Transnational cases & articles

Question 1

Kindler v. Canada

Answer 1

Kindler is convicted of murder, Canada (which doesn’t have capital punishment) should surrender him to the US where he will be executed. Execution is not cruel and unusual punishment, death penalty wouldn’t shock conscience of Canadians (voted down by relatively narrow margin which reflects public values), Canada shouldn’t expel lesser criminals but keep those who committed serious crimes that call for the death penalty which might make Canada a more attractive destination for American fugitives, the US criminal justice system is similar in many ways, deference to executive in foreign policy matters (judicial restraint)

Question 2

United States v. Burns and Rafay

Answer 2

Canadian citizens committed murders in the US and went to Canada. In the absence of exceptional circumstances (not listed), assurances in death penalty cases are constitutionally required. Canada advocates abolition of the death penalty. There are wrongful convictions, other countries also require assurances before extradition, the death penalty is irreversible (whereas the judicial system changes), principles of fundamental justice. There’s no evidence that requiring assurances will undermine Canada’s good relations or that fugitives will flock to Canada. Balance changed from Kindler (extradition without assurances) to the unconstitutionality of it

Question 3

Soering v. United Kingdom

Answer 3

German applicant killed girlfriend’s parents in Virginia. Surrendering him to the US without assurances would risk going against Article 3 of the European Convention. Consider factors: manner in which it is imposed or executed, personal circumstances of the condemned person (18 y/o) and a disproportionality to the gravity of the crime committed, conditions of detention awaiting execution (6-8 years in VA, mounting anguish)

Question 4

Canada-US extradition treaty Art. 13

Answer 4

when there are competing requests

Question 5

Canada-US extradition treaty Art. 17bis

Answer 5

a fugitive may commit a crime in both the requesting and requesting state

Question 6

Abbott v. Abbott

Answer 6

does a parent have a right of custody by their ne exeat right (authority to consent before the other parent takes the child out of the country)? Yes, father has right of custody under the Convention and ne exeat rights are the rights of custody. Use the Convention’s text (right of custody includes determining child’s place of residence and care of the child), view of Department of State, other states’ definitions, and Convention’s purposes. Convention ensures international consistency. Decisions regarding custody rights should be made in the country of habitual residence for the best interests of the child. Abduction causes harms, want to deter child abductions and require a return remedy

Question 7

Roper v. Simmons

Answer 7

is it constitutional to execute a juvenile for capital crime? 8th/14th prohibit executing a mentally disabled person. No, there’s no national consensus for juvenile capital punishment, all other countries are against it, minors aren’t as mature/developed/have strong values and are more susceptible to pressure. Retribution isn’t as strong for a minor, and it’s unclear if the death penalty is a deterrent for juveniles. Interpret 8th cruel and unusual punishments to include juvenile capital punishment. UK abolished it and the 8th has origins in English Declaration of Rights. US values of individual freedom and human dignity

Question 8

The Paquete Habana

Answer 8

Spanish fishing vessels and cargoes were seized as prize of war by the US. It violated customary IL. Considering history, treaties, other countries, writers. Unarmed and peaceful fishing vessels are exempt from capture as a prize of war

Question 9

Treaty formation articles

Answer 9

Adoption (Art. 9) first stop in treaty making. Then authentication (Art. 10), signature (Art. 12), ratification (Art. 16)

Question 10

ICJ Art. 38

Answer 10

3 sources of IL (treaty, customary IL, general principles), subsidiary sources (judgments of courts, publicists)

Question 11

ICJ Art. 19

Answer 11

reservation - state ratifies except for a few things. It’s fine as long as it doesn’t fundamentally change treaty/go against purpose/object

In response to another state’s reservations, other states can say: 1) I accept 2) I accept in which it changes your relationship with me and I will issue the same reservation with respect to you (e.g. rights of diplomats - immune from criminal prosecution - want chauffeurs to also be immune, I want that for me too) 3) I object but I don’t care 4) I object and I consider you to be a party of the treaty with respect to me because non-conforming reservation (you aren’t bound to me but you can be bound to others)

