
4)
Chapter 1: Purpose and Principles (p. 712-713)
Chapter 5: The Security Council (pp. 717-719)
Chapter 6: Pacific Settlement of Disputes (pp. 719-720)
Chapter 7: Action with Respect to Threats to the Peace,
Breaches, of the Peace, and Acts of Aggression (pp. 720-723)
War, Peace, and the United Nations (p. 418)
A) The Use of Force and Article 2(4) (p. 418) Charter of the United Nations
1) Article 2(4): All members must refrain from using force.
2) Article 51: Permits a state that is attacked to respond. Does Article 51
differ from the law in its absence? Some argue there is an inherent right
of self defense. Other’s would say it is not limited to self defense. If this
Article is read strictly, a state has the right to self defense until NATO
takes over and gives the state direction as to further action.
3) Article 52: Collective self defense (e.g. NATO) collective self defense by
several states. This was used in the Cuban Missile crisis as the basis for
the actions that the U.S. threatened to take.
Louis Henkin, “The Use of Force: Law and U.S. Policy” (p. 420): Henkin
discusses humanitarian intervention
1) Can we justify what was done by the UN in Kosovo? The main
argument brought forth was humanitarian.
2) Is this standard practice by UN?
The Nicaragua Case (p. 430)
This was a suit against the U.S. to withdraw and pay reparation to Nicaragua for
its use of force. The U.S. was not there and this was an ex parte case. The
arguments that they U.S. was supposedly made were really straw men. The case
was argued how the court perceived the U.S. would answer. Witnesses were not
brought up to the ICJ in a fair way. Judge Sheibel in his dissent felt that this was
not fairly heard and several witnesses were not allowed to testify. The court tried
to make it appear that this was a contested case. The usual would be that the
U.S. would be seen as defaulting. However, the court wrote fiction v. what
actually was NOT argued by the U.S.
The opinion eludes to the idea that there is “customary law to the use of force”
and it is similar to Art. 2(4) of the UN charter. There really isn’t much written on
this, so it is assumed by the ICJ that the charter “created customary law on the
use of force.”
5
Role of Legal Advisors to Foreign Ministries:
1) Kosovo:
a) Actions of NATO made things worse, by encouraging atrocity.
b) War is only over if collateral damage (hospitals, bridges, etc that were
used by civilians) This is true in every war.
c) There is revisionism in Kosovo. There were not as many atrocities by
Serbs against the Albanians as claimed or portrayed. This shows how
gullible we are to news.
d) Under UN and K4 major atrocities are now being attributed by Albanians
against the Serbs and are being watched by occupying forces.
6
III.
Treaties as Sources of International Law: (pp. 20-38)
Basic Sources of Law in the US:
Written Law
1) Constitution
2) Federal Law
3) State Constitution
4) State Law
Interpretation of the Written Law
1) Federal Court Rulings for Federal Law
a) Exception is jurisdictional diversity cases
2) State Court Rulings for State Law and Federal Law interpretation
3) Court application of Common Law: Courts deal with this based on prior
decisions rather than written laws. (Judicially made rules)
Secondary Areas of Authority (Help institutions to fulfil other roles
1) Law Review Articles
2) ALI Restatements
3) Treatises
A) Sources of International Law (p. 20)
1) Treaties: (e.g. U.S. Constitution was a treaty among the states).
This is an agreement between countries. There are various types of
treaties and can be as simples as a contract between countries.
Treaties can also be constitutional (e.g. United Nations Charter IMF
Treaty, etc.) All treaties are not constitutional
a) What most International Law involves written rules and a way
for the executive branch to enforce the rules.
b) Weak area is usually interpretation via judicial rulings
2) Statute of the International Court of Justice, Article 38: To be a
party to this allows the country to be a plaintiff in the case and
choose the judges, and rules. To be a defendant you need
something further by the way of consent. This is done via a
declaration of what classes of cases you agree to be a defendant
in. You may also do this case by case. Also this can be agreed to
be treaty (I agree to settle any dispute in the ICJ). The ICJ applies
to countries who by:
a) International Treaties, conventions, charters
b) International Customs
c) General principles of law recognized by “civilized nations.”
These are basic (e.g. Question regarding estoppel which is a
basic concept that is accepted in almost all legal systems) The
court can extract a rule like this.
d) The ICJ decisions are only binding on the parties before the ICJ.
3) The above is a common sense approach to International Law.
B) A Treaty Sampler (p. 22)
Typical Treaties: FCN Friendship, Commerce, Navigation are the basis
treaties Internationally
7
The Treaty Between the Jews and the Romans (Circa 160 BC) (p. 22): This was
a mutual defense treaty. The idea here is that there is a history to treaties, 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 ensuring the obligatory force of treaties. This is like a
modern contract with offer, acceptance and the key….consideration
2) Written Form: So no one can say you said this. However, there can still
be ambiguity.
3) Religion: There is a basis usually from natural law or religious law
The Peace of Westphalia (1648) (p. 24): This was a treaty between France and
Sweden to end the 30 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 Protestant
1) Re-established peace
2) Free choice of religion
3) Re-establishment of the Estates of the Empire
A) State agree to limit their sovereignty in order to assure their sovereignty
B)
The Treaty of Paris (1783) (p. 28): This was a treaty between France and the
United States for fishing rights, but also was the first to recognize the United
States as a sovereign power.
1) Recognition of the United States:
2) Effect on 3rd parties: Debts, binding other countries, restitution of
ceased property, etc.
3) Maritime Issues: definition of boundaries
4) Peace of Paris and the U.S. Constitution: Unwillingness of the French
to get involved in internal and international conflict of settlement with
other countries.
The Cession of Alaska (1867)(p. 33): This is a contract for the purchase of land.
1) Deals with residence of the territory: There was an offer, acceptance and
consideration.
The Kellogg-Briand Pact (1928)(p. 36): This did not work. IT was a treaty against
war, but during the period it was signed all countries were preparing for war.
There was no way to in the pact set up to implement it. This created no real
obligations. Helsinki Accord on Human Rights was written with a determination
for it to work for Human Rights, even though they weren’t legally binding on
countries.
Timing is everything in some of these acts
1) Hard Laws: Are meant to be followed
2) Soft Laws: Consequences of non-compliance are not spelled out clearly and
they only are a preferred outcome. However, these types of laws are turning
out to be productive because of the determination to make the rules work.
8
IV.
Custom and the Non-Consensual Sources of International Law(pp.
66-99):
A) Customary International Law (p. 66)
1) All treaty provisions need to be interpreted and, if treaty interpretation is
not to be pure discretion, some guidance from other forms of law is called
for.
2) Treaties never bind all states, and there needs to be some rules of more
general application.
The Paquette Habana (p. 66): A coastal fishing vessel off the coast of Cuba
was seized as a prize of war during the Spanish-American War. This was
basically taken as by a pirate ship that was commissioned by the country. The
pirates wanted their cut. What is relevant in this case is how civilians are treated
during the time of a military conflict.
Question: Could the vessel be seized during military conflict. The court said no.
Analysis of the court: Some treaty obligations continue, even during the time of
war. Since there was not treaty, the court concluded that there are customary
rules that say you can’t seize a civilian ship. The two ways of looking at custom
are
1) Practice: This is what is normally done (practices of states)
2) Opinio Juris: This is identified by practice in most cases . Exceptions: State’s
may say things that are binding, but they go against what has normally been
done.
The court looked at the core practice of states and looked at how fishing vessels
were treated over the years. This court went back 500 years (to 1403 AD) and
what was approved by the King of England (Henry IV). The court looked at a
cross-section of states and how they treated fishing vessels during times of
armed conflict. They looked for decrees of the various governments over time.
They looked at treaty rules as examples of practice. They referred to
inconsistencies in treaties by reviewing how the French treated the Dutch and
how that was breached and terminated in 1675. There was an abuse of good
faith of the agreement.
They reviewed rules that the U.S. was not a part of and what they were a part of.
In the rules that the U.S. was a part of they looked at what the Executive branch
of Congress has decreed (especially if this was in direct opposition or breach of a
treaty – if it was in line with customary law)
This case is cited primarily:
1) “International law is part of our law and must be ascertained and administered
by the courts of justice of appropriate jurisdiction, as often as questions of
right depending upon it are duly presented for their determination.”
2) “Foreign municipal laws must indeed be proved as facts, but it is not so with
the law of nations.”
a) There are still times when experts are relevant. How will the foreign law be
applied v. local law.
The Lotus Case (p. 76): Cases was between France and Turkey and they
agreed to let it be decided by the Court at the Hague. The question is has Turck
9
violated the Convention of Lausanne. This involved a collision at the high seas.
The Turks ceased the Captain of the French vessel and wanted to try him. Both
countries looked to jurisdiction by looking at who the victims were (In the U.S. we
would look at where the crime took place or what the nationality of the
defendant). France said that they would be the appropriate country to prosecute
since the crime took place on. The Hague decided in favor of Turkey.
