Class 5 Intro to International Law

1. Class 5Intro to International Law POLS 363 International Law P. Brian Fisher Spring 2010

2. ATS Cases • Results from Filartiga: ATS authorizes US juris over tortious acts committed in violation of law of nations. Here, “torture” was considered a violation of law of nations. • However, ATS is a purely jurisdictional statute; it does NOT itself provide a cause of action (must look to IL or respective laws of nation). • 3 elements for a successful ATS claim • 1. claim must be filed by an alien • 2. claim must be for a tort • 3. the action must have violated IL • NOTE: generally limited to individuals b/c suits against gov’ts must be brought under the Foreign Services Immunities Act. But can be US Corps (e.g. US corps involved in HRs violations Unocal in Burma, Shell in Nigeria)

3. “International” • Interactions and processes between States • States as contained entities bound by self-interested actors (i.e. sovereignty) • Gives rise to collective action problems or ‘Tragedy of the Commons’ • Necessitates forms of collaboration and cooperation for resolution

4. ‘law’ or ‘rules’ • Binding (usually enforceable) rules of conduct or procedure • Based on principles of fairness, justice, accountability, creating order, etc. • Subject to negotiation of/by community (local, domestic, and international)—socially constructed or determined • Why is this problematic at the int’l/global level?

5. International Law Traditional Def’n: “concerns the legal relationships between sovereign states and covers a wide variety of topics such as the law of the sea or the laws of war” (p3) More modern defn’s would include IOs, MNCs, individuals and groups.

6. State Sovereignty • Sovereignty: the right of the state government to exercise discretionary power over its territory (nation-state) • Provides the basis for int’l politics and international law (both enshrine this norm) • Nation-State: to qualify an entity must have a territory, a population, a government and the capacity to engage in diplomatic or foreign relations.

7. Who are ‘subjects’ to IL? Legal “subjects”: who enjoys legal capacity at the international level. Traditionally the state. IOs at times individuals (see LeGrande) Indiv direct responsibility (war crimes) indicate that indivs have legal capacity not derivative in the traditional sense UN Regional Orgs (Int’l Labor Org/Council of EU)

8. Ways to View IL • IL application: generally states and governments remain “responsible” for IL obligations • However, other entities can can be effected and hold rights/duties from IL. If a citizen is said to hold an international right, then there is some obligation to ensure that right (e.g. human rights). • Think about a municipality authorizing chopping off hands of “thieves”—HRs law would give individual rts to prohibit this punishment. • Also, death penalty in the US. • In addition, many other global entities can rely on and utilize IL instruments and processes for adjudication of grievances. • Also, many individuals and groups have challenged the sovereignty-based context of IL (e.g. terrorism and paramilitary groups)

9. Le Grand Case (Germ v. US)2001 ICJ 466 Facts: German Nationals living in US commit armed burglary killing a person. Found guilty (and sentenced to death). Appeal to ICJ, which grants a stay. Then file claim in US Sup Ct for compliance with stay. USSC rejects b/c of 11th A—which prohibits federal courts from hearing lawsuits of foreign states against a U.S. state. Germany argues that they should have been apprised of their legal right to consular assistance under the Vienna Convention. US argued that Convention did not grant rts to individuals, only to states Issue: should the defendants have been informed of consular assistance (once the US found out that they were not US citizens)? Holding: Yes. Ct found for Germany (rejected all US arguments) in upholding the stay. Reasoning: (1) granted rights to individuals on the basis of its plain meaning, and that domestic laws could not limit the rights of the accused under the convention (they can only specify the means by which those rights were to be exercised). (2) The ICJ found that its own temporary court orders were legally binding and that the rights contained in the Vienna convention on Consular Relations could not be denied by the application of domestic legal procedures (here ‘procedural default’). Import: (1) Intergovernmental organizations, even individuals—albeit to a more limited extent, can be “subjects” of rights and obligations of IL; (2) Supremacy of ILnon performance of an int’l obligation cannot be excused on basis of national law.

10. Modern Defn of IL Law that deals with “the conduct of states and of int’l organizations and with their relations inter se, as well as with some of their relations with persons, whether natural or juridical.” --Amer Law Instit (restatement of the Foreign Relations Law of the US (3rd) § 101

11. Sources of ILICJ Art 38(1) How do we know that a given rule is international law? See ICJ Statutes Art 38(1): The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply: • a. international conventions (1) (or treaties), whether general or particular, establishing rules expressly recognized by the contesting states; • b. international custom (2), as evidence of a general practice accepted as law; • c. the general principles of law (3) recognized by civilized nations; • d. subject to the provisions of Article 59, judicial decisions (4) and the teachings of the most highly qualified publicists (5) of the various nations, as subsidiary means for the determination of rules of law. • Use to examine whether a given norm is acceptable as a rule of IL (Paquette).

12. Potential Issues with Sources Art 38(1) is silent on hierarchy of the 3 primary sources (conflict of laws). In practice, however, it seems that (given a dispute b/w 2 states), an int’l court would give precedence to a treaty over customary law—provided the customary law did not hold the status of a preemptory or fundamental norm of IL (jus cogens). Customary law takes precedence over a general principle of law So, similar to US domestic structure: legislature, court decisions and principles of law

13. Paquete Habana175 US 677 (1900) Facts: During Spanish-Amer War, US President ordered naval blockade of Cuban coast “in pursuance to the laws of the US, and the law of nations applicable to such cases.” Blockade commander captured 2 small fishing vessels and sold them (as prize vessels). Owners sue for recovery. Issue: legal seizure? To what degree is IL part of US law? Holding: NO, significant evidence that the custom was to exclude fishing vessels from “prize capture.” Reasoning: “IL is part of our law, and must be ascertained and administered by the courts…for this purpose, where there is no treaty, and no controlling exec or legis act or judicial decision, resort must be had to the customs and usages of civilized nations.” (p700).

14. Issues from Paquete Habana Emphasis on 1st sentence: customary law is automatically and directly applicable to US courts; so, customary IL is one of the “Laws of the US” subject to supremacy clause Others emphasized 2nd sentence recognizing that president’s orders weren’t void simply because of customary IL, but because the president incorp limitations to customary IL into his orders. See Garcia-Mir v. Meese.

15. Garcia-Mir v. Meese788 F.2d 1446 (11th C, 1986) F: Many Cubans came to US, but whom the US didn’t want to admit and whom could not be deported elsewhere. US Atty General ordered their detention (for months). Detainees sued in US Fed ct arguing that “prolonged detention” was arbitrary and thus a violation of CIL. Issue: Does detention violate CIL? Does this this violation control US law? Holding: Yes and No. It does violate CIL, but the AG’s decision trumps IL. Reasoning: AG’s decisions trumps because it is a “controlling executive act”. Compare with Paquete Habana.

16. Conclusions CIL is important and a part of US law (Paquete Habana). But it does not necessarily “trump” all domestic law as supreme (Garcia-Mir). So, when a CIL (int’l norm) is denied by the political branches, US cts usually will not give effect to the norm. Also, US courts give special weight to views of the executive branch in interpreting CIL