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International Law Creation of international legal norms - treaties Reservations
2. Creation of international legal norms - CIL International Law in the US
3. Article 2 treaties in domestic courts RUDs Treaty termination, reinterpretation and political question doctrine Presidential power and other international agreements Executive Agreements
4. National Emergency legislation Presidential powers and global war on terror CIL in the US
5. ATS TVPA Charming Betsy
6. States and foreign affairs Negotiation ICJ 7 ECJ International Arbitration WTO
8. Role of IL in US Courts States and Governments UN
9. World Bank IMF EU 9(cn.) Immunity FSIA
10. FSIA and foreign officials FSIA and retroactivity FSIA exceptions
11. Embassies Diplomatic/Consular Immunity HoSHoG Foreign official immunity Act of State Jurisdiction
17. Jurisdiction to Prescribe Jurisdiction to Enforce Jurisdiction to Adjudicate State Responsibility for Alien injury International Human Rights Law of the Sea International Criminal Law Use of Force Use of Force Use of Force - Dealing with terrorists
Intl Law - Prac reality now positivist cf natural law. Developng nations focus collctve rights cf western indiv rights focus. IL def Rstm 101 incl refs to indivs cf Brierly 1963 def ref only states - IHRL leads way re inclu indivs - IL is own body of law - ICJ statute/Rstm 102 ref same sources: treaties, CIL, gp common to major world legal systems - no IL supremacy cl in the US, cf EU case law supreme cl - enforce a treaty by ref ICJ/arbitr cl in treaty - re/ choice of law is not IL - re 9/11 case study Nato Treaty Art 5 decl broad & refs Cha Art 51 permit indiv/collect self-def - attk v MS=attk v all - ref "assist and include" & "such action deemed nec" - must be launched from abroad- Art 5 symbolic as then each state to decide - US wanted faster - US justif bomb Afgh w/out aprvl - self-def or due N.Alliance aprvl. UNSC resols bind all nations. Post 9/11 Res 1668: recog right indiv/collctv self-def, exprs ready all steps mec respnd, coop suppress terror, take approp IL compliant measures - ensure refugee status not abused. Nb Presid CiC pwr interpd as free hand by some - constitu control passing War Pwrs Resoln, req Presid w/in 60 days to obtain decl war or resoln auth use force. Vp Carter notw/ ICJ op no IL v use atomic bomb & Cha not rigid doc, use of force should be proportionate. Creation of Intl legal norms - Treaties - intl&dom legal obligs - treaty 2/3 A&C Senate + Legal Status Eastern EAs=treaties in IL. Treaty w/ 2/3 A&C =law of land in USC&direct enfrc in US crts. VCLT80* US Greenland; Frontier Disputes sign not ratif h consid most CIL - only applic treaties post 80. Art 2 - betwn States, wrtn (h no (BF v Mali) - oral agrm can be express exclu of unwrtn), govd by IL Rstm obligs may be unilat, n/a a contract btwn states binding per CIL (h are not VC essently comrcl in nature No considern reqd - Politic comtm dif to treaty - VC n/a if contract out treaties). Nuclear Tests - unil or if is a poli comtmnt. Reasons comply poli comtm: good faith, breach justifies use all means in statem can=binding CIL obligs (h IL to bring cesn, contrib soft law develp, get out of formalities reqd for treaties - per Shaw: are not treaties). Genocide Adv determin treaty or poli comt by intend parties from language/content of docu, circum of Op - State still party n/w reserve h conclu&explnn of parties, Art 11 means of become bound; Art 17 can be bound by part of a obj/purp would be frustr if state treaty, Art 18 oblig not defeat obj/purp, post sign &until clear not be party eg US & ICC vp sovrg permitd any reservrn chosen. Bradley only prohib actions clearly undermin, US recog Art 18 as CIL, Art 26 pacta sunt Hungary v Slovakia - hydro dam servanda- binding/bona fide, Art 27 dom law no excuse justif non-perf treaty obligs; Art 31 - failed Art 61 as own breach, treaty interp gp good faith, ord mean, light of text, obj/purp, other related agrmnts. Art 32 supl poli/envi changes not suffic for Art interp (if Art 31 not determ/lead manifest absurd) - traveux prep, circum conclu. Nb ILC Guiding 62, not essent basis Princs re Unilat Obligs Develop states wanted Art 32 non-mand due