Question 12

VCLT Art. 41

Answer 12

amendments - renegotiate if treaty allows and amendment doesn’t affect enjoyment by other parties of their rights under treaty and it doesn’t derogate from object/purpose of treaty

two or more of the parties to a multilateral agreement can agree to modify the treaty as amongst themselves IF the treaty permits it, the modification is not prohibited by the treaty AND it doesn’t ‘affect the enjoyment by the other parties of their rights under the treaty or the performance of their obligations’ AND the modification does not relate to a provision ‘derogation from which is incompatible with the effective execution of the object and purpose of the treaty as a whole’

Question 13

Medellín v. Texas

Answer 13

ICJ held that the US violated Article 36(1)(b) of the Vienna Convention on Consular Relations by failing to inform Mexican nationals of their Vienna Convention rights. Neither Avena nor the President’s Memorandum were directly enforceable federal law that preempts state limitations on the filing of successive habeas petitions. Treaty isn’t binding domestic law unless Congress enacts statutes implementing it or if it’s self-executing. President can’t rely on non-self-executing treaty to establish binding rules of decision that preempt contrary state law

Question 14

Vienna VCCR Art. 36

Answer 14

provides for communication and contact between a state’s consular officials and nationals of that state who are arrested or detained in a foreign jurisdiction

Question 15

Art. 31(a)

Answer 15

treaties interpreted in good faith in ordinary terms in context/purpose. Plain meaning rule
Only if plain language leads to result that is absurd or meaning is obscure, Art. 32 supplementary means of interpretation (parole evidence) includes preparatory work, conversations, circumstances

Question 16

US v. Netherlands (Palmas case)

Answer 16

Palmas is a single, isolated island, and the US claims title through Spain’s discovery and ceded Philippines to the US while the Netherlands first colonized by the East India Company and made conventions with native princes. Netherlands has title - continuous and peaceful display of territorial sovereignty, suzerainty, open and public display whereas Spain didn’t exercise sovereignty. Netherlands won, even if Spain discovered it didn’t actually occupy/use

Question 17

Liechtenstein v. Guatemala (Nottebohm case)

Answer 17

Nottebohm, a German national, engaged in substantial business in Guatemala and applied for naturalization in Liechtenstein. He was arrested in Guatemala and deported to the US, denied readmission to Guatemala, and went to Liechtenstein. Liechenstein exercised right of diplomatic protection against Guatemala because it arrested, detained, expelled, and refused to admit Nottebohm. Guatemala didn’t need to recognize his Liechtenstein nationality and Liechtenstein wasn’t entitled to extend its protection to him. Nottebohm was more attached to Guatemala and wanted to return there whereas he wasn’t settled in Liechtenstein. His naturalization lacked genuineness and was so he could substitute his status as a national of a belligerent state for a neutral state and be protected under Liechtenstein

He wants his property back from Guatemala, but Liechtenstein doesn’t have standing to bring his claim (their grant of nationality to him was illegitimate). Liechtenstein can give him citizenship but in order to have international diplomatic protection, there needs to be more connection

Question 18

Belgium v. Spain (Barcelona Traction company)

Answer 18

Belgian shareholders in the Barcelona Traction company incorporated in Canada (for over 50 years) wanted reparation. Should Belgium exercise diplomatic protection of their shareholders? No, corporate entity is within domestic jurisdiction/municipal law, the national State of the company alone makes the claim. Canadian government exercised diplomatic protection over the company. If people on whose behalf the State is acting consider their rights aren’t protected, they don’t have a remedy in IL but in municipal law. State has discretionary power to grant or refuse diplomatic protection for their nationals. Even though 88% of shareholders were Belgian, don’t want to open the door to confusion and insecurity in international economic relations. Company was probably in Canada for tax or other advantages, it’s not equitable advantage should be balanced by the risks. Belgian government doesn’t have just standing, reject claim

Need to determine company’s nationality. Theories: where it was incorporated (good for clarity), “brain” test, where is the equity ownership, where most of business is conducted. ICJ chooses where it’s incorporated (which would encourage forum shopping)

