international law: summary of unit 2
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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
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