International Law Class 12: Int’l Jurisdiction

1. International LawClass 12: Int’l Jurisdiction P. Brian Fisher CofC Spring 2011

2. Bosnia v. Yugo & Succession Part I

3. 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.

4. 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.

5. International Legal Personality Part II

6. Reparations for Injuries Suffered in the Service of the UN1949 ICJ 174 • I: To what degree do IOs have int’l legal personality? • The ICJ acknowledged in the Reparation for Injuries Suffered in the Service of the UN that types of international legal personality other than statehood could exist. They receive rights in IL as legal subjects (subject to given circumstances). • Reinforces the expansion of “legal subjects” at the international level…including IOs.

7. Nottebohm(Liechtenstein v. Guatemala)1955 ICJ 4 • F: Nottebohm born in 1881 as German Citizen. He lived in Guatemala from 1905 until 1943 but never became a citizen. In 1939, Nottebohm became a naturalized citizen of Liechtenstein (for strategic purposes). On his return to Guatemala in 1943 (WWII), Guatemala refused to recognize his Liechtenstein citizenship, and as a German turned him in as an ‘enemy alien’ (to US). Liech sues Guat in ICJ. • I: Does naturalization create state citizenship for purposes of IL? • H: NO, it’s insufficient in IL (and for diplomatic protection), and there is little “bond of attachment” between Nottebohm and Liechtenstein. Leich has no right to represent Nottebohm. • R: Sovereign rt of all states to determine citizenship, but to be recognized on the int’l plane, nationality must be based on a “genuine or meaningful link” between person and state asserting jurisdiction.

8. Individuals • Generally, a state has no obligation to admit aliens to its territory, but if it does it owes a “duty of care” • If breached, the alien can seek a remedy against and in the foreign state; and if none, then the state can represent the alien on the claim (in theory though, the state has been injured). • Increasingly, Human Rights has given individual’s rights regardless of his/her status as an alien.

9. Jurisdiction Part III

10. Jurisdiction Generally • Both in US domestic law and IL, there needs to be some minimum contacts with the person or persons (in personam) involved and the act itself (subject matter). • 3 categories of Jurisdiction • 1. juris to prescribe or legislate (authority of state to make its laws applicable to persons or subject matter) • 2. juris to adjudicate (to subject particular persons or things to its judicial process) • 3. juris to enforce or execute (to use gov’t resources to induce compliance)

11. 5 Principles of Int’l Jurisdiction • 1 Territorial Principle • 2. Nationality Principle • 3. Passive Personality Principle • 4. Protective Principle • 5. Universality Principle

12. The Territorial Principle A State can exercise its jurisdiction to legislate with respect to: • (a) Conduct that, wholly or in substantial part, takes place within its territory; • (b) the status of persons, or interests in things, present within its territories; • (c) conduct outside its territory that has or is intended to have substantial effect within its territory. • Rt to adjudicate and enforce is based on “reasonableness” which is admittedly vague.

13. US v ALCOA (Canadian Corp)148 F.2d 416 (2nd Cir 1945) • F: Foreign corp was alleged to collaborated with other foreign producers of aluminum creating a cartel. The prosecution asserts that this is a violation of US anti-trust laws under the Sherman Act, even though foreign corps and foreign acts. • I: Did Congress intend to include foreign cartels within prohibitions in the Sherman Act, where those cartels are acting beyond the US, but intended to have an effect on US trade? • H: Yes (created the ‘objective territorial’ principle). Acts by ALCOA did violate the Sherman Act because they had affected US trade. • R: Settled that any state can impose liabilities, even upon persons or subject matter beyond its territory, if conduct outside its borders “has consequences within its borders.” However, ct considers if there was intent, but no effect, AND if there was no intent but an effect within the US. They argue in neither case is there jurisdiction. So, they reasoned that juris only exists where there was intent and an effect on US. Here, the ct found that 1936 agr intended to set quotas for imports to US (so intent), and that it in fact had an effect on US imports.