Question 19

Rome Statute of ICC Art. 6

Answer 19

genocide

Question 20

Rome Statute of ICC Art. 7

Answer 20

crimes against humanity

Question 21

Rome Statute of ICC Art. 8

Answer 21

war crimes

Question 22

Rome Statute of ICC Art. 8bis

Answer 22

crimes of aggression

Question 23

Prosecutor v. Krstić

Answer 23

Srebrenica in eastern Bosnia/Herzegovina was a so-called safe area but the Bosnian Serb Army (VRS) removed women/children/elderly from the enclave and killed 7-8k Bosnian Muslim men. VRS general-major Krstic was guilty of genocide. A substantial part of the group was killed (⅕), men were prominent, emblematic, and essential to group’s survival (spouses couldn’t remarry). Srebrenica was of immense strategic importance to Bosnian Serb leadership and would send a signal, most Muslim inhabitants in the region had sought refuge there. There was intent-VRS didn’t differentiate between men of military status and civilians. The fact that they didn’t kill women and children could have been because of public opinion/international censure

Question 24

US v. Belfast

Answer 24

defendant convicted in US for torture and firearms offenses in Liberia. Torture Act was valid (even though it may have been more broad than the Convention Against Torture), defendant was subject to prosecution under it and sentence was reasonable. Act was rationally related to treaty

Congress made Torture Act more broad than CAT, changes mens rea/actus rea, changed it to be broader than state official. But in ratifying, broadened torture definition to include more people
Torture Act was valid, not material changes. Test for when Congress properly enacts treaty: rational relationship test, related to treaty

Question 25

Art. 6 Rome Statute

Answer 25

genocide

Question 26

Azanian Peoples Organisation (AZAPO) and Others v. President of the Republic of South Africa and Others

Answer 26

South Africa Truth and Reconciliation Act started Committee on Amnesty which had powers to consider applications for amnesty if applicant made a full disclosure of facts and it was associated with a political objective. Once amnesty was granted, offender couldn’t be held criminally or civilly liable. Amnesty impacts fundamental rights to redress and safety. But most of the acts of brutality and torture weren’t well recorded and couldn’t be verified, much was shrouded in secrecy and loved ones as witnesses wouldn’t provide necessary objective and corrobrorative evidence. Amnesty in order to discover the truth and move on/reconcile/reconstruct democracy. Amnesty only if perpetrator made a full disclosure and had real political objective. Other countries required amnesty to facilitate transition, truth. Crimes were during internal struggle under command. They should be absolved from civil liability too because truth wouldn’t be effectively revealed. Legislation in the epilogue allows for amnesty that protects a wrongdoer who told the truth both from criminal and civil consequences Azanian wanted people to be prosecuted. They argue customary IL has a duty to prosecute human rights abusers. They try to use IL to win Distinction between interstate and intrastate. Because this was interstate, IL not as strong. If the Azanian people could’ve relied on other law not IL, they would have

Question 27

Almog/Afriat-Kurtzer v. Arab Bank

Answer 27

1600 plaintiffs bring claims for damages against Arab Bank for knowingly providing banking to terrorist organizations that sponsored suicide bombings and murderous attacks on innocent Israeli civilians. It’s a violation of the law of nations under the ATS. The conduct is internationally condemned - bombing convention, states have ratified. No consensus on definition of terrorism, but organized systematic suicide bombings and murdering innocent civilians are universally condemned. Not self-determination of a people Bank argues there’s no universal definition of terrorism and there’s an exception for people’s self determination (against repressive state) Pull out norm of not killing innocent civilians among various definitions

Question 28

Morrison v. National Australia Bank

Answer 28

does Securities Exchange Act provide cause of action to foreign plaintiffs suing foreigners and American defendants for misconduct? No, does not apply extraterritorially. Effects test (whether wrongful conduct had a substantial effect in the US) and conduct test (whether wrongful conduct occurred in the US). Congress didn’t have intention, policy reasons Act applies extraterritorially in some parts but not in this area, so claim can’t go forward If unclear, up to court to determine Transaction test: in financial transactions involving foreign securities: 1) if initial purchase of stock is in US or 2) involves a corporation listed on US stock exchange. If so, the Act will have extraterritorial application Policy discussion - don’t encourage forum shopping, not reduce national sovereignty of other states

