Introduction to the Types and Sources of International Law – Steinhardt – Fall 2011

I. Sources of International Lawa. Statute of the International Court of Justice – Article 38(1)

i. International Conventions, whether general or particular, establishing rules expressly recognized by the contesting states (treaties, etc)

ii. International Custom (As evidence of a General Practice Accepted as Law)1. Two Elements to Establish GENERAL PRACTICE

a. Objective or Material Elementi. How do states actually behave? Is there a general practice?

1. General practice has to be prominent and historically valid

b. Subjective Elementi. Opinio Juris “Accepted as Law”

1. It must appear that the States follow the practice from a sense of legal obligation

iii. General Principles of Law Recognized by “civilized” nationsiv. Judicial Decisions and the Teachings of the most highly qualified publicists (as subsidiary

means for the determination of rules of law)1. Can look at decisions of different nation-states and academic publications

II. Rules of Customary International Law and “General Principles”a. Customary International Law (A general State practice accepted as law)

i. Requires (1) a general state practice and (2) opinio juris (Sense of Legal Obligation)1. THE THRESHOLD FOR PROVING THE GENERAL PRACTICE OF STATES AND

OPINIO JURIS IS SET HIGH!ii. There is no “legislative moment” when Customary International Law suddenly takes

effectiii. How can the content of custom be proved? What evidence is needed?

1. Starting Point State Practices and Diplomatic Exchangesa. LOOK AT HISTORY OF CLAIMS AND DEFENSES MADE BY A COUNTRY

i. Failure to Object to Practice Source of Intl’ Law1. Example

a. No pattern of protest when courts take criminal jurisdiction for crimes committed by aliens in other States with effects in its State claiming jurisdiction (Lotus Case)

2. Treaties in Consistent Forma. Sometimes an ungratified treaty will be given evidentiary status

i. Filartiga Court turns to treaties in consistent form as evidence of customary international law

b. Treaty v. Customi. Treaty will preempt Customary International Law if it was

done at a later time1. However, a new customary norm will supersede

inconsistent treaty obligations3. Laws, Constitutions, and High Court Decisions in Various Countries

4. Writing of Publicists5. Resolutions and Declarations in consistent form in Intergovernmental

Organizationsa. May be Evidentiary even for those States that did not signb. Rationale for Use

i. Not binding but formative influence in development of Intl’ Law

ii. Often the first stage before formal treatiesiii. Often purports to express ALREADY created Customary Lawiv. Are Official Expressions of governments and are relevant and

entitled to weight in determination of Customary Intl’ Law6. Decisions of International Tribunals7. Authoritative Compedia or Restatements of Customary Law

a. Collected Resources of Relevant Norms (Rest. Foreign Relations Law)iv. Can Customary International Law be Sub-Grouped?

1. Yes Regional Customsa. Latin American states have a customary norm that a person can get

asylum if they enter the embassy of another countryv. Sources of Customary International Law

1. Lotus Case a. Facts Accident b/w a French flagged ship and a Turkish flagged ship

i. Turkey instituted domestic criminal proceedings against French Watchman

b. Issuei. Whether the principles of Customary Intl’ Law prevented

Turkey from instituting criminal proceedings against M. Demons under Turkish Law

c. Holding Turkey has criminal jurisdiction under M. Demonsi. Intl’ Law recognizes that if effects are felt in Turkey with

respect to an extra-territorial jurisdiction, they should be able to institute domestic criminal proceedings

1. Vessels in the high seas are pieces of territory of the flags they wave

ii. Numerous domestic cases in which extraterritoriality jurisdiction was allowed without protest by the other State involved

2. Texaco/Libya Arbitration a. Facts Ghadafi came to power and decided to appropriate and

nationalize the operations of TOPCOi. Libyan government denied compensation to TOPCO which

then initiated arbitrations proceedingsb. Issues

i. What limitations, if any, does Intl’ Law place on the power of States to expropriate foreign private investment?

ii. Is Libya free to exercise their domestic law or do they need to meet Intl’ Standards?

c. Holding Libya has to meet Intl’ Law standardsi. Resolution 1803 (1962) – Pro “North”

