I. The types and sources of international law Statute of the International Court of Justice: (Article 38) The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply: (a) international conventions, whether general or particular, establishing rules expressly recognized by contesting states;
(b) international custom, as evidence of a general practice accepted as law; Determining custom: The general practice of states (how the state behave historically). Accepted as law: (Involves some element of mass psychology) “opinio juris”; the idea that there is come consensus as to what is accepted as law.
(c) the general principles of law recognized by civilized nations; The domestic legal principles of nations generally accepted so that they may be applied on the international plane. EX: due process, notice… (d) … judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law. (secondary sources) Hints that there is some kind of priority among these sources. Judicial decisions might be useful in determining content of international law. Teachings of highly-qualified professors and research assistants. A. RULES OF CONVENTIONAL INTERNATIONAL LAW
i. U.S. PRACTICES AND CONSTITUTIONAL PRINCIPLES GOVERNING TREATIES Three Elements of Treaties Becoming the Law of the Land: 1. Self-Executing v. Non-Self-Executing Treaties 2. Last-in-Time Rule 3. Terminating a Treaty 1. TREATIES AND THE CONSTITUTION Relevant Constitutional Provisions: Article II, section 2: Allows the president to make treaties with the advice and consent of the Senate. Supremacy Clause (Art. VI): The Constitution, laws and treaties made under the authority of the U.S. shall be the supreme law of the land.
Guiding Principles on Role of Treaties in the Constitution: The existence of a treaty can make constitutional a statute that would have been unconstitutional absent the existence of the treaty, where the state interest is not sufficiently strong (e.g., “the invisible radiations of the 10th Amendment). (Missouri v. Holland)
No treaty can trump the Constitution. (Reid v. Covert) Above two cases are reconciled by attributing different weights to treaties affecting substantice individual rights and more general amendments (5th & 6th v. 10th). Missouri v. Holland (1920): The State of Missouri sued the Secretary of Agriculture to prevent enforcement of the Migratory Bird Treaty Act (executing a treaty between U.S. and Canada), which the State says invades its sovereignty and rights under the 10th Amendment. H: Nothing in the invisible radiations of the 10th Amendment preserves for the states the power to regulate these migratory birds. The right to regulate hunting of birds is within state power, but it is not exclusive to the states. Balancing Test Quality: When a court finds the federal interest strong enough, than a treaty can justify the legislation.
Reid v. Covert (1957): Defendants, civilian dependants of armed servicemen, killed their husbands on overseas bases. They were tried under the Uniform Code of Military Justice (UCMJ) which does not provide for a grand jury or jury trial. An executive agreement between U.S. and Great Britain provides the U.S. law apply in this situation. Government argues the UCMJ is the proper law. H: A treaty cannot go outside the constitution, and achieve by treaty what you could not achieve by statute. Therefore, a treaty cannot circumvent the jury trial guarantees of the Bill of Rights. Importance: (Black Letter) No treaty can trump the Constitution.
These holdings have been extended: A treaty that limited speech, saying that an embassy could not be held in disdain, was held invalid when it prohibited an anti-apartheid protest against the South African embassy. Rasul v. Bush: U.S. was found to have jurisdiction over a habeas claim by Kuwaiti and Australian citizens because of the special lease and exclusive jurisdiction the U.S. has over Guantanamo Bay. Thus, Guantanamo Bay is subject to U.S. law and the Constitution.
2. SELF-EXECUTING TREATY DOCTRINE Self-Executing Treaty: Becomes law in the United States once it enters into force internationally. It can be enforced by courts without domestic implementing legislation. It can be readily given effect by executive or judicial bodies, federal or state, without further legislation. (Restatement)
Non-Self-Executing Treaty: Becomes international law, but requires additional legislative action before it can be given effect domestically. Guiding Principles: Treaties are presumed to be self-executing. Treaties are self-executing, or not, on a provision-by-provision basis. Thus, it is a treaty’s parts, not the whole treaty, which is self-executing or not. Friendship, Commerce and Navigation (FCN) Treaties: (As in Asakura) Usually self-executing treaties, preserving the rights of foreign nationals while abroad. Where the treaty trenches on Congressional prerogatives, it is especially likely to be held not self-executing. Dualism: To say that a treaty is non-self-executing, only means that it is not enforceable within the United States. Thus, it U.S. can still be bound internationally.
Self-Executing Treaty Doctrine is unique to the U.S. and a few other nations. Most others do not make this distinction. What Makes A Treaty Self-Executing (Summary): Intent o Language o Context (including constitutional considerations) Judicial Predisposition (wildcard) o Result orientation (courts are inconsistent in applying this doctrine) o Mistaken or Incomplete Meanings of “Non-Self-Executing” Plaintiffs have no standing Enforcement of the treaty is a political question. What Makes a Treaty Self-Executing? 1. Intent. Courts have consistently held that the dominant determination of what makes a treaty self-executing is the parties’ intent. Restatement Sec. 111(4): An international agreement… is non-self-executing (a) if the agreement manifests an intention that it shall not become effective as domestic law with out legislation.” Determining Intent: Language. Treaty is self-executing where it doesn’t say anything about the need to enact legislation/domestic law to make the treating binding domestically. o Non-Self-Executing: Talks about future action.
o Self-Executing: Talks about present action. o Non-Self-Executing: Doesn’t proscribe definite action. o Self-Executing: Has the language of obligation, not aspiration. Evidenced in Asakura. 2. Context. Factors to be considered… (People of Saipan v. US Dept. of the Interior; Postal) Purpose of the treaty Availability and feasibility of alternative enforcement efforts. Existence of domestic procedures appropriate for direct implementation. Immediate and long-range consequences of self or non-self execution. Existing statutory history of the United States. (Problem: Context is being used to trump language.) Evidenced in Postal.
