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Begin New Search Political Geography North America Author Ryan Liss

1. UNCLOS Dispute Settlement in Context: The United States’ Record in International Arbitration Proceedings

Author:
Julia Brower, Christina Koningisor, Ryan Liss, and Michael Shih
Publication Date:
12-2012
Content Type:
Working Paper
Institution:
Center for Global Legal Challenges, Yale Law School
Abstract:
The United Nations Convention for the Law of the Sea (UNCLOS) establishes a compulsory dispute settlement regime for resolving disagreements between member states. Critics of the Convention have argued that the mandatory dispute resolution provisions force member states to cede too much control over the dispute resolution process to an international body. They have also argued that the dispute resolution process is biased against the United States, and that the United States tends to fare poorly in international arbitration proceedings. This report addresses the first criticism by examining possible exceptions to mandatory dispute resolution provisions. At least one Annex VII tribunal has interpreted Article 281(1) of UNCLOS to permit states to contract around the mandatory dispute resolution provision through regional agreements. However, a subsequent tribunal applied a much more constrained interpretation of the Article 281 exception. Ultimately, the impact of this exception will depend upon which interpretation is applied. The report also examines the scope of the Article 298(1)(c) exception, which exempts from binding resolution “disputes in respect of which the Security Council . . . is exercising the functions assigned to it by the [U.N.] Charter.” This exception is not confined to specific subject matters, but it is limited by the procedural difficulties of adding or removing an item from the Security Council’s agenda, as well as by the political costs that such an effort entails. Finally, the report notes that UNCLOS’s compulsory dispute settlement regime is not accompanied by similarly robust enforcement provisions. The report addresses the second criticism by examining the United States’ record in arbitration proceedings under eighteen multilateral treaties containing mandatory dispute resolution provisions, as well as a series of bilateral aviation agreements that provide for mandatory dispute resolution. Fifteen of those agreements have yielded very few readily identifiable arbitration proceedings involving the United States.
Topic:
International Law, United Nations, Legal Theory, and Arbitration
Political Geography:
North America and United States of America

2. 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