IP - Beard

  1. Why does the TransCanada Pipeline need fed govt approval
    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)
  2. All facilities which cross international borders of the US require...
    a presidential permit
  3. primary purpose of the TC pipeline
    provide infrastructure necessary to transport W. Canadian Sedimentary Basin heavy crude oil from the UC-Canada border to delivery points in TX
  4. Two primary types of impacts that occur with crude oil spill
    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
  5. Sources of law involved in TC pipeline days
    ICJ Art. 38 and US Constitution
  6. International Court of Justice, Art. 38

    1.     The court, whose function is
    to decide in accordance with international law such disputes are submitted to
    it, shall apply:

    a.                                  ,
    whether general or particular, establishing rules expressly recognized by the
    contesting states;

    b.                        , as
    evidence of a general practice accepted as law;

    c.                                         ;

    d.     Subject to the provisions of
    Article 59,                         , as subsidiary means for the determination of
    rules of law
    • 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
  7. ICJ Art. 38

    What do they look at judicial teaching of the most highly qualified publicits of various nations for?
    as a subsidiary means for the determination of the rules of law
  8. Art VI (2) of the US Consitution
    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
  9. 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)
  10. legal problem with requiring the oil from TC Pipeline to stay in America
    Canadians would see it as discriminating againt their oil and their company
  11. Can the US charge less for domestic oil?
    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
  12. A ban on exports would violate what? What does this insure for Canadian oil?
    GATT General Agreement on Tarrifs and Trades

    =once Canadian oil enters US it must be treated the same as US oil
  13. GATT Art. 1
    • 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
  14. GATT Art 6.
    Freedom of Transit
  15. GATT Art. XI
    General Elimination of Quantitative Restrictions

    ·tariffs are GATTS chosen form of border protection – quanitative limits impose absolute limits on imports – tariffs do not
  16. GATT Art. XIII
    Non discriminatory Administration of Quantitative Restrictions

    ·unless you restrict everyone in quality and quantity - cant restrict anyone
  17. Through                       , president directs the                 of           to decide whether a project is in the national interest before granting a Presidential Permit
    Executive Order 13337

    Secretary of State
  18. Through Executive Order 13337, president directs the Secretary of State to decide whether a project is in the                    before granting a                      
    national interest

    presidential permit
  19. Can only issue a presidential permit if it serves
    national interest
  20. National interest involves consideration of
    energy security, environmental, cultural and economic impacts; foreign policy; and compliance w relevant fed regulations
  21. For PP for TC Pipeline consulted w.          and held             
    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
  22. President's general authorization to delegate functions is
    USC Title 3 - Pres Chapter 4 - Delegation of functions §301
  23. § The Pres is authorized to designate and empower the head of any department or agency in the exec. branch, or anyone who is required to be appointed by and with the advice and consent of the Senate, to perform without approval, ratification, or other action by the Pres
    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
  24. Const Art 2. §1 - executive power shall be vested in
    the president
  25. Const. Art 1 §8 Congress shall have the power to regulate
    commerce w foreign nations and among the several states
  26. Sierra v. Clinton
    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
  27. Dormant commerce clause asks 2 questions
    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)
  28. A federal statute (if constitutional) will preempt state law in which ways (3 ways)
    • 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
  29. can S impose conditions on the T after the Pres has submitted it for consent
  30. Does Pres have to ratify it after S has given its advice and consent
  31. Art 2 §2 of the US Constitution: Advice and Consent Clause
    pres shall have power to make treaties by and with the advice and consent of the S (2/3 S approval)
  32. who provides advice and consent on treaties
  33. who has the role of implementing treaties
  34. Can a state enter into a treaty, alliance or confederation?
    no Art. 1 §10 of Constitution
  35. What does a state need to enter into any agreement or compact w a foreign power?
    consent of congress - needed only if it tends ot increase political power in the states which may encroach/interfere w the Supremacy Clause
  36. Necessary and Proper Clause Art. 1 §8
    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
  37. Missouri v. Holland
    • 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
  38. are treaties subject to constitutional limits that apply to all exercises of federal power
  39. Whitney v Robinson
    • DR and sugar tarriff higher than hawaii's 
    • Developed the Later in time rule
  40. Later in time rule
    if not possible to read treaty and law as not being in conflict - the one made most recently will control
  41. Charming Betsy
    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
  42. Case Act of 1972
    requires the Pres to transmit to Congress all intnl agreements other than Ts w/n 60 days after their conclusion
  43. US v. Belmont
    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
  44. Art II §3 USCon: Receive Ambassadors Clause
    Pres and pres alone recognizes foreign govts
  45. Soft law
    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
  46. a handshake is often used as an example of
    soft law - not enforceable
  47. non-binding agreements
    do not engage legal responsibility
  48. are non-binding agreements governed by the VCT
  49. are non-binding agreements governed by international law
  50. if the text/circumstances leave the intent of an agreement uncertain it is reasonable to consider vague language and mere declarations of purpose as indicative of an intention to
    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
  51. “Gentleman’s Agreements”:
    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)
  52. Can non-binding agreements be authoritative and controlling for the parties even though they are easier to get out of than binding agreements
  53. states entering into a non-legal commitment generally view it as a
    political or moral obligation and intend to carry it out in good faith
  54. VCLT: 
    who can a treaty be between
    States only - no companies or IGOs
  55. VCLT:  what must a party representing a state prove
    they have authority to enter into the agreement
  56. VCLT: can agreements be oral
  57. VCLT: can agreements be on more than 1 peice of paper
  58. VCLT: do agreements require a signature
  59. VCLT: are Ts retroactive
    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
  60. VCLT: the VCLT is largely declaratory of ...
    customary intl law
  61. Criteria for IAs (22 USC §181.2)
    identity and intention of the parties; significance of the arrangement; criteria for determining enforceability; 2 or more parties; form
  62. Qatar v. Bahrain
    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 
  63. Norway v. Denmark
    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
  64. Australia v. New Zealand
    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
  65. Frontier Dispute Case Burkina Faso v. Mali
    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
  66. VCLT Art. 9: adoption of a T requires
    • (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
  67. VCLT 10: text of a T= authentic and definitive if:
    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
  69. VCLT: Apparent Authority
    a state is bound when it isnt evident to the other party that the official acting for the state has exceeded his authority
  70. Articles 11-17: 
    the ways in which states express their consent to be bound by a treaty
    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]
  71. Article 18 - Obligation not to Defeat
    the Object of a Treaty
    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
  72. What is a reservation
    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
  73. Art. 19: A state may, when
    signing, ratifying, accepting, approving or acceding to a treaty, formulae a
    reservation unless:
    • (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·
  74. If a bilateral agreement, reservations are much like a
    counter offer
  75. VCLT: does a reservation expressly authorized by a T require any subsequent acceptance by the other contracting states
    not unless the T says it does
  76. VCLT: When does a reservation require acceptance by all of the parties
    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
  77. Pacta Sunt Servanda VCLT 26
    every T in force is binding upon the parties to it and must be performed in GOOD FAITH
  78. every T in force is binding upon the parties to it and must be performed in GOOD FAITH
    Art 26 Pacta Sunt Servanda
  79. hungary v slovakia
    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
  80. Beard: Good faith means
    supposed to do reasonably want you can to meet the requirements of the obligation
  81. Can a State use the excuse of internal law as justification not to perform treaty obligations?
    no - VCLT 27

