Anthony Aust. Handbook of International Law

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occurring, outside its territory. But in the last half-century, ‘extraterritorial’ has become synonymous

with certain controversial US legislation expressed to apply to persons abroad, including non-US

nationals,

in respect of acts done abroad that are considered to have a substantial and harmful

effect in the United States (the so-called effects doctrine).

The doctrine has been applied especially to overseas subsidiaries of US companies, even when the

subsidiary is locally incorporated (here referred to as ‘foreign subsidiaries’),

on the basis that they

are still ‘US’ companies and should therefore still be subject to such US laws. This might not matter

so long as the legal obligations do not conflict with the legal regime of the other state. But

legislation that seeks to impose domestic policy constraints on companies incorporated and

operating abroad may well infringe the sovereignty of other states. This is particularly so when it is

devised to further US national policy by imposing strict regulatory requirements accompanied by

severe criminal penalties or penal damages, such as treble damages. In 1979, after the seizure of US

embassy staff in Tehran, the United States froze all Iranian assets, including dollar accounts held

abroad by foreign subsidiaries. After martial law had been imposed in Poland, in 1982 US

legislation prohibited foreign subsidiaries from supplying material for the building of the Siberian

pipeline. While COCOM existed to supervise technological exports to the communist bloc, the

United States sought to impose its export controls on foreign subsidiaries. More recently, the so-

called Helms–Burton and D’Amato legislation of 1996, first, authorised legal proceedings in US

courts against foreign companies (not just foreign subsidiaries) ‘trafficking’ in property of US

nationals expropriated by Cuba, and, secondly, imposed sanctions on foreign companies taking part

in the development of the oil industries in Iran and Libya.

Many Western states and the European Community opposed these extravagant assertions of

jurisdiction. However, the European Court of Justice has adopted an effects doctrine similar to that

of the United States, holding that Community competition law applies to anti-competitive

agreements reached abroad by foreign companies if they are implemented within the Community.

25. First enunciated in US v. Aluminium Company of America, 148 F 2d 416 (1945); American

International Law Cases, vol. 9, p. 13.

26. See p. 182 below on the nationality of companies.

27. See ILM (1996) 357 and 1273, respectively.

28. ICI v. Commission (Dyestuffs case) [1972] ECR 619; 48 ILR 106; Ahlstrom v. Commission (Wood

Pulp cases) [1988] ECR 5193; 96 ILR 148.

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There has also been considerable resentment at attempts to apply US antitrust legislation, such as the

so-called Sherman Act, against foreign companies operating also in, but not based in, the United

States (such as foreign airlines), and in particular demands for the wide-ranging production of

documents held abroad, and awards of treble damages. This has led to states enacting ‘blocking’

legislation under which the government could prohibit the production of documents in the courts of

the other state. The UK legislation also allows a UK national or resident to sue in the United

Kingdom to recover multiple damages awarded by a foreign court.

But the US courts have

developed a balancing test that takes into account various matters in deciding whether they should

assert jurisdiction in such cases. They include conflicts with foreign law or policy, whether the

conduct was prohibited in the other state, the availability of a foreign remedy, the importance of

intent to harm US commerce, and the effect on foreign relations.

Happily, such disputes seem to

have become much rarer.

Alien Tort Claims Act 1789

The date is correct, though it was only in the 1980s that the Act was resurrected as a means of

avoiding the limitation in the Foreign Sovereign Immunities Act that prevents US courts hearing

claims based on torts committed outside US territory. In Filartiga,

a US Federal Appeals Court

held that, under the Act, a foreign national could sue in the United States an official of a foreign

state (not the state itself)

for torture committed by him in that foreign state. This was on the

tenuous basis that he had been served with the proceedings in the United States and torture was an

international crime that all states have the right to prosecute wherever it is committed. This led to

rather newer legislation, including an amendment to the 1789 Act (made by the Anti-Terrorism and

Death Penalty Act 1996),

which removed state immunity for murder, or terrorist acts causing

29. Protection of Trading Interests Act 1980. See British Airways v. Laker [1984] 3 All ER 39; 74 ILR 65;

and Midland Bank v. Laker [1986] 2 WLR 707; 118 ILR 540.

30. Timberlane, 549 F 2d 597 (1976); 66 ILR 270; Mannington Mills, 595 F 2d 1287 (1979); 66 ILR 487.

31. See now 28 USC s. 1350 (1982). See generally H. Fox, The Law of State Immunity, Oxford, 2002, pp.

208–12; Shaw, pp. 607–10; Higgins, pp. 211–12.

32. 77 ILR 169. On universal jurisdiction, see p. 45 above.

33. On this, see Argentine Republic v. Amerada Hess, 488 US 428 (1989); 81 ILR 658.

34. AJIL (1997) 187.

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personal injury or death, done anywhere in the world on behalf of a state that has been designated as

a state sponsor of terrorism, unless neither the claimant nor the victim is a US national. In 2004, in

Sosa v. Alvarez-Machain,

the US Supreme Court restricted the use of the Act when harm was

caused by acts of foreign officials that do not amount to a violation of customary international law.

The Act has been used unsuccessfully to bring cases against foreign companies based on historical

human rights abuses that have little or no connection with the United States.

Abduction

Abduction is the seizure (kidnapping) of a person for trial abroad, so bypassing any extradition treaty

or procedure.

(Sometimes it is described as ‘rendition’, but that term also covers lawful means of

obtaining a fugitive from justice.) Abduction clearly breaches local law. And, since the laws of one

state cannot be enforced in another state without its permission, it also violates international law,

including that on human rights, such as the right to security of the person and due process.

