International Law: Professor Carozza, Fall 2008

I. Introduction

a. The History of International Law from Mark W. Janis pg. 1 i. Deep roots in history. International law preceeds existence of

states as we known them in the sense of a system of sovereignty of states. International law identifies certain universal principles to govern the relations between nations no matter who they are

ii. The Romans knew of a jus gentium, a law of nations, which Gaius saw as a law “common to all men.” A universal law that could be applied by Roman courts to foreigners when the specific law of their own nation was unknown and when Roman law was inapposite. Grotius believed the law of nationals established legal rules that bound the sovereign states of Europe then just emerging from medieveal society in the 17th century

1. Grotius’ The Law of War and Peace is acknowledge as founding the modern discipline of the law of nations, which Jeremy Bentham renamed “international law” in 1789

a. Bentham promoted idea of positivism b. Bentham believed that international law was

exclusively about the rights and obligations of states inter se and never about the rights and obligations of individuals

c. Bentham assumed that cases involving foreign transactions adjudicated by municipal courts were always decided by internal, not international, rules

iii. Problem positivist theory points to is that we have a system of law where actors making it are the same as those to be governed by the law. This describes a horizontal system of law.

1. In practices, this means International Law ahs different problems from domestic law

a. Legislative problem: who says what rules are; No legislature at the international level

b. Executive problems: how are these rules going to be implemented?

c. Interpretive/adjudicative problem: how do you put the laws to effect with what interpretation?

b. Examples on how international law is actually made, applied, and

enforced i. **McCANN V. UNITED STATES **

1. Facts: Three known Irish terrorists were in Gibraltar (tip of Spain but British territory.) The military ahd information about a possible terrorist attack and followed them. It was believed the terrorist would use a car bomb detonated by a remote control. While soldiers were following them, they thought

one of the terrorists was moving hand to press a button to detonate a bomb, and solider shot him. Then another possible terrorists looked as if she would press a bomb and was shot as well. The third terrorists was also shot. It was later discovered that they did have a bomb in a car. The estate of the deceased brought an inquest against eh soldiers and UK government. After jury found verdict of lawful killing, decedents’ estates brought the case to the Court of European Human Rights (requirement that domestic courts be exhausted before going to international court)

2. Issue: whether the killings by the soldiers were reasonably justified in the circumstances as opposed to whether they were absolutely necessary under Article 2 paragraph 2 of the European Human Rights Convention

3. Holding: there was a breach of the convention; the force used was not absolutely necessary

4. Reasoning: Court believed that although it is true there was a possible terrorist attack coming, the soldiers should have used greater caution before shooting. Court states that the soldiers showed a lack of appropriate care in the control and organization of the arrest operation. Court was not persuaded that deadly force was absolutely necessary, and so it was a violation of the convention. Artcile 2 of the European Human Rights Convention protects the right to life.

5. UK paid. But why? a. A signed multinational treaty. The Court was

established in 1950 European Convention fo the Protection of Human Rights and Fundamental Freedom. The ordinary theory explaining the legally binding effect of an international agreement is that a sovereign state may exercise its sovereignty not only be making domestic law but also by making international law. Hence, Article 2 obliges the UK in international law because of the UK’s own consent

i. Give court legitimacy ii. Fundamental aspect of rights of human

persons (dignity of human beings) b. Legitimacy comes form variety of sources; not just

formalism, procedure, moral authority 6. ECHR is not contradicting domestic court interpretation of

domestic law. Even if UK court is right about domestic

law, ECHR is not concerned with domestic law, but rather interpretation of treaty under international law

ii. ** FILARTIGA V. PENA-IRALA** 1. Facts: Filartiga’s 17 year old son Joelito was kidnapped

and tortured to death by Pena, in Paraguay. Filartiga claims that this was done in retaliation for his father’s political activities and beliefs. Filartiga brought a criminal case in Paraguayan court, but his attorney was arrested, threatened with death, and disbarred without just cause. IN 1978, Dolly Filartiga, the appellant’s daughter, and Pena separately came to the US. Dolly applied for political asylum, while Pena stayed under a visitor’s visa. Dolly learned of Pena’s presence and reported it to the Immigration and Naturalization SErvie, who arrested and deported Pena for staying past the expiration fo his vias. When Pena was taken to the Brooklyn Navy Yard pending deportation, Dolly lodged a civil complain in US courts for Joelito’s wrongful death by torture, asking for damages in the amount of $10 million

2. Issue: Whether U.S> courts can punish non-US citizens for tortuous acts committed outside the U.S> that were in violation of the law of nations or any treaties to which the U.S. is a party

3. Holding: Yes. This case extended the jurisdiction of US courts to tortuous acts committed around the world.

4. Reasoning: Petitioner claimed the U.S> Courts had jurisdction to hear the case under the Alien Tort Statute, which grants district courts original jurisdiction to hear totrt claims brought by an alien that have been “committed in violation of the law of nations or a traeaty of the United States. This case interpreted that statute to grant jurisdiction over claims for tort committed both within the Untied States and abroad. Court ruled in favor of Filartigas. Torture was clearly a violation of international law, and the U.S> did have jurisdiction over the case since the claim was lodged when both parties were inside the United States. (Since this case, there is now a convention against torture, but didn’t come about until after this case). Also seems to be some reliance on customary law that eople should be free from torture (pg. 21)

c. Theory and Concept of International Law i. Hart, The Concept of Law

1. International Law is more than a set of rules on morality and we that in a few ways

a. Things state can do can be good or bad regardless of whether it is or is not following the law created

b. A lot of rules in law are more or less morally neutral

c. Rules that are established and the reasoning why they are established (regardless of moral context) is because it provides certainty, reliability, and predictability

2. Hart doesn’t go far as to say that international law is law, but he does say it is more than rules of morality; it brings predictability and certainty

3. Hart says that there is a problems with the fact there isn’t a legislature: not a system of consistent adjudication

a. Completley developed systems of law has two sets of law (as opposed to IL which is not fully developed)

i. Laws that tell people what they can and cannot do

ii. Secondary values: rules about how law is made, enforced, and adjudicated

1. Hart says IL lacks a developed system of secondary rules

ii. Kelsen, Pure Theory Of Law: Would have us study formal origins

1. Positivist: International law is a set of objectively valid norms that are created first by custom, constituted by the actual behavior of the “states.”

a. This means individuals and state ought to behave as others often do

b. There is no value judgment; just general behavior of states. This has no moral implication, just ate behavior, states behave this way because others expect them to, and then we have as a fact this behavior, and this behavior becomes a norm

i. Theis isn’t a question of how states ought to behave (not a censor using Bentham’s terminology)

ii. This is a fact with no judgment on its value; it’s how in reality they act (he is an expositor)

2. Unlike Hart, he tries to provide a serious basis for International Law

a. IL is prior to national law b. There are states because they are recognized by

International Law c. International law is norm for everything including

domestic law

iii. Koskenniemi, The Politics of International Law: Would have us focus on rhetoric and rationalization of behavior

1. Post modern sensibility and is interested in politics of International law. He gives a broad meaning to politics. It involves conteste values and interests; clash of basic interests in some forum. The interets are based in sets of differently prioritized values.

2. Argument amongst the parties on what is and what should be law. This is a form of rhetoric to justify and advance substative itnerets against other state interests in conflict.

3. Concrete v. normative, close to state practice v. distant from practice, positivism v. naturalism, consent v. justice, autonomy v. community, policy v. rule: if you aregue one side there is an opposing word that can say what law should be too

4. The point is, International is at any given time, both sides of the coin, and this is because there are no pricnipels we can all generally agree on at one time. Law is just a discursive practice to talk about political interest

5. Says positivist theories based on state action is a problem; jus tot say law is what states do is apologetic (what the state’s current will is). He says discursive practice represents law of arguing which method is more effective. Law mediates conflicting political interests

iv. Koh, Transnational Legal Process: would have us focused on international and domestic legal process that is the process of interaction and internalization that gives International law its force

1. Doesn’t like Koskenniemi’s argument because it doesn’t tell us how law can influence behavior

2. Not talking about whether content is good or not, not engaged in an evaluation of norms of international law, so in a certain way Koh is mostly focused in on what states do and he is trying to shift it to the right to figure out how that is done

3. Natural law puts justification of law at center of the question

a. Still of idea of universality of being a human 4. We have horizontal interaction of states and vertical

internalization at the domestic level

v. Robert George, Natural Law and International ORder: look to common good; based on classical national law

1. Needs to be commonality on how we treat each other for the good of all. The modern states I s not primary source of authority, but subordinate to concept of common good of humanity.

2. A state is not a complete community within its own territory )interests cannot be satisfied merely by the territorial state)

3. There needs to be a degree of coordinated communities which serves to help realize the universal common good by meeting needs of states

4. From natural law perspective a. Global governance of law is necessary to secure

human fulfillment b. At the same time, global coordination doesn’t mean

single system of law and single rules’ we also recognize that the goods that constitutes what we want are extremely broad and diverse

c. Fulfillment of desires requires freedom to use human reason to pursuit different ends by different means

5. Can’t understand positive law and how/why works without moral foundation and evaluative criterion which gives you the goals and limits of positive law

6. If justification for International is to serve cooperation of behavior for common good, then base I s\s whether it serves those ends not consent

7. Koh and George: complement each other. NO theory on its own makes complete sense. Koh is a realist and focuses on how functions and processes. George looks at moral foundation and legitimacy

II. Sources Of Law

a. Treaties

i. Most rules of international law find their source in the explicit, usually written, agreement of states.

ii. Material source of law: the place one looks to actually read a rule of intenraitonal law

iii. Formal source of law: a fashion in which international lawyers, judges, and jurists agree that international law may be made

1. Ex: Article 38 of the Statute of the International Court

of Justice: pg. 28. Outlines the sources of law: 1) conventions 2) custom 3) law recognized by civilized nations 4) judicial decision and teachings

a. Not an exhaustive or hierarchical list iv. Treaties create legal rights and duties, and it is this obligatory

aspect that makes them part of international law. International lawyers use the phrase pacta sunt servanda to express the fundamental principle that agreements, even between sovereign states, are to be respected. INtenrational agreement are thought to be legally binding because they have been ocncluded by sovereign states consenting to be bound. The idea is that states by virtue of

their sovereignty may authoritatively regulate not only their own affairs, but also their international relations. This is in accord with international practice; states are usually the agents actually enforcing treaty obligations. Such enforcement may be international, for example, by the use of interstate persuasion ro force, or national by the applications of rules drawn from international agreements to discrete cases by domestic courts

v. International agreements often serve as a sort of international legislation where states explicitly agree to make rules to govern their own conduct, as well as the activities of their individual and corporate nationals. Treaties’ actual effectiveness is largely due to the mutual benefit that accrues to all sides from their reciprocal

vi. Treaties need not establish new rules; oftentimes treaties serve to codify rules that are already customary in international practice. Even treaties that codify practice may sometimes modify, or at least clarify preexisting customary rules

vii. ** VIENNA CONVENTION**: defines treaties to mean only “an international agreement concluded between states in written form and governed by international law.” Thus, the Vienna Convention excludes from its ambit any agreement involving private parties or international organizations, as well as nonwritten international agreements. It is a treaty if between two sovereign states and governed an dsubject to Internaitonal Law. Veienna required writing for a formal way of showing certainty of intention to be legally bound

1. Vienna Convention is largely, though not entirely, a codificaiton of the existing customary international law of treaties, and constitutes a useful depository of international elgal rules even for countries, like the US, which are not yet parties to it. For example, the US Department of State recognizes thae Vienna Convention as “the authoritative guide to current treaty law and practice.”

2. Article 6 of Vienna Convention provides that “every state possesses capacity to conclude treaties.” As part fo the exercise of its sovereign capacity, each state’s own domestic consitutional law determines which governmental organs have the power to conclude international agreemens. (for example US Consitution in Article II, section 2 gives the power of making treaties to the President

viii. Adoption: not formally defined by the Vienna Convention, but in internatnioal practice the term is normally taken to refer to that step of the treaty-making process wherein the states agree ont eh final form and content of the agreement. In most cases, the text of a treaty must be satisfactory to all participating states before it can be adopted, although if the text emanates fromteh work of an

international conference, a vote of 2/3 or another mutally agree dupon fraction of state present and oting may suffice

ix. Ratificaiton: a state that has played a party in the negotiation of a treaty and has signed the text.

x. Accession: what a state that did not originally negotiate or sign a treaty does when it wihes to adhere to the agreement. A s,pecial form for accession is presecribed neither by the Vienna COvneiton nor by customary international law. Instead, individual treaties quite regularly detail the manner by which states may acceded to the agreement

xi. No formal action in regard to treaty may still bind: this may happen when the rules of a treaty pass into customary international law. Or if a state’s acts have accepted a treaty’s obligation (really rare)

xii. Reservations: Vienna Convention defines a reservation as “a unilateral statement, however phrased or named, made by a State, when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that State” Article 2 (1) (d)

1. Bilateral treaty: a reservation is usually thought to represent a rejection of the treaty in its given form, and no legally binding agreement results until and unless the other party expressly accepts the reservation

2. Multilateral treaty: Vienna Convention allows a reservation unless prohibited by the treaty, is not one of the permissible reservations, or is incompatible with the object and purpose of the treaty. Artciel19

a. Ex: In the Belios case in 1988, the ECHR found that an interpretative declaration made by Switzerland to the European Convention on Human Rights and Fundamental Freedoms constituted an invalid reservation to the Convention

b. If a state accepts a reservation made by another state, then the reservation modifies the treaty reciprocally for both states

c. A reservation made by one state and accepted by another state does not modify the treaty for other parties as among themselves

d. Go to notes for chart made in class

e. In the United States, the Senate plays a special role in making reservations to international agreements.

xiii. Effect of Treaties

1. Vienna Convention: “Every treaty in force is biding upon the parties to it and must be performed by them in good faith. “ Article 26

a. Notion of good faith isn the observance of intenraitonal agreements is a fundamental principle of international law.

2. Vienna Convention says that a party may not invoke the provisiosn of its internal law as justification for its failure to perform a treaty.” Article 27

3. For a discussion on amendments and modifications go to pg. 34-45 of Janis

xiv. Problems of interpretation of treaties: problem when one state interprets treaty inconsistently from antoher state. An example is in regard t migration speciies. United States wanted strong language and French wanted weakr. We have two authoritative documents in two different languages. US: states are obliged… France: it is the mission fo states

1. Vienna Convention: Article 31 Gives General Rule of Interpretation: interpreted in good faith according to ordinary meaning of the words in accordance with the object an dpurpose of the treaty

a. Special meaning if intended by the parties? (what did the parties consent to?)

b. Supplementary meanings: Article 32. Preparatory works. This is the same idea as legislative history )leg. History not quite right in IL but similar idea)

xv. **EASTERN AIRLINES, INC. V. FLOYD** 1. Facts: After petitioner's plane narrowly avoided crashing

during a flight between Miami and the Bahamas, respondent passengers filed separate complaints seeking damages solely for mental distress arising out of the incident.