resources; US crts more consent/unforsee. Relied Art61/2 in willing look beyond treaty text. Art 46-52 invalid, fraud coercion etc eg Serbia, econ coerc wld case as CIL. Also Fisheries be progr develpm law. Jurisdiction. Racke v Reservations: Art 2(1)(d) unil statem exclude/modify legal effects due protect intrsts, avoid Hauptzollamt Mainz intl law proced obligs, dom compat'y; Art 19 on how do it & no reserve if prohib by treaty or incomp w/ policy less willing permit w/draw obj/purp; Art 20 on accept of/object to reservn - may req accept all/none (dep on what treaty from treaties on dom law breach. says/obj&purp argu- state parties decide); Art 21 legal effect of reservs&objectns - gp Qatar v Bahrain ICJ held minutes reciprocity reserving & object states h Art 21 also applic where another state does not objct- signed by parties gave rise to legal object just makes it clear. If go to obj/purpse - can say treaty n/a btwn us. O/w, treaty in force obligs, based on circums & w/ ref to absent object; no effect 3Ps inter se; Art 23 in writing&communctd. Most common HR treaties - actual terms. Oil Platforms - a multil often preclu eg UNCLOS, ICC. VP HR Comte on ICCPR auth to detrm if a reserve o/w treaty can contain a variety of ob/purp & if so, is severable, can reserve in bilat no Art 19 prohib h more common multilat. provs, not all of which constitu Breach-Termination/Suspension -BP once in treaty, hard get out due IL policy keep parties in legal obligs. Klabbers v VJIL - treaties, Art 60 bp req material breach to unilt term/susp treaty (silent re minor breaches several propsd tests for assess if
&compare US law impractibility standard) ie if not sanct by treaty/frustr obj /purp; silent re non- act defeats obj/purp treaty eg legit mat breach, non-breach party in control; void from o/set if duress; Art 65 notif oblig party expects. Vp Shaw manifest intent invoking Art 60-3mo notice period; Art 66 jud resoln after 12 mo (not CIL); Art 67 must test. Lotus - countries are
w/draw/susp in writing by auth official, Art 61 "imposs of perf" grnd to termin/wdraw/susp, not constrained only so far as constrain if due breach by that party, must be perma/indispensb, Art 62 "funda change circum" - must themselves. Norwegian Loans - a be essential to basic consent at conclu&radical transf obligs i.e. can't rely own breach/for party to a treaty that doesn't boundary issues. Art 65/66 DR provs, no real relev &typical treaty controls, Per Shaw re apprchs reserve or object to to a reserve to treaty interp: (i) actual text&emph analysis words used (objectv) (ii) parties intentions - can rely on that reserve v the subjctv (iii) wider perspect - obj/purp - teleological. Own vp - Art 31 primacy to objectv apprch. reserving party based on reciprocity. Reason to explicitly object is just to be safe&sure. (cont) Denunc/Withdr - Art 54 per treaty or w/ consent all parties, Art 56 if treaty silent, cant D,W,T Hungary v Slovakia - 6 unls show parties intended or can be implied; 12mo wrtn notice. Tip: put prov in treaty! Conseq treaty day notice terminn = bad termin per Art 70: release obligs h existing treaty rights/obligs under treaty remain in place, prov on faith. North Korea NPT multil treaty w/d. Jus cogens - See Art 53 def; preempt norm, conflicting treaty void at conclu; no immed w/draw not good exhaust list/criteria&bind all states, req near univ belief norm binding& be so fundam other states may until 3 mo expired per not derog*; matter state pra&jurispru, judges find diffic to deal w/; not all HR are jus cogens; just treaty, after which right to cogens cant be from gen principl of law. Rule: no consent reqd to be bound by jus cogens/CIL. Per w/d h prohib from critic Shelton does not req 100% compliance. treaty. Creation Intl legal norms - CIL BP: binding all states, subj persist objctr theory. Non-instant develop - fluid&textured North Sea (Koh). Results from general&consistent practice followed out of a sense of legal oblig* (Rstm102), Reqs (1) State Shelf cases pract (objective): may incl inaction, ILA Statem Principls of CIL "consistent&uniform practice states&other subjcts of no CIL if IL in or implinging their intl legal relns, in circum which give rise to legit expects of similar conduct