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1. State Practice on Sovereign Immunity in Employment Disputes Involving Embassy and Consular Staff

Author:
Julia Brower
Publication Date:
12-2015
Content Type:
Working Paper
Institution:
Center for Global Legal Challenges, Yale Law School
Abstract:
This report identifies and analyzes foreign case law and statutes on sovereign immunity in employment disputes brought by dismissed embassy and consular staff from twenty-seven countries and two international courts. State practice remains quite diverse, and it is not possible to identify one clear, specific majority test for whether foreign States are immune in such disputes. However, several recent trends exist, with state practice in Europe in particular starting to coalesce around a common approach. The findings of this report must be considered with the limitations of the research in mind. The vast majority of case law surveyed in this report is from Europe and English-speaking countries. Only a handful of translated decisions or statutes from Latin America, Africa, and Asia could be found, and significantly, this report does not include any decisions from China or Brazil.
Topic:
Law, Protected People, Diplomatic Immunity, and Sovereign Immunity
Political Geography:
Global Focus

2. General Principles Regarding the Legal Validity of RUD

Author:
Eric Chung
Publication Date:
12-2015
Content Type:
Working Paper
Institution:
Center for Global Legal Challenges, Yale Law School
Abstract:
This paper examines the legal validity of reservations, understandings, and declarations (RUDs) in both U.S. and international courts. The analysis is based on 46 U.S. cases discussing RUDs as a general category and 26 U.S. cases discussing interpretative understandings and declarations, out of approximately 650 reviewed cases. The analysis is also based on 13 cases from international courts out of approximately 300 reviewed cases, including cases from the International Court of Justice (ICJ), the United Nations Convention on the Law of the Sea (UNCLOS) tribunal and arbitral bodies, the European Court of Human Rights, and the Inter- American Court of Human Rights. In the U.S. cases, RUDs are nearly always recognized as valid. For example, non-self- execution reservations in the Convention Against Torture (CAT) and the International Covenant on Civil and Political Rights (ICCPR) are usually treated as legally controlling. The same is true for the reservation to the ICCPR that reserves the right to use capital punishment on juveniles despite treaty prohibitions, as well as interpretative understandings and declarations defining specific terms used in the CAT. U.S. courts have only questioned the validity of RUDs when they were not properly communicated to other state parties, did not support a contrary interpretation, or focused on issues of wholly domestic concern (although the only case on this point was vacated and is not precedential). In addition, individual circuit judges, writing in dissent, have examined whether RUDs violate the separation of powers principle or are inconsistent with the treaty language and international law. With few exceptions, international courts also usually defer to RUDs. The ICJ has indicated that it can invalidate a reservation as incompatible with the object and purpose of a treaty pursuant to Article 19 of the Vienna Convention on the Law of the Treaties. Yet the ICJ has only invalidated a RUD when it determined that a reservation was in fact an interpretative declaration (as opposed to a reservation modifying the state’s legal obligations under the treaty). This has been particularly important in cases where the treaty in question prohibits reservations, such as the UNCLOS. Rules stipulated by a treaty also shape how other courts review RUDs. The European Court of Human Rights, for instance, applies treaty rules to invalidate RUDs that are of a general character or fail to include a statement of the law concerned. Following a number of practices can reduce a RUD’s vulnerability to invalidation in U.S. and international courts. For U.S. courts, a RUD is extremely unlikely to be questioned if it is documented clearly at the time of ratification and communicated to all treaty parties at the time of ratification. For international courts, a RUD is unlikely to be questioned if, in addition to the above factors, it is not counter to the “object and purpose” of a treaty, it is not objected to by other parties, and it is not a reservation masquerading as an interpretive declaration in a situation where reservations are prohibited by the relevant treaty.
Topic:
Human Rights, Law, Legal Theory, and Courts
Political Geography:
United States of America and North America

3. Below the Threshold: The Law Governing the Use of Force Against Non-State Actors in the Absence of a Non-International Armed Conflict

