Presentation Transcript

1. Class 8Territory and Treaties

   POLS 363 International Law P. Brian Fisher Spring 2011
2. Wiwav. Royal Dutch Petroleum(226 F.3d 88 2000) Facts: 3 Nigerian immigrants and another Nigerian Woman file suit in US district ct under ATS for human rights abuses. The allege abuse by Royal Dutch Petroleum and Shell for abuses carried out by the Nigerian gov’t and Shell Nigeria but “instigated, orchestrated, planned, and facilitated by Shell” under the direction (and knowledge) of the Royal Dutch. Procedural Disposition: Dist ct denies suit because of forum non conveniens. Plaintiffs appeal. Defendants argue not only for FNC but that dist ct lacked personal jurisdiction. Issue(s): 1. Does US Dist Ct have (personal) jurisdiction over Defs? 2. Should the case have been dismissed over FNC? Holding. 1. Yes. Through an agent/subsidiary of Shell doing investing relations, there was sufficient evidence of “doing business” in NY for personal juris. 2. No (dist ct has juris). We believe that, as a matter of law, in balancing the competing interests, the district court did not accord proper significance to a choice of forum by lawful U.S. resident plaintiffs or to the policy interest implicit in our federal statutory law in providing a forum for adjudication of claims of violations of the law of nations.
3. Import from Wiwa: Is there a public “policy interest”? 1. Torture Victim Prevention Act, in 1991, Congress expressly ratified our holding in Filartiga that the United States courts have jurisdiction over suits by aliens alleging torture under color of law of a foreign nation, and carried it significantly further. Therefore, TVPA recognizes explicitly what was perhaps implicit in the ATS that the law of nations is incorporated into the law of the United States and that a violation of the international law of human rights is (at least with regard to torture) ipso facto a violation of U.S. domestic law. Whatever may have been the case prior to passage Wiwa Ct: we believe plaintiffs make a strong argument in contending that the present law (TVPA), in addition to merely permitting U.S. District Courts to entertain suits alleging violation of the law of nations, expresses a policy favoring receptivity by our courts to such suits. So, the US has a public policy interest in adjudicating international human rights violations.
4. ATS Expanded to MNCs:Khulumaniv Barclay Nat'l Bank Plaintiffs sued dozens of major corporations, both U.S. and foreign, alleging liability for aiding and abetting the South African system of apartheid, suing for $400b. See also, Doe v Unocal and Wiwa. Doe v Unocal, the Central California District Court held for the first time that ATS actions “could lie against private corporations.” In Khulumani, the 2nd Cir held that "a plaintiff may plead a theory of aiding and abetting liability” under the ATS. This brought MNCs alleged of “aiding and abetting liability” (particularly for results that end in human rts violations) into the scope of ATS.
5. Sosa Implications: Foreign Affairs In Justice Souter’s opinion, he stated that "the determination [of] whether a norm is sufficiently definite to support a cause of action should (and, indeed, inevitably must) involve an element of judgment about the practical consequences of making that cause available to litigants in the federal courts.” He then dropped the following footnote (famous fn 21): This requirement of clear definition is not meant to be the only principle limiting the available of relief in federal courts for violations of customary international law, though it disposes of this action. . . . Another possible limitation that we need not apply here is a policy of case-specific deference to the political branches. For example, there are now pending in Federal District Court several class actions seeking damages from various corporations alleged to have participated in, or abetted, the regime of apartheid that formerly controlled South Africa. See In re South African Apartheid Litigation. . . . The Government of South Africa has said that these cases interfere with the policy embodied by its Truth and Reconciliation Commission, which "deliberately avoided a ‘victors’ justice’ approach to the crimes of apartheid and chose instead one based on confession and absolution, informed by the principles of reconciliation, reconstruction, reparation and goodwill." . . . The United States has agreed. . . . In such cases, there is a strong argument that federal courts should give serious weight to the Executive Branch’s view of the case’s impact on foreign policy . . .
