XII. International Law

1. XII. International Law • A. Foundations: • 1. Roots in W. Europe & Rome. • a. Rome was an empire-- two systems: • 1. jus civile (for Roman citizens) administered by Praetor urbanus (city manager) • 2. jus gentium ("law of peoples" among citizens & foreigners) administered by Praetor Peregrinus. • b. Romans: conquered lands barbaric (jus civile is useless). Praetor Peregrinus: sent out to find similarity among cultural & legal principles.

2. XII. International Law • A. Foundations: • 2. Islamic tradition: a. dar al Islam: IL between Islamic states b. dar al harb: IL between Islamic & non-Islamic states 3. Suzerain-vassal treaty: (2000 B. C.) Contract between lord & peasants. Rights & obligations.

3. XII. International Law • B. Natural law: An external set of universal principles that govern behavior, which transcend time & context. • 1. 3rd Century Greek Stoics: reason sets us apart from animals • 2. Hinduism (dharmastrasas): rely on conscience for answers. • 3. Other critical concepts: • a. Reparations: duty to pay injured party (obligation to repair the relationship). • b. pacta sunt servanda: “promises must be kept”

4. XII. International Law • C. IL is positivistic: IL is what we make of it • 1. Independence: states cannot be bound to laws to which they cannot consent • 2. based on what state says it will do through treaty (black letter) & behavior • 3. Jus inter gentes: as jus gentium evolved, natural law was considered to go beyond the state.

5. XII. International Law • D. Is IL law? Yes, but why ignored? • 1. IL lacks the 5 “Cs” a. Congress b. Code c. Court d. Cop e. Clink

6. XII. International Law • D. Is IL law? Yes, but why ignored? • 1. IL lacks the 5 “Cs” 2. IL can’t be domestic law: no subordinates; agreement among equals

7. XII. International Law • D. Is IL law? Yes, but why ignored? • 1. IL lacks the 5 “Cs” 2. IL can’t domestic law: no subordinates; agreement among equals 3. Santa Claus Syndrome - won’t become what we want 4. descriptive vs. prescriptive law 5. Law is an expectation of behavior; if everyone behaves, then why have laws?

8. XII. International Law • E. Sources of IL • 1. Primary sources • a. conventions or treaties (positivist) • b. custom (long-standing) • c. general principles of civilized nations 2. Secondary sources • a. Judicial decisions: stare decisis • b. IL experts & teachers: interpret, not create 3. ex aequo et bono - basis of justice & fairness (toss out traditional IL & court decides)

9. XII. International Law • E. Sources of IL • 4. Custom becomes law: • a. opinio juris: act a certain way b/c believe it to be a law. • b. wide-spread & representative state particip. • c. If you don’t accept law, must annually provide written statements affirming so.

10. XII. International Law • E. Sources of IL • 5. Treaties:a written physical manifestation of a statement of a state’s willingness to be bound in an issue area • a. When treaty says X but acts Y • 1. The more specific of the two will prevail (lex specialis derogat generali). • 2. If you can't tell which is more specific then we look @ which came later in time.

11. XII. International Law • E. Sources of IL • 5. Treaties:a written physical manifestation of a statement of a state’s willingness to be bound in an issue area • b. Getting out of a treaty • 1. Error • 2. Fraud • 3. Coercion • 4. Jus cogens: Very small set of peremptory norms from which no deviation is ever permitted (genocide, torture, slavery, etc.)