Includes Constitutional Considerations. Where the Constitution states that only Congress can protect or act in a certain way, a treaty that deals with that area is not self-executing. o RS §111(4)(c): An international agreement is non-self executing if implementing legislation is constitutionally required.
o EX: Declaration of war, appropriations, alienation of federal land.) o Dualism: “Domestic law is no defense to an international wrong.” You must keep track of what forum you are in. In an international forum, you must cite some reason in international law that discredits the treaty. But, in a domestic court, the Constitutionality of the treaty is pivotal. 3. Judicial Predisposition. (Wildcard) Judges, who may not feel they have the institutional capacity to deal with international law, will hold a treaty not self-executing, thus leaving the decision to Congress. Problem: Result orientation (courts are inconsistent in applying this doctrine) o This practice undermines the Supremacy Clause because it enables courts to bypass the supremacy of treaties when it wants to.
Mistaken or Incomplete Meanings of “Non-Self-Executing”: Courts will say the treaty is not-selfexecuting instead of asserting the following more correct conclusions. o Plaintiffs have no standing.
Treaty was never intended to cover people in plaintiff’s position. Problem: It says more about the individual, than about the treaty. o Enforcement of the treaty is a political question. Too politically-charged for the court to decide.
Asakura v. City of Seattle (1924): Plaintiff, a pawnbroker residing in Seattle but a Japanese citizen, brought this case to restrain the City from enforcing an ordinance that would prohibit him from conducting his business, against him. The ordinance does not allow licenses to operate as a pawnbroker to people who are not U.S. citizens. An FCN Treaty provides that Japanese citizens will be treated equally with U.S. citizens when conducting business in the U.S. H: (Self- Executing Treaty) The treaty is supreme, binding within the state of Washington, and the ordinance is invalid as it violates the treaty, denying equal protection to the plaintiff. United States v. Postal (1979):
Defendants, U.S. nationals, were arrested on a boat registered in the Cayman Islands while in international water, for conspiring to import marijuana. The Treaty of the High Seas states that the state flying its flag on the vessel has jurisdiction. Treaty Provision in Question: Article 6 of the Geneva Convention of the High Seas (states sail under the flag of one state only). H: (Not-Self-Executing Treaty) The context of the treaty demonstrates that the intention of the parties was that it would not be self-executing. I: Postal shows that courts can take into account context when determining whether a treaty is self-executing or not. 3. RESERVATIONS, UNDERSTANDINGS AND DECLARATIONS
General Principles Governing Reservations: These have been most often used in human rights treaties. Dominguez and Beazley: o Both cases found the reservations to ICCPR valid – that you could execute minors. o Human Rights Committee said it was void, but the Court said that the HRC ruling was a recommendation, and not legally-binding.
Senate and President have the right to add a reservation to an internationally-binding treaty. o Problem: Dualism. Internationally, the reservation can be seen as so inconsistent with the purpose of the treaty that it is void.
Generally, U.S. Courts will uphold these reservations. Last-In-Time Rule: If you have a treaty that is inconsistent with a statute, everything depends on which came last. The purpose is to uphold the priority of treaties and statutes under the Supremacy Clause, in case of an inconsistency. Last-in-Time Rule Applied:
Where a later-enacted self-executing treaty conflicts with an earlier-enacted statute, the earlier statute is abrogated to the extent that it conflicts with the treaty. Non-self-executing treaties do not trump earlier statutes until Congress passes the implementing legislation. Then, the new statute will trump the earlier-enacted statute. As applies to treaties, the later-enacted statute can abrogate an earlier-enacted treaty ONLY as to its effects in domestic law. Additionally, the Charming Betsy Doctrine mandates construing a statute to be consistent with international obligations.
4. The Problem of Interpretation Principles of Treaty Interpretation By U.S. Courts: Alvarez and PLO Plain-Meaning of the Text Customary International Law: If the plain meaning is unclear, construe the treaty consistently with customary international law.
Practice of the Parties: If the plain meaning is unclear, consider the practices of the states – either how they applied the treaty or how they have acted historically. This includes the negotiating history of the parties. Submissions of the Executive Branch are Entitled to Substantial Deference: But, they cannot be controlling. (PLO)
Save the Treaty Ker-Frisbie Doctrine: Courts will generally not inquire about the circumstances under which the defendant was brought before it. (Alvarez-Machain) Guiding Principles of the Problem of Treaty Interpretation: International law is not a suicide pact: States are not obliged to sacrifice their fundamental self-interest to vague laws of cooperation. o Thus, international law does not require the U.S. to stand by while its agents are tortured and murdered. (Alvarez is right.) o BUT, governments above all must act in accordance with the rule of law. (Alvarez is wrong.) Congress can override a treaty by statute: But if it intends to do this, it must make a clear statement it is doing so, and this clear statement must be within the body of the statute. (Clear Statement Rule required by Charming Betsy; See PLO)
Absent a clear statement that the statute is overriding the treaty, the Court will bend over backwards to reconcile treaties with existing law and preserve international agreements. (Save the Treaty: PLO) Principles of Treaty Interpretation in U.S. Courts: (Against Facts of Alvarez-Machain I) Plain-Meaning Rule of Treaty Interpretation
o The text controls, except for where it produces an absurd result. o Best argument that the treaty permits state-sponsored abductions: The treaty does not say anywhere that forcible abduction is prohibited. Reasons to Think Both Parties Intended Not to Prohibit Abductions: Both sides knew about the Ker-Frisbie Doctrine, and didn’t address it in the treaty. There exist extradition treaties that expressly don’t prohibit abductions. o Best argument that the text prohibits kidnapping:
If forcible abductions are allowed, several sections – including Article 9 – would be rendered meaningless if they can be ignored unilaterally (i.e., can’t extradite for political or military offences). Article 9: “If extradition is not granted, the requested Party shall submit the case to its competent authorities for the purpose of prosecution, provided that Party has jurisdiction over the offense.” o Gives the country discretion to determine who it wants to turn over to the other country. o Protects U.S. citizens from foreign jails.
o Each nation is given the right to insist that charges be brought against the national, in exchange for the other country being able to determine where it would like the prosecution to occur. The decision in Alvarez renders Article 9 superfluous.
