UNITED STATES PRACTICE IN INTERNATIONAL LAW VOLUME 2:2002-2004PDF电子书下载

I: General International and U.S. Foreign Relations Law 1

Overview 1

U.S. Influence on International Law 1

President Bush 2004 Speech to UN General Assembly 1

International and Foreign Relations Law Influences on the United States 3

Interpretation of Constitution in Light of Foreign and International Law 3

Interpretation of Treaty in Light of Foreign Court Decisions 8

Interpretation of Foreign Law When Applying U.S. Statutes 10

Customary International Law as a Part of U.S. Law 11

Federal Foreign Relations Law Preemption of State Law 14

II: State Diplomatic and Consular Relations 18

Overview 18

Recognition of States and Governments 18

Recognition of the Name "Republic of Macedonia" 18

Recogniton of New Afghan Government 19

Recognition of New Iraqi Government 20

Congressional Effort to Move U.S. Embassy to Jerusalem 20

Persona Non Grata 21

U.S. Expulsion of Iraqi Diplomat 21

U.S. Expulsion of Cuban Diplomats 22

Consular Affairs 23

Effects of German LaGrand Case in U.S. Courts 23

Mexican Avena Case Before the ICJ 27

Effects of Avena Case in U.S. Courts 33

Service of Process on Foreign Officials in United States 38

III: State Jurisdiction and Immunities 41

Overview 41

Jurisdiction 41

Extraterritorial Application of U.S. Criminal Statutes 41

Extraterritorial Application of U.S. Environmental Statutes 44

Foreign Sovereign Immunities Act 49

Background 49

Application of FSIA to Pre-FSIA Events 49

Corporations as Agencies of Foreign Sovereigns 51

Waiver of Immunity 53

Commercial Activity Exception 55

Expropriation Exception 57

Tortious Activity Exception 57

Arbitration Exception 58

Terrorist State Exception 59

Immunity of Foreign State Assets from Attachment or Execution 77

Immunity as Head of State 78

Immunity as Head of State for Former Chinese President Jiang Zemin 78

Immunity of U.S. For Acts Abroad 81

U.S. Immunity for Security Measures at Embassy Abroad 81

Supreme Court Rejection of "Headquarters Doctrine" Under FTCA 83

Act of State Doctrine 85

License to Export as an Act of State 85

IV: State Responsibility and Liability 86

Overview 86

Rules of State Responsibility 86

Retroactive Application of Treaty to Treaty-Based Claim 86

U.S. Interpretation of Continuous Nationality Rule 88

U.S. Interpretation of Exhaustion of Local Remedies Rule 91

U.S. Interpretation of Denial of Justice Standard 92

Customary International Law Does Not Prohibit Anticompetitive Behavior 95

Payment of Compensation 97

Implementation of German Holocaust Claims Agreement 97

V: International Organizations 102

Overview 102

United Nations 102

U.S. Financial Support for the United Nations 102

U.S. Funding for the UN Population Fund 103

U.S. Personnel Contributions to UN Peacekeeping Operations 104

Replacement of U.S.-Led Force in Haiti with UN Peacekeeping Mission 106

U.S. Support for Multinational Intervention in Liberia 107

Protection of UN and Humanitarian Personnel in Conflict Zones 109

UN Resolution on Israeli Treatment of Palestinian President 111

Host-Country Relations 112

ICJ Judge Conducts Marriage Ceremony in United States 114

Specialized Agencies and Other International Organizations 115

Specialized Agencies: U.S. Return to UNESCO 115

U.S. Initiative to Oust OPCW Director-General 117

VI: International Oceans, Environment, Health, and Aviation Law 119

Overview 119

Law of the Sea 119

Report of U.S. Commission on Ocean Policy 119

Senate Consideration of Law of the Sea Convention 120

U.S. Reaction to Russian Continental Shelf Claim 123

Senate Consideration of MARPOL Protocol 124

"Proliferation Security Initiative" for Searching Potential WMD Vessels 126

Establishment of U.S. Antiterrorism Maritime Transportation System 128

U.S. Concerns Regarding UNESCO Convention on Underwater Heritage 130

International Environmental Law 134

Methyl Bromide Exemption to Ozone Depletion Regime 134

U.S. Proposal for Reducing Greenhouse Gases 136