Question 29

Daimler v. Bauman

Answer 29

22 Argentinians filed a complaint against Daimler, a German public stock company, and alleged MB Argentina collaborated to kidnap, detain, torture, and kill workers. MB USA was a Daimler subsidiary. Does a court in the US have the authority to entertain a claim brought by foreign plaintiff against foreign defendants based on events occurring entirely outside of the US? No, didn’t have personal jurisdiction as MB USA wasn’t connected enough

Question 30

Bond v. US

Answer 30

Petitioner Bond sought revenge against woman with toxic chemicals, woman suffered minor chemical burn but assaults were otherwise unsuccessful. Prosecutors charged Bond with violating the Chemical Weapons Convention Implementation Act. § 229 doesn’t reach Bond’s simple assault/local crime. The global need to prevent chemical welfare doesn’t require the federal government to reach into the kitchen cupboard. Congress didn’t intend it to, look at other statutes (regulating firearms), Congress should not intrude on state police power

Question 31

RJR Nabisco v. European Community

Answer 31

The Racketeer Influenced and Corrupt Organizations Act (RICO) prohibits certain activities of organized crime groups in relation to an enterprise, covers predicate offenses (state and federal offenses). RJR violated RICO (money laundering through nicotine). Federal laws only have domestic application unless there’s clearly expressed congressional intent. 2-step framework for analyzing extraterritoriality: 1) whether the presumption against extraterritoriality has been rebutted—i.e., whether the statute gives a clear, affirmative indication that it applies extraterritorially (if statute is not found extraterritorial, then) 2) examine statute’s “focus” to determine whether the case involves a domestic application of the statute. If the conduct relevant to the statute’s focus occurred in the US, then the case involves a permissible domestic application. RICO applies extraterritorially/to foreign racketeering activity, more to criminal charges than civil damages Makes predicate offenses (state/federal offenses) more criminalized Narrower approach to civil damage than criminal charge Like Morrison in terms of civil law but gives more extraterritoriality to criminal charges (prosecutors more likely to prosecute)

Question 32

Kiobel v. Royal Dutch Petroleum

Answer 32

petitioners Nigerian nationals in the US filed suit against Dutch, British, and Nigerian corporations that aided the Nigerian government’s atrocities. All relevant conduct was outside of the US and mere corporate presence isn’t enough. Their claims were dismissed, presumption against extraterritoriality applies to claims under the ATS. Protects clashes between our laws and other countries, US shouldn’t be hospitable forum to enforce international norms, possible collateral consequences. Sosa limited federal courts to recognizing causes of action only for specific, universal, and obligatory alleged violations of IL. The presumption against extraterritoriality isn’t rebutted by the text, history, or purpose of the ATS. 3 principal offenses against the law of nations when the ATS was passed: violation of safe conduct, infringement of the rights of ambassadors, piracy (and applying US law to pirates has less foreign policy consequences). Defer decisions to political branches. Test if Congress is silent on extraterritoriality: claims have to touch and concern the US ATS doesn’t have extraterritorial reach unless Congress explicitly says Test if Congress is silent: claims have to touch and concern the US so as to oust the presumption of extraterritoriality E.g. physicality of violation occurs here, decision that leads to violence elsewhere happens here, person against whom claim is brought (perpetrator) has immigrated to the US/became a citizen/lives here

Question 33

Jesner v. Arab Bank

Answer 33

Petitioners filed suit under ATS alleging they were injured or killed by terrorist acts committed abroad that were facilitated by Arab Bank (Jordanian financial institution with branch in NY) as bank used NY branch to launder money. Petitioners’ ATS claims were dismissed. Minor connection to conduct in US, foreign corporations can’t be sued

Question 34

Nestle USA v. Doe

Answer 34

Respondents from Mali allege they were trafficked as child slaves to produce cocoa in the Ivory Coast. Nestle buys cocoa from farms on the Ivory Coast and provide financial resources. It was impermissible extraterritorial application of the ATS. 2-step framework: 1) statute applies only domestically, ask whether it gives a clear, affirmative indication that rebuts the presumption (ATS doesn’t) 2) plaintiff must establish the conduct relevant to the statute’s focus occurred in the US (not strong enough here, needs more domestic conduct than general corporate activity)

Question 35

Sosa

Answer 35

Plaintiff was Mexican drug runner who alleges his due process rights were violated. He argued he should get tortious damages for abduction, detention, etc. This didn’t rise to the level of customary IL Customary IL today looks different than before. Test: receives same condemnation as it did in history and feels like piracy or murder of ambassadors, etc.