Notes: (p. 87)
1) Positivism and the Nature of International Law: Positivism is that all
international legal rules are based on state consent. The court ruled that
Turkey’s state sovereignty is a fundamental principle for International Law
2) Burden of Proof: In this case, the idea was the presumption that the burden of
proof was on France. France had to prove that there is a rule of customary
international law restricting Turkish independence rather than making Turkey
prove that its prosecution was sanctioned by international law.
3) Reversal of the Rule in Lotus: High Seas Convention of 1958 provides that in
cases involving collisions on the high seas, only the flag state or the national
state of the accused may prosecute the officer in case of a collision on the
high seas.
The Texaco/Libya Arbitration (p. 88): If there are disputes, they shall be settled
by arbitrators. Rules that are to be applied come from international settings. This
is an ex parte proceeding because Libya would not participate. The arbitrator
normally would take the complaint allegations as true. However, in international
cases (as here) the court went through a full fact finding procedure to determine
the outcome.
Notes: (p. 97)
1) “Mixed” International Arbitration: Here the Deeds of Concession between the
U.S. oil companies and the Libyan government provided that an aggrieved
parry could request the President of the International Court of Justice to
appoint a sole arbitrator if the other party refused to make an appointment to
a 3-judge panel.
2) Individuals and International Law: The Arbitrator rejected the positivist
doctrine of the 19th and early 20th centuries that held that international law
could only bind states. Now individuals and private corporations can be
subject to international law.
3) The Role of UN General Assembly Resolutions in Making Customary
International Law:
a) The Libyan argument rested on the foundations of the 1973 and 1974 UN
General assembly resolutions proclaiming a New International Economic
Order (NIEO). The legal question for the Arbitrator was whether these
NIEO resolutions had any legal force especially in the light of UN General
Assembly Resolution 1803 (XVII) if 1962. In 1962 the UN was trying to get
a consensus, and the resolution was adopted with only a few negative
votes.
b) 1974 resolution did not reflect the kind of consensus of the 1962 UN
resolution. The consequence is that the 1962 resolution still was the rule
of law.
10
4) Evaluating General Assembly Resolutions: In looking to the votes of states on
General Assembly resolutions, should the votes of some states be given
proportionality greater weight.
5) The Efficacy of the Arbitral Award: Libya agreed to pay Texaco $76MM, The
New York Convention on the Recognition and Enforcement of Foreign Arbitral
Awards provides for the recognition and enforcement of many foreign arbitral
awards., and is used in commercial cases.
11
V.
Sources of Legal Rules: General Principles of Law, Natural Law,
Equity: (pp. 99-129)
A) General Principles of Law:
1) International Law (IL) is relatively new.
2) Source for IL comes from the majority of the members states of the UN
and other alliances
a) Legal jargon is not always used for these areas.
b) Determining the issue at hand will then help to determine how the
issue will be decided.
c) Vienna Convention on the Law of Treaties: Article 53: A treaty is void if
at the time of its conclusion, it conflicts with a preemptory norm of
general international law (p. 753)
d) Vienna Convention on the Law of Treaties: Article 64: If a new
preemptory norm of general international law emerges, any existing
treaty which is in conflict with that norm becomes void and terminates.
(p. 756)
3) The AM&S Case: This case dealt with an agreement that was made prior
to an antitrust agreement made by the European Community (Articles 85
and 86 Treaty of Rome). In this case the commission is investigating on
how prices are set. The claim is that the information that is being sought is
protected by attorney-client privilege. There is no treaty provision for this
subject. The judgement of the court does not have a dissenting opinion (it
isn’t known if there was a division in the court). 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 attorney-client privilege. The judges tried to
fashion a rule out of what member countries do in this regard. The ECJ felt
that they only needed to consider the member states positions to come up
with a general principle of law. ECJ looked at fundamentals that they
found in all or nearly all legal systems in the EC. The findings were
narrow, they agreed on the attorney-client privilege, but did not extend it to
communications of both in-house counsel and foreign lawyers not
accredited by an EC member nation.
B) Natural Law: Jus Cogens: A Legal thing that parties by agreement cannot
change (i.e. making an unconscionable contract conscionable.
1) Things, by law, that parties can just not change. (these are known as
Cogen Rules – e.g. unconscionability laws)
2) It is only part of the customary (general) International Law, is not
customary International Law.
3) Von Verdross “Forbidden Treaties in International Law” (p. 109) he
states that the following are Jus Cogens:
a) Treaty binding a state to reduce its police or its organization of courts
b) Treaty binding a state to reduce its army in such a way to render it
defenseless against external attack
c) Binding a state to close its hospitals or schools…or in other ways to
expose its population to distress.
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4) Jus Dispositivion: Dispositive Provisions: Fill a gap between the parties,
qualifying an undefined term in a contract, (i.e. what is a reasonable time
period?) These are rules that the law provides, but others can agree to
change (i.e. A contract has to be accepted within 7 days, but parties
decide 2 weeks is more appropriate. There is nothing wrong with this.)
C) Equity (p. 122)
1) Statutes of the International Court of Justice: Article 38: (p. 735): This
Article says that the court can decide a case, if the parties agree, on the
equity of the matter.
a) Contra Bonos Mores: Against good morals. The idea is that the law
reflects justice and fairness.
2) The Cayuga Indians Case: This is an arbitration between the US and
Britain regarding the Cayuga Indians. Treaties between NY state and
Cayuga in 1789, 1790, and 1795 agreed to annuities between the Cayuga
and NY. Most Cayuga ended up in Canada and NY state said that the
treaty was with the Cayuga of the US only. The court looked to justice and
equity and looked past the treaty and looked at equity. There were no
general rules of IL and dealt with what was fair to the Indians. The idea
here was principles of justice and fair play. The Canadian Cayuga also got
a proportionate share of the annuity. The Indians did not see themselves
and being in NY state v. Canada.
3) The Meuse Case:
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VI.
A)
B)
C)
D)
E)
F)
G)
H)
North Sea Continental Shelf Case (pp. 129-146) and write a page on
each sides position.
International Court of Justice Article 36 (p. 734) parties can, by agreement,
have the court decide a situation.
1) How to handle a joint case in the ICJ (procedural) entitles a judge from
each country in the dispute.
All signed Geneva Convention, but Germany did not ratify – most likely
because they didn’t agree with certain sections of the Convention
1) If Germany didn’t ratify it their actions did not constitute ratification,
especially since other 2 parties did not rely on Germany’s actions, no
estoppel
2) Article 6 does not codify the equidistance principle, or crystallize the
principle because it was not in place at that time.
If principle has developed since the making of the article, you need to look at
its usage, especially look at the usage among the parties that have ratified the
Convention.
1) Also, on behalf of Denmark and the Netherlands look for parties that are
not parties to toe Convention have entered into an agreement using the
principle in question with concaved coast.
Court concluded that there was not a customary (general) principle of use that
would include the equidistance principle under Article 6.
Germany’s main argument was adjusted equitable share. But the court also
rejects this and says that their job was not to establish boundaries already
relating to the coast of the Countries and not determine what the areas were.
Review Article 83, Convention on the Law of the Sea (1980s) (p. 776)
Article 6 Geneva Convention had no teeth. It can be attacked because
1) Reservation: Countries can reserve their ratification in certain areas
2) Agreement: The Treaty prefers agreements between parties and not the
rules of the treaty.
3) Special Circumstances: There is a reservation that there may be special
circumstances.
The ICJ’s decision shows that a Country that depends on an alleged
international custom practiced by other Countries must prove to the ICJ’s
satisfaction that this custom has become so ordinary as to be legally binding
on the other parties.
14
VII. Law of Treaties (Session 1)
Casebook pp. 147-172
Chapter 4: International Law and Municipal Law (p. 147)
A) Treaties in Municipal Law
Foster & Elam v. Neilson (1829) (p. 147)
Asakura v. City of Seattle (1924) (p. 150)
Sei Fuji v. California (1952) (p. 153)
KEY CASE (KNOW FOR FINAL)
Missouri v. Holland (1920) (p. 157): Congress had enacted Migratory Bird
Treaty Act to protect them. The idea was to stop them from being killed. A lower
court it was found that Congress did not have the authority to do this in an earlier
Migratory Bird Act. Birds were the property of states. The U.S. had concluded the
Treaty with Great Britain / Canada. Is the world any different now that a treaty
supports the new act? The Supreme Court said yes.
1) 10th Amendment (power of the state to form laws) is not a limitation on
treaties
2) Treaty overrules state laws
Bricker Amendment (1940s): Led a fight limiting the presidents’ ability to enter
into treaties. Treaties should only deal with matters of international concern.
Certain basic freedoms should not be abridged by treaties. This died with Reid v.
Covert which dealt with crimes by U.S. citizens outside the U.S. Could they be
tried in the other country or in the U.S. This exposed dependents of servicemen
to military courts. The Supreme Court held that at least some of the provisions of
the Bill of Rights limits the Treaty making of the executive branch. THIS
ESTABLISHED THAT THE BILL OF RIGHTS LIMITS THE ABILITY TO MAKE
AGREEMENTS OR TREATIES WITH OTHER COUNTRIES.