o Criticism of the textual approach in this case: Alvarez-Machain represents the cleverness that has been used to circumvent international agreements. It is questionable whether the law arrived at the intent of either party. Violates implicit condition of good faith and fair dealing. Background Principles of International Law o International Law as a Guide to Interpretation: If the plain meaning is unclear, construe the treaty consistently with international law. Argument for Alvarez: If it’s already illegal, then the parties did not think they needed to include abduction in the treaty. Argument against Customary Law Posed by the Court: Violation of a principle of international law is not necessarily a violation of the treaty. o ICJ Statute: Customary norms arise out of a general practice accepted as law. o Customary rule on extraterritorial exercise of authority in Alvarez-Machain: There is a mutual understanding that one government cannot exercise its power in another state without the state’s consent. This was not within the scope of the question the Supreme Court granted cert to. It was only asked whether the abduction violated the treaty, not whether it violated international law. Practice of the Parties
o If the plain-meaning is unclear, consider the practice of the parties. o When parties act outside the treaty with mutual consent, that is fine as a separate agreement. o It’s hard to argue that this means it’s OK for one party to act unilaterally outside the treaty. This is what makes Mexico’s protest so powerful and important. o In dealing with the practice of the parties, the Court will sometimes look at the negotiating history of the treaty.
The submissions of the executive branch are entitled to substantial deference (PLO) o They cannot be controlling because the judiciary is not going to delegate its ability to say what the law is, to the executive.
Save the Treaty. (PLO) United States v. Alvarez-Machain (Alvarez-Machain I): Bi-lateral extradition treaty did not prohibit the forcible extradition of a Mexican citizen in Mexico, for trial in the United States for trial of a crime that occurred in Mexico. I: (1) Inkblot. What a Court sees is what it looks for. (2) Longer-term result of Alvarez: A devaluation of the power of treaties. If the executive branch can say, at any time, that the treaty means what we say it means, then no one is going to enter into international agreements with us. The good faith that makes treaties possible in the first place will be undermined. (3) Also shows that other governments should familiarize themselves with domestic law of the other country.
Roucher Case: The federal court’s authority to hear the case will be defeated if you violate the express or implied provisions of the treaty. (Dissent in Alvarez-Machain)
Decided on the Same Day as Alvarez Machain I: Two cases can be read consistently if you interpret them to apply in two different situations – where there has been a violation of the treaty and where there has not. United States v. Palestinian Liberation Organization (PLO): U.S. Anti-terrorism Act, which declared the PLO to be a terrorist organization, and prohibited the establishment of an office by the PLO within the U.S., conflicts with the UN Headquarters Agreement, which provides that the U.S. can’t interfere with the operation of the missions to the UN. H: The ATA was not meant to apply to the PLO under the UN Headquarters Agreement.
The Last in Time Rule Doesn’t Apply: Though the statute seems to nullify the Headquarters Agreement, the Court must do whatever it can to find the treaty and the statute consistent – so the last in time rule doesn’t apply. Three reasons why the rule doesn’t apply: 1. Not specifically mentioned in the language of the Act, so this inaction shows equivocation or ambivalence by Congress.
2. The language of the Act says “Notwithstanding any provision of law” and not “any treaty”. 3. No one in Congress stated a clear intent of wanting to address the PLO mission to the UN. I: The Court is bending over backward to preserve both the statute and the treaty. 5. EXECUTIVE AGREEMENTS
Division of Agreements into Three Categories: Congressional-Executive Agreements: Executive agreements pursuant to legislation. o Acting pursuant to express legislation giving him express power to enter into the agreement (where there may not be 2/3 support in the Senate, the President still has strong authority because the Act passes both houses). o Acting with implicit Congressional support to enter agreements required to carry out other international obligations previously authorized by Congress.
o EX: NAFTA and WTO. Congressional approval does not need to be explicit. (Dames & Moore) Sole Executive Agreements: Agreements pursuant to the Constitutional authority of the President. o Authorized by the Recognition Clause and the Commander-in-Chief Clause. Guiding Principles for Executive Agreements:
The President is the sole organ of the federal government in the field of foreign relations. (Curtiss-Wright) o True BUT… Congress (declare war, regulate commerce with foreign nations, approve treaties) and the Judiciary (interpret treaties) both have a huge impact on foreign relations. Supreme Court has never struck down an executive agreement as being outside the authority of the President. Thus, as a matter of Presidential power, the limits on executive agreements are fairly theoretical, because the Supreme Court has never struck one down.
The Court will give a generous interpretation of the spirit of the statute when it deals with executive power in the realm of foreign affairs. (Dames & Moore) Executive agreements cannot infringe upon individual rights under the Constitution, just as treaties cannot infringe on these rights (Reid). Congressional-Executive Agreements: The combined power of Congress to oversee foreign commerce and the President’s power to negotiate international agreements, lends strong authority to entering into congressionalexecutive agreements. (Made in the USA)
Executive agreements override inconsistent state law. (Pink) The President has the broad authority to settle international claims, and Congress has consented to this through its knowledge and acquiescence of the practice. (Dames & Moore)
Criteria for determining whether to use executive agreement or treaty: (Made in the USA) Extent to which the agreement involves commitments or risks affecting the nation as a whole. o This leans in the direction of treaties.
Whether the agreement is intended to affect state laws. o This leans in the direction of treaties (want Senate approval because then you trump state law under the supremacy clause). The degree of formality desired for an agreement. o This too leans toward treaties. Preference of Congress with respect to a particular type of agreements. o This actually cuts toward executive agreements, because then both houses of Congress would be able to consider the agreement.
