IP - Beard

unlike normal pipeline sitings which only need state approval, because the transcanada pipeline connects US w a foreign country - need persmission of US dept of state (conveyed through presidential permit)

a presidential permit

provide infrastructure necessary to transport W. Canadian Sedimentary Basin heavy crude oil from the UC-Canada border to delivery points in TX

physical: coating of soils, sediments, plants and animals

toxilogical: a function of the chemical composition of the oil, solubility of each class of compounds in the oil, and the sensitivity of the area or organism exposed

ICJ Art. 38 and US Constitution

• a. International conventions
• b. International custom
• c. General principles of law recognized by civilized nations
• d. Judicial decisions and the teachings of the most highly qualifiedpublicists of the various nations

as a subsidiary means for the determination of the rules of law

The Constitution and all treaties made shall be the supreme law of the land; and judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding

supremacy clause Article VI (2)

Canadians would see it as discriminating againt their oil and their company

NO NAFTA Art. 605 - A party may adopt/maintain a restriction w/ respect to the export of an energy or basic petrochemical good to the territory of another Party, ONLY IF:

b) the Party doesn’t impose a higher price for exports of an energy good to that other Party that the price charged for such good when consumed domestically, by means of any measure such as licensees, fees, taxation and minimum price requirements

GATT General Agreement on Tarrifs and Trades

=once Canadian oil enters US it must be treated the same as US oil

• General Most-Favored-Nation
• Treatment – cant treat anyone differently than you would treat your favorite
• countries/nations; if one country gets something good from you, everyone is
• entitled to that

Freedom of Transit

General Elimination of Quantitative Restrictions

·tariffs are GATTS chosen form of border protection – quanitative limits impose absolute limits on imports – tariffs do not

Non discriminatory Administration of Quantitative Restrictions

·unless you restrict everyone in quality and quantity - cant restrict anyone

Executive Order 13337

Secretary of State

national interest

presidential permit

national interest

energy security, environmental, cultural and economic impacts; foreign policy; and compliance w relevant fed regulations

8 different federal agencies: Depts of energy, defnese, transportation, homeland security, justice, interior, commerce, epa, US Fish and Wildlife Services, Army corps of engineers

public input by accepting written comments and holding meetings in the 6 states crossed by proposed route and in DC

USC Title 3 - Pres Chapter 4 - Delegation of functions §301

DELEGATION CLAUSE §301 (1) any function which is vested in the President by law, or (2) any function which such officer is required or authorized by law to perform only with or subject to approval, ratification or other action of the Pres

the president

commerce w foreign nations and among the several states

pres can approve the permit for border crossing as part of foreign affairs powers; since congress didnt attempt to exercise exclusive authority over the permitting process, Congress' inaction = congress accepted authority of the pres to issue cross-border permits

1) whether a state regulation discriminates against other states on its face or in effect, showing an intent to benefit in-state economic interests at the expense of out-of-state interests; if yes, no further analysis the law will be struck down

2) if a law is non-discriminatory, but still has some impact on interstate commerce, the court will evaluate the law using a balancing test to find whether there is a legitimate public purpose (public health, environment and safety concerns)

• Expressly
• Conflict preemption: federal law preempts if the 2 conflict (literally impossible to do both)

• Field preemption: where the scheme of fed
• regulation is sufficiently comprehensive to make reasonable inference that
• congress ‘left no room’ for supplementary state regulation

yes

no

pres shall have power to make treaties by and with the advice and consent of the S (2/3 S approval)

Senate

Congress

no Art. 1 §10 of Constitution

consent of congress - needed only if it tends ot increase political power in the states which may encroach/interfere w the Supremacy Clause

congress shall have the power to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this constitution in the govt of the US, or in any dept or officer thereof