U.S. Effort to Block Iceland's Membership in Whaling Convention 137

U.S.-Russia Polar Bear Agreement 142

Exemption of U.S. Military from Migratory Bird Treaty Act 143

Environmental Torts Do Not Violate Customary International Law 144

International Health Law 145

U.S. Signing of Framework Convention on Tobacco Control 145

"Revenue Rule" Barring Foreign Suits Concerning Cigarette Smuggling 147

Air and Space Law 149

Ratification of the 1999 Montreal Convention on Aviation Liability 149

VII: International Economic Law 152

Overview 152

International Finance and Tax 153

U.S. "Millennium Challenge Account" for Foreign Aid 153

U.S.-Japan Tax Treaty 155

Bilateral Trade 157

2002 Enactment of Trade-Promotion Authority 157

U.S.-Chile Free Trade Agreement 158

U.S.-Singapore Free Trade Agreement 161

U.S.-Australia Free Trade Agreement 161

U.S.-Morocco Free Trade Agreement 162

U.S.-Bahrain Free Trade Agreement 162

New U.S. "Model" Bilateral Investment Treaty 163

Amendment of Treaty on Customs Procedures 165

Bioterrorism Act's Notice Requirements for Food Imports 166

NAFTA 167

Chapter 11 Investor-State Disputes 167

Chapter 19 Anti-dumping and Countervailing Duty Disputes 175

Chapter 20 General Dispute Resolution 176

Regional Trade 178

Adoption of Central American Free Trade Agreement 178

Trade Developments Between the United States and Sub-Saharan Africa 179

World Trade Organization 180

Overview 180

U.S. Participation in Doha Round Negotiations 181

Modification of WTO Rules on Protection of Pharmaceuticals 183

U.S. Conformance with Shrimp-Turtle Decision 185

U.S. Conformance with Steel Safeguards Decision 186

U.S. Efforts to Conform to Foreign Sales Corporation Decision 189

Failure to Conform with Decision on "Byrd Amendment" 190

VIII: International Human Rights 192

Overview 192

New Treaties and Instruments 192

Ratification of Protocols to Rights of the Child Convention 192

U.S. View on Pursuing a Torture Convention Protocol 194

Senate Consideration of CEDAW 195

Implementation of Human Rights 196

Reporting on Human Rights 196

U.S. Opposition to Measures Condemning Israel 198

U.S. Declaration on Sudan Genocide 198

Election of United States to UN Human Rights Commission 202

Failure to Elect U.S. Candidate to Inter-American Human Rights Commission 203

Resistance to Decisions of Inter-American Human Rights Commission 203

Alien Tort Claims Act and Torture Victim Protection Act Cases 206

Background 206

Forum Non Conveniens 206

Statute of Limitations 207

Exhaustion of Local Remedies 207

Diplomatic Immunity 208

Justice Department ATCA Position in Unocal Case 209

ATCA Supporters Amicus Brief in Talisman Case 211

Supreme Court ATCA Interpretation in Sosa Case 213

Justice Department ATCA Position After Sosa Decision 217

District Court ATCA Decisions After Sosa Decision 218

Command Responsibility in the U.S. Human Rights Cases 220

Immigration 225

U.S. Detention of Aliens After September 11 Attacks 225

Detention of Illegal Immigrants Cannot Be Indefinite 230

Removal of Alien Without Receiving Country's Consent 231

Canadian Deportation to United States of Death-Penalty Convict 232

North Koreans Seeking Asylum at Diplomatic Compounds in China 233

IX: International Criminal Law 235

Overview 235

Law Enforcement Generally 235

U.S./EU and U.S./UK Extradition Treaties 235

Continuance of Extradition Treaty with Czech Republic 237

MLATs with Various States and the European Union 237

Adoption of UN Convention Against Corruption 238

Senate Consideration of Other Multinational Treaties 240

Hate-Speech Protocol to Cybercrime Convention 244

U.S. Law in Support of Diamond Controls 245

U.S. Law Against Sex Tourism 247

Searching of Foreign Mail Inconsistent with International Law 248

U.S. Reaction to Belgian Universal Jurisdiction Law 249

Law of War: Status of Guantanamo Bay Detainees 252

Decision Not to Regard Persons Detained in Afghanistan as POWs 252

JCRC Reaction to the U.S. Decision 260

Inter-American Human Rights Commission Reaction 261