Past United States practice o Congress and the President have dealt with trade agreements in the past as executive agreements. Problem is that all of these which cut in favor of treaties would have pushed for NAFTA to be a treaty. Political Considerations: If there is disfavor in the Senate, an executive agreement will get around it. Made in the USA Foundation v. United States: (Congressional-Executive Agreement) The President is not required to go through Article 2 proceedings (treaty clause, agreement submitted to Senate) to adopt NAFTA, or to adopt it by Fast-Track Procedure. Rationale: The President has the power to negotiate under the Constitution. Congress has the plenary power over foreign commerce under the Constitution. Therefore, the treaty power is not the exclusive means. Also, there is a tradition of using fast track procedures for making international agreements. I: The combined power of Congress to oversee foreign commerce and the President’s power to negotiate international agreements, lends strong authority to entering into congressional-executive agreements. United States v. Pink: (Executive Agreement Pursuant to Constitutional Power of the President) After the Russian Revolution, the Soviets nationalized U.S.-based assets and said they belonged to the Soviet government. The U.S. would not let them claim these. So, in 1933, both governments entered into the Litvinov Assignment, where the Soviets assigned their claims to U.S.-based assets to the United States government in exchange for recognition. The U.S. government is suing the insurance commissioner of New York, to claim as successor to the Soviet government, the New York assets of the First Russian Insurance Co. H: The President is allowed to enter into this executive agreement. It is the President’s power to recognize a sovereign nation, and his power supersedes these inconsistent state laws. I: Executive agreements override inconsistent state law.
Dames & Moore v. Regan: (Congressional-Executive Agreement) Carter entered into an executive agreement with Iran to free the hostages. He would release all attachments and liens on the Iranian assets in the United States, and suspend legal claims against Iran, channeling them into an international claims tribunal, in exchange for the release of the hostages. H: The executive agreement is valid. Though neither Act of Congress directly authorizes the suspension of these claims, they demonstrate that Congress has accepted the authority of the President to enter into settlement agreements because they were aware of this practice and did not reject it. I: The President has the broad authority to settle international claims, and Congress has consented to this through its knowledge and acquiescence of the practice. 6. LIMITS OF LOCAL POWER IN INTERNATIONAL LAW
Dormant Foreign Affairs Preemption: Even if the federal government has not exercised its foreign affairs power, through a statute or executive order, those implicit powers constrain what the states can do. There is an argument that it should apply only to war and treaties, but not to taxes. Guiding Principles for Local Power in International Law: Dormant Foreign Affairs Preemption. The local law must give way if it explicitly infringes on the federal power of diplomacy. (Zchernig) It is not enough to say that the law is null and void under dormant foreign affairs preemption, the government must show that the state law interfered with the federal law/responsibilities in very specific ways (can be implicit). (Crosby)
According to Garamendi, anything touching on the foreign affairs power is preempted by federal power. There is no clear test for determining limits to foreign affairs power: There is no bright-line test for determining where foreign affairs powers begin and end, but this an intended part of the Constitution in offsetting powers. No automatic deference to the Executive: The submissions by the Executive branch are entitled to deference, but for reasons of our own separation of powers, we cannot hold it dispositive. (Zschernig) Zschernig v. Miller (1968): (Dormant Foreign Affairs Power) There is a escheat law in Oregon that states before foreign heirs inherit an estate of an Oregon resident, the heirs – citizens of East Germany – must show that their inheritance will not be confiscated by their home governments. The Oregon law, as applied, seemed to have a demonstrated effect on international law. Footnote 8: Courts were using this law as a platform for dumping on Communist governments at a great height, thus showing the statute had significant diplomatic effects. H: The local law must give way if it infringes on the federal power of diplomacy. I: The Oregon law and laws like it are used as a vehicle for domestic law to affect international law.
Crosby v. National Foreign Trade Council (2000): Congress and the President made a statute regarding the mandatory sanctions on Burma. The federal law put specific economic pressure on the Burmese government, and designated the President as the sole spokesperson on this foreign affairs issue. The Massachusetts law was much more strict than the federal law, and interfered with the President’s role to negotiate (“speak with one voice”). It also had a much broader scope than the federal law. H: The Massachusetts statute was preempted by the federal law, as incompatible with the federal law that occupied the field. I: It is not enough to say that the law is null and void under dormant foreign affairs preemption, the government must show that the state law interfered with the federal law/responsibilities in very specific ways. Alters preemption doctrine: The preemption exists whether it is explicitly imposed or not. The Court finds implicit preemption, where it used to require explicit preemption. American Ins. Ass’n v. Garamendi (2003): Insurance companies who sold policies in Europe between 1929-1945, had to register with the CA government.
Issue: Is the CA law preempted by the federal government’s foreign affairs power? Government Argument: Violated the commerce clause and the dormant foreign affairs preemption. State Argument: However, states have had relative autonomy for regulation of insurance. Holding: The CA law is preempted. It impermissibly interfered with the President’s conduct of foreign affairs. Importance: Reinforces the idea that we have a different preemption standard when dealing with foreign affairs. Dissent: Short of a clear statement that the state law is preempted, the state law is good. ii. INTERNATIONAL PRINCIPLES GOVERNING TREATIES
1. THE VIENNA CONVENTION ON THE LAW OF TREATIES (VCLT) Vienna Convention on the Law of Treaties (VCLT): States the international legal principles regarding agreements in legal form. Pacta Sunt Servanda: (Art. 26) Honor your promises. Travaux: (Art. 32) Negotiating history. Rebus Sic Stantibus: (Art. 62) Changed circumstances. Jus Cogens: (Art. 53 and 64) Peremptory norms. Rules Binding Parties: Article 26: Pacta sunt servanda. Every treaty in force is binding upon the parties to it and must be performed by them in good faith. (Idea now considered customary law) Article 27: Domestic law is no defense to international obligations. A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty. o On the international plane, it is no defense that the Constitution would prohibit the responsibilities under the treaty.
