International Law Outline



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2002 OLC Yoo Memorandum – US doesn’t violate War Crimes Act if doesn’t give detainees all protections owed POWs under Geneva Conventions

  1. Customary international law has no binding effect – not federal law as recognized by C

  • 2002 OLC Bybee Memorandum re: definitions of torture – VERY narrow.

    1. Unconstitutional to apply 2340A to President acting as commander in chief

  • Subsequent OLC Memorandum – interrogation methods that comply with 2340 don’t violate CAT obligations

  • 2003 Romig Memo – disagrees with Bybee about exceptionally broad concept of “necessity”

  • 2004 OLC Memo – supersedes 2002 Bybee Memo

  • 2004 Schlesigner Commission – Abu Ghraib abuses – a few brutal sadists, not authorized policy

    1. But some failures in training and command contributed to abuses

  • 2005 – Detainee Treatment Act

    1. Bush signing statement – construe DTA in manner “consistent with constitutional authority of President”

    2. Graham Amendment – strips courts of habeas jurisdiction

  • 2005 – US CAT report due. (Packet I, p. 52)

    1. Argues that CAT was not meant to apply to armed conflicts

    2. Recommendations

      1. Disagree that CAT doesn’t apply during armed conflicts

      2. Rejected US argument that CAT provisions are geographically limited – reinforced idea of “de facto effective control”

      3. Worry about withdrawal of jurisdiction

  • 2006 – Military Commissions Act (MCA) – barring invocation of Geneva conventions, still limiting judicial review, amends 18 USC 2241 and definitions of torture and CI&D treatment

  • Session 13 – International Human Rights Treaties (Individual International Rights, Part Two)

    1. Reservations to Human Rights Treaties

      1. Can make reservation IF reservation is NOT PROHIBITED by treaty and is compatible with OBJECT and PURPOSE

      2. Generally – not that many reservations to multilateral treaties – and they concern provisions that aren’t about substance (i.e. dispute resolution mechanisms)

        1. HR treaties – MANY reservations

          1. Problem – failed to address issues of reservations in systematic, rational way

            1. OPTIONS they COULD have chosen:

              1. Forbid all reservations. Convention of Law on the Sea.

              2. Spell out TYPE of reservations

              3. Create a system for working through issues re: reservations.

        2. Remember, there were clearly no reservations in bilateral treaties – this is clearly outgrowth of MULTILATERAL treaties.

      3. Reservation Examples

        1. Genocide Convention -


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