《UNITED STATES PRACTICE IN INTERNATIONAL LAW VOLUME 2:2002-2004》

I: General International and U.S. Foreign Relations Law1

Overview1

U.S. Influence on International Law1

President Bush 2004 Speech to UN General Assembly1

International and Foreign Relations Law Influences on the United States3

Interpretation of Constitution in Light of Foreign and International Law3

Interpretation of Treaty in Light of Foreign Court Decisions8

Interpretation of Foreign Law When Applying U.S. Statutes10

Customary International Law as a Part of U.S. Law11

Federal Foreign Relations Law Preemption of State Law14

II: State Diplomatic and Consular Relations18

Overview18

Recognition of States and Governments18

Recognition of the Name "Republic of Macedonia"18

Recogniton of New Afghan Government19

Recognition of New Iraqi Government20

Congressional Effort to Move U.S. Embassy to Jerusalem20

Persona Non Grata21

U.S. Expulsion of Iraqi Diplomat21

U.S. Expulsion of Cuban Diplomats22

Consular Affairs23

Effects of German LaGrand Case in U.S. Courts23

Mexican Avena Case Before the ICJ27

Effects of Avena Case in U.S. Courts33

Service of Process on Foreign Officials in United States38

III: State Jurisdiction and Immunities41

Overview41

Jurisdiction41

Extraterritorial Application of U.S. Criminal Statutes41

Extraterritorial Application of U.S. Environmental Statutes44

Foreign Sovereign Immunities Act49

Background49

Application of FSIA to Pre-FSIA Events49

Corporations as Agencies of Foreign Sovereigns51

Waiver of Immunity53

Commercial Activity Exception55

Expropriation Exception57

Tortious Activity Exception57

Arbitration Exception58

Terrorist State Exception59

Immunity of Foreign State Assets from Attachment or Execution77

Immunity as Head of State78

Immunity as Head of State for Former Chinese President Jiang Zemin78

Immunity of U.S. For Acts Abroad81

U.S. Immunity for Security Measures at Embassy Abroad81

Supreme Court Rejection of "Headquarters Doctrine" Under FTCA83

Act of State Doctrine85

License to Export as an Act of State85

IV: State Responsibility and Liability86

Overview86

Rules of State Responsibility86

Retroactive Application of Treaty to Treaty-Based Claim86

U.S. Interpretation of Continuous Nationality Rule88

U.S. Interpretation of Exhaustion of Local Remedies Rule91

U.S. Interpretation of Denial of Justice Standard92

Customary International Law Does Not Prohibit Anticompetitive Behavior95

Payment of Compensation97

Implementation of German Holocaust Claims Agreement97

V: International Organizations102

Overview102

United Nations102

U.S. Financial Support for the United Nations102

U.S. Funding for the UN Population Fund103

U.S. Personnel Contributions to UN Peacekeeping Operations104

Replacement of U.S.-Led Force in Haiti with UN Peacekeeping Mission106

U.S. Support for Multinational Intervention in Liberia107

Protection of UN and Humanitarian Personnel in Conflict Zones109

UN Resolution on Israeli Treatment of Palestinian President111

Host-Country Relations112

ICJ Judge Conducts Marriage Ceremony in United States114

Specialized Agencies and Other International Organizations115

Specialized Agencies: U.S. Return to UNESCO115

U.S. Initiative to Oust OPCW Director-General117

VI: International Oceans, Environment, Health, and Aviation Law119

Overview119

Law of the Sea119

Report of U.S. Commission on Ocean Policy119

Senate Consideration of Law of the Sea Convention120

U.S. Reaction to Russian Continental Shelf Claim123

Senate Consideration of MARPOL Protocol124

"Proliferation Security Initiative" for Searching Potential WMD Vessels126

Establishment of U.S. Antiterrorism Maritime Transportation System128

U.S. Concerns Regarding UNESCO Convention on Underwater Heritage130

International Environmental Law134

Methyl Bromide Exemption to Ozone Depletion Regime134