Question 36

Animal Science Products v. Hebei

Answer 36

petitioners US purchasers of vitamin C filed a class action suit that Chinese corporations agreed to fix the price and quantity of vitamin C. Chinese sellers fixed price and quantity under Chinese law. Verdict for US purchasers. US federal court should consider foreign government’s statement on the meaning of its domestic law, but it’s not binding. Consider foreign statement’s clarity, thoroughness, support, context, purpose, transparency of legal system, role and authority of entity or official, and consistency with past positions

Question 37

Samantar v. Yousuf

Answer 37

respondents allege they were victims of torture because of authorization of petitioner VP and Minister of Defense of Somalia who resides in the US. The Foreign Sovereign Immunities Act (FSIA) does not give the petitioner immunity from the suit. FSIA text, history, and purpose, agency is an entity (organization not individual), specific remedial choices. Congress didn’t intend to codify the law of foreign official immunity FSIA says foreign instrumentalities can be sued unless you fit into an exception. Individuals can be sued, FSIA doesn’t apply, but there are still defenses/lingering immunity individuals can bring (diplomatic immunity, head of state immunity). He could invoke a theory of personal immunity to bar the lawsuits

Question 38

Sachs

Answer 38

respondent Sachs a CA resident purchased a Eurail pass from a MA-based travel agent. On the OBB railway in Austria, she fell and suffered injuries. The suit falls outside the commercial activity exception (she bought the pass through a MA agent) and is barred by sovereign immunity so the US lacks jurisdiction. Her suit wasn’t based upon the sale of the pass, gravamen of suit happened abroad

Question 39

Bank Markazi

Answer 39

Iran Threat Reduction and Syrian Human Rights Act place some assets beyond judgments rendered in terrorism cases against Iran. Respondents victims of Iran-sponsored acts brought suit and moved for turnover $1.85 billion in bond assets in a NY bank account that were owned by Bank Markazi, the Central Bank of Iran. § 8772 requires a court to determine whether Iran holds equitable title to or beneficial interest in the assets. § 8772 doesn’t violate separation of powers, no constitutional problem

Question 40

Germany v. Philipp

Answer 40

respondents heirs of German Jewish art dealers allege Nazi government coerced consortium into selling the collection to Prussia for ⅓ its value. Expropriation exception doesn’t apply to claims. FSIA’s expropriation exception refers to violations of the IL of expropriation and thereby incorporates the domestic takings rule, “rights in property taken in violation of international law,” what a country does to property belonging to its own citizens within its own borders is not the subject of international law property-taking expropriation exception is when taking is transnational, not domestic

Question 41

Manco Contracting Co. v. Bezdikian

Answer 41

affirm judgment domesticating in CA a money judgment against Bezdikian entered against him in Qatar (Persian Gulf emirate). Bezdikian co-founded Manco company in Qatar but left and settled in LA county. Manco sued Bezdikian for embezzlement in Qatar and got damages, and Manco got the judgment enforceable in CA under the Uniform Foreign Money Judgments Recognition Act. Foreign judgment must be conclusive before it is domesticated, follow fair procedure Defendant tries to claim state is biased against foreigners and non-Muslims Best way to attract foreign money/investment is to treat them well/give them a fair shot

Question 42

Texaco v. Libya

Answer 42

Libya nationalized the rights, interests, and property of the Companies. Companies objected that action violated their Deeds of Concession and requested arbitration. Libyan government refused arbitration, so Companies request the ICJ President appoint a sole arbitrator. The government opposed because disputes weren’t subject to arbitration because that nationalizations were acts of sovereignty. Arbitrator awarded to companies, Deeds of Concession are binding on the parties, by adopting measures of nationalization the Libyan government breached its obligations and is legally bound to perform. Libya and the Companies reached a settlement, Libya paid and Companies terminated arbitration proceedings Deeds of concession are long-term and basically lease certain area and government gets portion Government argued UN resolutions talk about importance of developing nations be able to seize control. Silent about damages. 1803 recognizes nationalization and compensation - you have to pay to nationalize Arbitrator decides which resolution has more weight by looking at votes in assembly/which states voted for/against. 1803 had support of both developed/developing countries but 3000s didn’t have same support. Things with broader consent have more weight. Also considers state practice and language - 3000s were more aspirational and less imperative Law that emerges for supermajority is best because those who don’t necessarily benefit still agree to it