o This is often taken care of through reservations. General Rules of Treaty Interpretation: Article 31: General Principles Governing Treaty Interpretation. (1) A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. (2) Can consider side agreements to interpret treaties. The context for the purpose of the interpretation of the treaty shall comprise, in addition to the text, including its preamble and annexes: (a) any agreement which was made between the parties in connection with the conclusion of the treaty; (b) any instrument which was made by one or more parties in connection with the conclusion of the treaty and accepted by other parties as an instrument related to the treaty; (3) There shall be taken into account, together with the context: (a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions;
(b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding the interpretation; (c) any relevant rules of international law applicable to the agreement. Article 32: Supplementary Means of Interpretation. Recourse may be had to supplementary means of interpretation, including the prepatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of Article 31, or to determine the meaning when the interpretation according to article 31: (a) leaves the meaning ambiguous or obscure,
(b) or leads to a result which is manifestly absurd or unreasonable. Termination of a Treaty: Article 52: Coercion of a State by Threat or Use of Force. A treaty is void if its conclusion has been procured by the threat or use of force in violation of the principles of international law embodied in the Charter of the United Nations. Issue: Does coercion include political or economic pressure? Article 62: (Rebus Sic Stantibus Doctrine) Fundamental Change in Circumstances (1) A fundamental change of circumstances which has occurred with regard to those existing at the time of the conclusion of the treaty, and which was not foreseen by the parties, may NOT be invoked as a ground for terminating or withdrawing from the treaty unless:
(a) the existence of those circumstances constituted an essential basis of the consent of the parties to be bound by the treaty; and (b) the effect of the change is radically to transform the extent of obligations still to be performed under the treaty. (2) A fundamental change in circumstances may NOT be invoked as grounds for terminating the treaty if: (a) the treaty establishes a boundary; or (b) if the fundamental change is the result of a breach by the party invoking it either of an obligation under the treaty or any other international obligation owed to any other party to the treaty. The Rebus Doctrine is almost never acknowledged as a defense in favor of the party invoking it. More Controversial Articles of the VCLT: These articles (18, 38, draft 50, 53, and 64) cannot be readily squared with the purely consensual basis for international obligation. Article 18: Interim obligation not to defeat the object and purpose of a treaty prior to its entry into force. A state is obliged to refrain from acts which would defeat the object and purpose of a treaty WHEN: (a) it has signed the treaty or has exchanged instruments constituting the treaty subject to ratification, acceptance, or approval, until it shall have made is intention clear NOT to become a party to the treaty; OR (b) it has expressed its consent to be bound by the treaty, pending the entry into force of the treaty and provided that such entry into force is not unduly delayed.
Issue with Article 18: Departs from the pure consent theory of international law – that states control their obligations.. o Suggests that the treaty has a “spirit” that cannot be violated. o Even before a party has ratified a treaty, that party is bound not to violate the purpose of the treaty. o Fundamental Principle: A state’s consent is all there is to international law. There are obligations that come with signature, even before full obligation by ratification. There is also a suggestion that treaties can be binding on non-parties. Article 38: Rules in a treaty becoming binding on non-party States through international custom. Nothing in articles 34 to 37 [dealing with the rights of third parties under international treaties] precludes a rule set forth in a treaty from becoming binding upon a third State as a customary rule of international law (if recognized as such).
AND SEE Jus Cogens: There are certain peremptory norms that cannot be violated or circumvented by contract. Issue in North Sea Continental Shelf Cases DRAFT Article 50 of the VCLT: Treaties conflicting with a peremptory norm of general international law (jus cogens). A treaty is VOID if it conflicts with a peremptory norm of general international law from which no derogation is permitted AND which can be modified only by a subsequent norm of general international law having the same character. This Draft Became Article 53 of the VCLT: Defines Peremptory Norm. For the purpose of the present Convention, a peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which NO derogation is permitted and which can be modified ONLY by a subsequent norm of general int’l law having the same character.
The primary changes made between Article 53 and draft article 50 was an attempt to ground jus cogens in actual states, rather than a more vaporous general enforcement idea. Issue: Article 53 is difficult because it recognizes enforcement by the “international community,” assuming the all states act with the same voice.
Article 64: Emergence of a new peremptory norm of general international law. If a new peremptory norm of general international law emerges, any existing treaty which is in conflict with that norm becomes void and terminates.
Jus Cogens trumps treaties. 2. RESERVATIONS To Determine Whether a Reservation is Valid, Ask:
1. What is the object & purpose? 2. Does the reservation directly (indirectly) thwart the purpose of the treaty? 3. Is the reservation remedial or substantive? Guiding Principles: Governed by Articles 19 and 20 of VCLT. Reservations regime lends a wide berth to countries to except themselves from responsibilities under a treaty, so long as it does not violate the object and purpose of the treaty. “Object and Purpose” Test is the hallmark of determining the validity of a reservation, but the problem is that this is determined by the nations as a whole, so you have to look at bilateral agreements to determine the validity of multilateral agreements.
The other states party to the treaty determine whether a reservation is consistent with its object and purpose. Human Rights Committee comment 24 demonstrates discontent with the reservations regime, binding states to a treaty they may not have joined without the reservation, even after the reservation is nullified. ICJ Opinion:
o A state which has maintained a reservation to the treaty is still a party so long as the reservation does not violate the object and purpose of the treaty. o If a state objects to a reservation that does not violate the object and purpose of the treaty, both parties remain parties to the convention, but the provision to which the reservation relates is suspended between the two of them.
Where ensuring as many signatories as possible is essential to the efficacy of a treaty, a reservation will more likely remain valid in order to bind more parties. (Switch from the “unanimity test” to the “object and purpose test.”) (ICJ 1951)
Reservations regime is something of a failure. (CEDAW) State of the Law Where Another Party Accepts, Objects, or is Silent to a Reservation: Where X reserves and state A accepts: Both get the benefits of the reservation (reciprocity). o Article 21(1) of the VCLT.
Where X reserves and state C remains silent: An actor’s silence is treaty as acceptance. o State C is thus treated like state A. o Article 20(5). Where X reserves and state B objects: o B objects only to the reservation and not to the treaty entering into force between states B and X: The treaty is in force except the reservation between the two states. Article 21(3): The provisions of the treaty to which the reservation relates is suspended between the two states.
o B objects to the reservation AND the entry into force of the treaty between the two states: There is no treaty between the two states and they will make an independent agreement between themselves separate form the treaty.
