Class 10 Treaties & NGOs

1. Class 10Treaties & NGOs POLS 363 International Law P. Brian Fisher Spring 2011

2. ATS Evolution Part I

3. Presbyterian Church of Sudan v. Talisman Energy F: Talisman Energy, a Canadian Corp, was accused of aiding and abetting the Sudanese government in Southern Sudan for “forced displacement” of those near oil fields, genocide, and other human rts abuses. Argued same day as Kiobel H: Plaintiffs, Presby Church, did not establish “Talisman’s purposeful complicity in human trt abuses. R: 2nd Cir established that “the standard for imposing accessorial liability under ATS must be drawn from IL; and that under IL a claimant must show that the defendant provided substantial assistance with the purpose of facilitating the alleged offenses.” So, raised the stnd for liability to require “the mensreastnd for aiding and abetting liability in ATS actions is purpose rather than knowledge alone.” 582 F.3d 244 (2d Cir. 2009)

4. Kiobelv. Royal Dutch F: Nigerian citizens sued RDP for aiding and abetting the Nigerian gov’t for gross human rts violations in exploration and extraction of oil (crimes against humanity, torture, and arbitrary arrest and detention). I: Can MNCs be liable for CIL for aiding and abetting gov’t? H: No. Corps cannot be liable under CIL, so case dismissed for lack of SMJ R: Two parts: 1. the scope of liability is determined by CIL, which require applying norms of IL (not domestic) to the defendant’s action, and 2. under CIL, “corp liability is not a discernible—much less universally recognized—norm of CIL” 621 F.3d 111 (2nd Cir 2010)

5. Other Developments • Concurrence: Judge Leval would have dismissed the Kiobel claims on the basis that the complaint “does not contain allegations supporting a reasonable inference that [Royal Dutch and Shell] acted with a purpose of bringing about the alleged abuses.” • In a related development, one week before the Kiobeldecision, the Ninth Circuit held that the Torture Victim Protection Act of 1991 does not apply to corporations, but only to natural persons, because that statute uses the term “individual.” See Bowotov. Chevron, No. 09-15641, at 13­­-17 (9th Cir. Sept. 10, 2010). • Implications: • Kiobel does NOT mean that corps are IMMUNE from liability under ATS—that norms could EVOLVE to include an ATS claim in the future. • Individual Liability: “nothing in this op limits or forecloses suits under the ATS against corp’s employees, mangers, officers, directors, or any other persons who commits, or purposefully aids and abets, violations of IL”

7. Treaties and Bosnia v. Yugo Part II

8. ‘Treaties’ • Basic Definition: written agreements b/w 2 or more nations, governed by IL, creating or restating legal rights and duties (see VCLT). • Overwhelming part of IL consists of utilizing treaties as the basis for legal remedies, preventative/precautionary principles, and remedial norms. • Created through international organizations (UN, EU, WB) and nation-states through bilateral and multilateral agreements. So, treaties are not absolutely restricted to states—can be IOs. • Superior to other legal sources onglobal issues b/c they allow for “targeted laws, flexibility of law-making, machinery for inducing compliance, and non-compliance and dispute resolution mechanisms”

9. VCLT (Vienna Conv on Law of Treaties) • Vienna Convention on the Law of Treaties codified IL on treaties • It is the source of IL for treaties in developing a CoA. • Signed in 1969, ratified in 1980. • 110 state parties • Non-state parties may still be bound by CIL

10. Main Articles of VCLT Application of Treaties • Art 26: “Every treaty in force is binding upon the parties to it and must be performed by them in good faith.” (strongest IL norm) • Art 27: internal law cannot be raised as a justification for the failure to keep a treaty. • Art 46: Cannot vitiate consent to treaty because of inconsistency or violation of internal (domestic) law NOTE: Art 27 & 46 suggest the supremacy of IL (superior to domestic law); however, national law can still declare treaty invalid.

