International Law: Summary of Unit 2

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

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 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 International Law: Unit 2

4. Prescriptive Jurisdiction of States • Traditional bases • Territorial • Nationality • Protective (limited to “important State interests”—counterfeiting, fraud, etc.) • Universal 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 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 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 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 International Law: Unit 2

9. Jurisdiction to adjudicate • See the Conflicts of Laws course 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 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 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 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) 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 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 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 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 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 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 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? 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 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.) 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) 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 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 International Law: Unit 2