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