Article 21(3): When a State objecting to a reservation has not opposed the entry into force of the treaty between itself and the reserving states, the provisions to which the reservation relates do not apply as between the two states to the extent of the reservation.
The reservation has no affect between the relations of non-party states, regardless of whether they accepted, objected, or were silent to the reservation. o Article 21(2). Reservation Regime Issues: These provisions most likely had this effect in order to gain as many signatories to a treaty as possible. It is difficult to determine what are the obligations of a state under a multi-lateral treaty, because there are so many bi-lateral agreements relating to it.
An objection to the reservation, is practically treated like an acceptance of the reservation, because it remains in force as to all other states. Article 19 of VCLT: Formulation of Reservations A State may, when signing, ratifying, accepting, approving or acceding to a treaty, formulate a reservation UNLESS: (a) the reservation is prohibited by the treaty;
(b) the treaty provides that ONLY specified reservations, which do not include the reservation in question, may be made; OR (c) in cases not falling under sub-paragraphs (a) and (b), the reservation is incompatible with the object and purpose of the treaty. Note: (c) is NOT the traditional rule. The traditional Rule required ALL of the parties to consent before a party could make a reservation. o Traditionally, every state party had a veto power over the reservation. o The shift from the unanimity rule to the “object and purpose” rule is fundamental. Article 20: Acceptance of an objection to reservations
(2) When it appears from the limited number of negotiating States and the object and purpose of a treaty that the application of the treaty in its entirety between all the parties is an essential condition of the consent of each one to be bound by the treaty, a reservation requires acceptance by ALL of the parties. Article 20 is an echo of the traditional rule, but not the traditional rule itself. Advisory Opinion on Reservations to the Convention on Genocide ICJ (1951) 1. A state which has maintained a reservation to the treaty is still a party so long as the reservation does not violate the object and purpose of the treaty.
The genocide convention was designed to prevent genocide, as well as secure universality (bring on board as many states as possible). However, having the same obligation, is also a form of universality. But, the ICJ held that getting as many parties as possible was important, so the Court switched from the “unanimity test” to the “object and purpose test.”
EX of circumstances that would violate the object and purpose of the treaty: o Reservations not holding private actors liable. o Reservations generally considered remedial, not substantive. o Steinhardt says not recognizing the jurisdiction of the ICJ would be considered consistent with the Convention because there are other forums where disputes can be heard. 2. If a state objects to a reservation that does not violate the object and purpose of the treaty, both parties remain parties to the convention, but the provision to which the reservation relates is suspended between the two of them.
Where one state reserves and the other objects and does not want the other to remain a party, then there are NO treaty provisions binding between the two states. Problem with this opinion: States determine what is consistent with the object and purpose it. Process is so decentralized, that you have to look at all the bilateral relationships in a multilateral regime, which can be quite unmanageable.
Human Rights Committee, General Comment 24: Reservations that offend peremptory norms are NOT compatible with object & purpose. No substantive reservations. No prissy distinction between remedy and substance (i.e., cannot make a reservation saying there will be no remedy for human rights violations. No reservations regarding procedures. No reciprocity. No reservation that will defer to domestic law. Reservations must be specific and transparent and refer to a particular provision of the treaty and indicate in precise terms exclusion. Cannot reserve your state out of jus cogens. The Commission reserves final authority over the validity of reservations. A party making an illegal reservation still maintains obligations to all other parts of the treaty. o Problem: Maybe a state wouldn’t have signed a treaty without this reservation, so a state may end up a party to a treaty it did not consent to.
CEDAW Example: Various Reservations Arguably Undermine the Treaty. Kuwait wants to reserve the right (1) not to give women right to vote (directly goes against object and purpose of the treaty), and (2) preserve the authority of Islam/Shariah as law of society (more borderline, because recognizes religious principles, however these religious principles may be in direct conflict with Article 16, recognizing the rights of women in the household.. There are other reservations which shed light on the legality of Kuwait’s reservations (See Israel, Ireland and Singapore).
The patchwork quilt of reservations and objections leaves room for ambiguity and determining what the obligations under the treaty are. B. Rules of Customary International Law and “General Principles” General Principles: Principles of domestic law as recognized in the legal systems of civilized nations. (e.g., due process, evidentiary burdens and State Responsibility)
Customary International Law: Evidence of a general practice accepted as law. (ICJ Art. 38) Two elements of customary law: 1. States act in uniform, consistent way: Must be a general recurrence or repetition of the acts which gave birth to the customary rule, in a uniform and widely-accepted manner. (Objective) 2. Opinio juris: States act out of a sense of legal obligation: Psychologically, the recurrence is the result of a compulsory rule. (Subjective)
Jus Cogens: Customary norms that are so significant that states must follow them; states cannot opt out of jus cogens norms (i.e., genocide, war crimes, engaging in aggressive war…) Two Equally-Good, but Opposite Ways to Think about Jus Cogens: Natural law. There are certain inalienable rights; moral limits of what is necessary to be a human being. State practices. States adopted the idea of jus cogens as a limit upon themselves. Sources of Customary International Law:
State Practices and Diplomatic Exchanges o Looks at history of CLAIMS and DEFENSES made by a country Failure to object to a practice is a source of international law. (Cambodia) No pattern of protest when courts took criminal jurisdiction for crimes committed by aliens in other states with effects in state claiming jurisdiction. (Lotus)
Persistent Objector: For example, yes we did is, so what? vs. shocked, didn’t know it happened, it will never happen again. (Norwegian Fisheries) Treaties in Consistent Form o Multilateral treaties may codify customary law; o Treaty vs. custom: Treaty will win if later in time; but a new customary norm will supersede inconsistent treaty obligations. EX: Prohibition on torture. Laws, Constitutions, High Court Decisions in Various Countries Writings of Publicists Resolutions and Declarations in Consistent Forms o Questions for use of UN Resolutions for opinio juris Does UN Resolution address LEGAL subject? Is UN Resolution consistent with practice? What is the voting record (general number and types of states that voted yes or no)? o Rationale for Use not binding but formative influence in development of int’l law. often first stage before formal treaty. often purports to express already existing customary law. are official expressions of governments concerned and are relevant and entitled to weight in determination of customary international law.
