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

Fall 2006International Law: Unit 22 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 2006International Law: Unit 23 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 2006International Law: Unit 24 Prescriptive Jurisdiction of States Traditional bases Territorial Nationality Protective (limited to “important State interests”—counterfeiting, fraud, etc.) Universal

Fall 2006International Law: Unit 25 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 2006International Law: Unit 26 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 2006International Law: Unit 27 Conflicts of Jurisdiction Restatement of Foreign Relations Law of the US, 3 rd, 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 2006International Law: Unit 28 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 2006International Law: Unit 29 Jurisdiction to adjudicate See the Conflicts of Laws course

Fall 2006International Law: Unit 210 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 2006International Law: Unit 211 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 2006International Law: Unit 212 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 2006International Law: Unit 213 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 2006International Law: Unit 214 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 2006International Law: Unit 215 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 2006International Law: Unit 216 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 2006International Law: Unit 217 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 2006International Law: Unit 218 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 2006International Law: Unit 219 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 2006International Law: Unit 220 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 2006International Law: Unit 221 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 2006International Law: Unit 222 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 2006International Law: Unit 223 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 2006International Law: Unit 224 Consequences of State responsibility Duties to continue to perform duties and to cease violations (arts ) Reparations (art. 33) Restitution Compensation Satisfaction

Fall 2006International Law: Unit 225 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