in future" cf important Rstm only refs states. Per ILA: no CIL if import actors disagree, officl statemnts/digests trackable h not always actors disagree consistnt w/ actual practice. (2) Opinio Juris (subj) act out sense legal oblig, not mere habit h can transf to legal eg "specially oblig&can be inferred, acts not inconsist w/ norm not nec proof op juris. Modern vp CIL emph op juris over state pra affected" (Anthea eg ICJ in Nicaragua), resisted by US in armed conflict (ICRC reprt) on basis cant be inferred from pra. Harder persons. pin down than state pract. Trad vp emph state pract element. On CIL vp ICJ breaches not indic new rule-strengthen Nucleur exist-expect gen consist cf absolu unif aherance expctd. States and adjudic forum (SCounc; ICJ). Persistent Objctr: Weapons Adv per ILA applies only if object when rule emerging-no subseq objctr-if applies States not bound or reqd follow - Op - diverg in consent explnn h new state will be bound w/out consent. Balances state sov& progrsve legal developm. Hard to find state postns CIL in new areas; ultim states decide, CIL can crystal/codify CIL. Rule: no consent reqd to be bound by jus thus not able cogens/CIL. ILA def de-emph op juris & focus practice. find op juris. Effect of Treaties on CIL - Treaty may codify existing CIL (VCLT), crystal customary pra in process of forming, may be Charzow catalyst for CIL rule (if practice there - ICJ). Absent conta intent, later in time treaty or CIL takes priority. CIL&gp of Factory - PCIJ law are diffrnt. Gen Princpls of Law - Art 38 ICJ Stat, where no law specifc on note at issue - common in IL; judges reparations have control&consid overlap w/ CIL, emph principles not practice eg res judicata, estoppel. Soft Law - informal law case invoke making/consensus building, non-legal bind comtmns, may create unenforc expects re future conduct- can gener CIL GP of Law. eg intl envir law, intl bribery: US FCPA>UNGA Decl>OECD Conv>UN Convn. NGOs/IOs/Ibusns help. IOs - create new Erdemovic - intl legal norms (not bind. as such), shared goals/research, recommends, conclu treaties, created by treaty, intrest ICTY found GP based mship. Binding: UNSC, ICC, ICJ, EU, De facto bind ILO, UNESCO, Mostly non-binding OECD. New devel: IL of law duress making by intergovt networks - a world of govts (Slaughter). NGOs - draft treaties, lobby, develop soft law, shape reduced agendas for trad creators of IL eg ICC, Rio Earth Summit 1992 - negot'd agrmnt&presented to govts w/ public sprt- blame h not NGOs part state delegs-infiltr small working grps-fosterd N-S agrmnt&marginalizd trad power brokers>framew complete agrmnt. Also preventd OECD negot of Multil Agrmnt on Investm. Critic undemocr&donor driven, blacklash Chi/Rus. defence, due
Multinat corps - role in develop directn global governce akin to IL creatn, in intl standard setting eg Intl Org for diverg state Standardzn&Berne Union re expert credit insur. OECD Guidle make multinat more accnt to states. "Botm up IL practice
- making"-multi statekh initiatv- mostly corp a/c for HR abuses eg Kimberly Process, Sullivan Principles. Critic self focus on regulat- lack of enforcem/accountab mechnsm. Pro informal - ease, speed, flex. BP: increasing role for non-SA in intl behave in intl regul - influ state govts. arena. Intl Law in the US - Rule: IL not Missouri v Holland Migratory Birds Treaty - no violn of 10 th Am. states rights by treaty - thus can auto supreme or always incorp in do more in treaty than a statute (prev statute on same pt struck down), as long as no contravene US law. USC Art 2 Presid power of prohib words of constitutn. Acts of Congrs supreme when made per USC, treaties when made make treaties w/ 2/3 A&C of under authority of USA & ref nec&proper cl - emph national interest. Reid v Covert - wife killers, Senate. Presid does ratifictn by USC trumps treaty which said trial by milit crt w/ no jury to extent conflicting words, Presid conclu officl depositing. Art 6 USC, EA on auth in prior treaty, Art 6 USC supreme clause says treaties/assoc laws must comply w/ USC treaties&fed laws=supreme law - reason treaties not ltd to made pursuant to Constitu (as fed laws are) - to preserve argmnts of land, trump inconsistn state made per Arts of