2. Held: Court ruled that Article 17 of the Warsaw Convention does not cover mental distress because the phrase "lesion corporelle" in the authentic French text of Article 17 means bodily injury

3. Reasoning: First looked to ordinary French legal meaning. This wasn’t enough, so then turned to the subsequent practice of the signatories. Then the Court looked to preparatory works since ordinary legal meaning and practice didn’t satisfy questions

xvi. How to terminate a treaty

1. A treaty may be terminated or a party withdraw from it etierh “in conformity with the provisions of the treaty; or at any time by consent of all parties after consultation with the other contracting states” Vienna Convention Article 54

Quite frequently a treaty will explicitly provide for its termination either by a fixed period or by a specified process

2. A material breach of a bilateral treaty by one of the parties entitles the other to invoke the breach as a ground for terminating the treaty or suspending its operation in whole of in part. Vienna Convention Article 60(1) In a multilateral treaty, a material breach entitles the other parties by unanimous agreement to terminate or suspend the treaty either in relations between themselves and the defaulting state or among all parties. A material breach includes “the violation of a provision essential to the accomplishment of the object or purpose of the treaty.” Article 60 (3) (b)

3. Unilateral denunciations are justified by an appeal to changed circumstances; that is the legal concept of rebus

sic stantibus. Article 62 of the Vienna Convention acknowledges but attempts to limit the use of rebus sic

stantibus:

a. A fundamnetla change of circumstances which ahs occurred with regard to those existing t the tme of the conclusion of a treaty, and which was not foreseen by the parties, may not be invoked as a ground for terminating or withdrawing from the treaty unless:

i. The existence of those circumstances constituted an essential basis of the consent of the parties to be bound by the treaty; and

ii. The effect of the change is radically to transform the extent of obligations still to be performed under the treaty. If there has been a severance of diplomatic of consular relations between parties to a treaty this does not affect the legal relationship established between them by the treaty except in so far as the existence of diplomatic relations is indispensable for the application of the treaty.

4. Treaties are not normally terminated upon change of

government of one of the parties

5. In the United States, the President terminates treaties not by explicit terms of Constitution, but rather from practice

xvii. ** GABCIKOVO=NAGYMAROS PROJECT**

1. facts: The initial 1977 treaty contemplated construction and operation of dams on the river Danube for the production of electricity, flood control, and improvement of navigation. In 1989, Hungary suspended and subsequently abandoned completion of the project. Hungary alleged that completion would entail grave risks to the Hungarian

environment and Budapest's water supply. Slovakia denied these allegations, and insisted that Hungary carry out its treaty obligations. Slovakia planned, and subsequently put into operation, an alternative project (Variant C) on Slovak territory. Its operation adversely impacted Hungary's access to the water of the Danube. The treaty did not have a termination provision. Hungary claims change of circumstances.

2. Holding: Court says changes were not sufficient to justify

termination of treaty 3. Reasoning: Hungary can try to argue no consent because

under Communist domination at time of signing. Court says no, political status doesn’t matter. Hungary could say we weren’t as aware of environmental considerations at time of signing. Court says no. We see here an example of court trying to create stability in international relations. Unless obviously invalid, you are formalistically and rigidly bound to a treaty and there are few ways out of it

xviii. ** The Eastern Greenland Case**

1. Facts: Norway claims it proceeded to occupy certain territories in Greenland before Denmark even though the Danish government claims them subject to Crown of Denmark. Denmark says that it entered into a treaty with the US whereby US would not object to Denmark extending their interests to Greenland. Demark approached Norway with the question of whether they would object to Denmark’s interests in Greenland. Norwegian minister of foreign affairs basically said “that the Norwegian government would not make any difficulties in the settlement of that question”

2. Issue: Whether this statement--- even if not constituting a definitive declaration of Danish sovereignty--- did not constitute an engagement obliging Norway to refrain form occupying any party of Greenland

3. Holding: statement is binding upon the country to which the Minister belongs. Norway is under obligation to refrain from contesting Danish sovereignty over Greenland as a whole, and a fortiori to refrain from occupying a part of Greenland. This is in the interest of fairness and reciprocity even though against your domestic law, unwritten, and not technically a treaty )so we call it an undertaking by the minister) At end of the day, there are circumstances that are in contention of holding what has been consented to based in other sources

b. Custom: Idea of custom as a source of elgal rules is ancient. Roman law knew an “unwritten law consiting of rules approve dby usage’ for long-

continued custom approved by the consent of those who useit imitates a statute.” Treaties, despite their proliferation, leave many topics of international law uncovered, and not all states are parties to the threaties, so custom is still a big part of international law.

i. Fundamnetal concept of custom: states in and by their international practice may implicitly consent to the creation and application of international legal rules.

ii. ** PAQETE HABANA**

1. Facts: Two fishing vessels running in and out of Havana and owned by a Spanish subject of Cuban birth were capture by US Naval vessels and claimed as prizes of war, as part of a blockade of Cuba in the Spanish American War. Vessesls had no weapons onboard, and dind’t know fo the blockade until they were captured. There was no evidence vessels were aiding the enemies, and they made no attempt to run or resist capture. Out of fear that the vessel would be auctioned off, the owner brought a claim citing a tradition of exempting fishing vessels from being captured as prizes of war.

2. Issue: whether the customary doctrine of exempting fishing vessels from being captured as prizes of war should be enforced

3. Holding: proceeds of the sale of vessels be restored to claimant along with damages and costs

4. Reasoning: When there is no treaty or other governing force, we must look at the customs and usages of civilization nations. Court looked at many elgal precedents and treaties establishing this customary international law, and found that the capture of the vessels was unlawful and without probable cause. It was just a fishing vessel. Court noted it was the general policy of the govenrmetn to conduct the war in accordance with the principles of international law. The Court’s substantioan of the customary rule began with a chronological survey of state practice from “the earliest accessible sources, through the increasing recognition of [the rule] with occasional setbacks, to what we may now justly consider as its final establishment in our own country and generally throughout the civilized world.” Looked at Euroepan countries which shows that it is Eurocentric in view but also the powers who would be affected by this decision are those with big navies. Corut noted that there were occasions in history where fishing vesseslw erwe treated as fair game in war, but customary law need not be unanimous to be legitimate. These occasions were exceptions to the rule over time.

iii. Opinio juris: belief that states act in a certain way because legally bound to do so “legally obligated.” Form positivist view, opinion juris is consent in accepting rule as law that constrains my options and governs my behavior. Bit of a circular argument because practice determines opino juris and opino juris determines whether practice is custom

iv. ** The ASYLUM CASE**

1. Facts: Torre, the unsuccessful leader of a military rebellion in Peru in 1948, sought political asylum in the Columbian embassy in Lima. Peru refused to allow Torre to leave the country, and insisted he be given over to Peru to be tried for military rebellion. Dispute referred to the ICJ

2. Issue: Whether there is a custom so established that it is binding to allow Columbia to grant political asylum

3. Holding: No evidence as to custom allowing Columbia to grant political asylum and binding Peru.

4. Reasoning: Columbia cited several conventions of which some Peru was not a party so not binding and others that were accepted by so few stats it is very weak. Columbia also refers to many cases where political asylum was granted, but court cannot determine whether they were granted due to usage or for political expediency. Court says Columbian government has not proven the existence of such a custom and if there were such a custom, it could not be enforced against Peru because they were not party to the Montevideo Convention which included matters of political asylum (in other words it has expressly dissented to the rule’s formulation)

The claim of customary law failed here because there was inconsistent practice between parties of this case and because you are taking about a small pool of actors (Latin America) and so it is easier to establish inconsistency with just a few objection (you need a higher standard of consistency than global community) Since Per was a consistent objection, they wouldn’t be bound by a regional customary rule even if one were found to exist. Peru was a persistent objector. This shows customary law does have a consent element . The objection must be consistent and done at time rule is being established. The objection must be done consistently and affirmatively ((not just through silence)

5. Rule: to invoke a customary international law, you have to provide has been used fairly often, adopted by many states,

and practiced with some pattern. You cannot bind a state to a treaty to which it did not ratify

v. ** THE LOTUS CASE**

1. Facts: There was a collision between French steamer Lotus, who was going to Constantinople, and Turkish collier Boz-Kourt, where the Boz-Kourt sank. The Lotus tried to save the people on the Turkish vessl, did save 10, but 8 Turkish nationals who were on board died. The officer on watch onboard the Lotus, Lieutenant Demons, and of the Boz-Kourt, Bey, were taken by Turkish police for examination, and then arrested (pending trial) for criminal prosecution of manslaughter, without giving previous notice to the French Consul-General. During trial in Turkey, Demons (French national) submitted that Turkish courts had not jurisidciotn, but his objection was overruled. Demons was then sentenced to 80 days imprisonment, and a fine of 22 pounds. The French government protested this, and both countries agreed to bring the issue before the Internaitonal Court at the Hague in Geneva.

2. Issue: Whether or not the rules of international law prevent Turkey from instituting criminal proceedings against a French national under Turkish law.

3. Holding: Turkey did not act contrary to any existing International law

4. Reasoning:

The positivist presumption meant that court put burden of proof on France to show there was a rule of customary INtenraitonal Law restricting Turkey’s claim of jurisdiction

All that is required of Turkey is that it does not overstep the limits which international law places upon its jursidction; within these limits, its title for exercise jurisdiction rests in its sovereignty. The French government argues Turkey’s actions conflicted with international law. Intenraitonal law doesn’t allow a state jurisdiction over a aforeginer, where the offense was committed aborad just because of the victim’s nationality. French are assuming the only affiliation Turkey has to the incident are the vicitm’s nationality. However, thi sis not true. The Offense was committed agiant the Turkish vessel, which is part of Turkey’s territory. In this context, there is no international rule of law prohibiting Turkey’s jurisdiction.

France argued that the jurisdiction goes to the flag ship. The Court sai there is no consistency in rule of flag in practice

France said that since the collision occurred on the high seas, France claimed that only the state whose flag the vessel flew had exclusive jurisdiction over the matter. Court said you have identified a practice, but it’s only usage. You haven’t established opinio juris

Lotus case established that there wasn’t consistency of practice

where the Paquete Habana had an established vi. **THE TEXACO/LIBYA ARBITRATION**

1. Issue: what is value of UN General Assembly Resolutions in creating a rule of International customary law

2. Discussion: “Mixed” International Arbitration: Here the Deeds of Concession between the U.S. oil companies and the Libyan government provided that an aggrieved parry could request the President of the International Court of Justice to appoint a sole arbitrator if the other party refused to make an appointment to a 3-judge panel.

a. Individuals and International Law: The Arbitrator rejected the positivist doctrine of the 19th and early 20th centuries that held that international law could only bind states. Now individuals and private corporations can be subject to international law.

b. The Role of UN General Assembly Resolutions in Making Customary International Law:

c. The Libyan argument rested on the foundations of the 1973 and 1974 UN General assembly resolutions proclaiming a New International Economic Order (NIEO). The legal question for the Arbitrator was whether these NIEO resolutions had any legal force especially in the light of UN General Assembly Resolution 1803 (XVII) if 1962. In 1962 the UN was trying to get a consensus, and the resolution was adopted with only a few negative votes

3. Something to consider: is it fair to go to 1962 and say a conseus existed then. Libya wasn’t involved then! New states come into International Law and are subject to rules already in existence. So that sucks for you Libya.

c. Other sources: general principles; natural law & jus cogens; equity

i. General Principles Article 38 (1) (c) 1. Baisic notion is that a general principle of law is some

proposition of law so fundamental that it will be found in virtually every legal system. The most usual approach to

gnereal principles of law as a rouce of itnernaitonal law relies upon techniques of comparative law. Search and see if national legal systems use a common principle. If such a common principle is found, then it is presumed that a comparable principel should be attributed to fill the gap in intenraitonal law.

2. General Principles fill the gaps (lacunae) in intenraitona law, so general principels of law are more a feature of court ases than aof other kinds of international legal process

3. ** AM & S CASE**

a. Issue: whether certain company documents sought in an investigation of economic competition were to be protected from inspection by the Commission of the European Eocnomic Community on the grounds that the materials were privileged communications between laywers and clients. Neither the Common Market Treaty nor its regulations established such a privilege of confidentiality

b. Ruling: The Euroepan Court of Jsutice decided to take into account the principels and concepts common to the laws of those States concerning the observance of confidentiflaity, in particular, as regards certain communications between lawyer and client.” The Court compared the laws and depite difference int eh ruels of the emmebers of the Common Market, there were common criteria inasmuch as those laws protect in similar circumstances, the confidentiality of written communications between lawyer and client as long as in the tinerest of the client’s itnerets. The problem here is that the differences amongst the countires has a different scope for the privilege and the court’s rule (biding and law) is now raising the standard for some countries.

ii. Natural Law

1. Principle of equality: Free persons living together in the state in the statue of nature, are naturally euqal, and inherit from nature the same obligations and rights. Power or weakness does not in this respct roduce any differences; a small republic is no less a sovereign state than the most powerful kingdom.

2. Montesquieu’s The Sprirt of the Laws “ the law of nations is naturally founded on the principles that the many nations ought to do to each other, in times of peace and the most good, and in times of war the least bad, that is possible without injuring their genuine interests”

3. When 19th century legal positivists began deriding international law as bien gmere morality and not law at all, many international lawyers took affriht and tried to sever their ties with natural law altogether. There was a suspicion that intimately linking international law to natural law debased interianotal law.

4. Basic idea is that there is a law so natural that it is to be found in an community, including the community of states.

iii. Jus Cogens

1. A norm though to be so fundamental that it even invalidates rules drawn form treaty or custom. Usually a jus cogens

norma presupposes an internaitnal public order sufficiently potent to control states that might otherwise establish contrary rules on a consensual basis.