Ability of Detainees to Obtain Federal Habeas Corpus Review 263

Reviews and Releases of Detainees at Guantanamo Bay 268

Plans for Trials of Detainees at Guantanamo Bay 270

Law of War: Permissible Means for Interrogating Detainees 276

Background 276

Lack of Miranda Rights for Detainees 277

Justice Department 2002 Opinion on What Constitutes Torture 278

DOD-Approved Interrogation Techniques at Guantanamo Bay 279

"Migration" of Guantanamo Bay Techniques to Iraq 282

U.S. Abuse of Iraqi Detainees at Abu Ghraib Prison 283

U.S. Abuse of Other Detainees 286

Justice Department Withdrawal and Replacement of 2002 Opinion 287

Removal of Detainees from Occupied Iraq 289

Law of War: Treatment of U.S. Nationals As Unlawful Combatants 290

U.S. Nationals Detained as Unlawful Combatants 290

U.S. Enemy Combatant Placed in Criminal Justice System (Lindh) 291

U.S. Enemy Combatant Captured on Battlefield (Hamdi) 292

U.S. Enemy Combatant Detained in United States (Padilla) 297

Foreign Enemy Combatant Detained in United States (al-Marri) 301

International War Crimes Tribunals 302

U.S. Pressure on Serbia to Transfer ICTY Indictees 302

Testimony by U.S. General Before the ICTY 303

ICTY Subpoena of Washington Post Journalist 305

U.S. Intent Not to Become a Party to the Rome Statute 306

American Servicemembers' Protection Act 307

U.S. Bilateral Agreements Relating to ICC 309

Efforts to Obtain Immunity from ICC for U.S. Peacekeepers 312

State Department Views on the Future for War Crimes Tribunals 317

X: Use of Force and Arms Control 320

Overview 320

Use of Force Doctrine 320

U.S. Adoption of New Doctrine on Use of Force 320

U.S. Reaction to ICJ Judgment in Iran Oil Platforms Case 323

Military Attack on Iraq 327

Efforts to Address Iraqi Compliance with UN Weapons Inspections 327

Congressional Authorization for the Use of Force 331

U.S. Effort to Obtain Security Council Authorization to Use Force 333

Use of Military Force to Disarm Iraq 340

The U.S. Legal Theory for the Intervention 342

Conduct of Iraqi Forces During the War 344

Conduct of U.S. Forces During the War 345

Security Council Recognition of U.S. Postwar Role in Iraq 346

Establishment of Coalition Occupation Laws 348

Turmoil in Postwar Iraq 350

Creation of an Interim Iraqi Government 351

The Capture of Saddam Hussein 355

The Search for Weapons of Mass Destruction 356

Other Deployments in "Global War" on Terrorism 358

Arms Control 359

Conclusion of U.S.-Russia Treaty on Strategic Offensive Reductions 359

U.S. Resistance to Fifth CCW Protocol on Explosive Remnants of War 360

Ratification of IAEA Additional Protocol 363

Suit by Congressmen Regarding Withdrawal from ABM Treaty 365

UN Security Council Resolution on Nonproliferation of WMD 366

XI: Settlement of Disputes 369

Overview 369

Negotiation 369

Libyan Compensation for Pan Am Flight 103 Victims 369

Libyan WMD Disarmament 372

Iran-U.S. Claims Tribunal 376

Avco Corporation v. Iran 376

Sheibani v. United States 377

Riahi v. Iran 377

International Court of Justice 378

U.S. Position Regarding ICJ Israeli Barrier Advisory Opinion 378

XII: Private International Law 383

Overview 383

Private Commerce 383

UNCITRAL Convention on Assignment of Receivables 383

Cape Town Convention on Financing of Mobile Equipment 385

Interpretation of 1949 Convention on Road Traffic 387

New York Convention on Arbitral Awards 388

Background 388

Ability to Remove New York Convention Cases to Federal Court 388

Enforcement of Agreement to Arbitrate or Arbitral Award 389

Refusal to Enforce Based on Lack of Personal Jurisdiction 392

Refusal to Enforce Based on Forum Non Conveniens Doctrine 392

Ability to Determine the Validity of Underlying Contract to Arbitrate 393

Hague Convention on Child Abduction 394

Background 394

Interpretation of "Rights of Custody" 394

Interpretation of "Habitual Residence" 395

Obligation Not to Return Child if There is a Grave Risk 396

Annex: Treaties Sent to the Senate by the President or Consented to by the Senate During 2002-2004 398

Index 403