Confed. Fed statute conflict w/ earlier treaty renders treaty null (domestically, law& prior inconsist fed law. but not internationally). Agrmnt here violated constitu rights. Harlan J diss - not all USC rights Other non-treaty intl agrmts in apply internatly& limit Congrs's conclu intl agrmnts, at least in non-capital cases. Boos v Barry - US law-congress authrzd intl Treaty power subj to indiv rights limitns. Kinsella - extended Reid v Covert to non-cap cases. agrmnt, indep constitu auth on Verdugo-Urquidez 4th Amend n/a to search/seiz by US agents of prop owned by non resid alien forgn relns, authrty per earlier (cf US citizen) abroad (disting Reid). Boumediene v Bush - non US citiz held in forgn territ over treaty. VCLT wider concept of which US exerc full control (Guantanamo) entitled to USC habeas. BP: op of rules o/side US dep on "treaty" than US law. if US citiz (Reid)/alien (Verdugo). Effect of Art 2 treaties as US domestic law - SE Asakura v Seattle - FCN Treaty held not req implem leg (essentily self-exec) or NSE? Jud enfrcb fed law or only thru Congrs &trumped city ordinance h little explan why - reflect early US presumpt of SE - implem legisl. Early presump SE. Rstm s111 national treatm oblig, most favored nation status. Sei Fujii v California - UN NSE if manifest intend in IA, if Senate reqs, if Charter not self-exec in the US. Medellin v Texas* - post ICJ case on VCCR implem leg constitu reqd. Rule: IA cannot take (Avena), held VCCR Opt Protcl binding internat h not domestic; held ICJ dec & Presid effect as dom law w/out implem by Congrs if instru to TX to comply were not directly enf fed law notw/ intl obligs flowing from agrmnt wld achieve what lies in exclu law ICJ dec (per Art 94(1) Cha), held neither VCCR OP, UN Cha nor ICJ statute create making power of Congrs per Constitut. Post binding fed law w/out implem legisl - looked to langu docs& said no evid intended Medellin, can argue depart prev pract & be SE (vp Carter - Roberts looked for specifc wording), no "shall" in Art 94(1), no presumpt NSE now. Senate now clearer to other nation id'd as treating ICJ dec as SE, Presid direct not competent to transform express vp SE/NSE. State Dpt sumry to Frgn NSE into SE. Breyer J diss - ICJ dec enfrcble US law w/out further leg, absence exprs Relns Comte&Senate can all say SE/NSE - treaty lang not determintv, prev found treaties to be SE, switching presumption, specify if want avoid Crt deciding (as did in logic&pra sugg SE, Presid/Congrs no exprsn concern SE or o/w. Nb US w/d from Medellin). VCCR post Avena. RUDs - nb VC only mentions R, not UD; Reservn: by Pres to Senate or Senate to Pres - Breard v Greene - Paraguayan limit full adhernc h permit ratif of o/w unacceptb HR treaties eg ICCPR. Declrn: policy murderer in VA, fed proced default rules statem not altering substatve provs eg decl NSE thus not dom enforcb in US crts. Underst: trumped VCCR domestically based on LIT interp statm clarify/elabor eg in ICCPR. RUDs often used to clarify vague word treaty provs rule. Not often applied. Charming Betsy o/w conflicting w/ fed&state balance of power. Last in time rule: treaties&fed statutes - no construction of a fed law same level per USSC - later in time prevails (domestically). Invalid a treaty by passing inconsistent w/ IL if another construct inconsistent fed statute does not termin US internat obligs - must w/draw to do that. posble. Also endorsed LIT rule.
Treaty termination, reinterp & political question doctrine -Goldwater v Carter - Taiwan, Presid termin - maj held non-justiciable Presid can reinterp a treaty cf interp given on ratific h issue, either on politic questn doctrine or issue not being ripe. Kucnich Senate can make life hard eg power limit funds for v Bush - a political question doctrine case. Marbury v Madison - spending in Reagan&ABM Treaty-dispute re what intendd recognzd politic question doctrine; Baker v Carr - disagrmnt in mean&felony spend x not auth by Congrs. Politic question circums of applic of politic questn doctrine - lack of justiciability, doctrine is Crt crafted. "Ripe" quest diff to polit quest - ripe discoverable standards. El-Shifa v US - polit questn doctrine invoked is Cogrs not acting; poli quest not so dependent.