Author:
Daniel Hessel, Julia Shu, and Sarah Weiner
Publication Date:
12-2015
Content Type:
Working Paper
Institution:
Center for Global Legal Challenges, Yale Law School
Abstract:
Boko Haram attacks civilians in Nigeria. The Islamic State launches attacks in Paris. Terrorists take hostages at a hotel in Mali. Mexican drug gangs threaten government officials and civilians. Houthi rebels seek to take control of the government in Yemen—and succeed. States increasingly face security threats from non-state actors, which have led states and observers to ask what states can do in response. What legal framework should apply? What constraints do states face? When can states resort to the use of military force to address threats posed to them by non-state actors, either on their own territory or on the territory of another state? The answer to these questions turns on whether the conflict in question rises to the level of a non-international armed conflict (NIAC). Based on the drafting history of international humanitarian law (IHL) governing NIACs, international jurisprudence, recent state practice, and academic commentary, this paper concludes that a NIAC does not exist unless the conflict passes an intensity threshold. In other words, the intensity of the conflict distinguishes generalized violence involving a non-state actor from a NIAC. Once the existence of a NIAC is established, states participating in it will be governed by relevant IHL. But if states are only governed by the IHL applicable to NIACs once an intensity threshold has been crossed, what law applies below that threshold? The answer varies with the circumstances, depending on whether the state is responding to a threat within its own territory or from outside; and if the threat is from outside the state, whether the host state consents to the use of force against the non-state actor. Thus, to answer the question of what law applies before a NIAC is established, this white paper analyzes three different scenarios in which a state contemplates forceful engagement with a non-state actor. Each scenario presumes that t he non- state actor is organized and has engaged in some violence, but that the intensity of the clash has not crossed the intensity threshold and thus has not risen yet to the level of a NIAC. 1. In Scenario One, a state seeks to engage a non-state actor that operates exclusively within the state’s territorial borders. 2. In Scenario Two, an intervening state seeks to engage a non-state actor located in another state, with the consent of the host state. 3. In Scenario Three, an intervening state seeks to engage a non-state actor located in another state, without the consent of the host state. The analysis of each scenario first identifies the authority that governs whether and when the state may initiate forceful engagement with the non-state actor (the “may the state use force” evaluation), then discusses which legal regime governs the scope and nature of the resulting use of force (the “how may the state use force” evaluation). Different legal regimes govern the acting state’s options in each of the scenarios. Although the authority for action differs, the inquiries for Scenarios One and Two are quite similar. In Scenario One, the acting state may engage the non-state actor with force by virtue of its territorial sovereignty. It must act, however, through a domestic law enforcement framework and in compliance with human rights law. In Scenario Two, the acting state derives the authority to use force against the non-state actor from the host state’s consent. However, it may only rely on that consent insofar as it comports with the host state’s human rights obligations under international law. In raising the possibility of one state violating another state’s territorial integrity, Scenario Three raises a different set of questions. The intervening state’s threat or use of force within another state’s territory is only lawful when authorized by the U.N. Security Council or justified under the Charter’s Article 51 self-defense provision. The intervening state’s use of force is accordingly regulated by the traditional IHL of international armed conflict. Where scenarios overlap (when, for example, the intervening state has both consent and Article 51 authority to act), the acting state may rely on more than one source of authority. It must, however, continue to ensure that it has authority to use force and that its use of force comports with the legal framework appropriate for the nature and intensity of the conflict. It is worth noting at the outset that these scenarios highlight developing areas of international law. Some raise questions that have clear answers in existing legal authority, while others contend with more inchoate legal regimes. Where state practice has not yet solidified into definitive international norms, legal ambiguity remains. In such instances, this white paper notes the existence of ambiguity and examines the history, purposes, and principles of relevant legal regimes to proffer answers.
Topic:
Military Strategy, Non State Actors, Law, and Conflict
Political Geography:
Global Focus

4. The Applicability of International and Domestic Immigration Law to Relocated Guantanamo Detainees

Author:
Sarah Weiner
Publication Date:
11-2015
Content Type:
Working Paper
Institution:
Center for Global Legal Challenges, Yale Law School
Abstract:
The physical relocation of detainees from Guantanamo to the United States would not meaningfully alter U.S. obligations under domestic immigration law or international law concerning refoulement. Domestic immigration law would not affect U.S. authority to bring aliens into the United States and to detain those aliens under the laws of war. Detainees would not enter the United States as immigrants, but rather would remain legally “at the border” during their detention. If a detainee secures his release from law-of-war detention, then the United States would be prohibited from transferring the former detainee to a country where there are substantial grounds for believing that he would be in danger of being subjected to torture. This obligation applies equally to detainees held at Guantanamo and in the United States. If the United States could not find a suitable country to accept the former detainee, then the United States may have the authority to hold the alien indefinitely in immigration detention, provided that his custody meets statutory requirements. This authority is constitutionally untested and potentially inconsistent with obligations under international law, but these concerns would apply equally to both Guantanamo- and U.S.-located former detainees.
Topic:
Law, Prisons/Penal Systems, War on Terror, and Detention
Political Geography:
North America, United States of America, and Guantanamo

5. The Applicability of International and Domestic Immigration Law to Relocated Guantanamo Detainees

Author:
Sarah Weiner
Publication Date:
11-2015
Content Type:
Working Paper
Institution:
Center for Global Legal Challenges, Yale Law School
Abstract:
The physical relocation of detainees from Guantanamo to the United States would not meaningfully alter U.S. obligations under domestic immigration law or international law concerning refoulement. Domestic immigration law would not affect U.S. authority to bring aliens into the United States and to detain those aliens under the laws of war. Detainees would not enter the United States as immigrants, but rather would remain legally “at the border” during their detention. If a detainee secures his release from law-of-war detention, then the United States would be prohibited from transferring the former detainee to a country where there are substantial grounds for believing that he would be in danger of being subjected to torture. This obligation applies equally to detainees held at Guantanamo and in the United States. If the United States could not find a suitable country to accept the former detainee, then the United States may have the authority to hold the alien indefinitely in immigration detention, provided that his custody meets statutory requirements. This authority is constitutionally untested and potentially inconsistent with obligations under international law, but these concerns would apply equally to both Guantanamo- and U.S.-located former detainees.
Topic:
International Law, Immigration, Law, Guantanamo Bay, and Detainees
Political Geography:
North America and United States of America