evidentiary even for those not signatories. Decisions of International Tribunals Authoritative Compendia or RS of Customary Int’l Law o EX: RS of Foreign Relations Law, because collected resource of relevant norms. Guiding Principles: Lack of objection to a certain practice permits the inference that there is no opinio juris against its use. (Lotus) International law gives states a wide berth when determining their extraterritorial rules. (Lotus) Utility of Resolutions to Determine State Practice: These resolutions, supported by consensus and demonstrating the will of states, are evidence of a general practice accepted as law because they are the source of information required to determine customary international law. (TOPCO) o But, because not binding law, they may lack opinio juris.
Though resolutions are not legally binding, they give reasons why states vote the way they do. (TOPCO) Voting records behind resolutions demonstrate how widely-accepted a certain principle is in the international community. (TOPCO)
Where there is an absence of opinio juris, you can argue that the state is in flux (lex ferenda) and domestic law should apply. (Lotus and TOPCO) A newly independent state (former colony), stands in the shoes of the colonial power; succeeding to all of the colonial power’s obligations and rights in this area of the world. (Cambodia) Doctrine of Acquiescence: A state’s failure to assert is rights over time will draw an inference that it has acquiesced to the rights of the opposing state. International law draws the same inference from silence, as does the common law in the doctrine of adverse possession. (Cambodia) Consistent objection to a customary norm from the inception of the norm allows a State to opt-out. (Norwegian Fisheries)
Opting-Out of International Law: (Norwegian Fisheries) Vice: This, on the face, enables a state to assert some sort of immunity to international law such that no customary norm could be enforceable. Virtue: Opting-out process also preserves the power of a state’s consent in creating its legal obligations. TEST to distinguish between legitimate and illegitimate exercises of opting-out: 1. Timing of the objection
o Norway made its unilateral position known at roughly the same time as the norm was emerging. 2. Persistent (OK) versus Subsequent (Not OK) Objectors o Persistent: Objector makes his feelings known at the time the norm is emerging; the rest of the world is in the process of accepting this practice. (EX: South Africa was a persistent objector to the norm against discrimination.)
o Subsequent: A state that goes a long with the norm for some time, and then attempts to opt-out. 3. How other states react. o If other states agree that the subsequent objector’s opt-out is valid, this is a sign that the ancient customary norm is beginning to unravel – is being un-done by the actions of states. Case Where No Customary International Law
The Lotus Case: Collision at sea between Turkish and French vessel. Turkey instituted criminal proceedings against French national. Issue: Do principles of international law prevent turkey form instituting criminal proceedings against a French officer captured in the high seas? Alleged Principle of International Law: The flag state (flag flown on the ship) is the state that has exclusive jurisdiction over collision cases. H: The court found no opinio juris to support the alleged principle that France should have jurisdiction here because there was not evidence of objections to the exercise of extraterritorial jurisdiction. Even though the French officer was a French ship, the collision occurred near Turkey’s territory and against Turkish citizens, so Turkey was not unreasonable in exercising jurisdiction in this offense. Importance:
International law gives states a wide berth when determining their extraterritorial rules; state sovereignty is presumed except where limited by international law. States have, in the past, legitimately prosecuted people who commit crime in a foreign place where the effects of are felt locally. Because the vessel is considered a little piece of Turkish territory, the Court interprets the collision to be “felt” on Turkish territory. You just can’t presume restrictions on the actions of states. Customary law in a commercial setting. The Texaco (TOPCO)/Libya Arbitration: Libya nationalized the petroleum companies. Issue: What customary legal limitations are there, under international law, to nationalize the property of aliens without compensation? Libya’s Argument: It exercised its plenary sovereignty over its own territory, and it has certain authority to nationalize private property. TOPCO’s Argument: There is customary law protecting private contract rights when dealing with a sovereign state. H: International customary law requires nationalizing state to pay just compensation for nationalization of natural resources (Principle: State responsibility to aliens: Traditional notion in international law governing TOPCO. International minimum standard for the treatment of aliens and their property. Well-established norm going back centuries.)
Evidence Relied on by the Arbitrator Relied to Make His Decision: UN Resolutions and Declarations Voting records behind these resolutions
o Look at number of votes o Look at the reasons expressed for voting for and against the resolutions. o Private Contract Rights were an emerging, but not accepted, norm: The arbitrator found consensus on 1803, but great divisions of ideology in voting on the later, pro-south resolutions. The pro-south resolutions included a number of abstentions and even separate provisions developed to ensure passage where there was division.
Thinking about Lotus and TOPCO Together: Status of International Law: o International law was not well established in Lotus. o In TOPCO, international law was well-established (state responsibility to aliens), so now more evidence is required to overrule (sources for evidence include NGOs and International courts). Possible Bias for Western Nations over Developing Nations. Two cases are also reconcilable across time:
o Lotus was decided when there were very few international organizations, and what few there were had made little contribution to international law. o However, in TOPCO the UN had become a forum for opinio juris and gleaning customary international law. International law draws inferences from silence AND from ambiguous behavior Temple of Preah Vihear (Thailand v. Cambodia) (1962): Doctrine of Acquiescence. There is a 10th Century temple on a cliff, overlooking a Cambodian plain. Thailand claims it’s border is the cliff, and thus the temple belongs to it. But Cambodia believes the border is just behind the temple. Issue: Whether past decades of behavior of Thailand demonstrates acquiescence to the border line, drawn in Map Annex 1, giving the temple to Cambodia? And whether Thai acts of an administrative character created sovereignty there? H: (1) Thailand’s administrative actions did not create sovereignty. (The acts that were there were few and far between, what actions there were, were of local administrators or private actors, these actions also did not clearly occur around the temple.) (2) Thailand’s acquiescence over the decades displaced the treaty line (estoppel). (Thailand submitted a map showing Cambodia owned the temple, it failed to respond to inquiries by France and Cambodia as to its actions around the temple, and it acquiesced to certain maps.) Importance:
Undermines the idea that simple consent is all there is to international law. Notion of implied acquiescence ensures that states keep talking toward the resolution of their dispute. Persistent objection to a customary norm from the inception of the norm allows a State to opt-out. Norwegian Fisheries Case (UK v. Norway) (1951): The UK wanted to exploit the waters around Norway, but Norway declared that its waters based on a straight baseline connecting the outer limits of the islands surrounding it. UK argued that whenever you have a coastal line, you need to follow the outline of the coast. H: Norway can use straight baselines because there was sufficient historical practice to support this practice. The lines, however, cannot be unreasonable so as to go too far out into the water. I: The Court is suggesting that Norway could opt-out of the general practice of states and customary international norms.