14. Nationality Principle • States may exercise juris over their nationals and over the conduct of their nationals—even when those nationals or conduct are physically outside the state’s territory. • Justifications for this principle are: • The national owes allegiance to his/her state regardless of location • Each state has certain responsibilities to other states for the conduct of its nationals • Each state has an interest in the well-being of its nationals abroad • Each state therefore has the rt to determine who it nationalizes • However, to be recognized on int’l plane, there must be a “genuine link” with state (Nottebohm) • Finally, a corp is the nationality where it is incorporated

15. Passive Personality Principle • In limited circumstances, states have the authority to exercise juris over acts committed abroad, regardless of offense location or perp’s nationality, if they injure a national of the claiming state. • Not widely accepted, but increasingly used against “terrorist acts” committed abroad on state’s national. • US v. FawazYunis(DC Cir 1991): Lebanese skyjacker of Jordanian Flight with 4 Americans on board. US had Antiterrorism and Hostage Taking Statute that was applied here after Yunis was lured into FBI custody and brought to US. Ct held that it had juris because Congress intended to adjudicate on these grounds, and it’s consistent with US treaty obligations.

16. Protective Principle • State can exercise jurisdiction over “certain conduct outside its territory by persons not its nationals that is directed against the security of the State or against a limited class of other state interests.” • The conduct must be generally recognized as “criminal” by other states in the int’l community. • Less used by US because of preference for juris tied to territory. • See US v. Bin Laden

17. Universal Principle • A state may exercise jurisdiction over conduct outside its territory if that conduct is universally dangerous to states and their nationals. • Obligation is ergaomnes: obligation is owed to the entire international community (not just to a victim or gov’t) • There is certain agreement over core activities that trigger universal juris • Stateless vessel • Piracy • Slave trade • Genocide • Torture • Crimes against humanity • War crimes

18. Princeton Principles (extras) • 3. Can rely on UJ…provided that it has established a prima facie case of the person's guilt and that the person sought to be extradited will be tried or the punishment carried out in accordance with international norms and standards on the protection of human rights in the context of criminal proceedings. • 4. In exercising UJ, a state and its judicial organs shall observe international due process norms including but not limited to those involving the rights of the accused and victims, the fairness of the proceedings, and the independence and impartiality of the judiciary (hereinafter referred to as "international due process norms").

19. AG of Israel v EichmannSup Ct of Israel (1962) • F: Eichmann, “architect of the Holocaust”, fled to Argentina as a German citizen after WWII. In 1960, he was discovered by Israeli agents and brought to Israel for trial on Crimes against Humanity and War Crimes. • I: Does Israel have juris over Eichmann for crimes against humanity? • H: Yes b/c of acts qualify for the application of univjuris • R: “These crimes constitute acts which […] violate the universal moral values and humanitarian principles that lie hidden in the criminal law systems adopted by civilized nations” (118). The Court rejected Eichmann’s other 2 arguments, because the crimes were global affecting the int’l community--not just Germany. • Juris: Nationality? Territorial? Passive Personality? Protective?

20. Argentina <-> Israel • Int’l dispute over the capture of Eichmann capture and smuggling. After negotiations failed between the states, Arg appealed to the UN Sec Council arguing that Israel breached its sovereignty. • UNSC passed Res 138 which requested Israel "to make appropriate reparation", while stating that "Eichmann should be brought to appropriate justice for the crimes of which he is accused.” • Israel and Arg later agree to end dispute • Israeli courts avoided the issue of the legality of Eichmann's capture, relying instead on legal precedents that the circumstances of his capture had no bearing on the legality of his trial. • The Israeli Court also determined that because "Argentina has condoned the violation of her sovereignty and has waived her claims, including that for the return of the Appellant, any violation of international law that may have been involved in this incident has thus been remedied."

21. Jurisdiction Rules • More than 1 principle may be used to gain juris • States have discretion to apply juris—so, IL may permit the exercise of juris, it remains within the state’s discretion to actually do so. • So, you must look to national law to determine whether the state has actually exercised discretion permitted under IL • E.g. US doesn’t have federal criminal law, so if a US national commits murder abroad, there are no means of US prosecution, even though IL permits the US to do so. • Concurrent Juris: IL recognizes that more than 1 state may have juris over person or event. • Most US courts rely on comity (legal reciprocity) to determine how to “balance the exercise of concurrent authority”

22. Vid • Universal Jurisdiction (youtube) • Universal • ATS • TVPA (protects from torture and extrajudical killings • Citizens and non-citizens