Whitney v. Robertson (1888) (p. 160) Deal was that if we negotiate a better
deal with Hawaii then the Dominican Republic should get the same deal.
Congress had assessed tariffs differently in both cases. The court tried to
harmonize the inconsistent pieces of legislation, but if they couldn’t the later in
time treaty ruled. The rationale is that Congress knew about the original treaty.
The Dualistic approach of this case is that we make different deals internally than
externally.
FCN (Friendship Commerce and Navigation Treaty) are usually bi-lateral:
These include three provisions: (1) Friendly relations; (2) deals with commerce
and national treatment clause (is that we will treat your nationals as well as our
own)
MFN (Most Favored Nation Provision) We will treat your businesses and
people as favorably as any other country. This is usually a provision of a treaty.
(e.g. If we negotiate a lower tariff with any other country we will give you the
same deal)
Self-Executing Treaty (Dualistic approach) (e.g. Missouri v. Holland)
sometimes (not always) treaty is directly applicable in the U.S. w/o executing
legislation.
15
1) Can’t tell by looking at the treaty if it is self-executing, no magical words. This
especially because other countries don’t have self-executing treaties (e.g.
United Kingdom)
2) May look at what type of treaty it is? (e.g. Pawnbroker case in Seattle or
criminal prosecution)
(a) Sei Fujii v. California used the United Nations Charter when there was no
clear cut Treaty that dealt with this problem. Look to hearings before
Congress to figure these out.
(b) Asakura v. City of Seattle said that the Treaty with Japan was self
executing and therefore needed no special act by Congress.
Executive Agreements and the Constitution: Treaty is written in the Constitution
in two different ways: Both are International Agreements
Article II (2): This requires that “advice and consent” of the senate. Treaties are
agreements between states in written form and governed by international law
1) Treaty by the Senate or legislation:
(a) Previous Authorization:
(b) Subsequent Authorization: (e.g. trade agreements, agreements of the
Monetary Fund. This is negotiated and then OK’d by Congress)
2) Presidential Power: (independent of acts of Congress) Look to the powers
granted to the President. (Recognize ambassadors, settle claims of American
Nationals with Foreign countries, and conclude acts of hostility with foreign
powers. (Usually found in history)
Article VI (2): Executive Agreements:
United States v. Belmont (1937) (p. 162): Russian corporation maintained
a deposit with a U.S. bank. Bolsheviks came to power and nationalized all
corporations. The U.S. finally recognized Russia and under this recognition the
Soviet Union gave to the U.S. the property that was held in the U.S. and this was
done to pay U.S. citizens for what Americans had owned in Russia. What did the
U.S. get (did they get anything at all?) The Supreme Court held that the U.S.
became the owner of the property (nationalized the property in the U.S.) This
was in direct deference to New York State Law which did not allow
nationalization of private property.
United States v. Curtiss-Wright (1936) (p. 165): Powers of different
branches of government are not the same when in the international area. States
cannot make agreements with other countries, only the Federal government can
do this. We don’t want a situation where our government cannot act when other
governments can. There is not as much scrutiny when the Federal government
deals in international affairs as when it deals with states. However, Reid v.
Covert says there are still limits to the Federal governments ability to deal in
international areas.
Law of Treaties (Session 2)
Casebook pp. 740-765 (Vienna Convention on the Law of Treaties)
“Vienna Convention on the Law of Treaties: Consequences of Participation and
Non-Participation” (1984) –to be distributed
16
Vienna Convention on the Law of Treaties
Part I: Introduction
Article 1: Scope of the present Convention
Article 2: Use of Terms
(a) Treaty: “an international agreement concluded between States in written form
and governed by international law, whether embodied in a single instrument
or in two or more related instruments and whatever its particular designation.”
(d) Reservation: “a unilateral statement however phrased or named…, when
signing, ratification, accepting, approving or acceding to a treaty, whereby it
purports to exclude or to modify the legal effect of certain provisions of the
treaty in their application to that State”
Article 3: International agreements not within the scope of the Convention
Article 4: Non-retroactivity of the present Convention
Article 5: Treaties constituting international organization and treaties adopted
within an international organization
Part II: Conclusion and Entry into Force of Treaties
Section 1: Conclusion of Treaties This section is formal is not usually
enforced. However a signature alone is possibly not enough to be bound.)
Article 6: Capacity of States to conclude treaties
Article 7: Full powers
Article 8: Subsequent confirmation of an act performed w/o authorization
Article 18:Obligation not to defeat the object and purpose of a treaty prior to its
entry into force (THIS IS PROBABLY THE MOST VOLATILE ARTICLE IN THIS
SECTION)
Section 2: Reservations
Article 19: Formulation of reservations
Section 3: Entry into Force and Provisional Application of Treaties
Article 24: Entry into Force
Article 25:Provisional Application (Will comply with all provisions (assumed)
before entry into force
Part III: Observance, Application, and Interpretation of Treaties
Section 1: Observances of Treaties
Article 26: Pacta sunt servanda
Article 27: International law and observance of treaties (cannot apply domestic
law , internationally, over international law)
Section 2: Application of Treaties
Section 3: Interpretation of Treaties
Article 31: General rule of interpretation (Contract Law: Wiliston- 4 corners rulelook to the document)
Article 32: Supplementary means of interpretation (Contract Law: Corbin – Look
outside the contract – shared intentions of the parties) THIS IS NOT A RULE OF
EVIDENCE: We can look outside the original agreement to see if the meaning is
ambiguous. THIS IS A DIRECTION TO LAWYERS ON HOW TO WRITE THEIR
BRIEFS OR COURTS ON HOW TO WRITE THEIR OPINIONS
Article 33:
17
Section 4: Treaties and Third States
Part IV: Amendment and Modification of Treaties
Part V: Invalidity, Termination, and Suspension of the Operation
of Treaties (KEY PART)
Section 1: General Provisions
Section 2: Invalidity of Treaties
Section 3: Termination and Suspension of the Operation of Treaties
Section 4: Procedure
:
Section 5: Consequences of the Invalidity, Termination or Suspension of
the Operation of a Treaty
:
Part VI: Miscellaneous Provisions
Vienna Convention on the Law of Treaties (Short version
1) Declaration of the general assembly is easier to pass, but is not binding on
members
a) Generally its recommendations
2) It's a treaty on treaties.
3) Most rules are codifications on the law of treaties.
4) Codifies court decisions and customary international law.
5) Treaties are supreme law
6) Parts of the treaty:
a) Art.2 – Terms
b) Art. 3 - What agreements are included
c) Art.4 - Non-retroactivity
d) Art 5 - International organizations
Part 2 - Details with respect to formation
a) Art.18 - Obligation not to defeat the object y purpose of a treaty prior to its
entry into force
b) Art.20 - Reservations are accepted unless a state raises objections in 12
months
Part 3 - Entry into force
a) Art.31 - General rule of interpretation - textual interpretation y shared
expectations of the parties (intent of the parties).
b) Art. 32 - Supplementary means of interpretation - need for this was
because there were African states in particular who were not independent,
but had previously been under the rule of some other country and subject
to those treaties negotiated by those other countries.
c) Art.33 - Interpretation of treaties in two or more languages
18
Part 5 - Way to get out of the convention. If the provision is not in the
convention, you can't use it. Based on contract law.
a) Art.62 - Fundamental change of circumstance
b) Art.65 - Procedure
c) Art.27 - State can not claim it's internal law as an excuse to not perform
the treaty.
d) Art.46 - Does not look at a countries domestic affairs to determine if they
are bound by treaties. Will look behind it in order to preserve democratic
associations. Does provision of its internal laws look at procedural or
substantive laws.
e) Art.42 - Got to find the basis in part 5 for getting out of a treaty. If not in
part five, can 't create.
f) Art 53 & 62 - Jus cogens - Treaties that violate jus cogens rules are not
permitted.
(1) Jus Cogens - Legal things that parties by agreement can't change, i.e.
making an unconscionable contract conscionable Things that by law
the parties can just not change.
g) Art.60 - A material breach, remedies listed are not the only remedies
possible. Radical breach of the treaty, allows the others in the treaty to
make the same radical change (i.e. building of missiles).
h) Art.62 - Fundamental change of circumstances, civil law view, different
from ours. Party to the treaty adversely affected can terminate or suspend
without damages. Party invoking fundamental change, can't have been
responsible for the change.
i) Art 65 & 66 - Only relate to part 5.
19
VIII Agreements that Bind States
The Eastern Greenland Case (p. 59) This case shows that there are two types
of agreements that bind a state:
1) Gentlemen’s Agreement: Binding on the person making the agreement
(while in office), but 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 IMF. These have a moral binding force on those who participate in
the agreement. Change of administration, they are not bound. NOT
CONTRACTUAL PROMISES
2) Agreements that bind the State:
May a Treaty be Unwritten: Yes. The Vienna Convention Law of Treaties
applies to the relationship to the two states involved. There was caution
regarding how this relationship would work.