• Treaty b/n GB and US involving no hunting regulation on regulatory bird migration; missouri said it was unconstitutional interference w rights reserved to states by the 10th Amendment 
• Held: us treaty and statute upheld - supremacy clause and congressional laws are upheld

yes

• DR and sugar tarriff higher than hawaii's 
• Developed the Later in time rule

if not possible to read treaty and law as not being in conflict - the one made most recently will control

if there are conflicts between treaty and the law - the ct will always endeavor to construe them as to give effect to both, if that can be done w/o violating the language of other

requires the Pres to transmit to Congress all intnl agreements other than Ts w/n 60 days after their conclusion

recover money deposited by Russian corp. w august belmont - private banker doing business in NYC; soviet froze assets, Pres made compact - states can in no way be an obstacle to the effective operation of a fed constitutional power - external powers of the US are to be exercised w/o regard to state laws or policies 

"As to such purposes of this decision the state of NY did not exist

Pres and pres alone recognizes foreign govts

a form of intnl law-making that is designed to be not enforceable (ex: Environment and natural resources, trade and financing, human rights, multilateral arms control

soft law - not enforceable

do not engage legal responsibility

no

no

avoid legal effect

- can look at how the instrument was dealt w after its conclusion

and if noncompliance wouldnt be grounds for reparation/judicial remedy

precise and definite engagements as to future conduct w a clear understanding shared by the parties that the agreements are not legally binding (Nature=non-binding/non-legal)

yes.

political or moral obligation and intend to carry it out in good faith

States only - no companies or IGOs

they have authority to enter into the agreement

no

yes

no

no, but sort of in a roundabout way yes because the VCLT is a codification of customary intl laws, so essentially they end up applying it to Ts made before VCLT was put into action

customary intl law

identity and intention of the parties; significance of the arrangement; criteria for determining enforceability; 2 or more parties; form

minutes and letters b/n Q&B; both were found to be IAs; bc the writings satisfied the requirements set out for Treaties under the VCLT - ICJ held they were both binding IAs 

*Non-registration of the IA with the UN doesnt make it any less binding on the parties 

Legal status of Eastern Greenland; when Misiter of FA on behalf of his Govt in response to a requiest made by the diplomatic representative of a foreign power - unilateral statement is binding upon the country

Nuclear tests case; unilateral actions bound the party who made them to its terms -- head of state declarations oral/written (as long as statement reveals a clear intention) are in intl relations, acts of the State - statements must be made in good faith

will you comply (in press conference); head of state of Mali says yes; held: that was just a witticism of what is normally done at press conferences - not legally binding

• (1) consent of all States who are parties to the T 
• OR
• (2) if at intl conferences - takes vote of 2/3 of the states present and voting unless by the same majority decide to apply a different rule

by procedure outlined in a clause of the agreement by States participating in its creation; or by the signature/signature and referendum or initialing by the representatives of those states of the text of the T or of the Final act of a conference incorporating the text

• person has authority if he produces full powers; 
• OR
• it appears from the practice of the States or from other circumstances that they intended to consider that person as representing the State for such purposes; 
• OR
• no need to produce full powers if heads of states/govt and ministers of foreign affairs

a state is bound when it isnt evident to the other party that the official acting for the state has exceeded his authority

Art11: Expression of Consent to be Bound - signature, exchange of instruments constituting a treaty, ratification, acceptance, approval, or accession and any other means if so agreed

Art14: requires signature + ratification for some circumstances; ratification used here = ratification on the international plane

• Entry into force after ratification: common provision in multilateral agreements
• "this treaty shall come into force upon the receipt by the depository of instruments of ratification of [a specified number] of states"

[UN Secretary General serves as depositary formany multilateral treaties]

Obligations of a state which has signed a treaty subject to ratification but which has not yet ratified the treaty

If ratification takes place, a signatory state’s misuse of its rights prior to ratification may amount to a violation of its treaty obligations 

Art. 18: A state that has signed an agreement is obligated to refrain from acts that would defeat the object and purpose of the agreement when it has signed the T or has exchanged instruments constituting the T subject to ratification, acceptance or approval, until it shall have made its intention clear not to become a party to the T OR if it appears that entry into force will be unduly delayed

Ex: Arms Act – testing nuclear weapons does defeat the object; failing to dismantle a weapon scheduled to be dismantled under the T might not defeat its object

a unilateral statement, however phrased/named, made by a State when signing, ratifying, accepting, approving, or acceding to a T, whereby it purports to exclude or to modify the legal effect of certain provisions of the T in their application to that State