    unless the violation concerned a rule of its internal law of fundamental importance;
  82. VCLT 46 a violation is manifest if it would be
    objectively evident to any state conducting itself in the matter in accordance w normal practice and in good faith
  83. whatever internal law you are using as justification for not performing had to be manifested at the time of
  84. General rule of interpretation VCLT 31

    1. T shall be interpreted in good faith in accordance w the ordinary meaning to be given to the terms of the T in their context and in the light of its object and purpose
    2. the context for the purpose of interpretation of a T shall compromise, in addition to the text, (a-c)
    3. There shall be taken into account, together with context: (a-c)
    4. a special meaning to the term if it is established that the parties intended one
    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
  85. VCLT 32: Supplementary means of interpretation
    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
  86. US v. GB
    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
  87. authentic interpretation
    interpretation agreed upon by all the parties to a T
  88. Art 33 - if T made in 2+ languages
    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
  89. Art. 48, 49, 50 - fraud, error, and corruption --> beard
    • 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
  90. Article 53, Ts conflicting w a peremptory norm of general intl law (“jus cogens”)
    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)
  91. VCLT: a peremptory norm of general international law is
    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
  92. Article 60:  Termination or suspension of the
    operation of a treaty as a consequence of its breach

    1. A material breach of T of a bilateral T by one of the parties entitles the other to invoke the breach as a ground for terminating the T or suspending its operation in whole or part…

    3. A material breach of a T: is...
    • (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.
  93. VCLT Article 62: Fundamental Change of Circumstances

    if a party can invoke a fundamental change of circumstances as a ground for terminating or withdrawing from the T, may also invoke the change as a ground for
    suspending the operation of a T
  94. VCLT Article 62: Fundamental Change of Circumstances
    2. A fundamental change of circumstances may not be invoked as a ground for
    terminating or withdrawing from a T:

    (a) If the T establishes a            ; or (b) If the fundamental change is the result
    of                 either of an obligation under the T or of any other intl obligation owed to any other party to the T.
    • (a) boundary 
    • (b) a breach by the party invoking it
  95. VCLT Article 62: Fundamental Change of Circumstances

    1. A fundamental change of circumstances
    which has occurred w regard to those existing at the time of the conclusion of a T, and which was not foreseen by the parties, may NOT be invoked as a ground for terminating or withdrawing from the T unless:

    (a) The existence of those circumstances constituted               of the parties to be bound by the T; and

    (b) The effect of the change =               still to be performed under the T.
    • (a) an essential basis of the consent
    • (b) radically transform the extent of obligations
  96. Extradition is
    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
  97. Is extradition a legal right?
    no - principles of intl law recognize no right to extradition apart from a treaty
  98. Extradition: most bilateral Ts contain a list of acts for which a fugitive may be extradited; often must be:
    a crime in both states and punishable by a certain minimum penalty
  99. In the US, intl extradition is governed by
    federal law
  100. US extradition requires a judicial hearing of the evidence against the fugitive to ensure that
    the proceedings comply w the applicable T
  101. w/o treaty, extradition from the US still possible w
    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
  102. Extradition in EU
    an obligation to mutually recognize arrest warrants issued by judicial authorities of its members
  103. Specialty Criminality
    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
  104. Double Criminality
    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)
  105. Extradition of a state's own nationals
    in many Ts state not required to extradite their own nationals - up to discretion of requested state
  106. Rule of judicial non-inquiry
    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)
  107. Enforcement jurisdiction
    • 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
  108. Statute of ICJ: 34 - Who can be parties in cases before the Ct
    only states
  109. Statute of ICJ: 59 - decision of the Ct has binding force on whom/what
    only b/n parties to the case and in respect of that particular case
  110. Statute of ICJ 38: (b) intl custom, as evidence of general practice accepted by law
    Opinio juris = general practice + acceptance of law
  111. Paquette Habana
    • 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!
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IP - Beard