11. Interpretation of Treaties (VCLT) Interpretation of Treaties • Art 31: interpret treaties in “good faith in accordance with its ordinary meaning to be given to the terms of the treaty in their context and in the light of its object & purpose” • Hence, start evaluating legality of Treaty with the text itself, and based on ordinary meaning • Treaty must be evaluated as a whole (so not enough to simply look at a particular provision). • Supplementary Materials can only be used only to the degree the “ordinary meaning” is left “ambiguous or obscure” or when that interpretation leads to an “absurd or unreasonable” result.

12. ‘third states’ • States not party to a particular treaty • Basic Treaty law: “a treaty does not create either obligations or rights for a third state without its consent.” • 3 ways in which third states can become bound • CIL, even if developed through a treaty in which they aren’t a party • Jus cogens • They are a designated beneficiary from a treaty (as third state)

13. Capacity to Conclude a Treaty • Capacity to Enter: States are free to negotiate and enter into a treaty with other states. • Internal Ratification (US): Every state is different, but in US, Exec negotiates and signs a treaty, but Senate must ratify (by 2/3). President then has final say. Once Senate and then Pres both ratify, only then does the US become bound by treaty. • Reservations: an exception, exclusion or modification of the legal effect of the treaty (to the state)—that is, allows a state to not be bound by certain parts of the treaty.

14. Reservations: Convention on Prevention & Punish of Genocide(1951 ICJ 15 (Advisory OP)) • 2 Issues • 1. Can reserving state maintain reservation despite objection by other states (whether one can reserve that issue) • 2. If affirmative, what is the effect for: a) parties objecting & b) those accepting it • H1: Yes, state can remain a party IF the reservation remains compatible with the object and purpose of the Convention (compatibility test) • H2: In above case, the objecting party believes that reservation is incompatible with O&P, then it can consider reserving state not a party • On the other hand, if party accepts reservation as compatible then it can consider the reserving state party to the Convention.

15. Reservations • States can make a reservation in a treaty, EXCEPT • 1. if a treaty prohibits reservations • 2. treaty permits only certain types of reservations, and one made is different • 3. reservation is incompatible with object and purpose of agr • Advisory OP on Restrictions to the Death Penalty (IACHR 1984) • “a reservation which was designed to enable a State to suspend any of the non-derogable fundamental rights [guaranteed in the American Convention on HRs] must be deemed to be incompatible with the object and purpose of the [American] Convention.” • Thus reservations (removing rights) would defeat the overriding purpose of the Convention itself.

16. Termination of a Treaty Generally, states may on terminate a treaty by: • 1. Withdrawing (subject to conditions within treaty) • 2. Consent: with consent by all parties • 3. Material Breach (violation of terms by one can permit termination by the other) • “material breach”: “violation of a provision essential to the accomplishment of the object & purpose of the treaty.” • 4. Impossibility to Perform: requires a fundamental change in circumstances not foreseen by parties  justified only: • 1. circumstances constitute an essential basis of the consent of the parties to be bound by treaty; • 2. effect of the change radically transforms extent of obligations. • However, can’t terminate (even with the 2 provisos above) IF same obligations remain to other parties. • 5. War:debatable (see Techtv Hughes, p 95). As a practicality, most treaties are suspended, if not terminated (unless intended to be applied during wartime). • Although certain HRs treaties remain prohibit suspension during wartime (see Wall in Occupied Palestinian Territory, p 99). • 6. Succession? • No termination for changes to government, diplomatic relations, overthrow of gov’t, termination of consular relations.

17. Mexico v. US2004 ICJ 12 • F: In ~50 death row cases involving MX nationals, Mexico alleges that detainees were never informed of their Vienna Convention Rights (Art 36,1b) when taken into US custody. US is party to VC treaty. In 29 cases, consular authorities only learned of detention after death sentence handed down and in others, learned through non-official means. Mexico also asserts injury to its state, directly & through its Nationals. • I: US violate the Vienna Conv by failing to notify Mexico Nationals and Mexico of their consular rights? • H: Yes, US indeed had obligations under Art 36, and failed to extinguish them by informing detainee “without delay” once “there are grounds to think that the person is probably a foreign national (para 63). • R: The court relies on LeGrande, saying that Art 36 creates “individual rights” (for the National)…which my be invoked by the national state. The state’s rights may also be violated. The court determined that in most cases, the US did not meet the minimal definition of “without delay”. ICJ’s legal remedy is to remand to lower US dist cts for reconsideration to determine if proper notice was provided.