2. In the Vienna COnention on the Law of Treaties, jus

cogens is called “peremptory norm” in Article 53 and says a treaty is void if it conflicts with a peremproty norm

3. Different fomr customary law: customary law is not an apt instrument for the establishment of nonderogable rules, norms with a potency superior even to treaty rules. Customary international law is weaker than conventional international law. Both are based on state practice, but treaties show the practice explicitly in the form of written rules, while the rules of custom must be drawn awkwardly from the various evidence of state diplomacy Both treaty and custom are grounded on the idea of agreement. Treaties are ordinarily stonrger, since consent it shown by ratification process, while consensual foudnaiton of custom must be demonstrated more uncertainly by expressions about the law-like character of the ruels

4. Better to view jus cogens as a modern form of natural law (pg. 64 of Janis) By it nature and utility , a rule of jus

cogens is so fundamental to the interational community of staes as a whole tha the rule constitutes a basis for the community’s legal system. It is ordinarily nonderogable and invalidates subsequent norms generated by treaty or by custom, that is, by the ordinar consensual forms of international legislation. Jus cogens is a rule that once ensconced, cannot be displaced by states through treaties or practice. States cannot avoid its force

5. Best example is pacta sunt servanda, essential to the theory of both conveitonal and customary interatnioanl law that contracts between states by legally binding. It is a norm fundamental to the legal system from which both treaty and customary rules derive.

6. **UNITED STATES V. SMITH*

a. Facts: Proceeding of priary against Smith for confining his offier on a vessel with others, leaving the vessel, sezingin another vessel, and robbing that second vessel (A Spanish vessel)

b. Issue: whether the committed offenses are priarcy under the law of nations

c. Holding: yes d. Reasoning: While Filartiga court looke dot treaties,

speicifc sources, and histories, this corut looked at two things: 1) scholarly work 2) common law (so something depper an dolder than specific soruces) The Court said the law of nations “may be ascertained by consulting the works of the jurists, writing professedly on public law; or by the general usage of practice of nations; or by judicial decisions recognizing and enforcing that law.” All define priarcy as robbery upon the sea. Therefore, it is defined by the law of nations as such

7. ** Alfred Von VEdreoss (a naturalist) “Forbidden

Treaties in International Law 1937 (Hitler time) a. There are jus cogens principles and there are some

subject matters that cannot be agreed to in treaties (certain preemptory principles that not international agreement can violate even if consented to)

b. Problem is that ethical minimums at international level are harder to define than regional minimums. But Von Verdross says nto all is lost because Vienna Convention acknowledges preemptory norms in Article 53 and Article 64, and Article 66

c. erga omnes: obligation “among everyone.” An erga omnes obligation exists because of the universal and undeniable interest in the perpetuation of critical rights (and the prevention of their breach). Consequently, any state has the right to complain of a breach. Examples of erga omnes norms include piracy, genocide, slavery, and racial discrimination.

i. Different from jus cogens. Jus cogens applies to everyone in all cases. It is always ega omes. Erga omes isn’t always jus cogens because you could vary in some circumstances without making void

8. ** THE MICHAEL DOMINGUES CASE**

a. Facts: Michael Domingues has been convicted and sentenced to death in Nevada, United States for two murders committed when he was 16 years old.

Domingues brought the case in front of the Inter-American Commission of Human Rights which delivered a non-legally binding report.

b. Ruling: Us has persistently objected to customary international law prohibiting juvenile death penalty, so US would not be bound even if such a principle existed. There is no jus cogens prohibition on juvenile death penalty. If it’s just cogens, you can’t be a persistent objector ( you can only object to customary law)

9. ** THE NORTH SEA CONTINENTAL SHELF

CASES ** a. Facts: The relationship between treaties and custom

has been discussed most extensively in the ICJ's opinion in the North Sea Continental Shelf Case. These cases involved a dispute between Denmark and the Netherlands on the one hand, and Germany on the other, about how to divide up a portion of the North Sea continental shelf. By the time these cases arose, much of the North Sea continental shelf had already been divided up through a series of agreements between the United Kingdom on the one hand, and Norway, Denmark and the Netherlands on the other. These three delimitations were carried out by drawing what are known as "median lines," which are indicated on the accompanying map (next page) by the solid lines. In addition, partial boundary lines between Germany and Denmark, and between Germany and the Netherlands, were established by means of treaties.

b. The question in the North Sea Continental Shelf Cases was how to divide up that part of the continental shelf represented by the triangle BFD. This was the only portion of the shelf in dispute. On the one hand, Denmark and the Netherlands sought to draw the boundary lines between themselves and Germany using the "equidistance" test set forth in Article 6 of the 1958 Continental Shelf Convention. These boundaries are indicated on the map by the line ABEF and CDEF respectively; under this delimitation, Germany would have received only the area in the triangle ABEDC. On the other hand, Germany argued that it was not bound by the equidistance test, since it had not become a party to the 1958 Continental Shelf Convention. Instead, it

sought to draw straight boundary lines represented by ABF and CDF respectively.

c. Ruling: The judgment provides an resume of sources of international law, beginning with treaties, to custom, and with equity.

III. International Law Sources in U.S. Municipal Law

a. Treaties (relationship with national law) i. U.S. system

1. The US Constitution mentions treaties in Article II9E) and states that the president has the power to make them provided 2/3 of Senators concur. Article III (2) extends the judicial power of the US to all cases arising out of treaties made by US. Amplifying these explicit constitutional provisions are more than 2 centuries of judicial practice, which by now provides more constitutional rules that the Constitution itself. One such rule is the judge made doctrine of self-executing treaties. The doctrine entered out of the Foster & Elam v. Neilson case

2. **FOSTER & ELAM V. NEILSON**

a. Facts: P claimed that the land in Lousiiana was granted by the Spanish Governor. D asserts that there is no title on which P can recover because the territory on which the land is on had been ceded to France, then from France to the US before th land was granted by the Spanish Governor, and so there was no authority by the Spanish governor to grant the land.

b. Issue: How does US court decide who the land belong to?

c. Holding: Can look at treaties d. Reasoning: Chief Justice Marshall said the United

States Constiution declares a treaty to be the law of the land (by the supremacy clause of Article VI.) It is consequently to be regarded in courts of justice as equivalent to an act of the legislature. A legal rule drawn from a treaty may be applied in a case by the US courts without any leslative act so long as its provisions are interpreted as being aimed directly at the courts and not at the Congress requiring legislative action. In this case, the Supreem Court read the specific provision of the 1819 treaty as aimed at the lawmakers. Some treaties act directly on the object of the dispute so they do not need to be implemented. Trying to be intensly concerened about the blannce of powers, treaty an exceptional

power of law making, our system made to make it delibertly hard to make federal laws, did not want to dispurt the balance of power. * Note 5: if he had consulted a Spanish language version there would be a different result.

e. A treaty is ordinarily considered self-executing if it provides adequate rules by which given rights may be enjoyed or imposed duties may be enforced. Conversely it is generally not self-executing when it merely indicates principles without providing rules giving them the force of law. Treaties may be seen as 'self-executing', in that merely becoming a party puts the treaty and all of its obligations in action. Other treaties may be non-self-executing and require 'implementing legislation'—a change in the domestic law of a state party that will direct or enable it to fulfill treaty obligations

f. Self-executing treaty provisionsa re also binding upon each of the several states of the US because of the supremacy clause of Article VI

g. Whether a party of a treaty is self-executing and thus, in a case of conflict, invalidates state law must be determined on a case-by-case basis

3. ** ASKURA V. SEATTLE** a. Facts: Asakura, a Japanese citizen, was working as

a pawnbroker in Seattle. The city then passed an ordinance that any person working as a pawnbroker needed to have a license, and to obtain a license you needed to be a citizen of the US. If you worked without a license, you could be punished with a fine or imprisonment. Asakura brought this suit to refrain the city from enforcing the ordinance against him because he had a lot of money invested in the business. He argued that it violated a treat between Us and Japan, the constitution of Warhsiong State, and due process and equal protection clauses of the US constitution.

The treaty between US and Jpaan basically said Japanese citizens (and vice versa) could run business in the US, or anything else necessary for trade upon the same tersm as native citizens or subjects, and that they shall receive protections

b. Issue: Does the ordinance violate the treaty between Japan and the US?

c. Holding: Yes d. Reasoning: The Supremacy Clause of the US

Constitution says that a treaty made under authority of the US is the supreme law of the land.As longas US doesn’t violate the constitution, it has the power to make treaties, which would bind US at all levels of government. The treaty is binding on the state of Washington. The problem here is that Asakura wi be denied equal opportunity to engage in business, which is in violation of the treaty. Ordinance is in violation of the treaty with Japan so still can be applied to other aliens if there is no treaty with their respective countries

e. Rule: Treaty trumps state law because of US constitution Article VI (2), the supremacy clause

4. ** SEI FUJII V. CALIFORNIA ** a. Facts: Sei Fujii is a Japanese alien and not eligible

for US citizenship. HE purchased land which California escheated. There was no treaty between the US and Japan that would give real estate rights to Sei Fujii. Sei Fujii contends that the UN Charter precluded Claifornia from taking his land

b. Issue: When can a treaty superseded local laws chich are inconsistent with it?

c. Holding: UN charter does not supersede Ca alien land law

d. Reasoning: A treaty does not automatically supersede local laws which are inconsistent with it unless the treaty provisions re self-executing. A self-executing treaty operates without the aid of implementing legislation and to have the force and effect of a statute, it must appear that the framers of the treaty inteded to presecribe a rule that, standing laone, would be enforceable in the courts. The Charter’s Preamble and Arctcle 1 were not self-executing because they state general purposes and objectives and do not purport to impose legal obligations on the individual member nations or to create rights in private persons

5. ** MISSOURI V. HOLLAND ** a. Facts: Federal district courts had struck down

earlier federal lawsregulating migratory birds because these US stautes were held to be unconstitutional infringements upont eh residual rights left to the states by the 10 Amendment. The President then negotiated a treaty with Canada

providing for similar migratory bird regulation. The Candaian-American treaty went to the Senate, which gave its advice and consent, the President ratifieid the international agreement, and Congress

b. Reasoning: the Court hinted that it sometimes might even be constitutionally possible for Congress to enact laws pursuant to interniatonal agreements which would otherwise ifnringe upon the residual sovereign power of the states. The Supreme Court upheld the constitutionality of the new feeral law. By the treaty the federal government gets legislative powers that would have been the states’. Potential for a great expansion of federal power. Why do this? Court thought legislation was important and the states couldn’t unify to protect the resource with other countries. Consequence of Missouri v Holland – political conflict of ending segregation in the South; could have been a matter of states rights. Missouri says even if the powers are states’ rights all they have to do is sign a treaty and the federal government gets the power. IS the treaty power broad enough to allow the president to act against another part of the Constitution? Reed v Colbert -> NO. Treaties cannot contradict the constitution.

6. ** WHITNEY V. ROBERTSON ** a. Facts: Merchants were importing surgar from San

Domingo, and when they arrived at the custom house in NY, they caimed because of a treaty between US and San Domingo, the goods should be admitted duty free. The collector at the port refused, and the merchants were made to pay money in duties. Merchants then brought his claim to get back the duties paid. Merchants argued that the treaty between US and San Domingo promised to provide most favored nation treatment to imports from San Domingo. The most favored nation treatment was from a treaty between US and the Hawaiian Islands, where cetin goods, including sugar, were exempt from duty-collection. Collector of the port argued that he treated the goods as dutiable articles under the acts of Congress

b. Issue: Whether a treaty supersedes conflicting acts of Congress

c. Holding: affirmed for D

d. Reasoning: Both self-executing treaties and acts of Congress are considered supreme laws of the land, and both should have effect. Justice Fields says that when they conflict with each other, “the one last in date will control the other.” Since the acts of Congress were dated last, they conrol.

e. Rule: In the case of a conlict between a federal statute and atreaty, the one last in date will control. If the country with which the treaty was made is dissatisfied with the action of the US legislative department, then they may present a complain to the executive head of the government.

7. ** UNITED STATES V. BELMONT **

a. Facts: A Russian corporation deposited money with a private banker in Ny, Belmont. The money later became property of the Soviet Govenemtn because of a decree that natinaolzied all of the corporation assets, and the Soviet governemtn wanted the money. Bemont refused to pay because the bank deposite was located in NY, and the decree couldn’t be enforced there, so to them it was still the property of the corporation, otherwise it would be an act of confiscation.

b. Reasoning: No state policy can prevail against a federal treaty. Govnermetnal powers over external affairs is exlusive to the national govenremtn. Especially when the treaty required the consent of the senate, wher ea judicial authority is invoked, state politices are irrelevant to the inquiry and decision.

8. ** UNITED STATES V. CURTISS-WRIGHT **

a. Facts: Curtiss-Wright conspired to sell arms of war to Bolivia, who was then involved in the Chaco war. This was in violation of th eJOint Resolution of Congress that gave the President braod authority to prohibit sales of wapsons to countries involved int eh Chaco War. Curtiss-Wright challenged the validty of this proclamation, argugin that the regulations follwing from it were unconstitutional because it gave the president too broad a discretionary authority, and that Congress has the authority to regulate commerce, and cannot delegate that power to the President I nsuch braod terms.

b. Reasoning: Found in favor of US. While the Consitution may not explicitly say that all ability to conduct foreign policy on behalf of the nation is vested in the President, such power is nonetheless granted implicitly. The Supreme Court advanced the thesis that the federal govenrmetn had special power sin interniaotnal affairs, powers that might even be extraconstiutional. The power is not found in the provisions of the cCOnsitution, but in the law of nations. This is a broad theoretical view of the extra-constiutional international powers of the President or Congress

9. **DAMES & MOORE V. REGAN ** a. Facts: In 1979, the American embassy in Tehran

was seized and Americans captured and held hostages. President Carter issued an Executive Order, which forze Iranian assets in the US. Dames and Moore filed suit in CA against government of Iran and a number of Iranian banks for services already performed under a contract. The American hostages were released pursuant to an agreement that stated that all litigations swould be terminated and to bring about the settlement and termiantions of all suchclaims through binding arbitration. Dames and Moore then filed this action against US seeking injunctive relief to prevent enforcement of the Executive Orders.

b. Issue: Whether the executive order was valid c. Reasoning: The Court upheld the presidential

actions against challenged that were unauthorized by law. The Court ocncluded that the Internaiotnal Emergency Economic Powers Act authorized the president to nullify the attachments and to transfer Iranian assets. It also approved the suspension of claims filed in US courts even though no specific statutory provision authorize that step. In so doing the Court relied on inferences drawn from related legislation, a history of congressional acquiences in exexcutive acticity. It is a recognition of broad presidential power in foreign relations

b. Law of nations

1. The law of nations has come to include more or less all of the sotrs of non-treaty rules discussed above, most notably customary international law, general principles of law, and jus cogens

2. ** REPUBLICA V. DE LONGCHAMPS **

a. Facts: French national was charged under Pennsylvania law with violating the international law protecting diplomats, by insulting and assaulting (by hitting his cane) the French consul-general in his residence. Longchamps pleaded not guilty, but jury found him guilty.

b. Issue: Whether Longchamps should have been sen to France for the trial? (No) Whether he should have been to sent to France for punishment (No) Whether the punishment in PA should have been subject to France’s satisfaction (No)

c. Reasoning: The court concluded that defendant could not legally delivered by the Supreme Executive Council to the MIsinter of France and also could not imprisoned until his most Christian Majesty declared the rearpation to b satisfactory. The court dteremiend that because the person of a public minster was sacred and inviolable, defendant had committed an atrocious violation of the law of nations when he threatened and menaced bodily harm and violence to the person fo the Secretary of the French Legation.