12. XII. International Law • F. Principles of Jurisdiction: ability to affect legal interests over people, events, property, goods, & technology. 1. Prescriptive principles: • a. Territorial principle of prescriptive jurisdiction: do what you want within your own borders (just don’t violate jus cogens!!) • b. objective territorial: activity outside the state has impact within the state -- requires clear, physical effects. U.S. uses most. • c. subjective territorial: starts in another state but ends in your state

13. XII. International Law • F. Principles of Jurisdiction: ability to affect legal interests over people, events, property, goods, & technology. 1. Prescriptive principles: • d. protective principle: can prescribe laws against action that can threaten govt operation (must be recognized as a crime internationally) • e. nationality principle: state has rights over its own citizens • f. passive personality: state asserts jurisdiction based on victims involved (English-speaking countries & France ignore, except in terrorism)

14. XII. International Law • F. Principles of Jurisdiction: ability to affect legal interests over people, events, property, goods, & technology. 1. Prescriptive principles: • g. universality principle: all states have jurisdiction in violations of jus cogens • h. by agreement: U.S. & Cuba -- GITMO

15. XII. International Law • F. Principles of Jurisdiction: ability to affect legal interests over people, events, property, goods, & technology. 2. Enforcement jurisdiction: right to enforce principles -- need to have valid PJ to execute EJ • a. territorial: right to enforce within own borders; requires permission outisde borders. • b. universality: VERY narrow; requires PJ of universality & individual must be beyond jurisdiction of another state • c. by treaty

16. XII. International Law • F. Principles of Jurisdiction: ability to affect legal interests over people, events, property, goods, & technology. 3. What happens when two states have jurisdiction? • a. interest balancing: Ex: Al Queda (UK vs. US) • b. comity: politeness

17. XII. International Law • F. Principles of Jurisdiction: ability to affect legal interests over people, events, property, goods, & technology. 4. How do we take action? • a. Retortion: act that is punitive but legal; ex: economic sanctions or cutting off diplomatic relations • b. Reprisal: must be proceeded by demand for redress. • c. Retorsions & reprisals are only a peacetime measure. If nations declare war then R&R does not apply.

18. Osama bin Laden as an example of PJ: 1.territorial: gives US "absolute and exclusive authority" to make laws over its territory, but since Osama was not thought to be on US territory at the time of the attacks (could have been applied to any surviving hijacker b/c they were on US territory @ time of the attacks). No case. 2. Objective Territorial: Gives US authority to invoke jurisdiction on the basis of activity outside the state, but having or intended to have substantial effect w/in the state. IF Osama directed the terrorist conspiracy from Afghani soil that resulted in the destruction of the 2 WT towers, part of the Pentagon, 4 airplanes & 4,000 people, the US can claim this basis of jurisdiction on the basis that the state making the claim can show "clear physical effects". International community widely supports the application of this principle when the Jennings standard applies, if intent can be "demonstrated by some activity" and the effect produced is "substantial and foreseeable". Yes, a case.

19. Osama bin Laden as an example of PJ: 3. Subjective Territorial: Gives a state jurisdiction if an action begins in its territory even if it is consummated abroad. Since the action does not appear to have begun in the US & finished abroad: No Case. 4. Protective: state may prescribe laws outside its territory when this behavior threatens state security or the integrity or integrity of government operations, provided that the crime is generally regarded as a crime internationally. US can apply its law if we can show "obvious potential effects" of his actions threatened US state security. We can link Pentagon & Osama, it can demonstrate jurisdiction. Yes, a case. 5. Nationality: Only if the accused is a national of the state asserting jurisdiction. Osama is not an American citizen. No Case.

20. Osama bin Laden as an example of PJ: 6. Passive Personality: can apply law to acts committed outside territory by a person not its national where the VICTIM of the act is a national. Most English-speaking countries & France reject this principle, but US accepts in cases of terrorism. YES: Not all states accept it. 7. Universality: allows states to assert jurisdiction over "de licta juris gentium" (crimes against family of nations). Yes: (note: all states which have not rejected this principle can assert jurisdiction). 8. By agreement: NO b/c no agreement w/ Afghanistan. No Case.