1. In cases where authorization is granted, the capital imported and earnings of that capital shall be governed by the terms by the national legislation force and by international force

ii. Resolution establishing the New International Economic Order (Resolution 3201) – Pro “South”

1. States have a right to nationalize industries and shall have sovereignty over natural resources and all economic activities.

a. This would give developing countries complete control over their development and the direction of their governments

iii. Resolution 3281 & Resolution 3171 (Pro “South”) preserved the right of States to sovereignty over their natural resources and industries (Allowed right to nationalize)

iv. Arbitration Panel DID NOT look at Resolution in Plain Value1. Consulted the quantitative and qualitative voting of

each of the resolutions by the General Assemblya. Resolution 1803

i. Major and Third World Countries voted for the resolution (Mix of States of all economic systems and geographical systems)

b. All other resolutions mentioned above were NOT supported by the major developed powers with market economies

d. RULE!!i. Factors to Consider when giving resolution legal effect?

1. Does it address a LEGAL SUBJECT?2. Is it CONSISTENT with State practice outside of the

organization?3. Was the resolution drafter by CONSENSUS?

3. Explaining difference b/w Lotus & TOPCOa. Evidence of International Law Support

i. Uti Possedetis “State Responsibility to Aliens”1. Could explain the reason why Turkey was successful

in their claim and Libya was notvi. Can States opt out of Customary International Law? What do they have to do if they

want to opt out?1. Temple of Preah Vihear (PV)

a. Facts Cambodia and Thailand are in a border dispute over the Temple which has been violently disputed by labeled as World Heritage Sight

i. France and Cambodia asked Thailand repeatedly for clarification on the border but were ignored

b. Issuei. Does the lack of protest by Thailand allow Cambodia to get

the Temple? (Adverse Possession)ii. What does the court make of the military and guard efforts

by Thailand? Do administrating acts convey sovereign authority?

c. Holding Territory awarded to Cambodiai. Acquiescence

1. Thailand did not respond to French and Cambodian officials about clarification of border

2. Thailand did not object to Thai map showing temple in Cambodian territory

a. Accepted the map for decadesii. Inference of acquiescence trumped the explicit term of treaty

stating Watershed Line as the Boundaryd. RULE!!

i. In a boundary dispute a State must raise objection and argue, it should not stay silent (acquiescence)

2. UK v. Norway (Norway’s Fisheries Case)a. Facts UK began exploiting Norwegian waters and Norway answered

by drawing straight lines connecting pieces of territory in the coastlineb. Issue

i. Is UK’s argument that Intl’ law requires maritime boundaries to follow the coastline valid?

1. As a matter of Customary Intl’ Law, the lines should follow the low water mark and not the straight base line

c. Holding Intl’ law does NOT prohibit Norway’s straight line technique

i. Guidelines for legal lengths of baselines1. Lines have to follow the general direction of

coastline2. Areas joint by straight line base have to be linked to

actual territory of Stateii. Acquiescence

1. When Norway issued a Treaty about maritime law stating that they were going to use the straight base line technique to define their maritime territory UK never argued against it

3. Legal significance of Temple of PV and Norwegian Fisheriesa. Under Intl’ law, a government’s acquiescence in a state of affairs can

CREATE enforceable rights and obligations! (PV)b. It is possible in principle for a State to opt out of Customary Intl’ Law,

but there must be a limit (Norwegian Fisheries)

4. “Opting Out” Virtue v. Vice a. Virtue “Opting Out” preserves the power of a State’s consent in

creating its legal obligationsb. Vice “Opting Out” means that NO Customary Norm could be

enforceable5. TEST Distinguishing LEGITIMATE from ILEGITIMATE Exercises of Opting Out

a. TIMING IS EVERYTHING!!!!i. Persistent

1. If you opt out when the norm is being created then you will successfully opt out

a. Valid exercise and the rest of the world would have to accept it

ii. Subsequent1. State goes along with the norm for a little while and

THEN decides to opt outa. This would be a violation and the opting out

would ONLY be valid ifi. Other States acquiescence to it

vii. Do NEW INDEPENDENT States start anew with a Clean Record, free of any Treaty or Customary International Law obligations?