• (a) the R is prohibited by the T 
• (b) the T provides that only specified Rs, which do not include the R in question, may be made,
• or
• (c) the R is incompatible with the object and purpose of the T·

counter offer

not unless the T says it does

when it appears by the object and purpose of the T that the T in its entirety is an essential condition of the consent of each one to be bound by the T

every T in force is binding upon the parties to it and must be performed in GOOD FAITH

Art 26 Pacta Sunt Servanda

the principle of good faith obligates the parties to apply it in a reasonable way and in a manner that its purpose can be realized

supposed to do reasonably want you can to meet the requirements of the obligation

no - VCLT 27

unless the violation concerned a rule of its internal law of fundamental importance;

objectively evident to any state conducting itself in the matter in accordance w normal practice and in good faith

agreement

2. (a) any agreement relating to the T which was made b/n all the parties in connection with the conclusion of the T; 

(b) any instrument which was made by one or more parties in connection w the conclusion of the T and accepted by the other parties as an instrument related to the T

• 3. There shall be taken into account, together with context:
• (a) any subsequent agreement b/n the parties regarding the interpretation of the T or the application of its provisions;

• (b) any subsequent practices in the application of the T which establishes the agreement of the parties regarding its
• interpretation;

• (c) any relevant rules of intl law
• applicable in the relations b/n the parties

prep work of the T and the circumstances of its conclusion if Art 31 doesnt give you enough; or if 31 leaves meaning ambiguous or obscure or leads to a result which is manifestly absurd or unreasonable

USA fisherman cannot go in CAN fishing waters w/ very few specific exceptions; USA fisher goes for cause not listed in the exceptions and is seized immediately; held: just bc 1 of the contracting parties (GB) unilaterally interpreted it to mean literally anything else warranted seizing the fisher - does not bind the other contracting parties

interpretation agreed upon by all the parties to a T

text is equally authoritative in each language; unless the T provides/the parties agree in case of divergence a particular text shall prevail

when there is a difference of meaning - meaning which best reconciles the texts, having regard to the object and purpose of the T shall be adopted

• Most of the bases for invalidating an IA aren’t in reality going to make the IA
• void – there’s a certain amount of error, fraud and corruption in every treaty-
• you need an awfully high standard to say it should be thrown out on these
• premises

T = void if, at the time of its conclusion, it conflicts w a peremptory norm of general intl law.

Must be an extreme thing (slavery, torture camp)

a norm accepted and recognized by the intl community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general intl law having the same character

• (a) A repudiation of the T not sanctioned by the present Convention;
• or
• (b) The violation of a provision essential to the accomplishment of the object or purpose of the T.

suspending the operation of a T

• (a) boundary 
• (b) a breach by the party invoking it

• (a) an essential basis of the consent
• (b) radically transform the extent of obligations

the surrender of an individual by the state w/n whose territory he is found to the state whose laws he is alleged to have broken

no - principles of intl law recognize no right to extradition apart from a treaty

a crime in both states and punishable by a certain minimum penalty

federal law

the proceedings comply w the applicable T

Attorney General certification in writing that evidence has been presented that indicates offenses (if in US would have been crimes) and offenses are not of a political nature

an obligation to mutually recognize arrest warrants issued by judicial authorities of its members

state requesting extradition may not, w/o permission of the state in which the offender is present, try to punish the fugitive for any crimes committed before the extradition except the crimes for which he was extradited

extradition only when the law is a crime in both States at the time it was committed (name of crime and elements need not beidentical)

in many Ts state not required to extradite their own nationals - up to discretion of requested state

the ct considering an extradition request concerns itself only w whether the T standard for extradition is satisfied and does not usually entertain evidence about the quality of the justice system in the requesting state  (after the ct has certified extraditability – the Secretary of State may consider such evidence in making the final discretionary decision)

• 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

only states

only b/n parties to the case and in respect of that particular case

Opinio juris = general practice + acceptance of law

• whether upon the facts appearing in these records, the fishing smacks were subject to capture by the armed vessels of the US during Spanish American War; they were not as was evidenced in document/agreements from all over the world between many parties –
• even during wartime, fishing boats cannot be taken as POW or anything of the
• sort – they are exempt from harm!