Question 43

Methanex v. US

Answer 43

Methanex claimed compensation for losses from CA banning the gasoline additive MTBE because of environmental concerns. Methanex claimed CA poorly regulated storage tanks that also leaked other chemicals that weren’t banned, so it’s discriminatory against MTBE producers. Also CA was motivated to protect ethanol in part by political and financial inducements Methanex’s case under NAFTA Article 1105: the California measures were intended to discriminate against foreign investors and their investments, and intentional discrimination is, by definition, unfair and inequitable. Raw economic protectionism. Tribunal decided that Methanex’s claim under Article 1105 fails because Article 1105(1) does not mention discrimination; and Article 1105(2), which does mention it, is an exception; NAFTA Parties did not incorporate a nondiscrimination requirement in a provision in which they might have done so Methanex’s case under NAFTA Article 1110: Methanex claims that a substantial portion of its investments, including its share of the California and wider US oxygenate markets, was taken by a discriminatory measure and handed to the US domestic ethanol industry, both tangible and intangible property/market share. Tribunal decided that Methanex’s claim fails, no expropriation or taking, Methanex did not rely on misrepresentations. Inference isn’t enough here, Methanex can’t prove suspicions about the dinner Arbitration costs covered by general approach - Methanex as the unsuccessful party shall bear the costs of the arbitration. USA had lost several important arguments on the admissibility issues; but over time the Partial Award does not affect the end-result of the dispute overall

Question 44

The Loewen Group, Inc. v. U.S.

Answer 44

the NAFTA complainant challenged a sensitive set of U.S. procedures and practices; specifically punitive damages, unfettered jury verdicts, and the use of biases and xenophobic stereotypes in trials that allegedly resulted in an unfair and disproportionate verdict. Loewen sued for breach of contract. When the NAFTA tribunal finally issued its decision, it sided with Loewen on the merits. However, the panel then dismissed the case on the grounds that Loewen should not have brought its NAFTA claims when it chose to before exhausting all possible remedies under U.S. law Can’t get punitive damages for contract breach, but here the jury awards punitive damages for breach of contract Arbitrator conceptually agree with Loewen but he doesn’t win because he needed to exhaust possible remedies - should’ve petitioned Supreme Court

Question 45

Shrimp-Turtle case

Answer 45

Import ban on shrimp that didn’t use turtle excluder devices for sea turtles Chapeau - hat/general language, in order to have exemption, the measure in question can’t be unjustifiable discrimination or disguised protectionism. Can’t discriminate between domestic/international Exceptions Article XX(b) environmental measures to protect human/animals, XX(g) conservation of exhaustible natural resources. Others (national security, child labor) Challenging states claim sea turtles aren’t exhaustible but are renewable/living. Appellate body takes purposive view of language than originalists see it. Wouldn’ be exhausting but it would be absurd to claim animals can’t be exhausted from harvesting, etc. This is a tariff/non-tariff barrier US defends through an exception 1) Needs to relate to conservation. Rules “relating to” means “primarily aimed at.” US law passes 2) Need national treatment - restrictions on domestic production. US law passes, measure applies to everyone 3) Consider the chapeau. US negotiated with some but not others - which is discriminatory and maybe it indicates disguised restriction and it’s not all about the turtle. Inverted most favored nation. US had rigid standard that doesn’t inquire about conditions, should’ve built broader consensus or gave out testimony. Need transparency, good faith The best way to show you really care about turtles is to make an international agreement, which the US didn’t initially do It was unjustifiable discrimination and the measure wasn’t protected under GATT Art. XX

Question 46

Rule 11bis

Answer 46

ICTY and ICTR to refer cases to national courts, pursuant to Rule 11bis

Question 47

Art. 8

Answer 47

war crimes Need an armed conflict Laws of war regulate how you legally wage war Legal in 2 contexts: when UN Security Council authorizes the use of force under Art. 39 and 42 of the Charter (breach of peace, threat of peace, aggression). When undertaken in self-defense The launching of an armed attack when it doesn’t fit Security Council or self-defense is a crime of aggression (when it violates 8bis) Art. 8bis addresses when it’s legal to go to war