1. When it comes to treaties?a. There is a CLEAN SLATE Notion (Nyerere)

i. When newly independent States emerge, they can Pick and Choose which treaties stand and which ones do not!

2. When it comes to custom?a. At the moment we have NOT decided whether newly independent

States can choose to adopt or ignore Customary Intl’ Lawi. Why have we not chosen?

1. Customary Intl’ Law can change2. Customary Intl’ Law is modest

b. Relationship b/w Treaties and Customary International Law i. N. Sea Continental Shelf Cases: Germany v. Denmark & Netherlands

1. Facts Boundary dispute for territory in the Continental Shelf2. Issue

a. Does the treaty of EQUIDISTANCE stand (Article 6 of the Geneva Convention of 1958 – On the Continental Shelf)?

i. Danes and Dutch argued for the principle to stand, BUT Germany DID NOT RATIFY

1. However!! The treaty had crystallized Customary Intl’ Law and EQUIDISTANCE had become part of International Practice

a. Treaty crystallizing a Custom (Article 38)i. A treaty can bind non-signatures

by becoming Customary Intl’ Law3. Holding Danes & Dutch lose on their claim

a. Principle of Proportionality

i. Parties have to go by agreement that takes into account the general configuration of the coast

b. Article 6 was NOT norm-creatingi. States were allowed to opt out at the time of signing and to

have reservations when signing itii. EQUIDISTANCE PRINCIPLE was a “Secondary Obligation”

1. Comes after a primary obligation to effect delimitation by agreement

4. RULE!a. When can a Treaty Norm become Customary International Law?

i. Treaty provision must be “Norm Creating”ii. There has to be Widespread and Representative

participation in the treaty (especially by “Specially Affected States”)

iii. The passage of time1. State practice including that of States whose

interests were specially-affected should have been both extensively and uniform in the sense of provision involved

ii. Legality of Threats of Use of Nuclear Weapons 1. Issue

a. Is the threat or use of nuclear weapons permitted under Customary Intl’ Law

2. Holding General Practice accepted to forbid the use of Nuclear Weapons, but we are not yet at a point of making this Customary Intl’ Law

a. There are other reasons why States would NOT use Nuclear Weapons such as (deterrence)

i. Therefore it is not certain whether Opinio Juris exists1. Do states refuse to use nuclear weapons as a sense

of legal obligation?b. Resolutions are NOT ALWAYS binding (may carry a lot of negative

votes)i. You may use Resolutions as evidence if they do not show

Customc. Threat of use of Nuclear Weapons would generally be contrary to the

rules of Intl’ law applicable in armed conflict because it provokes unnecessary suffering BUT

i. In the current State of Intl’ Law, the court cannot conclude whether the use of nuclear weapons is lawful or unlawful in extreme circumstances of self-defense where survival of Statehood is at stake

c. Customary International Law in Domestic Courts i. Two Interesting Questions

1. To what evidence will the Domestic Courts turn to determine the content of Customary Intl’ Law?

a. If there is NO TREATY Look at the Customs and Usages of Civilized Nations

i. Look at the works of jurists and commentators2. By what authorization do Domestic Courts have the right to apply Customary

Intl’ Law?a. International law is part of our law and must be ascertained and

administered in Domestic Courts of appropriate jurisdictioni. If there is NO controlling Executive or Legislative statute then

Customary Intl’ Law may set a standardii. Paquete Habana Case

1. Facts Spanish fishing vessels had been seized during a blockade and sold for profit by the US government

2. Issuea. Whether fishing vessels were subject to capture by the US during the

recent war with Spain?i. Treaties of Intl’ Law stated that fishing vessels were exempt

from seizure at times of war3. Holding Capture was unlawful because exception against the seizure of

fishing vessels at the time of war had become Customary Intl’ Lawa. NORMS AGAINST FISHING VESSEL SEIZURE

i. By ancient usage among civilized nations, and gradually ripening into a rule of international law, coast fishing vessels, pursuing their vocation of catching and bringing in fresh fish, have been recognized as exempt, with their cargoes and crew, from capture as prize of war!