Reservation to the Genocide Convention Case p. 50): What to do about
reservations to this treaty? Desire was to get maximum participation. The
General Assembly asked for an advisory opinion to settle what reservations may
be correct. The IJC treats this as an instrument that as a multilateral agreement
with a whole bunch of bi-lateral relationships. Must look at the bi-lateral
relationships. Where a treaty is not specific on whether reservations are allowed
are not, in this convention the test is whether the reservation is an object or
purpose of the convention. This object and purpose is in the eyes of the
beholder. The suggestion is that it is for the states involved to decide. In the
Bellows case the court held that there is a character as to whether specific areas
could be considered object and purpose of the coverage. (i.e. can judges and
police be one in the same – Switzerland case (Bellows) Court of human rights
said that this was incompatible with the treaty, even though the treaty was not
specific. There could be a reservation, but if the reservation was incompatible
with the convention, the State was bound to the treaty w/o the reservation. This is
only if the Treaty was not specific.
Vienna Convention on the Law of Treaties (Section 2: Reservations) (p. 744)
Article 19: How do you formulate a reservation?
Article 20: A competent entity of the state must accept the reservations
Article 21: Legally if you reserve an area of the Treaty the effect is that another
state who accepts the whole treaty, does not have to adhere to the area reserved
to the reserving state only (this particular area is not enforced between these two
states).
PART V: This is the problem. Is this area invoked if there is a reservation and
what happens if there is a reservation to the following Articles: (One view is that if
a State reserves this compulsory dispute settlement, these areas are not
invoked) The US has said if we become a party, and reserve these areas, you
are playing games with all of the other areas that would trigger these articles.
Therefore the US position is that they reservation of the other side would be
expanded to all of Article 5. UK says that any reservation to these articles would
void the whole Convention. The UK said therefore, that the reserving country is
not a party to the treaty at all.
20
1) Accept/Accept (no problem)
2) Accept/Reject: Article 20/21:
a) Rejection expands the scope of the reservation (Not just reject certain
articles, but expands to all of Article V)
b) Rejects as an incompatible with object and purpose of the convention.
c) Do we rely on these provisions (Section 5) as customary international
law? Look to contract law.
Article 65:
Article 66:
Article 67:
Cordell Hull (p. 39): The Cordell-Lothian Agreement
Dames & Moore v. Regan (p. 172): Thrust is that the S.C. raced to make a
decision to decide the issues because of time constraint. The S.C. kept the
issues very narrow so they would not overstep and make a precedent that they
would set.
Facts: At the time Iran seized the hostages, the U.S. was trying to put pressure
on Iran to release the hostages. The Sec of State and Treasury said that suits by
contractors who had done business in Iran should be allowed in US courts. A
very strict ruling was formulated as to when you can attach foreign states assets.
This is a federal long arm statute. The court defined when attachment can take
place over a foreign countries asset. This is made harder, the court must be
convinced that there was an emergency. The IEEPA gave the Pres. the power to
relax this provision and easier to sue Iran who had breached a contract in Iran.
The S.C. said that the Executive Agreement was no good and the businesses
must take the claims to an arbitration tribunal in the Hague to make sure that
assets would be paid some funds were held by banks. (This was pursuant to an
executive agreement that all lawsuits in the US would be dropped when the
hostages were released)
Was the executive agreement that Pres. made with Iran binding and could
executive orders to be entered to end lawsuits? Was Ronald Reagan the
president or Jimmy Carter when the executive agreement was implemented?
This was resolved when Pres. Reagan reissued Jimmy Carter’s executive orders.
Dames Moore sued the government to prevent the enforcement of the Executive
Orders so they still have assets attached. The S.C. had to look at this de nova.
The court discussed Youngstown Sheet and Tube and the 3 pronged analysis
of the president’s power v. the legislature’s power. President acts
1) With supportive legislation of Congress (International Emergency Economics
Powers Act – this is what this law does)
2) With Congress sitting out.
3) With Congress saying no.
Court will try to find some kind of congressional approval.
The key part of the decision turns to the Constitutionality of the Executive Order
and Treaty with Congress sitting out. Does the Pres. have authority. The S.C.
finds precedence where the Pres. actions are allowed (U.S. v. Pink (1942))
Thrust of the argument is that even though there was a long precedent that the
21
government could settle claims against foreign countries, after 1976, the scheme
was that the Court should re-examine whether the Executive Branch can still do
this (Foreign Sovereignty Immunities Act). Article 3 of the Constitution and role
of the Court is that the President’s Executive Order alters the jurisdiction of the
Federal Courts. The counter is that the Congress only has authority to do this.
The Court ruling says that the president can change the substantive law by doing
this, or is this a procedural change which the Pres. is authorized to do. Rehnquist
says this is a new substantive rule for the case.
United States v. PLO (p. 180) was this a violation of a treaty obligation of the
U.S. with the U.N. by congress. There was a conflict between the Anti-terrorism
Act of Congress and the Treaty Rules set forth. The courts found that the PLO
office was not to be closed. This was a great decision in that the Treaty prevails,
but this is a very un-impressive finding because the intent of Congress was really
to override the Treaty, but didn’t say it.
United States v. Alvarez-Machain (1992). Court ruled that the kidnapping of a
Mexican Citizen in Mexico by agents of the US government was not to be
construed as an act covered under terms of the 1978 Mexico Extradition Treaty:
“The language of the Treaty, in the context of its history, does not support the
proposition that the Treaty prohibits abductions outside of its terms.” The
interpretation was resisted by Justice Stevens, writing for the minority, who cited
the language of the 9th Circuit approvingly: The pro (p. 94 of supplement)
(p. 205 of the text book) United States v. Alvarez-Machain, 196 F3d 1246
was superceded by 107 F3d 696 (9th Cir 1997) Cert. sought to S.C. and
denied
TREATY Simulation
Does it make sense at this date for the US to become a party to the Vienna
Convention?
Call Hearing to Order
Invite Richards to speak
Ask Questions
Order of questions to come
Look to past hearings on the Vienna Convention from the 70s
Isn’t this customary international law?
The real question is do we want to be legally bound in all areas of the Vienna
Convention?
Political Issues: 27/46/18/25
Article 27: International Law and observance of treaties
Article 46: Provisions of internal law regarding competence to conclude treaties
(Does the violation of domestic law regarding competence to conclude treaties to
the treaty? What are the rules that are included? What about provisions that
violate bill of rights? Executive Branch does not have the competence to make a
22
treaty that violates the Constitution? Or does it only deal with the competence of
Congress? Whether it is ever manifest that this instrument must have the advice
and consent of the Senate before it can be ratified? IS an executive agreement
enough? How does a foreign assess if an instrument has been concluded
properly?) What about mutual mistake in dealings between 2 countries?
Article 18:Obligation not to defeat the object and purpose of a treaty prior to its
entry into force
Article 25: Provisional Application:
Dispute Settlement: Part V:
Amendments and Modification of Treaties
Article 56: Denunciation of or withdrawal from a treaty containing no provision
regarding termination, denunciation or withdrawal. (provision assuming that you
can withdraw – must give 12 months) What is the advantage of using other
means of getting out of a treaty if you can presumably of getting out of the treaty
by other ways – breach, etc. ) There may be protracted time, even though you
feel there is a faster way of getting out of the treaty. Unless you don’t subject
yourself to this Article. How controversial is the claim?
THIS IS A GAP FILLING CLAUSE
Article 60: Breach
Article 62: Fundamental change of circumstances
Formation and Interpretation: 31/32
Article 31: Supplementary means of interpretation
Article 32: Interpretation of treaties authenticated in tow or more languages
23
IX Comprehensive Ban on the Nuclear Testing Treaty
1) President or his representative goes to Treaty meetings and agrees or
disagrees to take the treaty to the Senate for advice and consent or
ratification
2) President submitted treaty to the senate (through the executive clerk of the
senate)
a) Treaty is accompanied by a report from the Secretary of State
b) It is up to the President when to submit the treaty to the Senate.
3) The Senate Committee on Foreign relations considers all Treaties.
a) Also can go to other Senate Committees based on the subject matter of
the treaty
b) Hearings are held if there is a desire to move on it. (otherwise the treaty
will die)
(1) Report is generated and this is usually done bi-partisanly (2/3 majority
is needed)
4) The Senate can consent to ratification completely or condition the ratification
with reservation. (This may mean that the treaty would have to be renegotiated)
5) Postponements are also possible for ratification by the Senate. (Article 18 of
the Vienna Convention on the Law of Treaties) In the case of a postponement
the US has an obligation not to defeat the object and purpose of a treaty)
6) The senate does not ratify. It gives its advice and consent to ratification by the
President. The President does not have to ratify after the Senate gives its’
advice and consent.
Comprehensive Test Band Treaty: (REVISITED)
a) This shows the difficulty of negotiating something when countries come to
logger heads over specific areas.
b) The treaty was an uneasy compromise and was imperfect
c) There were certain provisions that almost doomed this treaty from the start
(1) Requiring the countries that are nuclear powers to join the treaty to
enforce it.