Question 48

Art. 75 Rome Statute of the ICC

Answer 48

Reparations to victims

Question 49

Art. 76 Rome Statute of the ICC

Answer 49

Sentencing

Question 50

Art. 12 Rome Statute

Answer 50

jurisdictional reach of ICC on nationality and territoriality: crimes committed by national of state party or on the territory of a state party. Preconditions for state party referrals and proprio motu

Question 51

Art. 13 Rome Statute

Answer 51

referral process - way procedurally case gets into ICC framework: referral by state party/state self-referral (most operationally successful to bring case/get conviction, stigmatize rebels by referring losers to court), proprio motu (on your own accord, prosecutor refer case to themself) OR UN Security Council (resolution which refers case (aggression, threat/breach of peace), forcible with violence or non-forcible measures to deal with blocking embargo, etc. referral to ICC)

Question 52

Art. 16 Rome Statute

Answer 52

deferral provision - UN Security Council can defer by a year if no permanent member vetoes, has never happened

Question 53

Art. 17 Rome Statute

Answer 53

admissibility - ICC only has jurisdiction if a national jurisdiction is unable or unwilling to investigate and prosecute Willingness is genuine commitment, not a sham or show

Question 54

Alien Tort Statute (ATS) 28 U.S.C. § 1350

Answer 54

District Courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States Creates a civil remedy for a violation of the laws of nations, which means the possibility of tort liability for conduct that might rise to the level of a serious international crime ATS claims have been brought for a variety of jus cogens violations, including genocide, crimes against humanity, and torture Controversial, high profile Shortest statute in Federal Register, one of oldest to deal with piracy Gives federal courts jurisdiction over a claim brought by anyone anywhere against anyone anywhere in our courts for tortious civil damages arising out of violation of law of nations/customary IL

Question 55

Civil damage claims through Alien Tort Statute

Answer 55

Federal judge has power to determine if actor committed violation of laws of nations. If so, damages under torts

Question 56

Art. 36

Answer 56

jurisdiction 1) ad hoc basis or 2) treaty clause that has forum clause that points ot ICJ or 3) grant of general jurisdiction (surrender state to ICJ to regulate judicialize/curate international relations disputes. Need to be reciprocal - both your state and state you’re suing gave grant. Can have exceptions to that (Canada gave grant except for fishing) US withdrew grant after Nicaragua case

Question 57

Art. 58

Answer 57

state responsibility is without prejudice to individual responsibility

Question 58

Ch. 3 NAFTA

Answer 58

can’t have tariffs/non-tariffs with some exceptions

Question 59

NAFTA Ch 7

Answer 59

sanitary measures health-based standards to keep out products linked to disease/environmental issues/toxicity, public health measures under NAFTA have lower level of scrutiny than tariff/non-tariff barriers (phytosanitary measures relate to plants)

Question 60

NAFTA Ch 9

Answer 60

alternate way to classify regulation standards broader than sanitary measures, relate to safety/protection of humans/animals/plants/environment. Apply to congressional legislation that restricts trade if it points to the scientific/empirical/logical viability of standard (best way to show is if it’s generally-accepted international scientific standards). 9.04 has to apply to everyone Transparency 9.09 - share technology and resources/knowledge before restricting goods

Question 61

NAFTA Ch 11

Answer 61

foreign investment applies to US/Mexico under USMCA but not between US/Canada National treatment, treat others as favorably as most-favored nation, minimum standard of treatment, precludes performance requirements, investors have further protection State v. state, no private remedy under NAFTA for company to sue another state. With one exception: investment (Ch 11) company has to get government to complain protects investors through national treatment, can’t be subject to shocking violation of norms, can’t expropriate without compensation Ch 11 gives foreign investor a legal remedy (damages) a domestic investor doesn’t have Domestic investor can try lobbying or voting Foreign investor protection against having their assets seized Purports to offer economic security and protection to investors from one NAFTA party who make financial investments in another party