6. EU Privacy Regulation: Implications for U.S. and EI Law Enforcement

Author:
Carlton Forbes and Jacob Victor
Publication Date:
12-2012
Content Type:
Working Paper
Institution:
Center for Global Legal Challenges, Yale Law School
Abstract:
In January 2012, the European Commission released drafts of two new pieces of legislation that would provide more stringent and more uniform regulation to the processing of electronic data relating to EU citizens. The proposed General Data Protection Regulation would govern the processing of data for general purposes, while the proposed Criminal Justice Directive would govern data processed in the specific context of criminal investigations. The Data Protection Regulation has proven controversial because of the significant number of requirements it imposes on private data processors, including requirements that the processor notify a consumer when her data is shared with a third party, and requirements that processors respect a number of new individual rights, such as the right of a consumer to request that her data be deleted (a.k.a. “the right to be forgotten”). Furthermore, the Regulation would mandate that many non-EU corporations would need to comply with its requirements when processing the data of EU citizens, or face harsh penalties. This memo summarizes the existing EU data protection regime, analyzes the changes proposed by the new Data Protection Regulation and Criminal Justice Directive, and explores the implications of this new legislation for U.S. criminal and national security investigations. We arrive at three main conclusions
Topic:
Law Enforcement, Law, European Union, Regulation, and Legal Theory
Political Geography:
Europe, North America, and United States of America

7. Internationally Protected Persons: The Status of Consular Employees

Author:
Ryan Liss
Publication Date:
01-2012
Content Type:
Working Paper
Institution:
Center for Global Legal Challenges, Yale Law School
Abstract:
This memorandum considers whether consular employees and their family members constitute “internationally protected persons” (IPPs) under 18 U.S.C. § 112. In addition, the memorandum briefly considers whether an assault against the child of a consular employee abroad meets the jurisdictional nexus requirements of 18 U.S.C. § 112, such that the assault could be prosecuted in U.S. courts. It concludes that existing U.S. and foreign law and state practice do not provide a definitive definition of IPPs that either clearly includes or excludes consular employees. Moreover, the status of a consular employee’s child is similarly unclear, as the status of consular employees’ family members depends on that of the employee. However, while a definitive answer is not provided, the travaux preparatoires of the relevant treaties and one U.S. decision at least suggest that consular employees are excluded from the definition of IPPs. Part I explains that the applicable U.S. statutory provisions do not provide an exhaustive definition of who constitutes an IPP. The statute relies instead on the definition of IPPs at international law. In addition, there are no U.S. cases directly on point, so the existing case law does not foreclose the possibility that a consular employee might qualify as an IPP. However, the court’s logic in one case, United States v. Marcano-Garcia,2 which relied on the assault victim’s status as honorary consul under the Vienna Convention on Consular Relations in determining his IPP status, suggests that a consular employee would not fall within the definition. The exclusion of consular employees from the definition of IPPs is also arguably supported by the international treaties that 18 U.S.C. § 112 was drafted to implement, as well as those treaties’ travaux préparatoires. Part II looks to foreign and international law. There are indications in statements made via United Nations reporting processes that some states regard themselves as obligated to protect consular employees. But these statements are vague and are not supported by a similar trend in foreign domestic legislation or foreign case law. Part III shows that even if a consular employee and his or her child qualify as IPPs, the jurisdictional nexus under 18 U.S.C. § 112 must be met. For American courts to exercise jurisdiction in this case, the provision requires that the accused either be a U.S. national or be present on U.S. territory. Having concluded that the law does not support a definitive conclusion regarding whether a consular employee qualifies as an IPP, Part IV concludes by discussing policy considerations both in favor of and against extending such protection to consular employees.
Topic:
Law, Legal Theory, Protected People, and Diplomatic Immunity
Political Geography:
United States of America and North America

8. Lessons from the Past for Foreign Sovereign Immunity After Samantar v. Yousuf

Author:
Saurrabh Sanghvi
Publication Date:
11-2011
Content Type:
Working Paper
Institution:
Center for Global Legal Challenges, Yale Law School
Abstract:
In Samantar v. Yousuf,2 the Supreme Court held that an individual sued personally for acts taken as a foreign official did not enjoy any immunity under the Foreign Sovereign Immunities Act of 1976 (FSIA), a statute governing when courts should provide foreign states with sovereign immunity.3 After Samantar, immunity in any individual official suit will likely be determined through reference to the pre-FSIA federal common law. This report outlines the pre-FSIA practices4 of the U.S. Department of State (“State Department”) and the courts to provide insight into how individual official suits may be handled in the wake of Samantar.5 If courts follow historical practice, they will likely rely heavily on State Department “suggestions of immunity” in determining whether immunity will be granted to individuals for actions taken as foreign officials. Moreover, when the Department is silent, the courts will likely interpret State Department policy to determine whether immunity is appropriate.
Topic:
Foreign Policy, Law, Legal Theory, and Immunity
Political Geography:
North America and United States of America