International Law: Summary of Unit 2 Fall 2006 Mr. Morrison.

International Law:Summary of Unit 2

Fall 2006Mr. Morrison

Fall 2006 International Law: Unit 2 2

States and their formation

Qualities of Statehood Territory Population Government Independence/Ability to Conduct

Foreign Relations Also, possibly, willingness to observe

international law and human rights

Fall 2006 International Law: Unit 2 3

Types of jurisdiction

To Prescribe (to make rules or laws) To Enforce (to carry out rules or laws) To Adjudicate (to decide cases)

Note that the “prescriptive jurisdiction” about which we are talking is different from “judicial jurisdiction” of courts

Fall 2006 International Law: Unit 2 4

Prescriptive Jurisdiction of States

Traditional bases Territorial Nationality Protective (limited to “important State

interests”—counterfeiting, fraud, etc.) Universal

Fall 2006 International Law: Unit 2 5

Additional jurisdictional issues

“Active/passive” (or the “effects doctrine”) expands jurisdiction to cover acts that affect the territory or citizens of a country

Many Civil Law countries legislate to cover acts of their citizens everywhere

Fall 2006 International Law: Unit 2 6

Conflicts of jurisdiction

Situations can arise in which 2 or more countries claim jurisdiction over same conduct

Each can exercise jurisdiction, the issue is how to reconcile this

Fall 2006 International Law: Unit 2 7

Conflicts of Jurisdiction

Restatement of Foreign Relations Law of the US, 3rd, sec. 403 calls for a rule of reasonableness In exercising jurisdiction In deferring to the other State if it has a

stronger interest But—conflicts can still occur

This view is broadly accepted elsewhere

Fall 2006 International Law: Unit 2 8

Jurisdiction to enforce

Largely territorial Alvarez Machain or Ker v. Illinois

US courts do not test in criminal trial the international legality of seizure of criminal defendant abroad

But there may be diplomatic or other consequences

Fall 2006 International Law: Unit 2 9

Jurisdiction to adjudicate

See the Conflicts of Laws course

Fall 2006 International Law: Unit 2 10

Nationality

Nationality indicates belonging to a State Nationality confers right of State to

protect and right of the national to claim protection

Citizenship may be a narrower concept, indicating political rights as well

Fall 2006 International Law: Unit 2 11

Bases of nationality Nationality by birth

By place of birth (ius solis) By parentage (ius sanguinis)

Acquisition of nationality By naturalization

Nationality is a matter of national law Nationality Decrees in Tunis and Morocco, PCIJ But there must be some minimum connection

Nottebohm Case

Fall 2006 International Law: Unit 2 12

Rights and duties of nationals

Rights To enter the State of nationality To have protection of that State

Duties Subject to jurisdiction of State

Fall 2006 International Law: Unit 2 13

US Law on Nationality

Citizenship by birth In the U.S., U.S. Constitution,

Amendment XIV, sec. 1 Outside of the U.S. to 2 U.S. parents Outside of the U.S. to 1 U.S. parent, if

that parent lived in the U.S. for 5 years (detailed)

Fall 2006 International Law: Unit 2 14

US Law on Nationality

By naturalization Must renounce prior citizenship

But some countries don’t accept that

Acts renouncing citizenship Formal renunciation Voting, military service in foreign

country

Fall 2006 International Law: Unit 2 15

Dual nationality

Multiple nationality can occur Can create conflicting obligations

If within a State of nationality Cannot claim diplomatic protection of

another State of nationality Predominant nationality rule

Fall 2006 International Law: Unit 2 16

A Digression: Extradition, Deportation, Exclusion

Extradition—removal of person to face charges abroad

Deportation—removal of an alien from the State

Exclusion—denial of entry to an alien

Fall 2006 International Law: Unit 2 17

Extradition

Extradition treaties Usually enumerate or describe offenses

covered; other offenses are not covered

Political offenses exception Rule of speciality—trial only for offense

charged in extradition papers Under US law there must be a treaty

or statute to support the extradition

Fall 2006 International Law: Unit 2 18

Extradition (limits)

Many Civil Law countries will not extradite their own citizens, but will try them at home for the offense abroad

Many European (and some other) countries will not extradite if capital punishment is a possiblity

Fall 2006 International Law: Unit 2 19

State responsibility

A State that violates international law incurs State Responsibility

Consequences It must cease its breach Other States may take

countermeasures It may pay reparations

Fall 2006 International Law: Unit 2 20

State responsibility

International Law Commission adopted Draft Rules on State Responsibility in 2001

UN General Assembly accepted its report, but did not call diplomatic conference to write a treaty

Status of draft rules?

Fall 2006 International Law: Unit 2 21

State responsibility rules

A state is responsible for— Acts of an organ of the State (art. 4) Conduct of a person who is authorized

to act for the State (art. 5) Conduct of organs placed at the

disposal of a State by other States (art. 6)

Conduct directed or controlled by the State (art. 8) . . . more

Fall 2006 International Law: Unit 2 22

State responsibility rules A state is responsible for—

Persons exercising governmental power in the absence of official gov’t (art. 9)

Some acts of an insurrectional movement (art. 10)

Acts acknowledged and accepted by the State (art. 11)

Acts in aid of wrongful acts of other States (arts. 16 et seq.)

Fall 2006 International Law: Unit 2 23

But no responsibility for

Self-defense (art. 21) Countermeasures (art. 49 et seq.)

Limited to non-performance of obligations

Protection of human rights and humanitarian law obligations

Proportionality (art. 51) Notice and other conditions (art. 51)

Fall 2006 International Law: Unit 2 24

Consequences of State responsibility

Duties to continue to perform duties and to cease violations (arts. 29-30)

Reparations (art. 33) Restitution Compensation Satisfaction

Fall 2006 International Law: Unit 2 25

Other interntional obligations

Liability for transboundary harm from hazardous activities Draft on Prevention adopted 2001 Draft on Liability still under

consideration by the International Law Commission