(2) They also said that if you signed the treaty, but did not ratify it, the
country could not violate the intent of the treaty.
d) Some sticking points to the treaty:
(1) Requirement that 3/5 of States must agree that an inspection was
necessary. (p. 21 para. 46) Could this be watered down. What is an
abuse of the right of inspection? This was never defined.
(2) Composition of the executive counsel.
(3) Requirement for entry into force
(a) Can be simple or sophisticated (i.e. EU classification of countries)
(4) Limits on reservations.
(5) Sanctions. What are they going to be?
(a) Trade barriers
(b) No pay for Intellectual properties
24
(c) Most would probably not work. What ever they are must have a
very good likelihood of success. Economic sanctions do not usually
work.
(d) Try to make the sanction that there is so much benefit for
participating that the loss of the benefit by pulling out would be
highly detrimental to the country pulling out. The difficulty here is
that there is a dis-balance between countries as to how they would
be affected.
 Once a violation is found there are more intrusions into a
country
(6) Composition of inspection team observers.
(a) What will the observer add to the party. Gives competence to the
inspection. From the receiving side they are viewed as spies.
(b) It is easier if everyone is inspected the same at regular intervals.
There are no presumptions that something bad took place.
Notice of withdrawal
25
International Dispute Settlement (p. 217-244)
A) Public International Arbitration (p. 217)
The ICJ (est. 1945) and its predecessors (PCA – Permanent Court of Arbitration
est. 1899 / PCICJ – Permanent Court of International Justice est. 1921) have
never had a heavy caseload: 2, 3, or 4 adjudicated cases a year have been
typical. However, these decided cases have been a very influential source of
international law in the 20th century.
The Dogger Bank Case (p. 221):
The Rainbow Warrior Case (p. 225):
B) The International Court (p. 234):
1) The Jurisdiction of the International Court (p. 234):
2) Contentious Cases at the International Court (p. 235):
The Miniquiers and Ecrehos Case (p. 235):
The Diplomatic and Consular Staff Case (p. 244)
Chambers at the International Court (p. 276)
The Elsi Case (p. 276)
US v. Iran (p.
Boundary Issues:
1) Diplomatic & Consular Staff Case:
2) Jurisdiction under Friendship treaty between Iran & U.S., Vienna Convention
of 1961 on Diplomatic Relations & 1963 on Consular Relations.
a) Iran never showed – default. Iran felt it was an on going 25 yr. history that
the ICJ should look at. ICJ rejected this in that it was only asked to rule on
present issue. Even though default, ICJ still had to issue a judgement.
Why go to ICJ - for public support, support on recommended interim
measure of protection.
b) Diplomats - must be reciprocity in that their own state and the state they
are visiting must recognize diplomatic status.
26
National Jurisdiction (Session 1) (Principles) (pp. 609-627)
Text (pp. 321-330)
International Jurisdiction Falls under one of the following as a basis. There
can be overlaps.
Territory (Effects in the territory): The general rule according to Justice Holmes
is that the character of an act as lawful or unlawful must be determined wholly by
the law of the country where the act is done. Within your own territory you can
regulate the conduct of anyone no matter where they are from. (e.g. Everyone
must observe the same speed limits and driving regulations)
Nationality: A state can order citizens of that country to do certain things no
matter where they are in the world (e.g. register for the draft, etc.)
Government Interest (a few): Where a government interest is sufficient so that a
country can regulate something anywhere no matter where the act takes place
and who does it (e.g. false visa or passport, or counterfeiting a country’s
currency, or a crime committed against a diplomat of the President)
Universality (a few): This is the catch-all. Piracy would be the prime area where
the jurisdiction would fall. If you are outside your country’s jurisdiction you must
fly a flag, etc. If anyone is found to be a pirate (radio station, ships, human rights
are violated (in some cases), etc.) would qualify.
There can be overlap and conflict with other countries. What to do if there is
conflict. The analysis is the following:
1) Check or re-check to see if there are competing claims
2) Is there conflict or overlap requiring the same actions. (Do two or more
sovereigns require the same action to be taken)
a) Is one sovereign requires action and the other sovereign is silent
b) Is there direct conflict between two sovereigns (X is required by one
country and Y action s required by the other country)
(1) How do you sort this out? Often it is the state of the territory that
prevails. (E.g. Fruehauf Corp (US Company) had majority ownership in
a plant in France. The French company entered into a contract with
China. This was a time when France was trying to improve
relationships with China and US was not. US government gave an
order to Fruehauf that their subsidiary could not deal with China.
France was trying to improve relations with China. A French director of
the subsidiary went to the French courts and said that they were going
to breach the contract and this meant that French policy in regards to
China would be violated. The French government put the French
subsidiary under receivership of France and France ordered the
subsidiary to perform the contract. US was not happy. After contract
was performed the subsidiary was put back the way they were. US
could have fined Fruehauf in the US, but chose not to.
(2) Production of documents in one country is demanded and there is
blocking documents in another country from being subpoenaed. The
US usually does not ask the law to be violated. However, a party can
apply to an authority in another country to have the documents
27
removed lawfully upon application. The procedure has to be gone
through.
A) Jurisdiction (p. 609) To prescribe - To make a rule
1) Principles of Jurisdiction (p. 609)
a) The Territorial Principle (p. 610): Effect in territory. Territorial tie
(where it happened) is stronger than the nationality ties (of what
nationality are you).
American Banana Co. v. United Fruit Co. (1909)(p. 610)
b) The Nationality Principle (p. 614)
Blackmer v. United States (1932)(p. 614)
c) Effects Principle (p. 617)
United States v. Aluminum Co. of America (1945) (p. 617): equal to a
Supreme Court case in that the Supreme Court couldn't get a quorum when they
heard it so it went back to the 2nd circuit. U.S. and Canadian company made an
illegal agreement not to ship product in the US.
(1) Court looked at intents of parties to limit quantity into the U.S.
(2) Establishes the Effects Doctrine (See restatement 3rd 403)
Effects Doctrine: The conduct is by a non-national but has an effect in the
territory (In Aluminum case the effect was the higher prices and limited supply of
aluminum in the US). Questions that were answered were (1) what is the
international law rule. Or (2) does can the Sherman Anti-Trust Act be applied
even when the conduct was applied outside the US). US Court said that if there
is an effect on the territory the laws of that Territory is applied.
Seems like every country in the world has a basis for jurisdiction which all other
countries find exorbitant. In 99 cases out of 100 (even if someone is transient
they probably have ties to the state. Also look to nationality of person (e.g. if a
contract is made with a national of another country, you may have to go to the
other country)
2) Resolving Conflicts of Jurisdiction (p. 622):
a) The Balancing Test (p. 622):
Timberlane Lumber Co. v. Bank of America (1976) (p. 622):
National Jurisdiction (Session 2) (Comity: Forum Non Conveniens)
b) International Comity (p. 627): Commit is the recognition which one
nation allows within its territory to the legislative, executive, or judicial
acts of another nation, having due regard both to international duty and
convenience, and to the rights of its own citizens or of other persons
who are under protection of its laws.
Hartford Fire Insurance Co. v. California (p. 627): The question was whether
US antitrust law applied to activities of London reinsurers who allegedly
promoted an illegal restriction (under US law) to the terms of commercial general
liability insurance pollicies available in the U.S..
Opinion: “. even assuming that in a proper case a court may decline to exercise
Sherman Act jurisdiction over foreign conduct…, international comity would not
28
counsel against exercising jurisdiction in the circumstances alleged in this
case…”
(a) Judge Souter argued that he did not have to engage in a comity analysis,
deciding to defer or not to the United Kingdom, its law or courts. In his view
there was not “true conflict between domestic and foreign law” since, though
British law permitted the activities allegedly made illegal by the U.S., Britain
did not order the London reinsurers to violate U.S. antitrust law.
(b) Dissent: said more attention had to be paid to comity, that the relevant
notions of comity here concerned “international choice of law principles” and
that the Rest. 3rd says, “a nation having some basis for jurisdiction to
prescribe law should nonetheless refrain from exercising that jurisdiction with
respect to a person or activity having connections with another state when the
exercise of such jurisdiction is unreasonable”
This case makes it unclear in determining extraterritorial applicability of a statute.
c) Forum Non Conveniens (p. 638): Doctrine that allows a court which
has jurisdiction over a case to decline to hear the case out of fairness
to the parties if there is another court available which is more
convenient.
Piper Aircraft v. Reyno (p 638) –
Findings: File in court that is most convenient to hearing case. P's can not pick
their courts based on which one will apply the most favorable law for them.
Procedure: California lawyers representing Scottish heirs to Scottish citizens
killed in the crash of a Scottish aircraft made their legal secretary, Gaynell
Reyno, the personal representative of the estate of the Scottish decedents. She
then sued the U.S. manufacturers of the plane and the plane’s engine in
California State court. Ds removed the action to federal district court in Pa.
