International Law: Summary of Unit 2

1. International Law:Summary of Unit 2 Fall 2005 Mr. Morrison

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 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 International Law: Unit 2

4. Prescriptive Jurisdiction of States • Traditional bases • Territorial • Nationality • Protective (limited to “important State interests—counterfeiting, fraud, etc.) • Universal 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 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 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 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 International Law: Unit 2

9. 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 International Law: Unit 2

10. 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 International Law: Unit 2

11. 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 possible International Law: Unit 2

12. Jurisdiction to adjudicate • See the Conflicts of Laws course International Law: Unit 2

13. 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 International Law: Unit 2

14. 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? International Law: Unit 2