- c.f. Dames & Moore. Presid power & other intl US v Curtiss Wright - intl arms sales in violn Congrsnl resoln - resoln said x for Presid to do before cld agrmnts - USC Art 2: Exec make x a crime - SC struck down law as contra due process - "god's gift" to those in favor of sweeping power, Com-in-chief, Treaty Exec power - criticized h rep. cited, disting dom&intl fed govt power, external powers not dep on pwr 2/3 A&C Senate, Constitu - never in possn of states to have intl competence. "Presid sole organ of state in external Nom&Apt Ambasdrs A&C relns" - confers degree freedom not admsble in domestic context. Contested by historians - never Senate, receive Ambasdrs. overruled h not recently relied on. Youngstown Sheet&Tube v Sawyer** - steel industry, Korean Art 1 - clear Presid not war. Presid power to issue order must come from Congrs/USC - no power to nationalize under Exec pwr, intended be only org relev C in Chf pwr or inher pwr. Jackson J's test: max authority - Presid acts w/ Congrs express/implied re forgn affairs - Congrs permisn; med auth - Presid acts indep, w/ Congrs silent; min auth - Congrs exprs/implied action, Presid lots of power (eg military) - acts on own Constit auth only. Held CIC not a military prerog, turned inwards. Rule: Presid cant act Case Act post Vietnam War contra Act of Congrs. Vp Curtiss-Wr ltd to express deleg cases only. Crt told Presid no - Ytown is not an all IAs have to be reprtd to endorsem of Curtiss Wright - eg ref to nebulous, inherent powers - said Exec "under the law" (debate Congrs; FOIA. over existence of these) is ode to diss in Curtiss-Wright. Executive Agrmnts - are treaties per VCLT thus beat state law; US v Pink - USSR natnlzns/Litinov Assignm Claims Setlmnt. EA don't get 2/3 A&C from Senate. More common - default is EA. trumps contra state law. LA was a sole EA, predom over NY state Types per State Dept Circul: (i) pursuant to a treaty (Presd + law - held EA valid under power receive ambas&recog forgn Congrs) eg Reid v Covert (ii) Congrsnl Exec Acts (Presid + govts. Dames& Moore v Reagan - Iran Claims Alg Accords Congrs) - Congret deleg or statut auth - no 2/3 A&C Senate - req case- Architects. Presidn suspended claims in US crts per AA by majority both houses approvl eg NAFTA - most common (iii) Presid SEA. Neither IEEPA nor hostage acts specific auth claim or sole EAs (Presid alone) - indep Presid auth - infreq used/for suspensn h held Congrs implicitl apprvd practice of claim settlm speed. How decide which? Subj matr can be important/political eg by EA - created the Intl Claims Comsn - so charactz as deleg of tariff/trade, Congrs want involvm - done as CEA so HoR gets pwr case - emph on acquiesence. Crt emph importance of past involved. S721.3 Circular 175 factors (not bright line) eg intn to practice, relev here. Presid pwr under sole EA to suspnd claims affect state laws, past practice, "more important" things to be in US crt; Crt specif ref Jackson 3 categs in Youngstown vp Koh done by treat (see list). CEAs may have ex ante (Hathaway) or ex Crt in cat 1 here, essently agreeing w/ Youngstown diss, post (trad) deleg of authty. Presid/sole EAs - infreq, benign use h Reinquist said not constrained by Jackson's categories. Vp categ some controv forgn policy was where felt Congrs not nec involve 2 here. D&M had remedy thru Claims Trib, alt Tucker Act suit v (Iran hostage crisis). Case Act - all IAs to go to Congrs, not just US govt. IEEPA not engaged as D&M not forgnrs. Guy Capps - treaties. SEA easiest h Congrs can be upset at exclusion. Rule: a tariffs case - a sole EA cannot override prior fed legisl in area later EA pursuant to treaty/CEA can override prior fed legisl - LIT w/in remit of Congrs & not in area where pwr reservd to him. So rule. no LIT rule here. National Emergency Leg - IEEPA77 - a sanctions provsn, must first declare nat emerg under NEA. Broad powers in IEEPA eg freeze assets, cut exports/imports - Nicaragua. Must be unusual or extraordi threat, the source of which must be whole/in part o/w the US; must be forgn involve for IEEPA to be relev - Dames&Moore, prior to IEEPA was TWEA, which was broader. US law permit Presid freeze v corps owned/controlled by US persons eg Walmart Canada case h in Iran hostage crisis just did under control US persons.