3. ** UNITED STATES V. ALVAREZ-MACHAIN ** a. Facts: In 1985, a DEA agent in Mexico was

captured and tortured to death by members of a drug cartel. Subsequently, U.S. agents with the help of Mexican nationals “snatched” Dr. Alvarez-Machain in Mexico and delivered him to the United States for trial as a participant in the torture and murder. Alvarez-Machain was acquitted, but before that happened, he had taken to the Supreme Court a claim that the United States violated a Mexico-US extradition treaty and international law in his capture. The Supreme Court rejected his claims. United States v. Alvarez-Machain , 504 U.S. 655 (1992). Alvarez-Machain then brought civil tort actions in U.S. federal court against the United States and Jose Sosa, a Mexican national who participated in the snatch. The United States is being sued under the Federal Torts Claim Act and Sosa under the Alien Tort Statute (ATS). The claim against the United States is that the authority given to DEA agents to enforce U.S. laws did not apply extraterritorially, that the arrest was therefore a false or tortious arrest under California law (the parties stipulated that

California law would apply), and that the claim did not come within the FTCA exclusion of claims “arising in a foreign country” because it was attributable to decisions made at DEA headquarters in the U.S. b. Issue: 1. Whether federal law enforcement officers, and agents of the Drug Enforcement Administration in particular, have authority to enforce a federal criminal statute that applies to acts perpetrated against a United States official in a foreign country by arresting an indicted criminal suspect on probable cause in a foreign country.�2. Whether an individual arrested in a foreign country may bring an action under the Federal Tort Claims Act (FTCA), 28 U.S.C. 1346(b), 2671 et seq., for false arrest, notwithstanding the FTCA's exclusion of "[a]ny claim arising in a foreign country," 28 U.S.C. 2680(k), because the arrest was planned in the United States. c. Holding and Reaosning: Court said ther ei sno violation of treaty. Rhenquist saysts inteinroatl customary law is not to be ocnsiered here; we are only reading treaty on its face.(Court could have said contrary to customar law. Or court could have said there is a treayt violation but sparation of powers in US are such that court don’t provide the remedy; executive branch would have to dela with that; this requires a political solution to treaty violation)

4. ** SOSA V. ALVAREZ-MACHAIN ** a. Facts: Same as above. The claim against Sosa

proceeds on the theory that the ATS creates a cause of action in addition to granting jurisdiction to federal courts for violations of the law of nations, and that international law recognizes a rule prohibiting “arbitrary arrests,” which encompass arrests not authorized under either Mexican or American law.

b. Issue: 1. Whether the Alien Tort Statute (ATS), 28 U.S.C. 1250, creates a private cause of action for aliens for torts committed anywhere in violation of the law of nations or treaties of the United States or, instead, is a jurisdiction-granting provision that

does not establish private rights of action;�2. Whether, if the ATS does provide a cause of action, it does so only for violations of jus cogens - e.g. non-derogable - norms; and�3. Whether a detention that lasts less than 24 hours, results in no physical harm to the detainee, and is undertaken by a private individual under instructions from senior United States law enforcement officials constitutes a violation of the law of nations and is therefore actionable under the ATS.

c. Reasoning: ATS brought up 26 years after Filartaga. Lots of reconstruction of history , reconstructing common law of the time. Congress concerned after Longchams that they would be incapable of proving redies for …When it was first drafted it applies to narrow case of tort, Longchamps, safe passage and piracy. Scalia says that that is all it applies to unless Congress gives it more power. Souter (writing for the majority) says that the statue refers to the law of nations that changes and evolves, changes to recognize new content but there is good reason to interpret it in a restrained way.

Would Filartaga survive this test? Federal court should not recognize private claims from law of nations unless as definite and commonly accepted amongst civilized nations as these three nations (yes Filartaga passes) Is it a norm that has reached acceptance sufficient enough to be a common International Law? Must be specific enough for court ot apply directly out of ITNeirnational with no legislative action (sounds a lot like argument about self-exectuing treaties)

IV. Persons and actors in the international legal system

a. Individuals

i. The evolution of conception of individuals in international law. In the 19th and early 20th centuries the narrow positivist doctrine treated individuals as mere objects of international law. The modern concept of individuals sees them as subjects of international law.

1. Positivists have an objective theory: individuals can be objections of INterniatonal law an rules (can have effect on them) but they are not legal subjects with rights and duties

2. Objective theory has always had extensive exceptions and not a consistent practice in IL, ( for example, Peace of Wesphalia tells us that individuals have certain rights) but some basic assumptions regarding difference between idnivdiuals and states are stil in place today

3. Bentham saw itnernaiotnal law as about the rights and obligations of states inter se and not about individuals. Positives saw the law of nations as having two itnernaitoal law disciplines, one “public” the other “private.” The former was deemd to apply to states, the altter to indivdiauls. Positives could scorn both sides of the subject: public interatioal law was “international,” but not really “law”; private inteirnaitoa law as “law” but not really “international.”

4. ** THE NOTTEBOHM CASE**

a. Facts: Born in German and was a German citizen, although he lived in Guatamala, conducted a prosperous business, but enver became a citizen of Guatemala. He applied to become a citizen of Liechtenstein. The application was approved even though a requirement was that he be in residence there for at least 3 years, but there was an exception and he became a citizen of Liechtenstein. When he tried to re=entere Guatemala in 1943, he was refused etnry probably because of his original German citizenship and because of WWII.) Licechtenstein offered Nottbohm protection against the government of Guatemala and sued Guatemala in the ICJ. However, the government of Guatemala argued that Nottebohm did not gain Liechtenstein citizenship for the purposes of international law.

b. Issue: whether the conferment of the Lichtenstein citizenship is not contrary to international law, and if Lichtenstein’s claim on behalf of Nottebohm is admissible in court (no)

c. Holding: the court agreed with Guatemala and held that claims by Lichtenstein were inadmissible

d. Reasoning: Although the Court stated that it is the sovereign right of all states to determine its own citizens and criteria for becoming one in municipal law, such a process would nave to be scrutinized on the interianotal plane in questions of diplomatic protection. The Court upheld the principle of effective nationality, where the national must prove a meaningful connection to the state in question. While validty of nationality is determined by state

conferring the rights, IL determines whether state has entitltement to protect an idividual. IL says that a state’s prtection is not recognized by another state unless it gives nationality to an individual with genuine connection to the state (must look to the circumstances surrounding the nationalization.) Court herer said that Nottebohm had no prolonged rsidented in LIech, had a transient vists there, had no intention of settling there.

5. ** THE BARCELONA TRACTION CASE **

a. Facts: Barcelona Traction was a corporation that controlled light and power utilities in Spain and was icnroproated in Canada. In 1948, there was an adjudiction in ankruptcy in Spain of Barcelona Traciton. Its object was to seek reparation for damage alleged by Belgium to have been sustained by Belgian nationals, shareholders in the company. The Belgian Governemnt, contended that after WWI, BT share capital came to be largely held by Belgian nationals, but the Spanish Government, maintained that the Belgian nationality of the shareholders was not proven.

b. Issue: Whether states of Belgium can bring this case to the ICJ (no)

c. Holding: Belgium’s claim is rejected d. Reasoning: The Belgian government lacked the

standing to exercise diplomatic protection of Belgian shareholders in a Canadian company with respect to measure taken against that company in Spain. The Court ruled on the side of the Spanish, holding that only the nationality of the corporation )Canadian) can sue. The Court is giving greater deference to municipal laws to give greater certainty (if pur on shareholders much more differentiaed and hard to know which nationality youa re dealing with.) Under muncipal law, company is its own erperosn. In Canadian system, place of incproation is where it matters. Relies more on formal legal status than we saw in Nottebohm.

6. State brings case on behalf of individual

a. Advantages: i. Practical: back log

ii. Enforcement iii. Resolution through diplomatic and plitics as

equals

iv. Control of principles remins in hands of states

b. Disadvantages: i. End up with not protection some factual,

material interests ii. Problem with protecting yourself against

your own country iii. State for indepenent reasons might nto

recognize claim iv. If state assume claim, ti needs to be

assertion fo state claim; only harm to state is being recognized so ti warps the individual claim even when it assume it

7. Janis “Individuals as Subejcts of IL” Exceptions to the

Positivist rule that idnviiudals are only objects

a. Respublica v. De Longchamps: example of the failure of positivism to describe adequately the reality of the individual as a subject of IL comes from the time of Bentahm himself. This was the case about the diplmat assault where the municapl court deced that the case would be decided on the principles of the laws of nations

b. United States Supreme Court had no difficult seeking idvidiuals as subjects of intenriaotnal law. The Paquete Habana, where the vessels were seized, the court said that the the rule whereby fishing vessels purusing their vocation are excempt from war. Indviduals had a right to rely on this rule as against the US.

c. The Nuremburg Trial: The Charter of the INternaitnal Military Tribunal at Nuremberg explicitly made indvidiauls subject to international rules relating to crimes against peace, war crimes, and crimes against humanity. Nuremberg re-estabkisehd plainly and forcefully that the ruels of international law should and do apply to individuals. The Nuremberg Tirbunal hed that “crimes against inerinatinal law are committed by men, bot by abstract entites, and only by pnishing idivdiuals who commit such crimes can the provisions of international law be enforced” The lesson of Nuremberg is that there are individuals international rights and obligations that transcend state boundaries.

d. Today reality and preference have so revealed the

weakness and obsolescene of subject-based theory that the sooner we rid ourselves of it the better

e. But at the end of day, individuals and states are treated differently at IL

b. States

i. In great measure the responsibility for the application of interniaotnal legal rules lies with no cour,t municipal or itnerniaotnal, but wht the principal subjects of that law, the tate themslevs. This is especially so with respect to the more or less constiutioanl an dpliticla rules of interaitonal law, for example, those tha tconern interstate conflict and those that set out the fundamental character and the rights and duties of states.

ii. Sovereignty and International law

1. The notion hehind state sovereignty is that a state ought to be able to govern itself, free form ouside interference; underpinning inteirnoatal law is the idea that external rules ought to be able to limit state behavior (seemingly antagonistic) In the real world, enither sovereignty nor interniaotnal law could reign absolutely without vangquishing the other. The lesson of history is in practice netiher sov. Nor IL ever completle wins out, but rather a balance is struck.

2. Hobbes’ celebration of the Leviathan, the sovereign state, provided a curcial bit of ideological machinery necessary to operate the structure of world politica crafted at Wesphalia. So successful was the potlical settlement of Westphalia and so useful was Hobbes’ concept of Leviathan and the sovereign state tha thtey became deeply imbedded int eh public consciousness’

3. ** De Vattel, The Law of Nations

a. State becomes an entity by consent of people and remains sovereign as long as it doesn’t submit to other nations.

b. It is the antural state of man to ened other man for rpeevation an dlive rationally

c. Each Nationa ll should be left to the peaceable enjoyment of the libery of being free and independent which belong to it by nature. The natural society of nations can not conitnue unless the rights which belong to each by nature are respected.

d. Sovereignty created by common consent of commonly interested people

4. The Montevideo Convention

a. The convention sets out the definition, rights and duties of statehood. Most well-known is article 1, which sets out the four criteria for statehood that have sometimes been recognized as an accurate statement of customary international law:

b. The state as a person of international law should possess the following qualifications: (a) a permanent population; (b) a defined territory; (c) government; and (d) capacity to enter into relations with the other states.

c. Furthermore, the first sentence of article 3 explicitly states that "The political existence of the state is independent of recognition by the other states." This is known as the declarative theory of statehood.

5. The Tinoco Arbitration : a. Facts: Tinoco takes over and establishes new

constitution in CR. After Tinoco retires and leaves the gov. falls and the old constitution is restored. Law of Nullities passed which invalidates all contracts b/w executive and private persons during Tinoco regime and nullifies leg. decree allowing circulation of 1000 colon notes. UK mad because British corp. is holder of notes and law nullifies concession to explore for oil deposits in CR.

b. Finding: Taft were single arbitraer and found that by international law, a new government is bound be the legal commitments of an old government.

6. **AUTOCEPHALOUS GREEK-ORTHODOX

CHRUCH OF CYPRES V. GOLDBERG & FELDMAN

FINE ARTS, INC.

a. Facts: Facts: Turkey invades northern Cyprus and establishes own gov. TFSC. No one other than T recognizes this gov. TFSC makes decree divesting churches of sacred items left behind when Greek priests flee (become property of TFSC). Turkish vandals steal mosaic and sell to US art dealer. Cyprus and church sue art dealer in SD of Ind. for return of mosaics.

b. Holding: Decrees have no effect because TFSC not a de facto gov. since no recognition.

c. So does de facto now mean control + recognition. d. What to take away: Case stands for two general

propositions: i. The law of an unrecognized entity isnot

given effect in the US court room ( sometimes the factual ciumstances demand

an exception for de fat state to be roecgnzied btu this is an exception)

ii. An unrecognized entity can’t sue/intervene in a case in US courts

7. ** KADIC V. KARADIZIC**

a. Facts: Facts: Alien Tort Act claim against Pres. of Sprska (Bosnia-Serb movement) for torture, execution, etc. ATA requires: alien suing and tort committed in violation of law of nations (state action for some of the claims). D moves to dismiss claiming Sprska not a state so no state action.

b. Holding: P’s entitled to prove Sprska is a state (lists same factors as those in Montevideo) despite little control and no recognition (so arguably not a de facto). Court didn’t make a definitive finding. Court ocnclude it might be a state by using the MOteviedo Convention

8. ** REPUBLIC OF CROATIA ET AL. V.