Factors considered by Court: Norway had issued a decree in 1869 declaring its boundaries – France objected, but the UK did not. Thus, the court infers acquiescence. Norway had historically depended on these waters. UK used the same practice in delineating the waters around Ireland. 1. CUSTOMARY INTERNATIONAL LAW IN U.S. COURTS Article 1, Section 8, Clause 10: Congress the power “to define and punish… offenses against the Law of Nations” (not widely invoked). Guiding Principles: Incorporation of International Law into the Federal Common Law: “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.” (Paquete Habana) o Though Erie said there was no general federal common law, it said nothing about specific federal common law.
o Therefore, the Courts can invoke customary international law against the executive branch. If there is no controlling statute, customary international law wins: “Where there is no treaty and no controlling legislative or judicial actions, resort must be made to the customs and usages of civilized nations.” (Paquete Habana)
“Work of jurists and commentators…” illustrates academic acceptance of international law as customary. (Paquete Habana) Domestic statues must be read in light of international law, unless Congress explicitly said to ignore international law. (Paquete Habana) (ATCA Cases) o Congress, if it wanted to, could overrule federal common law/customary international law. o It is important, however, to recognize that the international commitment remains intact, because domestic law is no defense to international obligations.
The President may be able to overrule federal common law, in his residual authority under the Constitution; however, he cannot delegate that authority to a lower level official. (i.e., lower defense official in Paquete) International Law as an Interpretive Tool: Even if courts are ambivalent about making international law dispositive, courts commonly use it as an interpretive tool. (e.g., evidence of customary international law being used to determine domestic environmental law.)
o International law is not made binding in such a way that raises legitimacy issues, but it plays an important secondary role. Charming Betsy Principle: Courts should interpret statues to be consistent with international law. Alien Tort Claims Act (ATCA): Jurisdictional statute authorizing suit of private individuals. o Applies to torture of aliens in another country. (Filartiga) o Violation of international law does not require a state actor to sue under ATCA. (Kadic) o Companies can be sued under ATCA—standard in the air. (Unocal) Treaties can give rise to custom: 3 factors 1) norm-creating, 2) widespread state practice, & 3) passage of time. (North Sea Continental Shelf )
Alien Tort Claims Act (Section 1350): If a foreign plaintiff can show injury caused by a tort “committed in violation of the law of nations,” and there is personal jurisdiction over the defendant (served in the U.S.), then United States courts can provide relief.
Limitation: Only applies to suits against individuals, not foreign states or sovereigns (that is covered by FSIA). Sosa: The ATCA Does Not Create a Cause of Action. o But it DOES Offer a Cause of Action in Limited Cases, such as where there are a limited set of federal common law causes of action, under Filartiga and Kadic. o Another statute – like the Torture Victim Protection Act – could provide a right of action. o Customary international law also could provide a cause of action. Court Has to Be Cautious About Use of Federal Common Law to Find Customary International Law: Judicial recognition of federal common law in the form of customary international law is permitted in NARROW circumstances.
No longer a natural law notion of the common law: The Courts are no longer held together by a common set of beliefs and values embodied in common law. o Erie put existence of federal common law in jeopardy. Legislative Institutional Capacity: Creation of private rights of action are better left to the legislature in most cases, but not cases of international customary law. No congressional mandate to seek out and define a violation of customary international law. Political Question Doctrine: Could have effect on foreign relations. Test for Inferring Causes of Action From Customary International Law: (Sosa) 18th-Century Paradigms Recognized by the Court:
o Assaults on Diplomats o Safe Passage/Neutrality o Piracy Court Expands These Paradigms to Include… Under Filartiga and Kadic: o Torture o Genocide o Prolonged Arbitrary Detention Two circumstances where corporation can have liability under international law: (Unocal) International Norms: Slavery, genocide, piracy. Sufficiently related to state action as to be liable: o Willful Participants
o Joint Action o Section 1983: Public Function o Conspiracy o Aiding and abetting Some Courts Have Looked at Criminal Factors to show Aiding and Abetting Presence + Knowledge + Intent + Benefit Determining what the right test will be is still in dispute in courts. US courts can turn to customary international law to answer domestic questions. The Paquete Habana (1900): During Spanish-American war, two fishing boats were captured, taken to Florida, and sold as prizes of war. Customary International Norm at Issue: Whether fishing vessels are exempt from seizure as a prize of war. H: This acting out of humanitarianism, excepting fishing boats from seizure, had ripened into a rule of customary international law. Thus, the boats, their cargo, and crew were exempt from seizure by the U.S. under customary international law. Court’s Rationale: Studying State practice for the past 500 years, working in four languages, the Court found this practice was ancient and well-recognized. I: US courts can turn to customary international law to answer domestic questions.
Filartiga v. Pena-Irala (1980): Joelito Filartiga is tortured to death by Pena, the Inspector General of Police for Asunscion, Paraguay. Joelito’s sister, who was shown his body by Pena, moved to the U.S. Upon hearing Pena was in NY, she served him with papers charging torture. H: Deliberate torture perpetr