landmines, then the sale will be a material breach Trade treaty requires all disputes to be referred to the ICJ One party refuses to appear in the ICJ Probably not a material breach of the object and purpose of the treaty because trade is the main purpose, not showing up at the ICJ Rebus Six Stantibus – Fundamental Change of Circumstances (Article 62) A fundamental change of circumstances which has occurred with regard to those existing at the time of the conclusion of the treaty, and which was NOT foreseen as the parties, may not be invoked as a ground for terminating or withdrawing from the treaty UNLESS The existence of those circumstances constituted an essential basis of the consent of the parties to be bound by the treaty Conditions that were essential and assumed to continue when the treaty was made are not the same The effect of the change is radically to transform the extent of obligations still to be performed under the treaty EXCEPTIONS A fundamental change in circumstances may not be invoked as a ground for terminating or withdrawing from a treaty If the treaty establishes a boundary If the fundamental change is the result of a breach by the party invoking it either of an obligation under the treaty or of any other international obligation owed to any other party to the treaty Controversial Provisions Showing CONSENT is NOT everything as to a State’s legal obligation Obligation not to defeat the object and purpose of a treaty prior to its entry into force (Article 18) A state is obliged to refrain from acts which would defeat the object and purpose of a treaty when It has signed the treaty of has exchanged instruments constituting the treaty subject to ratification, acceptance, or approval, until it shall have made its intention clear not to become a party to the treaty OR It has expressed its consent to be bound by the treaty, pending the entry into force of the treaty and provided that such entry into force is not unduly delayed Circumstances in which a treaty can bind a party who has NOT EVEN signed the treaty Rules in a Treaty Becoming Binding on Third-States through Intl’ Custom (Article 38)
A reservation established with regard to another party: Modifies for the reserving state in its relations with that other party the provisions of the treaty to which the reservation relates to the extension of the reservation Modifies those provisions to the same extent for that other party in its relations with the reserving state Both will be able to bomb away under the reservation because both accept it B rejects the reservation (X-B) Article 21(3) Does the objecting state also oppose the entry into force of the treaty as between the two States? Yes Then is no treaty relation between them at ALL (BOMB AWAY) No Then the provisions to which the reservation relates simply do not apply as between the two parties (BOMB AWAY) A-B, A-C or B-C Article 21(2) Both will be able to bomb away the reservation C remains silent (X-C) Article 20(5) Unless the treaty otherwise provides a reservation is considered to have been accepted by a State if it shall have raised no objection to the reservation by the end of a period of 12 months after it was notified of the reservation or by the date on which it expressed to be bound by the treaty Both States will be able to bomb away under the reservation UNLESS State C objects and speaks up about Reservations to the Convention on Genocide Issue What happens as a matter of law when on State in a multilateral treaty makes a reservation and another State objects?
Defense argues that US Criminal Statutes do not cover the deaths of Kenyan and Tanzanian Citizens Court rejects this and states that the deaths of those citizens are covered under both the Universal Principle and Protective Principle of Jurisdiction to Prescribe Jurisdiction to Enforce and Adjudicate Authority of a State to induce or compel compliance with its law EX Arrest of person or property (UK arresting defendant I Pinochet Case) EX US abduction in Alvarez-Machain or the service of documents abroad Includes Administrative Sanctions, Police Activity, Sanctions, Court Processes Rest. § 432 Measures in Aid of Enforcement of Criminal Law A state’s law enforcement officers may exercise their functions in the territory of another state only with the consent of the other state, given by duly authorized officials of that state Rest. § 433 External Measures in Aid of Enforcement of Criminal Law: Law of the US Law enforcement officers of the US may exercise their functions in the territory of another state ONLY: With the consent of the state and if duly authorized by the US AND In compliance with the laws both of the US and of the other State BLACK LETTER PRINCIPLES States may NOT take enforcement measures in the territory of another state without consent Remedy of violation of this principle is NOT dismissal of the case Male Captusi Rule The illegality of a suspect’s seizure will NOT preclude and punishment UNLESS the affected State protests Jurisdiction to Enforce is INTRINSICALLY territorial General Jurisdictional Principles A State can have jurisdiction to prescribe (i.e. ability to apply its law) without necessarily having the jurisdiction to enforce that law EXAMPLE Sheinbein commits crime in MD but then leaves to go to Israel Jurisdiction to prescribe US murder laws apply to him (crime committed in MD) Jurisdiction to enforce (Not Available) US can’t enforce the law (by arresting, trying, and sentencing the defendant) because Sheinbein is physically in Israel Jurisdictional and Prudential Limitations Foreign Sovereign Immunity Act of 1976 ONLY APPLIES IN DOMESTIC COURTS Confrontations between countries can be avoided if each country is immune from the jurisdiction of every other country’s courts Immunity was once treated as a Political Question