Where the plane had been manufactured and finally asked the Pa. Federal
courts to dismiss the action on the grounds of forum non conveniens to permit
the case to be tried in Scotland. Reyno objected that litigating in Scotland would
defeat one of her principal objects in bringing the suit to the U.S., viz., securing
more favorable U.S. substantive law. The S.C. held, that “…the possibility of a
change in substantive law should ordinarily not be given conclusive or even
substantial weight in the forum non conveniens inquiry.” S.C. felt that the
essence of making the forum non-conveniens decision was answering the
question of convenience. One of the benefits of dismissing on the grounds
of forum non conveniens was not having to make complicated choice of law
determinations, a benefit that would be entirely lost if the court, before the facts
were proved, had to determine which law would apply in a US court and which in
a foreign court. The consideration, but where, as in this case it could not be said
that using Scottish law would violate the “interests of justice” it was not enough
that P might simply win a smaller damage award.
Per the fact pattern in this case, the S.C. observed that since the real parties in
interest, the Scottish heirs, were not located in the US, there was little reason to
assume that the choice of US courts was made to suit plaintiff’s real
convenience. Much of the relevant evidence and many of the crucial witnesses
29
were located in Great Britain. The SC decided that the forum non conveniens
determination should be made at “all relevant public and private interest factors,”
held that the trial court had not abused its discretion by finding that Scotland,
which had “a very strong interest” in trying the litigation, should be the place of
trial.
In Re: Union Carbide Corporation Gas Plant Disaster at Bhopal, India
US 2nd Cir. Affirmed the decision of the federal court for the Southern District of
New York that India was the proper forum for litigation involving the deaths of
more than 200,000, the worst industrial accident in history.
Weighing the private interest factors, the circuit court held:
“The plant has been constructed and managed by Indians in India…The vast
majority of material witnesses and documentary proof bearing on causation of
and liability for the accident is located in India, not the US… The records are
almost entirely in Hindi or other Indian languages understandable to an Indian
court without translation. The witnesses for the most part do not speak English
but Indian languages…. These witnesses could be required to appear in an
Indian court, but not in a court in the US.”
Pubic Interest was discussed as:
“India has a greater interest than does the US in facilitating the trial and
adjudication of the Ps claims… India’s interest is increased by the fact that it has
for years treated (the subsidiary) as an Indian national, subjecting it to intensive
regulations and governmental supervision of the construction, development and
operation of the Bhopal plant, its emissions, water, and air pollution, and safety
precautions… Moreover, plaintiffs have conceded that in view of India’s strong
interest and its greater contacts with the plant, its operation, its employees, and
the victims of the accident, the law of India, as the place where the tort occurred,
will undoubtedly govern.”
Duties to look to:
Socially Imposed Duties: (e.g. Torts) Defines the duty the D owed the P. and
showing that the duty was violated. Causation and damage follow.
These can be negligence, strict liability.
Promise Duties: (e.g. Contractual) A promise to do something that is voluntarily
made. Then move to the socially imposed promise. ((e.g. implied warranty)
These can be express, implied
Text (pp. 330-351)
B) Judicial Conflict and Cooperation
1) Comity, Constitutional Limits, and Forum Non Conveniens (p. 331)
2) International Legal Limits to State Jurisdiction (p. 339)
3) Foreign Judgments and Awards (p. 343)
4) Judicial Assistance and Extradition (p. 347)
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Sovereign Immunity (Session 1)
Casebook (pp. 658-688):
Text (pp. 351-360):
The Schooner Exchange v. McFaddon (1812): It was a principle of public law,
that national ships of war, entering the port of a friendly power open for their
reception, are to be considered as exempted by the consent of that power from
its jurisdiction.
Foreign Sovereign Immunity: This shields foreign sovereigns from the
jurisdictional reach of municipal courts on the theory that to implead the foreign
sovereign could upset the friendly relations of the states involved.
Pre 1976 (before the act)
1) Tate Letter (Jack Tate -1952) - View of the state department was to not
recognize absolute immunity, but limited immunity.
a) Governments would enjoy sovereignty when they were doing things
governments do, but not when they were doing private or commercial
acts.
b) Great weight - When a judge receives a suggestion of sovereign immunity
from the state department, they would dismiss the case, not because they
had to but as courtesy to state department. If no suggestion the court
would pursue the case.
Victory Transport Inc. v. Commissariat General (1965): This case illustrates
that the courts would view commercial activities by a state. The court would deny
immunity if the state did not suggest immunity. As a result the suggestions of
immunity by the state department became very important for states. Therefore,
even though they weren’t bound in law to follow advice from the Executive
Branch, the US courts did in fact begin to hear and decide cases brought against
foreign sovereigns for their commercial activities.
2) Foreign Sovereignty Immunities Act of 1976 (FSIA)
a) Provides that subject to existing international agreements to which the US
is a party at the time of enactment of this Act a foreign state shall be
immune from the jurisdiction of the courts of the US and of the States
except as provided (in the Act).
b) Exception: exposes a foreign sovereign to suit when the foreign
government engages in commercial rather than public activities.
3) Despues FSIA
a) Took the government out of making suggestions for sovereignty.
Government may file amicus brief, but rarely does.
4) FSIA - Federal long arm statute over foreign governments
a) FSIA operates in-persona §1330
b) Does not depend on any amount in controversy §1330
c) It's a non-jury action, this is it there is no jury possibility. §1330
d) Against a foreign state §1330
e) If the foreign state is the P, they have to reach the $75,000 amount in
controversy §1332
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5) Definitions §1603: When does a foreign state include or not include an
agency or instrumentality. (Agency or instrumentally will be separate and
engage in business activities, foreign state does public activities)
a) Is this a commercial activity?
b) Is this activity carried out in the US?
c) Is there immunity? In many cases the foreign sovereignty (defendant) will
have to provide proof that they are an agency or instrumentality of a state.
(1) Presumption of immunity Shifts burden to Plaintiff under §1605 for list
of what is not immune. Exceptions
(a) §1605(a)(1): Waiver clause: is the waiver broad enough to be a
waiver of immunity? The implication is tough. When can you say
that something is done
(b) §1605(a)(2): Applies to torts and contracts. IT is based on a
commercial activity (defined in §1603(d)). Look at the nexus to the
United States.
(c) §1605(a)(3): This is straight forward to remove a lien on real
property. Foreign sovereign must deal with our courts.
(d) §1605(a)(5): Tort provisions: however this is more narrow because
the tort must occur or at least the loss must occur in the US (e.g.
airlines)
 Exception to the exception: If it is a discretionary act, or a
foreign controlled press makes untrue statements, they my not
be liable.
d) §1606: Extent of liability
(1) Exception: No punitive damages unless this is for a death.
(2) Certain kinds of acts: Terrorism, etc there are punitive damages
e) §1608: Service of process; time to answer; default: Go by the statute
(1) Service of process is also notice normally in the US. This statute says
that you get jurisdiction over the D by §1605. If you try to serve
process w/o following rules you will lose the case all together (This is
an affront to the foreign policy of the US)
(a) May give notice and delivery by giving it the Secretary of State or
delivery by normal mail. If prearranged then can serve the foreign
ambassador or any means agreed upon.
 May need to present in a translated form
 Send to secretary of state
 Send to foreign sovereign’s attorney.
(2) If an instrumentality of agency (e.g. business of foreign country) can
give process normal way.
f) Jurisdiction:
(1) Over Foreign State for adjudication:
(2) §1609: meant of the Judgement: Always start with presumption of
immunity
(a) §1610: Exceptions to the immunity from attachment or execution
 Can enforce against a foreign sovereign for terrorism, etc.
(unless Executive Branch says otherwise)
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(b) §1611: Exceptions to the exceptions (back to immunity) Certain
types of property are immune from execution
 Monetary reserves maintained by the state bank
 Military property in the US.
Don’t worry about ultimately collecting the judgement. Must consider this, but
often there are many ways to collect. Judgements have long lives and can be
renewed (including amendments to the FSIA. Also think about enforcement at
the same time.
Presumption of Immunity: (p. 669) §1604 of the FSIA presumes to grant
immunity unless a private plaintiff shows an exception. The exceptions are: (a)
the foreign state has waived its immunity (b) commercial activities carried out in
the US or upon an act performed in the US in connection with a commercial
activity of the foreign state elsewhere or upon an act outside the US in
connection with a commercial activity of the foreign state elsewhere and that act
causes a direct effect in the US. (c) in which rights in property taken in violation if
international laws are in issue and the property or any property is present in the
US in connection w/ commercial activities.
Discovery: In Procedure discussed discovery. Primarily the basic cause of
action was what is normally discovered. (Who was present and who did what).
Discovery can also be available for learning jurisdictional facts. (e.g. Is an entity
owned or an instrumentality of the foreign state) Similarly has an entity waived in
a contract its immunity? Also needs discovery to determine if the transaction is
commercial or not. (Tough problem is the difficulty: Do we have jurisdiction to
determine if we have jurisdiction?) This is often resisted by foreign states. Good
judges will ride herd on this in Foreign Sovereign Immunity cases. (The court
may recognize that in the end they did not have jurisdiction) This particularly
takes place when state long arm statutes are applied.