21. Osama bin Laden as an example of PJ: • RESULT: US may assert one of four bases of prescriptive jurisdiction: objective territorial, protective, passive personality or Universality. • NEXT STEP: Enforcement • 1. Territorial: right to enforce laws w/in its own territory. And you can't enforce it outside your borders. NO: b/c Osama is not w/in our borders. If we go into Afghanistan we violate UN Charter - Article 2(4). • 2. Universality: 1) Must assert universality in prescriptive jurisdiction AND 2) individual in question is beyond jurisdiction of any state. No- he is in another state's jurisdiction. • 3. By Agreement: No, b/c Taliban did not agree to let us in.

22. Osama bin Laden as an example of PJ: • RESULT: NO ground for US enforcement jurisdiction. But we can become involved in retorsions (through freezing assets. Retorsions are not physical acts. Reprisals must be proceeded by demand for redress. Retorsions & reprisals are only a peacetime measure. If nations declare war then R&R does not apply. Our war in Afghanistan is ILLEGAL!!

23. XII. International Law • G. Diplomatic Immunity. 1. One of oldest forms of IL 2. Protects diplomats; each state defines own diplomats with bona fides 3. Vienna Conv. on Diplomatic Relations (1961) • a. Embassies are inviolable (without permission) • b. Residences, docs & pouch are inviolable

24. XII. International Law • G. Diplomatic Immunity. 3. Vienna Conv. on Diplomatic Relations (1961) • c. Diplomats are inviolable (not subject to arrest) • 1. Verify credentials; detain until verified only • 2. If diplomat poses public threat, may detain until threat removed; protect their dignity. • d. No liability in civil actions unless outside of duties (rare); sending state can waive this. • e. blank

25. XII. International Law • G. Diplomatic Immunity. 3. Vienna Conv. on Diplomatic Relations (1961) • f. Family is inviolable (until 21; 23 if in college) • g. Embassy shall not be used inconsistent w/ IL. • h. Immunity can be waived by sending state • i. persona non grata: host declares visitor unwelcome; rare b/c is often reciprocal • j. Some staff (clerks, etc.) have limited immunity; only acts performed in official duty

26. XII. International Law • H. Extradition: formal process of retrieving an accused or convicted criminal from another state. 1. Often reciprocal by agreement 2. Usually smooth w/ conditions (death penalty) 3. If denied • a. Host country must prosecute if in treaty • b. If no treaty, requesting state has no recourse

27. XII. International Law • H. Extradition: formal process of retrieving an accused or convicted criminal from another state. 3. If denied • a. Host country must prosecute if in treaty • b. If no treaty, requesting state has no recourse • c. Getting around this: • 1. Adolf Eichmann: Israel tracked & “volunteers” kidnapped & returned him

28. XII. International Law • H. Extradition: formal process of retrieving an accused or convicted criminal from another state. 3. If denied • c. Getting around this: • 2. U.S.: Ker-Frisbee Doctrine • a. Ker & Frisbee cases: Both Fled U.S. and we brought back; U.S. Sup Ct. said issue is not how he got here; can prosecute anyway (male captus, bene detentus) • b. Exceptions: brutality OR kidnappers are public agents

29. XII. International Law • I. Law of the Seas, Air & Space 1. LoS: Oldest body of IL 2. Hugo Grotius: seas should be open to the world 3. U.N. Convention on Seas (Jamaica, 1973-1982) • a. State has ownership of 12 nautical miles • b. If landlocked, have right of innocent passage • c. EEZ: 200 miles (may exploit, but don’t own); must provide stewardship & responsibility for waters. • d. High seas: everything beyond is wide-open

30. XII. International Law • I. Law of the Seas, Air & Space 4. Air & space • a. Vertical: craft must have visible markings • b. Debate over airspace vs. outerspace • 1. 1963 Tokyo Convention: crime outside of airspace is int’l jurisdiction • 2. 1970 Hague Convention: outlawed hi-jacking – states must prosecute or extradite • 3. 1967 Outer Space Treaty: States retain jurisdiction over objects they launch (prescriptive & enforcement jurisdiction + responsibility). No WMDs or bombs.