6. Territory and Title Terra nullis: if a territory is unclaimed, a country can claim it as its own. However, in many cases, a territory was inhabited, but they were subjugated and forced to sign treaties of cession. IL now prohibits “the subjection of people to alien subjugation, domination and exploitation” (1960)…and “all peoples have the right to self-determination.”
7. Island of Palmas (US v. Neth)2 UN Rep. Int’l Arbitral Awards 829 (1928) F: territorial dispute between US and Dutch over small island near the Philippines in 1928. US claim is based on Treaty of Paris where Spain ceded the Philippines to the US (of which Palmas was within territorial boundary), and they also claim that Palmas is closer to Phil than Indo (Dutch). Dutch claim is based actual assertion of sovereignty over territory. I: What takes precedence: assertion of sovereignty or first discoverer (even if sovereignty is not asserted). H: Assertion of sovereignty is paramount. R: Spain didn’t assert sovereignty over Palmas, so lacked authority to cede it to US (never exercised “authority”), and no positive IL on terra firma. Dutch did exercise authority through Dutch East India which had negotiated treaties and prices on Palmas (since 1677). Import: The exercise of continuous and actual sovereignty is paramount consideration in determining territorial authority. The title of “discovery” (by Spain here) only provides inchoate title and title of contiguity “has no foundation in IL” (p40).
8. Sovereignty over PedraBranca, et al. (Malaysia v. Singapore) 2008 ICJ ____ F: Dispute over 3 islands. PedraBranca was well known to sailors and Brits controlled it since 1850 (and Singapore thereafter), usurping Malaysian governance. In 1979, Malaysia published a map with PB within its territory. I: Who exercised authority over each of the islands. H: PB to Singapore; Middle Rocks and South Ledge to territorial waters. R: Brits (and Singapore) exercised control over the PB in 1850 and it continued until today, and as a result, despite original Malaysian control, Singapore now has sovereignty over the territory. On Middle Rocks, Brits/Singapore never exercised control over it, therefore sovereignty lies with its original territory.
9. Other Issues: Conquest, Neutral Territories Conquest: No longer permissible to acquire territory through the use of force…although argued that self-defense (Art 51 UN Charter), territorial acquisition is valid. See Israel in ‘67. In 2004 Advisory Op by ICJ: Citing Nicaragua v. US (1986), the principles as to the use of force incorporated in the Charter reflect CIL; the same is true of its corollary entailing the illegality of territorial acquisition resulting from the threat or use of force. Arctic: mainly ice floes, without substantive land. Many states have laid claims to various portions of the Arctic, accelerated by GCC Antarctic: Numerous claims settled through treaty that requires the territory is a neutral territory to be used “for peaceful purposes only” Outer Space: Governed by the Outer Space Treaty, which states that it is not subject to national appropriation…and “exploration is to be carried out to the benefit of all nations.”
10. ‘Treaties’ Basic Definition: written agreements b/w 2 or more nations, governed by IL, creating or restating legal rights and duties )see Vienna Convention) 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. 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”
11. Flexibility of Treaties 3 General Parts Framework Treaty: general principles Protocols: supplement or implement the framework treaty Annexes: details for amendment to changing needs
12. Elements of a Typical Int’l Convention or Treaty Definitions Objective Principles (needs and rights) Commitments (categorization of countries for purposes of implementation) Amendment of Annexes to Convention Protocols (procedure for adoption, entry into force, acceptable parties, participation) Right to Vote (assignment of voting rights) Ratification, Acceptance, Approval (timing, binding nature, etc.) Entry into Force
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. Main Articles of Vienna Convention on Treaties 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.” Art 27: internal law cannot be raised as a justification for the failure to keep a treaty. Interpretation of Treaties Art 31: interpret treaties in accordance with its ordinary meaning –but it operates in treaty’s context and overall obj 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.