§1605(a)(2) and (5) a case could look like a tort case, but could be a breach of
contract case. (e.g. Saudi Arabia cases (Nelson) where a person is hired in the
US be Saudi Arabia to inspect hospitals. When the report by the US citizens was
less than glowing, she was threatened by Saudi Hospital officials. She came
back to the US and sued. The SC found that Saudi Arabia was negligent in not
warning Nelson that she could be threatened. (i.e. implicit in the contract)
Verlinden v. Central Bank of Nigeria (1983) (pg. 675)
Issue: Can a foreign entity suit another foreign entity in the U.S. Courts.
Determined that this falls under the arising under theory of juris.
System that assures the seller will be paid and buyer will receive goods. A Bank
will set up:
Confirmed Letter of Credit: If bank is shown certain documents that goods
were shipped, then the buyer guarantees to the seller that the credit of the buyer
is good. Both buyer and seller are comfortable with one bank
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Letter of Credit: Same set up but buyer guarantees with his bank payment and
seller guarantees with his bank proper shipment. 2 banks confirm with each
other.
In this case there were letters of credit between 2 banks, through a screw up the
banks did not confirm a letter of credit through a 3rd bank. Therefore, the goods
were shipped and prices changed (Nigeria was paying more than the market
would bear) Result was that the Nigerian bank said that unless you consent to a
change to the letter of credit (cut price) they would not pay. Banks on behalf of
the seller wanted to sue for breach of contract in the US because of the FSIA. SC
said that this is a federal question, because we had a procedure against foreign
sovereigns in commercial actions.
Finding: The Court found (see fn. p. 680) that the repudiation of the letter of
credit “caused no direct, substantial, injurious effect in the United States.”
Analysis: The key analysis was around jurisdiction. Under Article III of the
Constitution the court wondered if Congress had overstepped its ability by
enacting §1604 of the FSIA. After a convoluted evaluation it determined that the
US courts could get involved under this section. Diversity did not work because
there were no companies or US citizens involved. In the “arising under” clause
(Federal Question clause) the court said that the FSIA could open up the courts.
Arising Under does not mean that there has to be a federal statute that comes
into play for a specific remedy. It can be a state question. §1606 FSIA also says
that on the merits of the claim the US courts can be open to a case like this.
Texas Trading v. Nigeria (1982)(pg. 670): This case was deciding that the
purchase of cement by the government of Nigeria was “in the nature of a private
contract for the purchase of goods. Its purpose – to build roads, army barracks
whatever – is relevant. What constitutes commercial activity in any particular
case is more a question of judicial precedent and discretion than it is one of
statutory direction.
Issue was whether the Nigeria Central Bank enjoyed immunity.
Analysis: It was a suit on a letter of credit and in issuing the letter of credit it was
doing whatever any other bank would do. However since there was active
government it goes to merits of the case, but not juris.
This case was seen as a two hats case:
1) This was a private purchase of cement (commercial activity). (Engaging in
letters of credit). §1605(a)(2)
2) Therefore the government’s purpose was irrelevant. (Management of money
in Nigeria)
Force Mojure: Government ordered. The private commercial entity had
no control. (e.g. US did not want ABC to cover the Olympics in USSR. ABC
wanted to claim force mojure so they would not be liable for breach of contract by
their advertisers)
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Choice of Law
1) Fill in the blanks (interpretation)
a) Is the only for interpretation of how the contract should be interpreted?
2) Governing law
a) Do the parties have capacity to make an agreement?
b) Is the contract unconscionable?
3) Is there an implied forum in the contract?
Jurisdiction (other issues to consider)
1) A lot of this is determined by the terms of the contract.
2)
Commercial Activities
1) Choice of law clause is usually good evidence that the contract is commercial
in nature. (Wouldn’t look to governing law if it was strictly a public activity of
the government)
2) Nature of the contract rather than the purpose of the activity
3) What is the nexus with the United States in the activity.
4) Are the provisions unique to government contracts or are they more similar to
private commercial contracts.
Argentine Republic v. Amerada Hess Shipping Corp. (1989) (p. 682):
Issue: Suit in US court by two foreign corporations against a foreign country to
recover damages for a tort allegedly committed by its armed forces on the high
seas in violation of international law.
Facts:
Analysis:
Outcome: Dismissed because the Foreign Sovereign Immunities Act does not
authorize jurisdiction over a foreign state in a situation like this.
Look at Juris vs. Merits to make determination i.e. Connections to U.S. &
Commercial Activity vs. Acts of State.
Nigerian cement cases - sovereign immunity.
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Act-of-State Doctrine (Session 1)
Casebook (pp. 688-700)
Callejo v. Bancomer
Facts: This case involved a Bank in Mexico that had been nationalized. The
Mexican exchange had gone down the tubes The Callejos (Who had about
$200K in CDs in Bancomer) were told that they had to take interest at a much
lesser rate than was originally agreed on and they would be paid in Mexican
Pesos (Which were worth even less than US $$)
Issues: Callejos needed to win under Sovereign Immunity and Commercial
activity of the bank. For Bancomer to win they must prevail on one or the other.
Analysis: Showed that Bancomer had done things (Reached into) Texas. In this
way the Long Arm Statutes would apply (e.g. phone calls in to Texas, advertising
in Texas). Callejos were solicited by Bancomer. When this started Bancomer was
a private bank, then it was privatized by the government. At the time of suit,
Bancomer was an agency of the state, therefore they would come under FSIA.
Courts separated the issue in two ways:
1) Sovereign Immunity: Procedure / juris:
2) Act of State (unique actions that only a state can do) Doctrine: Idea is that the
courts in the US will not sit in judgment of the acts of other states effective in
its territory (must be an act of a state and not a private party breach of
contract). UNLESS
a) Is a doctrine, not a rule of law
b) Courts of one state would not set in judgement of the acts of other states.
(1) Has to be an act of state and not a private party breaching.
c) Additionally has to be effective in it's own territory.
d) An act that is extra-territorial (out side the borders of the state) is not
covered by the doctrine.
e) Has to be an action that only states do.
f) Generally there are not exceptions to this doctrine.
Issue in Callejo, whether there is a treaty exception in the Act of State Doctrine
and whether the treaty was breached. IT has been held by some courts that
there is a treaty exception to the Act of State Doctrine. (International Monetary
Fund (IMF) had a restriction on the exchange practice that Mexico had
implemented). (see p 164 for Treaty exceptions)
FOB Free on Board. Key is where. The obligation of the seller is to place the
goods with the shipper. At that place the goods are moved at the risk of the seller
or buyer. (FOB Destination is risk of loss is to the seller / FOB Shipping Point is
risk of loss to the buyer)
CIF: Cost Insurance Freight. This is a price quoted and the loss will be paid by
the insurer not the seller or buyer
FAS: Free Along Side: e.g. The shipment is on one mode of transportation and
being loaded on another mode of transportation. In this case the loss is
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encumbered by the seller until it is transferred and new terms take over as to
responsibility and liability on the goods.
Banco Nacional de Cuba v. Sabbatino (p. 691)KNOW THIS CASE
Issue: Whether the so-called act of state doctrine serves to sustain on a decree
of a foreign government who expropriates certain property, and the rights to the
proceeds from the sale of that property.
Analysis: Cubans changed the bill of lading for payment to the Banco Nacional
de Cuba. These were forwarded to Cuba’s bank in NYC. The bank in NYC takes
the payment to Farr Whitlock and Co for payment. Farr Whitlock and Co. took the
papers without paying anything to Cuba and made a deal to pay the original
owners of the sugar shippment. Where there is an asset in NY of a foreign
company that has been nationalized and receiver can be appointed. Sabbitino
was appointed. The Bank representing Cuba comes back and says that they
can’t pay it. The Farr Whitlock gets an order to turn the money over to Sabitino
(who was appointed by the court). Banco de Nacional de Cuba is ticked off, and
the shipment is on the way to Morocco. A lawsuit is brought against Sabitino for
theft of shipping documents in NYC by Sabatino and Farr Whitlock. Sabatino
drops out because of extrinsic agreement, but Farr Whitlock is still involved.
U.S. District Court: Whether or not there is an exception to the act of state
doctrine. Cuba argues: they nationalized the sugar within their borders and this
should be recognized by the government. C.A.V. (real party in interest – Sabatino
representing their interest) argued that if what Cuba did violated International
Law the US had no obligation to apply the act of state doctrine. There is a
question if Cuba got title to the sugar. If they failed to pay, they don’t get the
sugar. District Court held there is a customary law violation exception the act if
state doctrine. They said that the acts were (1) retaliatory because the Cuban
action was done to get back at the US action to cut Sugar shipments from Cuba
(2) Discriminatory only applied to the US (3) confiscatory because no money
would ever be paid. The judge said taken all together there was a violation of
international law and therefore act of state doctrine did not apply.