GIROCREDIT BANK A.G. DER SPARKASSEN a. Facts: Facts: Yugoslavia (SFRY) dissolved by

dismembratio and successor states can’t reach agreement about distribution of assets and liabilities. National Bank claims to be sole successor.

b. Holding: General rule is that a successive state assumes all of the obligations and rights of the previous staes, but this general rule has caveats. Int’l community unanimously sees this as disembratio so property and liability to be distributed among successor states based on equity principles. (fair partition) The one entity who would control all of it, Serbia, is seen as agrgressor so they don’t want Serbia to get it all.

c. Intergovernmental organizations

i. Public international organizations are creatures of international agreement constituted by sovereign states to accomplish common goals. Multilateral treaties were an indispensable prerequisite to the formation of interinoatal organizations. Because intenriaotnal oganizations are created by the express consent of states, international legal theory has had little difficulty in explaining how itnernaitonal organiaitons are vested with interniaotnal legal personality. The status of any international organization as a person in intenraitonal law is dependent upon the treaty constituting the organization. The usual theory accounting for the interniatonal legal personality of intenriatonal organizations explains that states dlegate some fo their sovereign powers, thus

some of their itnerinaotnla personality , to international organizations os those organizations can fulfill their designated functions in international relations. Must look to the treaty to define the organization’s functions and powers.

International institutions are an integral part of modern international law. They are a functional response to a state-oriented system 1) necessity of system based on equal, sovereign states creates need for interniaotnal system in order to guide states’ behavior 2) you always find tensions because on one hand the international organizations are created by states, funded by states, rule made by states. But on the other hand, supposed to exist outside of states. 3) when you get to specific context, what is legal personality of these institutions as persons? - tensions form functional needs. These need to be independent form states to create treaties, capacity to bring claims, capacity for standing as independent actor in tribunals, but are not fully sovereign like a state and do not fully have personhood like a state Article 100 of UN Charter sais that international institutions must be able to bring claims in International tribunals against states for harm against the institution

ii. Limitations: 1. Unlike states, not permitted to bring claims to the ICJ.

They are empowered in some circumstances to request advisory opionons from the Court and occasionally to be litigants before regional international courts

2. Agreements etween inteirnaotnal organizatiosn are not considred to be treaties for purposes of the Vienna Convention

iii. What do we expect form international organizations? 1. Uniformity in terms of legal norms (helps in process of

norm formation an d play role in adjudication) 2. Faciliatete interaction between and amongst states as a

forum but not as an actor 3. By deciding who can be a member, there is control over

behavior (Form of socialization: to be in our club you have to abide by the terms.)

iv. ** THE REPARATION CASE**

1. Facts: Couple of UN officials assassinated by Israelis during British Mandate over Palestine. UN wanted to be able to sue for reparations on its own behalf. Can the UN have an international personality and bring a claim for itself and for injured person?

2. Issue: Is an inteirnaol insitution an indepdnetn judicial person in intiernoatl law capable of bringing claims on its own behalf?

3. Holding: No express provisions under the charter regarding the issue, but implied powers give the power to the UN sue in both cases. UN’s general powers and duties require capacity to sue.

4. To keep UN independent, nationals must look to UN first and not their own gov. The persohood of an inteirnoatla orgnaizaiton is linked to its purpose” defines ad limits it s personhood. Personhood an dindependence of interinoatla institutions is highly dependent on their functions

Court determines that it does have legal peronsality. Look at charter and read in lgith of purpose sof instiution. It can funciotnally do what its supposed tow ithout judicial independence form states. Has only rights and duties necsesar to functions specified in consitutent docuetns (here Charter of UN)

5. Hackworth (partial dissent) a. Agreed with the court that UN could sue on behalf

of itself but NOT for victim b. Powers not expressed cannot be freely implied

(court was too loose) i. Implied power needs 1) to be closely linked

to express power and 2) necessary ii. Narrower view of implied powers

d. Peoples

i. Self-Determination: this is not a clean legal term. IT is contingent on the political facts of the international community at any given time. Some groups get some degree of autonomy sometimes.

ii. ** THE AALAND ISLANDS CASE**

1. Facts: Dispute b/w Switzerland and Finland as to whether the inhabitants of the AI should be authorized to determine whether their islands were under S or F control. L of N asked jur. question, wanting to know whether the issue should be left entirely to F.

2. Holding: The Aaland Islands, which sought to join Sweden, was denied. In respect to the Aaland Island case, an International Commission of Jurists observed that while popular, the principle of self-determination had not attained the status of a positive rule of international law in the 1920s. The Commission concluded that the principle was essentially political and, thus could not be employed as

justification of dismemberment of a clearly established state. That same principle still holds to-day. Self determination is subordinate to state territorial intergiry an dindepndence. Lo fN recommended to Finland rather than Sweden but have a degree of autonomy within Finnish State (this may have to do with the idea that a stronger Finland would be a better bugfer between Bolshevist Russian and Ruoepe than historically netural Sweden)

When the Aaland Isalnd question was not resolved at the Peace Conference, the Leage of Naitons took it up, resulting int eh first instance that na inernaitnoal orgnization was involved in structuring an autonomy relationship. The Legague’s COuscil establish a COmmmission that favored Finnish control, citing the Islands’ geographical ties to the Finnish mainland and a range of Finnish and international political considerations.

iii. ** REFERENCE RE SECESSION OF QUEBEC **

a. What has happened since Aaland Island case? 1. UN is created and UN Charter recognizes right to self-determination 2. Human Rights treaties a. guarantee of the righ tot self0detemrinaton 3. politically, a massive upheaveal int eh intenriatonal commjnity regarding decolonization in the 50s and 60s

b. Facts: Quebec wants to unilaterally secede from Canada. Is this allowed? c. Holding: Four ideas in this case: 1. meaning of peoples

2. idea of state sovereignty 3. idea of internal self-determination 4. idea of external self-determination

a. Quebec does not have a right to external self-determination because:

1. autonomy of province on own (federal), so has internal self determination (occupation/colonization is a denial of internal self-determination in an extreme form)

2. participation and access to government 3. language of Quebce is language of Canada 4. there is an unstated presumption tah the default assumption is the integrity of territorial states and therefore there is an undervaluing of imitations on self-determination

5. unless the denial of self-determination reaches extreme forms, it is highly unlikely that a restriction on internal self-determination is going to generate an external self0detemrination right to secede (reluctance to alk about internal self etemrination outside of extreme conditions)

e. Nongovernmental organizations

i. Non-governemntal organizations are created under municipal law rather than by interstate agreement. There are many international NGSO that work on a die range of economic, social, human rights, and environmental issues of internaiotnal concern. Most are private, not-for-profit entities, receiving all their support form indivdiaul members or private contributions

ii. Functions:

1. Assist in transparency in information gathering

2. Participate in law making indreictly: generate norms a. Propose laws b. Enegage in practice which encourages state practice

leading to state laws 3. represent individuals before international tribunals 4. assist in enforcement/compliance

iii. Qualities of NGOs: 1. Financing from first world elties

a. Problem? Creates problem that funds may come with conditions or ideologies. Gap between attitudes of 1st world elites and 3ed world causes. System biased against particpation of poor and marginalized populations

2. Impartiality/neutrality (doesn’t take position of any political party)

3. Expertise (specialization) 4. Representateive of needs of a class 5. Formal elgal stauts to accomplish purpose

a. Need political supporters, yet indepdnet from state actors

iv. Law

1. Article 71 of UN Charter: NGSs may negotiate with international organizations

2. ECOSOC Resolution for NGOs o gain recognition/lose consultative status

v. Red Cross

1. NGO that relies on its impartiality/neutrality

a. Only organization allowed into zones of conflict

f. International court and tribunals

i. Institutionalized mechanism within the UN that decides disputes based on law. The principle underlying the idea of theICJ is the peaceful settlement of interstate disputes. ICJ syas its own decisiosn are officially binding only for the parties in the case, but in practice, these ecisions are used as precedent

ii. Functions a. Dispute resolution b. Dvelopment of international law

iii. Legal Status of Court a. Judicial organ that settles disputes on the basis of law, not

fairness b. Par of the Un system (found in Un Charter)

i. Funtionally this means that he court takes into account ther interests of the UN

ii. Jurisdctionarlly important because only parties that are parties to the statute are subject to its juridciton

1. All UN members are subecjt to its jrusidction iv. Jurisdiction can come from:

a. Statute of International Court of Justice b. Article 36�covers the bulk of cases

i. (1)—by agreement at time (Ecrehos) or treaty agreement

ii. (2)—optional compulsory jur. (parties agree to go to court with any other state that has accepted a similar basis of jur.—Nicaragua v. US)

1. Only about 1/3 of states recognize and many make reservations

a. Respondent state can invoke these reservations against you

b. US accepted this jur. but revoked after cases decided against us

c. Article 65�advisory opinions for UN or any authorized body i. Can answer any legal question (even blend of law and

fact�Western Sahara) d. Charter of UN: Article 96� G.A. can request advisory opinion

on any legal question from ICJ i. If court acting outside of these articles, acting under

ultra vires doctrine e. Article 96 of UN Charter and Article 65 of its Statute allows the ICJ to render advisory opinions. These are only given at the request of designated itnerniaotal organizations and unlike judgments in the ICj’s contentious cases, are not legally binding.

** THE MINQUIERS AND ECREHOS CASE**

e. Facts: Both France And Britain were agreabla t the time about going to court and gave cones after the sipute arose. court requested to determine whether the sovereignty over the islets and rocks of the Miniquiers and Ecrehos groups respectively belongs to the UK or France. 1) Jurisdictional: Special arrangements (a) clear, consent arising after the dispute (b) the parties can negotiate what issues to submit – just ask if it belongs to France & UK don’t need to worry about common heritage of mankind (c) Even distribuitions of burden of proof (2) Substantivly: Acquision of territory

f. Holding: Facts show that UK has long exercised administration of islands�prescription (acquiring land that used to belong to another sovereign; effective occupation is necessary for territorial title; must occupy territory as a sovereign, not just an owner)

** THE DIPLMOSTIAC AND CONSULAR STAFF CASE ** go to

pg 360

a. See if Iran violated any of its responsibilities to the United States. Jurisdiction: based on bilateral treat & multilateral treaty. Vienna Convention – substantive treaties not procedural, both US and Iran were parites, Bilateral treaty: Framework treaty- general in nature difficult to pint out a specific provision that has been violate.d Iranian obkections to jurisdiction: non – justiciable because a political dispute, subject to settlement through other procedures,. Thet are spie not diplomats so not entitled to jurisdiction. Substantive: Diplomatic Relations: Vienna Convention codified common law immunity of property, agents, and their families, articles, premisis entitled to proactive protection and dignity. Diplomatice immunity – criminal jurisdiction doesn’t matter if it is conducted w/ regards to official visits. Host state can decide a persona non gratia. Court says all disputes b/w states are political – it doesn’t matter that ICJ can’t resolve it, Certain disputes subject to settlement through other mechanisms (security counsel) court reflects that spies so no diplomatice protection, part of diplomatic protection can send them home. Decision never enforced in this case, but why did the US go to court? Garnet international support? Have to prove to the Internatioanl community that you are committed

• Facts (go to pg. 136): US embassy overrun by students during demonstration and people inside taken hostage. US brings claim to ICJ based on preexisting agreements with Iran. Iran doesn’t involve itself in case except through letters where it challenges justiciability (political question doctrine). US brought Iran to the ICJ pursuant to Article 36 (1) compulsory jursidction provisons in two multilateral agreements, the 1961 and 1963 Vienna Conventions on Diplomatic and Consular Relations, and in a bilateral accord, the 1955 Treaty of Amity, Economic Relations, and Consular Rights between the US and Iran. Iran refused

toe ppear before the ICJ. Iran objected that eh real dispute between Iran and the US was not one fo the interpretation and application of the teraties upon which the American Application is based, and that the revolution is so deep rooted that any exeamintion is a matter of national sovereignty of Iran. Court rejected Iran’s argument responding that a dispute involving diplomatic and consular relations “is one which by its very nature falls within interniaotnal jursidiciton.”

• Holding: Iran responsible for actions b/c didn’t exercise due diligence at first and then actually adopted acts of students afterwards. Court finds a continuing wrong by still holding the hostages. The Court based its grant of interlocutory relief to US on the probably violation of well-understood rules of customary international law, stressed the importanceof the legal tradition proetecting diplomaticand consular officials and premise, and ordered the immediate release of the hostages.

o Court looks to: VC 1961, VC 1963, and 1955 Treaty of Amity (has been replaced today)

� Focus on 1961:

• Art. 22�inviolability of premises

• Art. 29�inviolability of diplomatic agent

• Art. 24�inviolability of archives

• Art. 25 & 27�right to function o Free communication (diplomatic pouch)

o Remedies for diplomatic abuses of P & I: expulsion and declaration of persona non grata

v. Jurisdiction issues: in international law, the term jurisdiction is usually taken to denote the elgal power or ceompetence of states to exercise governmental functions. Almost invariably in international transactions, any one nation’s exercise of any sort of jurisdiction conflicts, at least in principle and often in practice, with the jurisdictional relam of another state.

Principles provide framework for arguing which state takes precedence and which one prevails when one state’s behavior conflicts with another’s.

a. Bases of jurisdiction

i. Territorial Principle (pg. 318): International law knows several principles justifying a state’s assertion of jurisdction. Among these, the principle of the territorial jurisidciotn of states is probably the most important. The principle of territorial jurisdiction stems from the most essential attributes of state sovereignty; a distinct and delineated territory, a known and loyal population, and a government capable of acting independently both at home and abroad. Problem here is that any territorial

principle has possibility of coming into conflict with others.

1. In US jurisprudence, the territorial principle was given its greatest scope late in the 19th and early 20th centuries. Then it was even maintained that no sovereign state had the legal competence to assert its jurisdictional authority, be it to apply, enforce, or adjusdicate the law, outside of its own territory. The classic U.S> case imposing strict territorial limits on state jurisdiction is the Banana case

a. ** THE BANANA CASE**

i. Facts: Before P corp was formed, D, went to measures in roder to prevent competition and monpolize the banaa trade. P had a banana plantation in Pananma *under control of US) and built a R which would be the only means of exportation. Basically, the D’s interference and instigation, events led to Costa Rica holding lands which P’s RR was going through. P argued athat as a rule of D’s acts, it had been deprived of the use of a plantation and a railway and that the plantation was injured. P also alleged a wrongful conspiracy resulting in driving P out of business

ii. Holding: Although the acts were illegal in the US, they were permitted byt eh local law in the foreign jurisdiction at issue. ). Won’t interfere with other sovereigns (actions weren’t even torts there).