Note re Walmark Canada diff btwn branch&subsidiary. Auto lapses after a yr, req be renewed, Presid must report use to Congrs. Congrs can termin nat emerg by joint resoln (2/3 both houses) - so hard to veto Presid & Presid due change in law can now override this. IEEPA=the usual statutry basis to employ econ tools during declrd nat emergency. Nb claims by forgn citizens v Chiquita bananas re Farc payments. Presidential powers & global Hamdi v Rumsfeld - USSC held AUMF gave pwr detain US citizn - explct Congrsnl auth - a US citzn war on terror - AUMF resoln - cld be an enemy combatant h detentn only authrzd by law of war until end active hostils (per post 9/11 - reassertn of Presid Geneva Convn, citing as CIL as NSE) held Hamdi entitld receive notice factual basis classific&fair pwr - broad language - opp to rebut. Citing Youngstown "a state of war is not a blank cheque for Presid when it comes to against nations, orgs, persons rights of US citzns. Souter J concurnce: explicit authrzn is reqd & is absent, citing Jackson J in who planned, authorzd, Youngstown: Presid is commander in chief of military, not country. No citation of Curtiss-Wright. comtd, aided or harbored, Hamdan v Rumsfeld - USSC Yemeni Gitmo Militr Comsns case - held milit comsn estblshd by Bush auth all nec & approp force. Presid Order not authrzd to try enemy combatant - Congrsnl auth in AUMF not broad enough to Post Hamdan, milit comsnscover it. UCMJ, DTA&AUMF at most auth MCs where justif by USC&law of war - held conspiracy Bush created replaced by Milit charge not w/in this thus not triable by such milit comsns. UCMJ crt martial rules incl req compl law Comsns Act06 w/ btr due war&Geneva Convs - MC per Bush order wld viol common Art 3, treated Gen Convs at CIL. Exec process&prov on treatm branch bound to comply. As Congrs acted in enact UCMJ, held w/in Jackson J cat 3. As Congrs had enemy combatnts. BP attempt acted in Hamdi/Hamdan, Crt did not answer Q if Presid cld do it under indep Constitu authrty. Vp circumv UCMJ/Crts for enemy Hamdan crt treated Geneva Convs as CIL. Boumediene v Bush Milit Comsns Act held unconstitu combatnts generally a failure. suspens of habeas for enemy combat in Gitmo. DTA not adeq substitu for habeas. Held USC suspension cl full effect in Gitmo (cf Bagram - Al Maqaleh v Gates). (cont) Torture Memos Govt attorney has higher duty than pvt attorney. Bybee/Yoo memos on defn torture criticd, withdrawn& later contradictd. Memo didn't cite Youngstown or Dames&Moore, said Congr interf w/ contra Presid C in Chf power (later memo did not contradict this - said not nec to adrs. Obama vp: EO Art 3 Gen Conv minim treatm baseline. Extraord rendtn - Criticsd Bush admin policy on basis not permitd by IL eg Mahar Arar case - Canadian JFK Syria - false intel - Canada paid compens - sued in US crt - held no pvt remedy of damages for Art 5 violn. NSA Surveillance prog - post 9/11 surveil o/w FISA statut regime, supsd to regula this. Bush argued implicit auth in AUMF>amendm FISA inclu controv immunity for telecoms comps. N Calif DC ruled on illegal of progs. State Secrets privilege route for govt to prevent disclos of sensitive info in civil trial. Factors to consider (Reynolds, 1953) - practical deference to Exec Branch high. Due absolu privil - adverse ruling by crt can end plaintiff case eg Mohammed v Jeppesen Dataplan - rendition case, Crt acceptd govt intervn on state secret priv. CIL in the US - notPaquete Habana - Spa fishing boat seized; taken to FL; "int'l law is part of our law" eg even a NSE mentioned in Art.6 USC. Per treaty; where no treaty, control exec or leg act or judic. dec, resort req to custom/usage civilized USSC - CIL = "part of our nations; on basis held fish boats exempt from capture at war per CIL due long history state practice of law" (fed common law). Is them being exempt; suprtd by Exec proclaim ref law of nations. CIL can be overridden by treaty, leg more than just x accepted as or exec action. being IL.
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