Appeals Court: As the lawyer looked at the case he noted the Berstein cases
which involved ships that had been taken by the Nazis because they were owned
by Jews. Later (after WWII) former owners wanted the ships back. The court of
appeals found that the court would not look beyond what took place and not at
the motive. In a second case similar situation in that case the appeals court, the
attorneys went to the State Department who said that the Dept. had no objection
if the court would find that International law was violated. The court then
determined that the former Jewish owners should get the ship back (known as
the Bernstein letter) The attorney tried to get a letter like this and submitted it in
the court of appeals. The court thought this letter was the same as the Bernstein
letter (even though it wasn’t) and affirmed the decision of the District court on the
basis that the state department had freed the appeals court to make a decision in
favor of C.A.V (Sabatino). The State Dept. went nuts and said that he had
misrepresented the letter from the State Dept. At that point Banco Nacional tried
to take this to the Supreme Court. The State Dept. also supported this going to
37
the Supreme Court because of the misunderstanding of the Appeal Court in the
original letter and they would indicate the position they would hold.
In this particular situation the S.C. did not remand (which would have been
logical) They scheduled the case for oral argument . S.C. began the oral
arguments and took 1 ½ days on the case. The principle argument was that this
violated international law and there was an act of state doctrine exception.
Conclusion: The courts treated the issue as who ever owned the sugar, owned
the shipping documents and should collect.
Callejo v. Bancomer, 764 F.2d 1101 (1985) KNOW THIS CASE
Act of State Doctrine:
1) Goes to the merits of a case
2) Is a doctrine, not a rule of law
3) Courts of one state would not set in judgement of the acts of other states.
a) Has to be an act if state and not a private party breaching.
b) Additionally has to be effective in it's own territory.
c) An act that is extra-territorial (out side the borders of the state) is not
covered by the doctrine.
4) Has to be an action that only states due
5) Generally there are not exceptions to this doctrine.
Banco National de Cuba (know it for exam) pg. 691
1) Sabbatino appointed receiver for C.A.V.
2) U.S. sugar market was a protected market for U.S. farmers. Foreign
countries could only sell to the U.S. if they had a sugar quota approved by
congress and Cuba had a large quota.
3) U.S. withdrew Cuba's sugar quota, for dislike of Castro. Thus Cuba had to
sell on the World market for less.
4) Castro enacted by executive degree the nationalization of all sugar properties
owned by U.S. nationals.
5) C.A.V. loaded boats in Cuba water for Morocco. Cuban government entered
boat and stated that the boat could not leave until they confirmed that the
sugar belonged to Cuba. Thus shipping documents were changed to reflex
the ownership to Cuba.
6) Here Farr, Whitlock is a broker and thus there is no letter of credit, only a
contract.
7) There was a bill a laden made to C.A.V., but this was changed to Cuba in
Cuba.
8) Cuba presents the bill of laden via Societe General (SG). SG presents the bill
to Farr, Whitlock who keeps the bill of laden. Almost immediately Sabbatino
and Cuba file suit forclaim of payment.
9) Theory of the case is theft of documents by Farr, Whitlock.
10) District court determined that Cuba's act occurred in Cuban waters and thus
this nationalized the payment papers under Act of State. But, Cuba's's
actions was a violation of international law.
11) Violated International Law three ways:
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a) Retaliatory - Not a valid reason, accept acts of U.S.
b) Discriminatory - Only was with regards to U.S.
c) Confiscatory
12) Bernstein Letter - Letter from the state department to judicial branch, stating
that not applying the Act of State doctrine would not effect the U.S. C.A.V's
(in case as amicus -having an interest) attorney attempted to get this letter,
but was denied.
13) At the Supreme Court level Cuba's attorney argued that
a) Cuba did not violate IL
b) that violations of IL do not create an exception to the Act of State doctrine.
14) Act of State is not compelled by inherent nature of sovereign authority or by
some principle of IL, but it has constitutional under pinning (separation of
powers is the under pinning – Dominate leadership comes from executive
branch in foreign affairs and courts defer to executive branch). Thus Act of
State doctrine is the rule.
15) Court does not directly state that violations of IL do not create an exception to
the Act of State doctrine, but generally rules such.
16) Court did not rule that Cuba's actions were a violation of IL
17) C.A.V. wins
a) Although congress afterward enacted an act of congress to further prevent
this, the principles apply and are still relevant.
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Diplomatic Immunity:
1) This can be waived by the state, not by the individual.
2) Basic idea is that the diplomat should not be subjected to appearing in court.
This would not allow him to do his job properly. A state can instead consider
the diplomatic persona non grata. If he is shipped home the other State
probably will retaliate
Consular Immunity
This is determined by your Country.
1) Consular officials are facilitating tourist and business functions. Their contact
is less government to government and more business to business.
2) Same person can be a consular and a diplomatic at different times.
3) Only goes to him when he is in his official role. Anything he does outside his
consular role he can be prosecuted for.
Special Rules:
Other things that can get involved are:
Diplomatic bag, foreign country property, furniture (in the diplomatic bag)
Exceptions are requirements of carrying insurance for auto accidents.
If a diplomat pursues an outside profession, he is not given immunity while acting
in that capacity.
Heads of States or diplomatic missions
Not listed as diplomats, but still enjoy the same immunities as diplomats. These
are special provisions that are listed in the Geneva Convention
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Role of Legal Advisors to Foreign Ministries:
2) Kosovo:
e) Actions of NATO made things worse, by encouraging atrocity.
f) War is only over if collateral damage (hospitals, bridges, etc that were
used by civilians) This is true in every war.
g) There is revisionism in Kosovo. There were not as many atrocities by
Serbs against the Albanians as claimed or portrayed. This shows how
gullible we are to news.
h) Under UN and K4 major atrocities are now being attributed by Albanians
against the Serbs and are being watched by occupying forces.
3) Hector Feliciano Speech:
a) Discussion was about the pillaging of famous art by the Nazis.
b) They had acquired paintings they did not like to sell and barter to get
goods and services. Dealers participated in this. This was the surprising
thing…the art dealers were lackeys of the Nazi regime.
c) Mentioned INTERPOL as a vehicle to get information about the art.
d) Discussed very little was the difference between law in this country an
other countries. (e.g. a good faith purchaser can get title in some countries
but not in the United States v. a bailee (in that class of goods) who only
had possession who sold it to a good faith purchaser then the bailee
cannot only be held for the cost of the item)
e) Discovery in the U.S. is more likely to get information than in the civil
courts of other countries. (In some cases a suit is brought in France and a
parallel suit is brought in the U.S. with no intention to bring it to judgement
in the U.S., but rather to get to discovery).
(e) Most would probably not work. What ever they are must have a
very good likelihood of success. Economic sanctions do not usually
work.
(f) Try to make the sanction that there is so much benefit for
participating that the loss of the benefit by pulling out would be
highly detrimental to the country pulling out. The difficulty here is
that there is a dis-balance between countries as to how they would
be affected.
 Once a violation is found there are more intrusions into a
country
(7) Composition of inspection team observers.
(c) What will the observer add to the party. Gives competence to the
inspection. From the receiving side they are viewed as spies.
(d) It is easier if everyone is inspected the same at regular intervals.
There are no presumptions that something bad took place.
(8) Notice of withdrawal
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Merrillat, Legal Advisers and Foreign Affairs:
Legal Adviser’s Place in Government: (Class discussion): In general the idea
is what kind of advice the legal adviser gives (Be cautious telling clients that you
cannot do something. The secret of good legal advice, the way you want to do it
you can’t, but if you do it this way – you can get 85% of what you are trying to
accomplish.) Can you harmonize what you want to do with how we do it? Must
be clear and confident it would work and not expose you to litigation later. When
do you use forms? American lawyers do this the best. This is due to legal
systems and legal training that is in this country.
United States: State Department: is similar to Asst. Secy. of State. Career can
move laterally into other Departments. Not in the Foreign Service. Has the
opportunity to be very relevant, problem is the extraordinary difficulty of the legal
adviser giving advice to the Secy. of State of something that he does not want to
do.
Canada: Part of the Foreign Service: You are a lawyer and then go into the
Foreign Service of the country.
Mix between law and policy is an easier bridge. However the ability of the lawyer
to give unbiased advice (when personal promotion could be affected) is difficult.
Nigeria: All legal advice is centered in the Atty. Generals Office. Legal advice the
foreign ministry comes from outside the Foreign Ministry. In Nigeria Atty. General
is very powerful. This is maybe good domestically, but not good internationally
Japan and Certain Latin American Countries: Difficulty in doing this includes: the
need for security clearances to deal with classified information, legislative
objection to voting funds for outside research, the need to give “political”
favoritism assignments. May not be sensitive to problems.
Legal Adviser really makes a difference by many small things they do. Not all
wins are big. Know the people you work with and what they need.
Quality of legal work should be in direct proportion to your bill.
Turn down some cases if they don’t look like they are winnable or doable.
Put money and effort into other things
Don’t misjudge how long it will take to get something done.
The Work of the Legal Adviser: Law and Policy
Where the lawyer is expected to give legal and policy advice, separate this out.
Tell client clearly when it is legal advice v. your judgement regarding policy.
These are legal issues
These are mixed up
These are policy issues
Legal Advising as a Career
Often the kinds of salaries and people you attract is how you see the problems.
You will attract those who can attack the problem as you see them.
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