In this case, Justice Homes refused to apply US federal antitrust law to the allegedly monopolistic activities overseas of one US company injuring another rin the US domestic market. “The gerneal and almost universal rule is that the character of an act as lawful or unlawful must be determined wholly by

the law of the country where the act is done.” Holmes considered the territorial principle to be virtually unassailable: “The very meaning of sovereignty is that the decree of the sovereign makes law.” iii. argument against Banana

decision: the harm of behavior actually reaches within the territory (can’t realy only on a territorial argument) This would be objective territorial jurisdiction where the behavior occurs somewhere else but has effects within your territory

2. today the principle of territorial jursidction is universally accepted, though no longer is it htought of as constituting the exclusive basis for the assertion fo state jurisdictional authority. Rather, territoriality is seen as one of the several foundations of jurisdiction, albeit the most fundamental.

ii. The Effects Principle: A much more controversial form of extraterritorial jursidiciton is the so called effects principle Extraterritorial though it may be in practice, in theiry the effects principle is grounded on the principle of territorial jurisdiction. The premise is that a state has jrusidcition over extraterritorial conduct when that conduct has an effect within its territory. This is sometimes called objective jurisdiction

which is distinguished form subjective jurisdiction, another term for territorial jursidiciton, where what is encompassed is the subject or the actor responsible for conduct.

1. Lotus case: most notable enunciation of effects principle where Permanent Court of International Justice was asked to decide whether Turkey had violated “the principles of international law” by asserting cimrinal jurisdiction over a French offier who had been a private French vessel when it collieded with and sank a Turkish ship on the high seas. The issue was one of extraterritoriality because the Frenchman had at all times during the collision been on French territory, that is, aboard the Frehcn ship, although dmage had been inflicted upon Turkish territory, that is, o nthe Turkish ship. The Lotus court adopted a strictly positivist view of international law, seeing it as

a law entirely generated by the positive acts of states and emanatingafrom their own free will as expressed in conventions or by usages generally accepted as expressing principles of law.The Court ruled that Trukey had not acted improperly either rin seizing the French officer or in trying him for violatin gTurksih law hwile outside Turkish territory because it found no interniaotnal law limiting the freedom of States to extend the cimrinal jursidicito of their courts to a situation uniting the cirucmstnces of this case.

2. Pivotal U.S. case involving the effects principle is United States v. Aluminum Co. of America

a. Facts: A Canadaian firm, Aluminum Limited, participated in aa cartel based in Switzerland which restricted imported to the US.

b. Issue: Should the Canadian company be caught within the web of the US law of rits oversas acts (US antitrust law)

c. Holding: Court held that since the companies in the cartel had intended to affect U.S> commerce and since there had indeed been an effect on US imports, Limited’s activitiers were properly within the regulatory reach, that is, the legislative jurisdiction, of the US. The basis for the extraterritorial application of US law was epxlainted to be the ruel that any state may impose liabilities, even upon persons not within its allegiance, for conduct oustide its borders that has consequences within its border which the state reprehends.

iii. The Nationality Principle

1. The most fundamental principle of extraterritorial jurisdiction is nationality. A person or a company located or doing business in a foreign country may be subject not only to the territorial jurisdiction of the foreign state, but also to the jurisdiction of its national government. Belonging to a community by your citizenship means you give your consent to their laws. But if you take it too far, conflicts

will occur with other states regarding jursidcition based on territory or nationality

2. Nationality is an accepted basis for jurisdiction in US Courts. In Blackmer v. United States

a. Facts: A US citizen implicated in the Teapot Dome scandals of the 1920s feld to France where he was served with process by US officials and ordered to return to the US to testify in a criminal trial. He argued he was immune form the juricition of US while he resided in France

b. Holding: Supreme Court held that Blackmer continued to owe allegiance to the US by virtue of his citizenship. US retrained its authority over him and he was bound by its laws

iv. Passive Personality/ Naitnoality

1. Reach behavior not by our nationals, but has effects on our nationals

2. Not often used, most often used with terrorism (intentional behavior against nationality

3. Can be an isolated incident v. Protective Jurisdiction: a state has jurisdiction to prescribe law with respect to extraterritorial conduct directed against crucial state interests, especially state security. State jursidction could be based on conduct outside its territory that threatens its security as a state or the operation of its governmental functions, provided the conduct is generally recognized as a crime under the law of states that have resasonably developed legal systems.

vi. Universality principle: determines jruisdcition by reference to the custody of the person committing the offense. Crimes considered against all noations, so any nation has jurisdicition to prohibit/prosecute. The universality principle is perhaps best illustrated by the jurisdiction that every state traditionally has over pirates and by the more modern jurisdiction that some states claim over those who commit crimes against human rights

i. The Filartiga v. Pena IRala, The US circuit Court held that the torturer has become like the pirate and salve trader before him hostis humani generis, an enemy of all mankind.

b. Comity: not a rule or law but principle that operates in the background of law

i. Potential and actual conflicts among the jursidcitonal reaches of national legal systems are often avoided or moderated simply by a certain deference show by one nation’s courts to the courts and alws of another state

ii. Comity is the foundation on which is builty structures for the recognition and enforcement b national courts of the judgements of foreign courts and of the awards of foreign arbitral tribunals.

iii. Comity underlies rules calling for the application in certain circumstances of foreign law by municipal courts, an exercise frequently repeated using ordinary municipal choice-of-law principles.

iv. Comity is shown when a judge decides not to hear a case over which the court has jursidction but which is for one rason or another, better suited to be decided by a foreign tribunal

v. Comity is a matter left up to the ad hoc discretion of the courts. Forum non conveniens is a judge-made principle of common law that permits a court at its discretion to refuse to adjudicate a case properly within its jurisdiction on the grounds that the court is not sufficiently a “conveinet” court or that another state’s or courntyr’s court would be a fairer place to hear the case. The determination is made by looking not only at the relative merits of adjudicating the dispute in one or another court, but also at the relative rights of the parties.

c. Sovereign immunity and acts of state

i. The doctrine of foreign sovereign immunity shields foreign sovereigns from the jursidcitonal reach of municipal courts on the theory that to implea the foreign sovereign could upset the friendly relations of the states inovled. IT has been reported that questions relating to jurisdiiotal immunities figure more befor enaitonal courts than do any other questions of international law

ii. In the US, the doctrine of foreign sovereign immunity was firsast authoritatively render by Marshal in the The

Schooner Exchange v. McFaddon

1. Facts: A French warship was forced by bad weather to enter the port of Philadelphia where it was lebeled by US citizens who alleged that eh ship was in reality the Schooner Exchange, a merchant vessel wrongfully seized and confiscated on the high seas by the French government.

2. Holding: Sovereigns are immune because of their sovereign statsu and dignity as authorities.

iii. Affording a foreign sovereign immunity does not deny platiniffs all redress; it only forecloses their national courts. Claimants may always turn to the foreign sovereign’s judicial system or avail themselves of diplomatic channels.

iv. Victory Transport Inc v. Comisarai General 1. Estbalihsed a restricve theory of sovereign

immunity: states aren’t immune unless they are acting in their public capacity under the restrictive theory

v. The Foreign Sovereign Immunities Act of 1976

(FSIA): subject to existing interniatona agreements to which the US is a party at the time of enactment of this Act a foreign state shall be immune from the jurisdiction of the courts fo the US and fo the States except as provided in the Act.

1. for commercial activities exception go to pg 349 2. FSIA codifies several other exception to foreign

state immunity next to commercial activities in importance is the exception relating to waivers that is permitting suit in any case in which te foreign state has waived its immunity either explicitly or by impcation (found in treaties among states and negotiated agreement with private parties)

3. Burden of proof is on the plaintiffs suing the stae to show that one fo the immunities applies

We are talking about a lot of activity by states that could have impacts on other staets which explains the move toward restrictive theory for sovereign immunity by carving out commercial acities from soviereign immunity Jure imperii: foreign stat’s public acts Jure gestionia: foreign state’s private or commercial acts Tate Letter:Us Courts ais states officials aren’t immunue unless acting in state’s ublic acts. Court neeed to differntiate between jure imperii and jure gestionia and this proved difficult, so they deferred to to executive branch.

- the results will be highly dependent on political issues

o highly inconsistent court rulings *uncertainty)

o executive branch: increasingly

1604 says you are immune unless other side can establish an exception (proof on plaintiff) 1604 a1: waiver 1604 a2: commercial activity 1604 a3: property taken in violation 1604 a4: immovable property 1604 a5: tortuous acts 1604 a6:” submission to arbitration 1604 a7: torts based on terrorism

vi. Acts of State Doctrine

1. It is not itself strictly speaking a rule of immunity, the act of state doctrine, embodying a special deference sometimes shown by national courts toward the public acts of freogin states done within their own territories, is closely linked to the doctrine of sovereign immunity in practice. It serves as a prnicple of choice of law, instructing a court to apply the law of a foreign state respecting an act made by the foreign government in its own territory. The act of state doctrine does share with the doctrine of foreign sovereign immunity (and forum non conveniens) the motion of comity; all in one way or another defer to foreign governments

2. In the United States, the act of state doctrine was first enunciate in Underhill v. Hernandez

a. Facts: An American citizen asked the US courts to award him damages for his detention by Venezuelan armed forces.

b. Holding: Supreme Court declined to give him relief. The Court said every sovereign state is bound to respect the independence of ever other sovereign state, and the courts of one county will not sit in judment on the acts of the governemtn of another done within its own territory

3. The act act of state doctrine is fundamentally concerned wit the presecriptive jurisidciton of the foreign state. Thus, instead of operating as a jurisdictional principle, the act of state doctrine functions rather like a choice-of law rule. The result is a court’s acceptance of the legitimacy of the foreign state’s territorial prescriptions, untested either by interniatonal or domestic standards

4. In practice, this means that the act of state doctrine, unlike the doctrine of foreign sovereign immunity, may be employed by private as well as by public litigants.

5. ** Banco Nacional de Cuba v. Sabbatino** a. Facts: Case concerned the expropriation

by the Cuban government of a Cuban sugar company, CAV, owned by US nationals. The question of the US courts was whether proceeds for some sugar sold by CAV should be paid over to the Cuban national bank acting as representative for the Cuban government or rightfully elonged to Sabbatino, who was the New York. Pursuant to Cuban law, the sugar proceeds were the property of the Cuban government, but Sabbatino argued that the US courts should apply international legal minimum standards requiring adequate compensation for expropriated property, rather than accept the Cuban confiscation as legitimate.

b. Holding: The Supreme Court held that the act of state doctrine was compelled neither by the inherent nature of sovereign authority nor by some principle of international law but emerged from the proper distribution of functions between the judicial and potlical branches of the governemtn on matters bearing upon foreign affairs

vii. Introduction to selected substantive areas of international law

a. State responsibility and International Environmental Law

Although in practice amages to the atmosphere, the earth, the oceas, and wildlife are transboudnary, most effective legal and

political responses to environmental probels are at best national. The struggle to create viabe forms of substantive and prcedural international envionrmental law has taken on much of the urgency that has heretofore character what might be though of as the missionary causes of international law, most notable war prevention and the protection of human rights This is a recent interest ofr itnerniaotnal law. Not until late 29th century did science and tech develop to such an extent as to post threats serious enough o the environment for any sort of intenraitona environmental law to emrge

i. ** THE TRIAL SMELTER CASE** The cornerstone case of customary law in protetion

of the environment 1. Facts: Canadian co. operating smelter that is

polluting US air. 2. Holding: no State has the right to use or

permit the use of its territory in such a

manner as to cause injury by fumes in or to

the territory of another or the properties or

persons therein, when the case is of serious

consequence and the injury is established by

clear and convincing evidence. Tribunal develops costly abatement regime for Canada. Setates have obligation to prevent actors within its territory from causing harm outside the state boundaries. There was no real customary law to draw off of here in this case. Scope and strictness of trasnboudnary obligation to other staets is not addressed.

ii. STOCKHOLM DECLARATION

1. First major multilateral effort to coordinate environmental politics

2. Principle 21

a. Sovereign right to exploit resources pursuant to own environmental policies

i. Cannot cause damage to environment of other states

3. affirmation of sovereignty, but affirmation of Trail Smelter principle as well (limiting clause of sovereignty)

4. result is states established environmental boards/protection agencies

iii. RIO DECLARATION

1. Principle 2 repeats Principle 21 of Stockholm Declaration

a. Adds “environmental and development policies” where Stockholm just staed “environmental”

2. borth declarations are “soft law”

iv. Nuclear Tests Case Dissent (Palmer)

1. Facts: NZ wants ICJ to rule on legality of French underground nuclear testing on islands in Pacific. Court says no jur. over the issue since France removed jur. clause from declaration

2. Dissent: Succiecient customary law of internaiotnal environmental law that ICJ has jursidiciton. Declaration may serve more as ideals than customary law (very braod set of principles) The principles that may be extracted from custom are limited: enviornomental responsibility is limit on sovereignty, states have an obligation to cooperate for protection fo envionrment (rights of consultation), differential responsibility for environmental protection among states (porer states have less responsibility,) development must be uccinct, and then the precautionary principle (in

absence of scientific certainty, protective

policies should be implemented.) doctrine of state sovereignty eroding and comprehensive set of norms to protect the environment have been developed, which are CIL. Both France and NZ signed Noumea Convention, which requires EIAs.

b. The law of the sea

Law of the seas was customary law until the second half of the 29th century. It was widely reocgnzied in theory and in practice that staets couls usually claim just a 3 mile terrotiral ea, beyond which vessels were on high seas and subject to regulation only be legal rules set by their falg states and by the law of nations. This traditional law of eh sea regime was as remarkable a body of customary international law as any in history

When it became apparent that the ocean’s resource were not inexhaustible, a race to divde the oceans to control economic resources becagn in earnest in 1945, when the US in the Truman Proclamation asserted its sovereign jursidction over the oil and gas beneath the courntry’s offshore continentail shelf, an underwater plateau extending in many places hundreds of miles out to sea. Since the US also had significant distant water maritime interets in naval passage, ocean shipping, and tuan fishing, the Truman Prclamation was careful to stipulate theat national claims to the mineral resources of the continential shelf in no way affected or provided a predent for limiting other high sea freedoms. As the customary practice underlying the law of te sea began to diversify, there came to be increasing interest in negotiating law of the sea treaties. In 1949 the United Nations asked the Itnerniaotnal Law Commission to prepare draft law of the sea conventions, work that led to the 1958 Geneva Law of the Sa Conference and to four international agreements; th Convention on the Territorial Sea and the Contiguous Zone, the Conveniton on the High Seas, the COnveittion on Fishing and Conservation fo the Livign Resources of the Hgih Seas, and the Convention on the COntinential Shelf. However, the 1958 Geneva Conference was unable to answer the crucial question of what would be the maximum permissible extent of the territorial sea. The United National Convention on the Law of the Sea took placed in 1982, but it wasn’t until 1993 that there were enough votes to ratify. The chief stumbling block was the treatment of deep-sea mining, which was viewed as unfair by many states, but in 1994 General Assembly drafted an amendment to the Covnetnion, changing the deep sea mining regime. It is recognized that on the whoel the Convention codifies modern customary interniatnoal law. Much more so than ever before, the law of the sea is now embodied, or at least refleceted, in written form In some resepects the Law of the Sea Convention does not much depart from the traditional law of the sea. For example, the Convention confirms the right of each state to independently decide which ships shall have its nationality, even while reuqriing there be some genuine link between the vessel and the conferring flag state. As in the traditional regime, the Convention provides that a state has exclusive jurisdction over ships on the high seas bearing its nationality,

though such exclusive jurisdiction may, in exception cases, be modified by international treaties or by the Convention. Law of th seas shows the interrelationship of treaty law with customary law and the practice of states and the way that international law forms and gets changed over time

i. Vessels

1. Jurisdiction and control over the actions of and activities on board vessels on the high seas have traditionally been left to the vessel’s falg state, the state of the vessel’s nationality.