Question 62

Ch 20 of GATT

Answer 62

moral and economic exceptions to free trade (damage environment, health, national security)

Question 63

NAFTA Ch. 20

Answer 63

general dispute resolution. 1) state can demand consultation and can have commission involved under 2008, commission can make panel for factfinding and see if standard is legitimate. Disputing parties can comment on report, then arbitrators issue final report which is implemented (2018). If there’s no compliance (2019), benefits can be suspended. No private right of action

Question 64

Art. 14

Answer 64

procedural trigger measure allows any member of the public file a submission to the NAFTA Secretariat that a governmental agency is failing to enforce law

Question 65

Art. 22

Answer 65

triggers consultation requirement If consultations aren’t successful, Secretariat can convene counsel session. If that isn’t successful, it transfers to law/policy making and arbitral panel can be established to initiate report, invite state to reply, then issue final report. If final report identifies persistent failure, country must enforce

Question 66

Art. 34

Answer 66

If state doesn't comply 1) State agrees about what compliance looks like and doesn’t do it or 2) State doesn’t agree that it’s compliance and won’t do it If either happens, a request can be made for arbitral panel to reconvene on the issue of remedy. It then makes action plan and compels compliance. ~6 months after action plan was issued, if state didn’t comply, the panel can then issue a fine (monetary enforcement assessment), small percent of the total benefits under NAFTA, can be billions of dollars If state won’t pay, their benefit can be suspended in an amount equivalent to monetary assessment A treaty does not create either obligations or rights for a third state without its consent

Question 67

GATT Article XX

Answer 67

NAFTA permits parties to be in noncompliance with certain NAFTA requirements if that noncompliance can be justified exceptions

Question 68

Vienna Convention Art 37

Answer 68

when the obligation arises, it may be revoked or modified only with the consent of the parties to the treaty and the third State, unless it is established that they otherwise agreed

Question 69

NAFTA Articles 116-1139

Answer 69

Establish investor-party arbitration; allowing individual or corporate investors direct access to a dispute resolution process differs from the frameworks in place in other international agreements, such as GATT/WTO

Question 70

State Responsibility Article 1

Answer 70

Every internationally wrongful act of a State entails the international responsibility of that state

Question 71

State Responsibility Article 2

Answer 71

There is an internationally wrongful act of a State when conduct consisting of an action or omission (1) is attributable to the State under international law and (2) constitutes a breach of an international obligation of the State

Question 72

State Responsibility Article 3

Answer 72

The characterization of an act of a State as intentionally wrongful is governed by international law. Such characterization is not affected by the characterization of the same act as lawful by internal law

Question 73

Article 2021 of NAFTA

Answer 73

Denies the ability of a private party to sue. Only states can assert claims under the NAFTA except for investments (Chapter 11)

Question 74

Ch. 11 1102

Answer 74

national treatment

Question 75

Ch. 11 1103

Answer 75

most favored nation

Question 76

Ch. 11 1105

Answer 76

minimum standard of treatment

Question 77

Ch. 11 1110

Answer 77

Expropriation provision - no party may nationalize or expropriate a foreign investor's property

Question 78

Ch. 11 1114

Answer 78

Deals with environmental matters attempted to prevent a race to the bottom in environmental and labor law

Question 79

Environmental Side Agreement Article 5

Answer 79

Core requirement-obligation of every party to effectively enforce environmental laws it domestically has on the books. The content of environmental laws is similar. Focus on enforcement

Question 80

Environmental Side Agreement Article 22

Answer 80

Shifts from nudging to transparency to more normal forms. If a state is found to engage in a persistent pattern of failure to enforce its domestic environmental law, then the secretariat can prompt consultations

Question 81

Environmental Side Agreement Article 34

Answer 81

Two possibilities: 1) party can't agree on how to implement the final report; 2) party doesn't try. In either scenario can request arbitral panel to reconvene and would move into a more punitive scheme. When reconvenes can mandate action plan that gets into enforcement of law, gets about 6 months to put into place, if nothing has happened, or if actions were unsatisfactory, panel can determine that the party not effectively enforcing domestic law can force to pay a monetary amount or oblige effective enforcement of environmental law. If still don't fix can suspend NAFTA benefits. (Panel has never made award)