U.S. Proposal for Reducing Greenhouse Gases136

U.S. Effort to Block Iceland's Membership in Whaling Convention137

U.S.-Russia Polar Bear Agreement142

Exemption of U.S. Military from Migratory Bird Treaty Act143

Environmental Torts Do Not Violate Customary International Law144

International Health Law145

U.S. Signing of Framework Convention on Tobacco Control145

"Revenue Rule" Barring Foreign Suits Concerning Cigarette Smuggling147

Air and Space Law149

Ratification of the 1999 Montreal Convention on Aviation Liability149

VII: International Economic Law152

Overview152

International Finance and Tax153

U.S. "Millennium Challenge Account" for Foreign Aid153

U.S.-Japan Tax Treaty155

Bilateral Trade157

2002 Enactment of Trade-Promotion Authority157

U.S.-Chile Free Trade Agreement158

U.S.-Singapore Free Trade Agreement161

U.S.-Australia Free Trade Agreement161

U.S.-Morocco Free Trade Agreement162

U.S.-Bahrain Free Trade Agreement162

New U.S. "Model" Bilateral Investment Treaty163

Amendment of Treaty on Customs Procedures165

Bioterrorism Act's Notice Requirements for Food Imports166

NAFTA167

Chapter 11 Investor-State Disputes167

Chapter 19 Anti-dumping and Countervailing Duty Disputes175

Chapter 20 General Dispute Resolution176

Regional Trade178

Adoption of Central American Free Trade Agreement178

Trade Developments Between the United States and Sub-Saharan Africa179

World Trade Organization180

Overview180

U.S. Participation in Doha Round Negotiations181

Modification of WTO Rules on Protection of Pharmaceuticals183

U.S. Conformance with Shrimp-Turtle Decision185

U.S. Conformance with Steel Safeguards Decision186

U.S. Efforts to Conform to Foreign Sales Corporation Decision189

Failure to Conform with Decision on "Byrd Amendment"190

VIII: International Human Rights192

Overview192

New Treaties and Instruments192

Ratification of Protocols to Rights of the Child Convention192

U.S. View on Pursuing a Torture Convention Protocol194

Senate Consideration of CEDAW195

Implementation of Human Rights196

Reporting on Human Rights196

U.S. Opposition to Measures Condemning Israel198

U.S. Declaration on Sudan Genocide198

Election of United States to UN Human Rights Commission202

Failure to Elect U.S. Candidate to Inter-American Human Rights Commission203

Resistance to Decisions of Inter-American Human Rights Commission203

Alien Tort Claims Act and Torture Victim Protection Act Cases206

Background206

Forum Non Conveniens206

Statute of Limitations207

Exhaustion of Local Remedies207

Diplomatic Immunity208

Justice Department ATCA Position in Unocal Case209

ATCA Supporters Amicus Brief in Talisman Case211

Supreme Court ATCA Interpretation in Sosa Case213

Justice Department ATCA Position After Sosa Decision217

District Court ATCA Decisions After Sosa Decision218

Command Responsibility in the U.S. Human Rights Cases220

Immigration225

U.S. Detention of Aliens After September 11 Attacks225

Detention of Illegal Immigrants Cannot Be Indefinite230

Removal of Alien Without Receiving Country's Consent231

Canadian Deportation to United States of Death-Penalty Convict232

North Koreans Seeking Asylum at Diplomatic Compounds in China233

IX: International Criminal Law235

Overview235

Law Enforcement Generally235

U.S./EU and U.S./UK Extradition Treaties235

Continuance of Extradition Treaty with Czech Republic237

MLATs with Various States and the European Union237

Adoption of UN Convention Against Corruption238

Senate Consideration of Other Multinational Treaties240

Hate-Speech Protocol to Cybercrime Convention244

U.S. Law in Support of Diamond Controls245

U.S. Law Against Sex Tourism247

Searching of Foreign Mail Inconsistent with International Law248

U.S. Reaction to Belgian Universal Jurisdiction Law249

Law of War: Status of Guantanamo Bay Detainees252

Decision Not to Regard Persons Detained in Afghanistan as POWs252