Thus

the injured state can protest and claim compensation.

The person is usually seized from foreign territory, although occasionally he may be seized on

board a foreign ship on the high seas. The most dramatic example is still the abduction by Israeli

agents in 1960 from Argentina of Adolf Eichmann for trial in Israel for crimes against humanity

committed during the Nazi period.

Since then, there have been many other abductions.

The other important issue is whether the courts of the abducting state will accept jurisdiction over

the person despite the violation of international law. This matter has so far been left to be decided

entirely by domestic courts. Much depends on the particular circumstances, courts having shown

themselves more willing to accept jurisdiction if the abduction was not from foreign territory or the

offence was an international crime (as in the case of Eichmann). Current US law is that jurisdiction

will not be accepted if torture or similar outrageous conduct has been involved.

But in 1992, in US

v. Alvarez-Machain, the US Supreme Court

35. 542 US__ (2004).

36. Oppenheim, vol. 1, pp. 387–9; Higgins, pp. 69–73; Shaw, pp. 604–7.

37. On extradition, see p. 264 below.

38. But see p. 226 above on self-defence.

39. See pp. 407 et seq below on state responsibility.

40. See UNSC Res. 138 (1960); and A. Aust, ‘The Security Council and International Criminal Law’

(2002) NYIL 23 at 26.

41. US v. Yunis, ILM (1991) 403–9.

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held that the circumventing of an extradition treaty would not, in itself, prevent jurisdiction being

exercised unless abduction was prohibited by the terms of the treaty.

In contrast, the UK courts

will not accept jurisdiction if the person was brought forcibly into the United Kingdom in violation

of international law and in disregard of any extradition treaty or process.

42. 504 US 655 (1992); 95 ILR 355; ILM (1992) 901.

43. Bennett [1993] 3 WLR 90; 95 ILR 380. See also the South African case of Ebrahim, ILM (1992) 888;

95 ILR 417.

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5 The law of treaties

Open covenants of peace, openly arrived at . . .

Aust, Modern Treaty Law and Practice, Cambridge, 2000

McNair, The Law of Treaties, 2nd edn, Oxford, 1961

O’Connell, International Law, 2nd edn, London, 1970, pp. 195–280

Sinclair, The Vienna Convention on the Law of Treaties, 2nd edn, Manchester, 1984

Blix and Emerson, The Treaty Maker’s Handbook, Dobbs Ferry, NY, 1973

Summary of Practice of the Secretary-General as Depositary of Multilateral Treaties 1999

(ST/LEG/7/Rev.1) (‘UN Depositary Practice’)

Multilateral Treaties Deposited with the Secretary-General (‘UN Multilateral Treaties’)

UN Treaty Collection: http://untreaty.un.org/english/treaty.asp (which hasboth of the above)

Anyone interested in international law needs to know the law of treaties. Because the subject is so

important, this chapter is the longest, although the author’s book on treaties should be consulted for

more detail. The Vienna Convention itself is essential reading,

in particular the definitions in

Article 2, of which the following should be especially noted:

‘negotiating state’ means a state, which took part in the drawing up and adoption of the text of the treaty;

‘contracting state’ means a state, which has consented to be bound by the treaty, whether or not the treaty

is in force;

‘party’ means a state, which has consented to be bound by the treaty and for which the treaty is in force.

(Emphasis added)

1. Woodrow Wilson, speech to Congress, 8 January 1918.

2. 1155 UNTS 331 (No. 18232); ILM (1969) 689; UKTS (1980) 58. See the text in Aust, p. 361.

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The Vienna Convention on the Law of Treaties 1969

The Vienna Convention on the Law of Treaties 1969 (‘the Convention’ or ‘the 1969 Convention’)

codified the law of treaties, i.e. the rules and procedure for making and applying treaties. Unless

otherwise indicated, references in this chapter to numbered Articles are to Articles of the

Convention. The rights and obligations created by a treaty are more properly known as ‘treaty law’.

Although it still has only 101 parties, the Convention is regarded by the International Court of

Justice as generally reflecting customary international law, and for most practical purposes the

Convention is an authoritative statement of customary international law and so can be applied to

most treaties, despite the Convention not having retroactive effect (Article 4).

The Convention does not apply to oral agreements. Nor does it cover succession to treaties,

responsibility for breach of treaties

or the effect of hostilities on treaties.

What is a treaty?

Article 2(1)(a) of the Convention defines ‘treaty’ as:

an international agreement concluded between states in written form and governed by international law,

whether embodied in a single instrument or in two or more related instruments and whatever its particular

designation.

The Convention uses ‘treaty’ as a generic term, and so includes treaties that may be described as

universal or regional, intergovernmental, interministerial or administrative. A treaty can be made

between only two parties (bilateral) or three or more (multilateral), and most of the Convention

applies to both types. A plurilateral treaty is one made between a limited number of states with a

particular interest in the subject matter.

A constituent treaty establishes and regulates an

international organisation. A universal treaty is one intended to apply to all states. A regional treaty

is self-explanatory.

To be a treaty, the agreement must have an international character. It must therefore be the

following.

3. The title of Aust is therefore not that accurate, but sounded better to the publisher.

4. See further Aust, pp. 10–11.

5. See p. 393 below.

6. See p. 414 below.

7. See p. 105 below.

8. See the Estonia Agreement, 1890 UNTS 176 (No. 32189); UKTS (1999) 74.