18. Sanchez-Llamas v. Oregon548 US 331 (2006) • F: Sanchez-Llamas, MX national, was convicted of attempted murder in Oregon and Mario Bustillo, a Honduras national, was convicted of murder in Virginia for beating a man to death with a baseball bat. Neither had his consulate informed of the charges against him, as is required by VC Art 36. • I: Does the violation of Art 36 require the suppression of evidence at trial? Does a procedural state law permit dismissal of a VC claim? • H: No, Ct provided no answer to whether Art 36 provides substantive rights, and procedural remedy to Art 36 violation should not be based on exclusionary rule. • R: Too stiff a penalty for violation (would be “startling” decision) and US is the only country to use the exclusionary rule. Also, majority ruled that ICJ rulings are not binding on U.S. courts. Also, Art 36 must be exercised in conformity with domestic law” means states must be allowed to decide when claims need to be raised. • D: Would have found that Art 36 in VC creates substantive rights that can be enforced in US courts, yet suppression would only be used in “some” cases. Dissent said there may be times when state procedural default rules must yield" to the VC’s requirement that domestic laws give it "full effect."

19. Medellin v. Texas552 US 491 (2008) (6-3 decision) • F: Medellin, MX national, sentenced to death for gang rape and murder of 2 teenaged girls. He appeals based on Art 36 of VC. Pursuant to the ICJ ruling in Mxv. US, Medellin argues that the VC grants him an individual right that state courts must respect. Also, argues that US Presidential memo instructed state cts to comply with ICJ rulings by rehearing cases. Argues that US constitution give Pres broad treaty power (to ensure fulfillment) • I1: Did Pres memo (to comply with ICJ rulings) within statutory foreign affairs authority? • I2: Must state courts comply with treaty obligation by complying with ICJ ruling? • H: No. No. Issue hinged on whether VC was a “self-executing” treaty. If it was, then it’s binding. If not, then needed to be “executed” by Act of Congress. Ct found that it was not “self-executing” and not required to comply with ICJ ruling, and that Pres memo was simply an executive way of trying to enforce a non-self-executing treaty. • D: “self-executing” based on a reading of other treaties that had gone into effect without additional Congressional action…and "I believe the treaty obligations, and hence the judgment [of the ICJ], resting as it does upon the consent of the United States to the ICJ's jurisdiction, bind the courts no less than would 'an act of the [federal] legislature.'"

20. Bosnia-Herzegovina v Yugoslavia1996 ICJ 595 (preliminary objections) • F: In 1995, following the dissolution of the Yugoslavian state, Serbs engaged in the ethnic cleansing of Bosnian Muslims. BH brought suit in ICJ. The SFR of Yugoslavia separated into Bosnia-Herzegovina and Yugoslavia, and SFR of Yugo was a signatory of the Genocide Convention before split. • I: Are succeeding states parties to GC and bound by their provs? • H: Yes, both. Yugo therefore violative of Genocide Conv • R: VC? silent on succession. CIL? No. Look to treaty itself. The core issue centers on whether BH was a party to GC. ICJ determined that BH was a member in 2 ways. (1) BH applied and became member on March 1993. (2) gained membership because of state succession, passed from former SFR Yugo. Finally, the ICJ looked to the intent of the GC, which was to be applied as widely as possible and to prevent genocide. So, nothing inherently objectionable to object & purpose of Agr.

21. succession • New states that emerge from collapse of larger, are not necessarily bound by treaties of the former. • USSR dissolution, Russia was accepted as the successor to USSR’s treaties, while Republics were not. • Same issue with Former Yugo compare BH v. Yugo with this, and case that successor state’s are not necessarily responsible for former Yugo’s debt. • Absorbing states • Absorbed states’ treaties are terminated • Absorbing state continues own obligations and ADDS those by the absorbed state.