JCRC Reaction to the U.S. Decision260

Inter-American Human Rights Commission Reaction261

Ability of Detainees to Obtain Federal Habeas Corpus Review263

Reviews and Releases of Detainees at Guantanamo Bay268

Plans for Trials of Detainees at Guantanamo Bay270

Law of War: Permissible Means for Interrogating Detainees276

Background276

Lack of Miranda Rights for Detainees277

Justice Department 2002 Opinion on What Constitutes Torture278

DOD-Approved Interrogation Techniques at Guantanamo Bay279

"Migration" of Guantanamo Bay Techniques to Iraq282

U.S. Abuse of Iraqi Detainees at Abu Ghraib Prison283

U.S. Abuse of Other Detainees286

Justice Department Withdrawal and Replacement of 2002 Opinion287

Removal of Detainees from Occupied Iraq289

Law of War: Treatment of U.S. Nationals As Unlawful Combatants290

U.S. Nationals Detained as Unlawful Combatants290

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 Tribunals302

U.S. Pressure on Serbia to Transfer ICTY Indictees302

Testimony by U.S. General Before the ICTY303

ICTY Subpoena of Washington Post Journalist305

U.S. Intent Not to Become a Party to the Rome Statute306

American Servicemembers' Protection Act307

U.S. Bilateral Agreements Relating to ICC309

Efforts to Obtain Immunity from ICC for U.S. Peacekeepers312

State Department Views on the Future for War Crimes Tribunals317

X: Use of Force and Arms Control320

Overview320

Use of Force Doctrine320

U.S. Adoption of New Doctrine on Use of Force320

U.S. Reaction to ICJ Judgment in Iran Oil Platforms Case323

Military Attack on Iraq327

Efforts to Address Iraqi Compliance with UN Weapons Inspections327

Congressional Authorization for the Use of Force331

U.S. Effort to Obtain Security Council Authorization to Use Force333

Use of Military Force to Disarm Iraq340

The U.S. Legal Theory for the Intervention342

Conduct of Iraqi Forces During the War344

Conduct of U.S. Forces During the War345

Security Council Recognition of U.S. Postwar Role in Iraq346

Establishment of Coalition Occupation Laws348

Turmoil in Postwar Iraq350

Creation of an Interim Iraqi Government351

The Capture of Saddam Hussein355

The Search for Weapons of Mass Destruction356

Other Deployments in "Global War" on Terrorism358

Arms Control359

Conclusion of U.S.-Russia Treaty on Strategic Offensive Reductions359

U.S. Resistance to Fifth CCW Protocol on Explosive Remnants of War360

Ratification of IAEA Additional Protocol363

Suit by Congressmen Regarding Withdrawal from ABM Treaty365

UN Security Council Resolution on Nonproliferation of WMD366

XI: Settlement of Disputes369

Overview369

Negotiation369

Libyan Compensation for Pan Am Flight 103 Victims369

Libyan WMD Disarmament372

Iran-U.S. Claims Tribunal376

Avco Corporation v. Iran376

Sheibani v. United States377

Riahi v. Iran377

International Court of Justice378

U.S. Position Regarding ICJ Israeli Barrier Advisory Opinion378

XII: Private International Law383

Overview383

Private Commerce383

UNCITRAL Convention on Assignment of Receivables383

Cape Town Convention on Financing of Mobile Equipment385

Interpretation of 1949 Convention on Road Traffic387

New York Convention on Arbitral Awards388

Background388

Ability to Remove New York Convention Cases to Federal Court388

Enforcement of Agreement to Arbitrate or Arbitral Award389

Refusal to Enforce Based on Lack of Personal Jurisdiction392

Refusal to Enforce Based on Forum Non Conveniens Doctrine392

Ability to Determine the Validity of Underlying Contract to Arbitrate393

Hague Convention on Child Abduction394

Background394

Interpretation of "Rights of Custody"394

Interpretation of "Habitual Residence"395

Obligation Not to Return Child if There is a Grave Risk396

Annex: Treaties Sent to the Senate by the President or Consented to by the Senate During 2002-2004398

Index403