a. Flag state is entitled to grant nioantlaity to a ship whenever it wants

b. Limitations when treaties are involved. In the absence of particular treaty provisions, there are no restraints

2. Problems with exclusive flag jurisdiction a. Safety concerns: different flag states

have different safety standards b. Environmental concerns: different

regulations and pliciing 3. Why have exclusive flagship jursidiciotn?

a. Certainty b. Calirty (avoid conflict of jurisdiction

claims) c. Every ship has to have a nationality (we

don’t want stateless people o rstateless vessels in the international sphere)

4. Article 91 of the 1982 Law of the Sea Convention

a. There must be a genuine link between the state and the ship (helps avoid problem of a ship owner who purchases the nationality of a ship)

5. **The M/V Saiga **

a. Facts: St. Vincent has flagged oil vessel bringing oil to vessels fishing in Guinea’s EEZ. Wasn’t paying taxes for these commercial activities so Guinea arrests ship in its EEZ.

b. Holding: No need for a genuine link (exercise of prescriptive and enforcement jur. over owner or operator) b/w ship and St. V for St. V to bring claim. There was a genuine link

anyway. Other states can’t invoke the genuine link concept for denying recognition of a ship’s registration with a flag state. This is because there are varying standards for establishing a genuine link that would undermine the flasgship state’s sovereignty (and perhaps could be done in bad fath. Genuine link is a statement of duties on the flag ship (it’s going toward the obligation of the flag state)

o Art. 91 of UNCLOS requires genuine link for flagging, but court distinguishes between flagging and genuine link as basis for challenge of nationality by other country.

� Might actually require more responsibility b/c St. V can’t get out of wrongs.

6. Exceptions to exclusivity of flag states

a. Location of ship i. Is a ship is very close to a coastal

state, the coastal states can exercise some kind of jurisdiction

ii. Overlap of national jurisdiction (flagship) with territorial jurisdcition

ii. Territorial seas and straits pg. 220-221

1. Territorial sea is measured from baselines: the normal baseline is the low water line along the coast as marked on large-scale charters officially recognized by the coastal states

a. Landward of the abselines are “internal waters” wuch as landlocked lakes and rivers, which are fully within the ordinary sovereignty of the coastal state

b. Measured seaward from the baselines is, first, the territorial sea, which may be as wide as 12 nautical miles and is subject, within some limits set by international law, to the sovereign jurisdiction of the coastal state.

c. Second seaward and beyond the territorial sea is the contiguous zone

which may not extend beyond 24 nautical miles from the baselines and within which the coastal state may enforce customs, fiscal,immigration or sanitary laws.

i. Article 33 of the UCLOS (can prohibit smuggling, tax evasion, illegal immigration through the zone. Can prohibit health/sanitation hazard. Not an affirmative prohibition, it’s a permissive grant to the states to regulate it (you can do something if the state doesn’t prohibit you from doing it, but the state has the authority to prohibit you from doing it based on tis coastal jurisdction)

d. A coastal state may third establish an

exclusive economic zone in which it has sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resrouces up to 200 nautifcal miles from its coast

e. Fourth and finally a coastal state has rights to exploit its continental shelf,

that is the sea bed and subsoil of the submarine areas that extend beyond its territorial sea throughout the antural prolongationof its land territory to the outer edge fo the continential margin, or to a distance of 200 nautical miles form the baselines from which the breadth of the territorial sea is measured where the outer edge of the continental margin does not extend up to that distance.

2. These four zones of national maritime jurisdiction, along with special regions permitted for achipelgaic states, greatly expand state sovereignty in the oceans at the considerable epense of the traditional international regime

3. High sea freedoms are still protected not only in the greatly diminished are still outside national control, but also in the form of special rights

preserved within the newly exapned coastal state jursidctions

a. Principal among these are the right of innocent passage in territorial saeas and the right of transit passage through straights used for itneraitonal navigation. Innocent passage is defined as passage not prejudicial to the peace, good order or security fo the coastal state. Transite passage is passage solely for the purpose of continuous and expeditious transit of the straight between on epart of the high seas or an exclusive economic zone and another part of the high sea or an exclusive economic zone, and the Convetion provides that it shall not be impeded by the coastal State.Their major thrust is to ensure rights of peaceful passage for foreign vesbels through the new exclusive economic zones, for example foreign vessels are entitled to traditional high seas rights of navigation and overflight.

4. International Straits

This is whethere transit passage comes in. Transit passage is subject to slight more restircte conditions than innocent passage, but it can’t be suspended, eve though innocent passage can be suspended

i. definition of strait: two

definitions

1. straits that connect international waters that you have to go through

2. defined by custom: antoher way in which customary law informs the treaty and the treaty incorporates it going forward

a. transit passage applies to those areas which have historically been recognized as

international straits

iii. The continental shelf and exclusive economic zones

1. Was recognized before the Law of the Sea Treaty mainly as a result of the Truman Proclamation where US asserted sovereignty over a continental shelf. Truman was able to get away with this because 1) uS power 2) reciprocal interest of other states wanting to assert the same kind of sovereignty over their continetal shelf. Shows how customary law often happens through assertions of rights that are arguable violations of current itnerniaotnal law

2. Default rule: 200 nautical miles in, a maimum of 350

a. Also depends on other geographic and geological factors, as well as how quickly and how deep It goes down

b. Generally 200 miles or the natural extension up to 350 miles

i. All technical factors that are added on illustrate why states need to codify it in the law of the sea treayt

3. UNCLOS helps to establish more specific defintioins of what it includes

a. Pg 713 of textbook specifies more clearly what rights the coastal state has and doesn’t have

i. Article 77: gives the coastal state sovereignty for purposes of exploring and exploiting the natural resources of the continental shelf, but it makes it clear that those rights of sovereignty don’t in any way affect the rights with respect to the water or the aispace above it (just soil and what’s beneath it)

ii. codifying a treaty helps a balance and bring into play the variety of interests of different sstates into question

iii. all states have an interest in having access to the continental

shelf (interests in guaranteeing gree transit provision)

iv. customary rul informs in an ad hoc way that’s it’s difficult to do that

v. treaties can negotiate sovereignty, but compelete freedom of transit by the seas, protecitno of the water provisions

4. Exclusive Economic Zone

a. Basic justification for the EEZ that staets give

i. Legal certainty ii. Control the rights

iii. Enrionmental conservation iv. Economic exploitation, if done in

an unregulated way, could harm the sustainability and conservation measures of the region, so economic and environmental interests are linked together

b. different between EEZ and continental shelf in UCLOS (pg 726)

1. Size: continental shelf may extend further 2. rights granted are different

- continntal shelf: rights only over the soil and what’s beneath it - EEZ: sovereignty applies to the waters and the antural resources within the water *such as fish)

5. Regime of Islands (pg. 728) a. Islands haeve territorial seas, EEZ

b. for every island a state owns, it has a whole other EEZ (so another 200 n.m) c. Regime of Islands creates a dynamic where states ant to have islands as far away from their coastline as possible in order to have the most economic and territorial advantage

iv. The high seas and the deep seabed

1. High Seas

Basic principle fo the high seas is freedom fo the seas. This coulee have meant two distinct things: 1) high seas belongs to nobody (race nullius)

OR 2) high seas belongs to everyone (race communus)

a. Grotius: victory for the idea that the high seas is conceptually race

communus. Why? Grotius gives practical and empirical reasons

i. You can’t possess it like land territory (can’t fence it)

ii. Inexhaustible resoures (enough for everybody)

iii. Nature herself decrees sociability b. Article 87: not completely unrestricted, unqualified use by any actor. There are restrictions, even if limited

i. exceptions: piracy, slave trade, broadcasting

c. exists in context of other interiaontal principles that make it not an unrestricted right 1) environmental concerns: shipping hazardous substances, nuclear testing, killin whales 2) embargo on all things in and out: human rights concerns such as to food

d. What is common in the general sense emereged after WWII in the common

heritage of mankind. The following are required for the common heritgage of mankind principle:

1) that no state appropriate an area or its resroues 2) a common management system with universal participation 3) equitable sharing of economic benefits, with

particular attention to the needs of states with developing economies 4) the conservation of the area and its resources, a feature requiring that regard be given to environmental protection and the interests of future generations 5) peaceful use fo the area

2. waterways (major navigable rivers going through more than one territory i.e. Danube River) a. How are they common?

1. can’t be hld by one country, but limited in that all countries of wolrd don’t have a claim 2. behavior upstream affects what happens downstream i.e.GABCIKOVO=NAGYMAROS

PROJECT: don’t have a right any more than reasonable and equitable use of waterway’s resources

3. Deep Sea Bed: Race communus. How do we know?

a. 1970 Decalration of Principles Governing the Sea Bed Declaration pg 759 b. LOSt tried to give effect but major powers said no to the redistribution arrangement c. how else to give effect to common heritage of mankind other than an international monopoly over it?

1) extreme: every man for himself until there is a conflict (would favor the politically storng and no longer be commons)

a) uncertainty and stability of governing principles

2) an alternative needs cooperation and coordination to take effect by definition and don’t necessarily need a single International institution to control and parcel out resources

c. The Commons (besides high seas and waterways, in which

case look above): Common spaces are jurisdictions regulated by many and all state in which all states have similar rights and duties.

i. Antarctica pg. 667 of textbook

1. Discovery by itself has historically never been enough for sovereignty (need to engage in some sort of control after)

2. Antarctic Treaty a. What does it mean as a legal matter that

is is a common heritage?

b. No military unless scientific research c. Share all scientific research:

transparency d. Limit appropriation and control

3. at time treaty was signed, seven countries laid claim to Antarctica. The treaty sustained those claims and they can’t be expanded while treaty is in place, and no new claims are allowed. The treaty “freezes” national claims to Antarctica

ii. Outer Space

Central to the itnernioantl alw of outer space is the Outer Space Treaty, concluded in 1967 after heated debate in the United Naitons. Exploration and use of outerspace and the celestial bodies shall be the province of all mankind and outerspace and celestial bodies is not subject to national. Cannot be used for anything but peaceful purposes and prohibits state parties from placing nuc;ear weapons or weapons of mass destruction in space As compared to the deep sea beds, outer space treaty allows for more indpendence and unilateral actions with less coordinated effort to limit control. It also doesn’t exclude appropriation

d. Human Rights

The principle that law should protect the rights of individuals against the abuses og vonermetn is rooted in natural law. Human rights law can be dated at least back to John Locke’s Two Treatises of government; he believed that human rights, not government, came firs tin the natural order of things (pg 254 of Janis)

Until relatively recently, there were no guarantees of human rights at the elvel of IL comparable tot hose available in municipal law. The prevalent philosophy of IL in the 19th and early 20th centuries, legal postivism, maintained that IL was a law for states alone. IT was thought to be antithetical for there to be international legal rights that individuals could assert against states, especially against their own governments. The turning point in modern history was the Nuremberg Trials where individuals were brought before the military tribunal for violations of IL. International human rights law focuses on what goes on internally within states. Sovereignty adjusts to what has become a common concern in the international community. Sources of international law work differently than how human rights norms work. Customary interniaotnal law doesn’t fit well with human rights. The line between practice and opino juris is blurred. Human rights law is created by a network of interrelated treaties

1. UN Charter: a. Reaffirms faith in fundamental human

rights b. Article 1, Para 3: purposes of UN is to

achieve international cooperation in respecting human rights

c. Article 55: UN must promote the respect and observance of human rights

2. Universal Declaration of Human Rights (pg. 921)

a. Foundational document that givecs means to human rights

b. Generates a basic list of principles of what human dignity requires

c. After this document, future human rights discussions/conventions/declarations tried to be more specific

3. ** DAMIAN V. JAMAICA **

a. Facts: Damian Thomas was 15 when he was aressed for two murders. He was put in jail among adults which is against

the covenant and was not represtned by couel. He also alleges that while in dtention he was systematically beaten by wardens

b. Holding:. Under the ICCPRcovenant, Jamica is under an obligation to Thomas to put him in a juvenile isintituito and compensating him for placing him with adults. Since Jaimaca signed the optional protocl, they recognized that the UN Committee was competent to deteremine where there was a violation fo the covenant. Because it found there was a violation, Jaimca wanted to revoke its signing of the optional protocol

e. The laws of war

Rules relating to the use of fore are among the oldest concerns of international law. The traditional cateogrites are jus in

belllo (rules concerning the conduct of hostilities aka humanitarian law) and jus ad bellum (rules about when it is legal to resot to force at all)

i. Humanitarian law aka jus in bello

1. Arises out of the ethical imperative that those non-combattants in warfare deserve certain protection and immunity; prevent unnecessary killing

2. How different from human rights

a. Humanitarian law recognize exception to some killings an eceptsion to other rights like political restircitons, freedom of speech restrictions, etc.)

b. Humanitarian law essentially governed by crieteria of geography, temporality, and status of parties involved (i.e applies only where armed conflict is taking place and to those people involved int eh conflict because otherwise you want protections to apply)

3. PROSECUTOR V. TADIC

a. Court defined armed conflict as existing whenver there is a resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a state.

