Alien Tort Claims Act

• Established by 1st Congress
• Allows USA to hear human rights cases from outside of the United States
• Grants US Courts jusrisdiction over all cases which an alien sues for a tort "committed in  violation of the law"//can be from crime committed ouside USA
• Filartiga  v. Pena-Irala
  • court found that violations of contemporary international norms, including  violations of modern international human rights could be decided
• Sosa  v. Alvarez Machain
  • Actions committed abroad that violate contemporary international norms, including human rights can be used and recognition of new causes should emply "vigilant doorkeeping"
  • the Alien Tort claims act provides a cause of action for violations or international norms that are as "specific, universal,, and obligatory" as were the norms of prohibiting  violations of safe conducts, infringements of the rights of ambassadors, and priracy in the 18th Century.
  • Courts have found that torture, cruel, inhuman or degrading treatment; genocide; war crimes; crimes against humanity; mary execution; prolonged arbitrary detention and forced dissappearance to be actionable under the Alien Tort Claims Act

Article 2.4 of the

UN Charter

• Prohibits use of force against territorial integrity of political independence of any state and viewed as a principal of customary international law applicable to all states
• Broader than the Kellogg-Briand pact (force v. war)
• Does not cover domestic situations
• Any intervention on the part of one state to protect nationals of another state within another state is illegal (some customary international law allows this however)

Countermeasures

• Under customary law
  • Individual countermeasures may be taken after collective bodies have exhausted their measures (does not allow for foce)
  • Used as reprisals that are still legitimate
  • Considered to be enforcement for violations by state
  • Cannot be the first option
  • Must ask the violating state to discontinue the wrongful act or make reparations
    • If this fails they must try to negotiate. If this fails, then countermeasures make be taken
• Limitations
  • May not derogate from the obligations concerning the threat or use of force
  • May not disregard protection for human rights
  • Consequences cannot fall on innocents
  • Must not breach rights of third states
  • Must be proportional
  • Preferred actions by individual states

Crimes Against Humanity

• Nuremberg Charter cites crimes against humanity as:
  • Murder, extermination, enslavement, deportation and other inhuman acts commited against any civilian population, or persecutions on the political, racial, or religious grounds, whether or not in violation of the domestic law of the country where perpetrated

Nuremberg

Defense

• Legal Defense used in Nuremberg Trials that states "Defendant was only following orders" and is therefore not responsible for his crimes
• Under nuremberg Principle 4 "defense of surperior orders" is not a defense for war crimes, although it may influence a sentencing authority to lessen the penalty.
• Created in the Nuremberg Charter
  • Article 6 outlines four crimes: crimes against peace, war crimes, crimes against humanity and conspiracy to commit the forementioned
  • Article 8 states that acting pursuant to orders shall not free a defendant of responsibility

Nullem Crimen Sin Lege

• Traditional Rule in Domestic Criminal Law
• First Defense
  • No crime and punishement without pre-existing law
  • Used in Nuremberg Defense to say that since the law wasn't in existence when the actions were committed, they cannot be tried under it
• Eichmann v. Isreal and Nuremberg rulings
  • Nullum is not a customary rule of international law
  • must apply international law as it is, not as it should be--therefore we are not bound by nullem crimen
  • is applicable Domestic Law only

Kellogg-Briand

Pact (1928)

• "Pact" that "outlawed War"
• Did not live up to its aim of ending war, and in this sense made no immediate contribution to internal peace and proved to be ineffective
• Howeer, pact is imporant multilateral treaty, because in addition to binding the particular nations that signed it, it has served as one of the legal bases establishing the international norms that the threat or use of military force in contravention of international law, as well as the territorial acquisitions resulting from it are unlawful.
• Notably, served as the legal basis for the creation of notion of crimes against peace--it was for committing this crime that the Nuremberg Tribunal sentenced a number of persons responsible for WWII
• Court ruled that waging aggressive war was banned by the Pact, to which Germany was a signatory
• Planning and waging aggressive war breaks the Pact and is a crime under international law
• After WWII nations have been forced to invoke the right of self or collective defense, when using military action, and have been prohbited from annexing territory by force

Law of the Sea Treaty

• Internal Waters
  • All waters and waterways on the landward side of the baseline. The costal stae is free to set laws, regulate use, and use any resource. Foreign vessels have no right of passage.
• Territorial Waters
  • Out 12 miles from the baseline, the coastal state is free to set laws, regulate use, and use any resource
  • Vessels can pass through innocent passage in a "continous and expeditious manner" which is "prejudicial to the pace, good order, or security of the coastal state." Fishing, Polluting, Weapons practice, and spying are not innocent, and submarines must come to the surface and show their flag. Nations may also temporarily suspend innocent passage
• Archipelagic Waters
  • A baseline is drawn between the outermost points on the outermost islands, subject to these points being sufficiently close to one another. All waters inside this baseline are designated as Archipelagic Waters, and the state has full sovereignty over these, but foreign vessles have right of innocent passage
• Contiguous Zone
  • Beyond the 12 nautical mile limit, there is a further 12 miles limit, the contigous zone, in which a state can enforce laws in four areas, pollution, taxation, cutoms, immigration
• Exclusive Economic Zones
  • Extends from age of the territorial sea out to 200 nautical miles
  • Coastal Nation ahs sole explotation rights over all natural resources.
  • Foreing nations have the freedom of navigation and overflight, subject to the regulation of coastal states. Foreign states may also lay submarine pipes and cables
• Continental shelf
  • the natural prolongation of the land territory to the continental margin's outer edge or 200 nautical miles from the coastal states baseline. May not exceed 350 nautical miles from the baseline.
  • Coastal states ahve the first to harvest mineral and non-living meterial in the subsoil of its continental shelf to the exclusion of others.
• Protects and obligations the safeguarding of marine environment and creates a International Seabed authority and common heritage of manking principle
• Landlocked states are give a right of access to and from the sea without taxation through transit states.