Internatioanl humanitaran law applies form the intiation of such armed fonclifts and extends beyond the cessation of hostilities until a general conclusion of peace is reached. Until that moment, internaitnal humanitarian law contiues to apply in the whole territory of the warring States and the whole territory under the control of a party

b. Armed conflict must occur in order for exemptions from human rights laws to apply

c. Humanitarian law grounded in reciprocity between staes. Even though we are engaged in war, we treat your prisoner of war this way because we want you to do the same to ours. Same with civilians (we avoid yours, you avoid ours). This is in recognition of dignity of persons. Reciprocity is how humanitarian law is enforced and respected

4. Efficacy: what makes it efficacious? a. Reciprocity b. Codified: comes down chain of

command to military personnel who would be the ones violating it.

i. Efficacy based on military training because you tell the solider this is how you do and don’t act and this yields certainty. Mike Newton depiects the norms of war with a human element where soldiers display a certain type of discipline and control

5. ** HAMDI V. RUMSFELD**

a. Internaitonal humanitarian law is relevant because its used to assist in interpreting the scope of presidential power.

b. Congress authorized president to use “necessary and appropriate force”

c. Lack of clarity why laws of war apply to these detentions anad lesad us to ask if

huanitarian laws actually do apply to these detentions

6. ** HAMDEN **

a. Do laws of war paply to Al Quaeda? No, because not part of armed forces of a state. HWoever, Article Three of the 3rd Geneva Convention covers all people detained to be treated humanely if there is an armed conflict

b. Can’t continue to detain unless 1) there is a war 2) armed conflict still going on. IF they are prisoners of war engaged in illegal activity, can be tried in military tribunal of US under Geenva Convention OR you can conclude not a legal terms war (maybe just a political war) so you try them in Article III regular domestic courts

i. Problem if they are acquirre dbecasue their own country won’t take them and those that will take them may tortue them

ii. Traditional law on the use of force

1. Concept of just war: St. Augustine in the 5th century said a just war was one pursed to avenge injuries against an enemy who “has neglected either to punish wrongs commited by its own citizens or to restore what has been unjursly taken by it. VItoria and Grotius refined the concept of just war and stressed that there ought to be both humane means and right ends int eh prosecution of war

2. Just war doctrine fell out osf disfavor. In the 19th and 20th centuries, interniaotnal law regarded war as a formal status that depended on the declaration or itneitno of one of the parties, as a elgitimate exercise of sovereign power. Still limitations on this:

a. Treaties relating to secpfiic situations constrained states in their resort to force. Fore xample, parties to the 1907 Hague Convention No. II agreed not to have recourse to armed force for recovery of contract debts

b. Significant authority suggested that general international law limited the use of force short of war

3. ** THE NAULILAA CASE**

a. Case discusses what a state can do as far as a repisal: i.e. using force in response to another state’s illegality. What kind of force can a state use as a countermeasure?

b. Reprisals are permissible, but subject to restraints

i. Must be a response to illegality ii. Must be necessary

iii. Must be proportionate to the harm suffered

iv. These restrains have residue from the just war principle

4. ** THE CAROLINE DISPUTE**

a. Self defense is a legitimate reason to exercise the use of force against a state.

b. Formula that is carried forward for when you can use force as self defense mechanism:

i. Necessity: instant overwhelming consdierigong, leaving no choice and no time for deliberation

ii. Later becomes customary law for self defense (necessity requirement)

5. What emerged out of WWI a. League of Nations didn’t really outlaw

war as an instrument of solving disputes b. Kellog Briand Pact

i. Too general, no enforcement mechanism s

ii. Seen as a treaty with aspirations that didn’t haeve actual effect

iii. The law of the UN Charter

1. Preamble says UN wants to maintain peace – main purpose!

a. Ideas on war and use of force are now recognized as jus cogens

2. Article 2(3) – members should settle disputes peacefully

3. Article 2(4) – members should refrain from the threat or use of force against the territorial

integrity or political independence of other states.. Agreement to regrain from threatening or using force against territorial intergrity or act inconsist with purposes of the UN (broad purposes to maintain international peace and security)

4. Outlaw aggression and prohibit threat or use of force

5. Specific to territorial integrity and political independence

Article 51 – leaves ability to use individual or collective self-defense against armed attack (goes back to Caroline dispute about self defense)

6. Security Counsel Article 23-46 7. Radical change from traditional laws of war

a. Instiutaionlly, we are now entrusting dudamnetal decisiosn regarding use of force to a collective force (multi-national) and gives legal authority

8. What about other values? Moral and polticla principels: state have used to justify use of force. Strictly reading Article 2 (4) you can’t use those justifications. However, you can define security as human security, and asay an oppressive regime threatens that and somehow you have to shohorn it into peace and security principles

9. Ambiguities: What define use of force? What actions, what scale? What constitutes an armed attack?

10. How to face the gap between actual practice and legal norms

a. Henkins (pg. 548) view of how to interpret 2(4)

i. We live in a dangerous, nuclear world so we can’t achieve thse other value through the use of military force because it will have a huge ipact on humanity.

ii. War must be contrained to the maximum degree possible

iii. Takes a strict, formal, limited view of what is allowed after the UN Charter is implemented

iv. Says self defnse should be narrowly construed and needs to be authorized by Security Council

b. Reisman (pg. 554) i. Resists formalistic black letter

approach ii. It matters that historically the

Charter and Seuciryt System doesn’t functionas it was suppose dto. A strict reading would b reading it in a historical way that doesn’t take into account current situations/circumstances.

iii. There are other important values in the international community other than limitations on the use of force such as self-determination or anti-colonialism or sotp genocide

11. ** NICARAGUA CASE**

a. Facts: Proxy cold war. US “intervenes” by arming and training reels opposing the Nicaraguan government. Nicaragua claimed that eh behavior of the US was an illegal intervention in N.’s internal affairs and an illegal use of force against N. The US responded that its actions were jsutifeid as collective self-defense”

assisting the governemtns of Honduras, Costa Rica, and El Salvador.

b. Holding: Court saiys US couldn’t intervene because circustmstances don’t constitue collective self-defense. Self defense is a response to an armed attack. What’sgoign on between El Salvador and Ncaragua doesn’t’ consittue armed attack (factual dispute here) within meaning of the charter applying customary law. Court is saying there are some military actions that don’t ammoutn to armed attack and don’t’ justify use of force.

c. Side notes: We can look to Article 2 of the Charter to see Nicaragua is engaging

in illegal activity of not recognizing El Salvador’s territorial integrity. But not every violation of Art 2 (4 justifies use of force under Areticle 51.

d. Even if we acknowledge US was right on scope of conflict, just as easy to acknowledge self-serving leg.itimatzation of use of force to suppress leftist radical moevmetns. Fear strong states and military power can undermine charter to use force.

12. Charter didn’t dispace or replace customar law: CL is still there. IF you are ogin gto justfy preemptive force beyond Article 51, you ahe to argue persistence of customary law that justifies use of force but restriction to other means have been tried, threat is imminent, and response is proportional.

e. Must determine what territorial integrity and political independence means

i. Territorial integrity 1. Narrow definition of

territorial integrity – can go in anytime b/c when we leave they will still have their borders. Nothing will have changed

2. Broad view – you crossed the territorial line and that is not allowed. Everything is included.

ii. Political Independence 1. Narrow view – can go in

whenever we want b/c when we leave we will

leave you with your own autonomous functioning government

2. Broad view – No force allowed b/c anything you do affects the political independence in some way.

iv. Definition of aggression (GA resolution): The use of armed force by a state against the sovereignty, territorial integrity or political independence of another state, or in any other manner inconsistent with the charter of the UN (reflects CIL)

1. First use of force is prima facie E of an act of aggression

2. The following are an act of aggression a. Invasion or attack, military occupation,

annexation of territory b. Bombardment by armed forces or use of

weapons against another state c. Blockade of ports or coasts by armed

forces d. Attack by armed forces on land, sea, air,

marine forces e. Use of armed forces against a state

where the armed nation was originally present by invitation

f. Allowing territory to be used by a 3rd state for perpetrating act of aggression

g. Sending armed bands, groups, mercenaries to carry out attack

3. No consideration as to the nature or justification to the armed attack

4. Aggression is a crime 5. May still use self-defense 6. Does not impose on the right to self-

determination, freedom, independence as defined in charter

v. Cuban Missile Crisis vi. Intervention

vii. Intervention by consent 1. Grenada

a. 1983 Governor of Grenada ask US for military intervention against coup.

b. In absensce of civil war, recognized gov’t have a right to receive external

military assistance and outside states are free to furnish such aid.

c. When the assistance of a foreign gov’t acts is it helping the local gov’t of imposing limitations on the political independence of the country by the gov’t in place using the outsiders to squash the freedom mov’t of the population?

d. Could come out the other way, that the foreign force is invited to put down the coup.

e. Foreign aid must be very careful not to use force to infringe on the right of the people to determine their political system and the composition of the gov’t.

f. What if foreign nationals are present in the country and may be threatened. US used this excuse in Grenada.

2. Nicaragua Case a. Intervention is permissible when the

gov’t asks. b. What if the opposition requests?

i. Any state could intervene in any internal affair.

viii. Self-Defense

a. Article 51: Nothing shall impair the inherent right of individual or collective self-defence if an armed attack occurs.

b. Issues: i. What is an armed attack

ii. What is inherent right 1. Self-D. is part of CIL and charter is an

expression of that, no more, no less. iii. Silent about preemptive self-d

c. Examples:

i. US attack on Libyan 1. Reagan was attacking Qadhafi’s terrorist

activities. Claimed it was in self-defense. Preemptive action against terrorist actions

ii. Israel attack on PLO 1. Said it was a response to terrorist actions 2. Security counsel condemned actions as an

aggressive act and violation of UN Charter iii. US embassy bombings

1. Bin-laden terrorist actions. 2. US react by bombing Afghanistan and Sudan

where bin Laden networked. 3. Clinton said it was self-defense.

d. Anticipatory Self-Defense

i. May a state act in anticipation of an attack? 1. Not as big a deal since the end of the cold war

ii. Is there a distinction between interceptive and anticipatory self-defense?

1. Interceptive – takes place after the other side has committed itself to an armed attack in an obstensibly irrevocable way

iii. Israel bombed Iraqi nuclear reactor and claimed anticipatory self-defense. Does this fit into the liberal reading of Article 51?

e. Self-Defense and Nuclear Weapons

i. Article 51: Nothing in the charter shall impair the inherent right of individual or collective self defense if an armed attack occurs.

ii. ICJ advisory opinion on legality of the threat or use of nuclear weapons

1. Is the use of nuclear weapons in any circumstance permitted in int’l law?

a. Proportionality principle may not exclude use in all situations. But force must be proportional and be w/in the principles and rules of humanitarian law

b. Every state has right to survival. c. Threat of use served well the policy of

deterrence 2. Result: The threat or use of force of nuclear

weapons is contrary to Article 2(4) and fails to meet the requirements of Article 51. However, in an extreme situation where used in self-defense it may not be illegal.

iii. What about use of nuclear weapons for benign purposes, situations not against the territorial integrity or political independence of a state.

1. Example: To end or preen gross human rights violations, to free hostages, promote democracy?

2. Protection of Nationals a. Intervention to protect has been justified

as self-defense b. There must be: 1) an imminent threat of

injury, 2) a failure or inability on the part of the territorial sovereign to protect them and 3) measures of protection strictly confined to the object of protecting them against injury.

c. US used this excuse in Grenada 3. Rescue of Hostages

a. More narrow situation to use force b. More likely to be viewed as acceptable

f. Intervention for Democracy

g. Issues

i. Proportionality and Necessity leave room for argument ii. Most agree preventive war or preemptive war is illegal

but what about use of self-defense to threats that appear to be very credible and will lead to imminent attack

iii. Can self-defense be used to deter future attacks

iv. When can states intervene using the collective self-defense principle.

h. Nicaragua v US

i. Created disillusionment w/ ICJ and US. Causing US not to recognize ICJ as legitimate and especially in this case thought it did not have jurisdiction

ix. Intervention

a. Pre-UN: Policy of non-intervention i. Clear answer was a country could help the gov’t but not

the insurgents ii. Then came the Spanish Civil war and things have not

been the same since

b. Charter reaffirmed non-intervention but times are changing b/c of Somalia, Rwanda, Yugoslavia

c. Perplexing questions i. What kind of assistance to legitimate gov’t

1. economic, trade, recognition, arms, military training, humanitarian, propaganda, diplomatic support

ii. When is it not ok to give the gov’t aid any longer iii. When can other gov’ts recognize the rebels

1. If you recognize them are you infringing on the sovereignty of the other gov’t

iv. When are the rebels belligerents 1. Belligerents are successful insurgents. They

have made enough progress to gain a legal equality w/ the government

2. Indicia of belligerency – control of land 3. Generally speaking if the rebels are a

belligerency then a State can aid them. v. When are they the new gov’t

d. Spanish Civil war – victor Franco – he won b/c France did not intervene to help the Republican incumbents and US had an arms embargo and Germany & Italy were helping the insurgents but the Republicans were being aided by USSR.

e. Charter says nothing directly about intervention in internal affairs/war

i. May say that the forbidden use of force against the political independence or territorial integrity of another state forbids intervention

f. Examples: i. US in Vietnam

1. How to classify Vietnam a. Civil war w/in S. Vietnam with N.

Vietnam helping one side and US helping the other.

i. This intervention not obviously a violation of Charter if the supporters were not seeking to dominate the side it supported and create a puppet regime

b. Civil war w/in a unified Vietnam. One side being NV and Vietcong on one side and Saigon on the other. US intervention on Sigon’s behalf may have been a violation of international norms but not the Charter

c. NV attack of SV thru the Vietcong was an attack on S.V. political integrity and independence. Clear violation of the charter. SV had right to self-d and US could aid b/c of a treaty

g. Is it an attack on the political independence of another country? i. Depends on how you define political independence and

on what stage the rebels are at h. Humanitarian intervention

i. Not clear that humanitarian intervention is opinion juris or CIL

ii. Kosovo iii. Problem is that anything can eventually be termed

humanitarian aid �leads to more intervention. In which case what would be left of Article 2(4)?

iv. Collective force

x. Collective Use of Force

a. UN i. Purpose of UN to maintain int’l peace and security. Use

collective measures to prevent and remove threats to the peace.

ii. Security Counsel was given authority to do this w/ peaceful and forceful measures

iii. Security Counsel was useless in CW iv. More effective in post-cold war

1. Korea – recommended UN members assist Korea

2. Iraq/Kuwait – authorized UN members to assist b. Presidential authority to act when there has been authorization

or recommendations by the UN i. Does not have to go to Congress

ii. But traditionally does 1. Both gulf war’s the Bushes went to Congress 2. Both times got approval by narrow margin

iii. Could make argument that if the President is not authorized by UN and only called upon then there would be more of a need/requirement to get consent of Congress.

c. Peace Operations and Coalitions of willing states i. UN troops go to places where fighting has already

ceased. Carry light arms. Only use force for self-defense or interference w/ their mandate.

ii. UN troops have increasingly gone to places to maintain order in transition period, administer elections,

supervice inauguration of new institution in the absence of peace settlement.

iii. UN Operation – organized and run by the UN iv. Coalition of the willing – has Security counsel approval

but not a UN action. 1. Iraq 2. UN did not control the operations. 3. Rwanda was a UN failure – UN authorized

small group to help in the implementation of the peace agreement. When it fell apart and large problems occurred the UN authorized a 2 month larger intervention. Could have been prevented according the head of the effort

xi. Conclusions