b. There is a sense of general practice with a sense of legal obligation against the seizure of fishing vessels

i. Where there is no treaty, and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations; and, as evidence of these, to the works of jurists and commentators, who by years of labor, research and experience, have made themselves peculiarly well acquainted with the subjects of which they treat.

c. There was NO controlling executive act in this caseiii. President retains the Domestic Authority to trump Customary Intl’ Law in the courts of

the US1. The President can violate Customary Intl’ Law if it is in his exercise of

Constitutional Power and he chooses to do soiv. Article 27 – You CANNOT use domestic law as a defense to an Intl’ Breach

1. Controlling law is different in Domestic Law than in Intl’ Tribunalv. Conflict Between Customary Intl’ Law and Controlling Executive Act

1. Domestic Courts Controlling Executive Act will be superior2. Intl’ Tribunals Customary Intl’ Law will be superior

vi. Paquete Habana is now cited to state that International Law is part of our FEDERAL COMMON LAW

1. Is Erie Fatal? NOa. It arises only in Diversity Jurisdiction Cases and there is still Federal

Common Law in certain areas (patents, maritime)vii. CHARMING BETSY PRINCIPLE

1. Must interpret Domestic Statutes in light of International Lawviii. Filartiga v. Pena-Irala

1. Factsa. Paraguayan family who moved to the United States are trying to sue

for an act of torture that occurred years ago in Paraguayb. Dr. Filartiga’s son Joselito was kidnapped and tortured by an official in

Asuncioni. Subsequently Joselito’s sister was shown the torture body

c. The family tried bringing legal action in Paraguay but were not successful and their lawyer disbarred

i. A man confessed to the murder and said it was a crime of passion, but he was never incarcerated

d. Pena (torturer) moved to the United States and Filartiga’s daughter tells the authorities

i. Before Pena is deported he is served and summoned, but Pena argues that the U.S. does not have jurisdiction over him

2. Legal Rulea. Alien Tort Claims Act

i. Court shall have original jurisdiction of any civil action by an alien for a TORT ONLY, committed in violation of the law of nations (Customary Intl’ Law) or treaty of the US

3. Holding and Reasoninga. Torture is in violation of the Law of Nations

i. Deliberate torture by a government against its own citizens violates Intl’ Law

b. Subject matter jurisdiction under the ATS is proper becausei. Plaintiffs were aliens

ii. Torture constitutes the “tort” of assault and battery inter aliaii. Torture under state auspices is a violation of the “Law of

Nations”b. Transitory Tort

i. When somebody commits a tort in country X, that creates an obligation to make reparations to the victim

1. Obligation will follow the person wherever they go4. Notes

a. American Law Institute, Restatement 3 rd U.S. Foreign Relation Law § 702 (1987)

i. A state violates international law if, as a matter of state policy, it practices, encourages, or condones

1. Genocide2. Slavery or Slave Trade3. Murder or Causing the disappearance of individuals

4. Torture or other cruel, inhuman, or degrading treatment or punishment

5. Prolonged arbitrary detention6. Systematic racial discrimination7. Violation of Nationally Recognized Human Rights

b. Post-Restatement Development in Enforceable Human Rights Norms under the ATS

i. Rape and other forms of gender violence in an international setting

ii. Certain Acts of Terrorismiii. War Crimesiv. Crimes against Humanityv. Violations of internationally defined religious freedom

vi. Forced Laborc. Denying ATS Jurisdiction

i. Claims for loss of money from a state lottery distribution system

ii. Intra-Border environmental tortsiii. Full First Amendment Freedomsiv. Garden Variety Business Fraudv. Defamation

ix. Sosa v. Alvarez-Machain (2004)1. Issue

a. Whether Alvarez could recover under the tort (his abduction) which happened in violation of international law?

b. Whether ATS was purely jurisdictional or did it also create a cause of action?

2. Holding ATS is PURELY JURISDICTIONAL!!a. Any credible invocation of a principle against arbitrary detention that

the civilized world accepts as binding Customary Intl’ Law requires factual basis beyond relatively brief detention in excess of positive authority

ii. The Traffic-Light Theory of Sosa1. The Red Light

a. According to the court Alvarez did not suffer an arbitrary detention as defined at international law (“Detention of less than a day”)

2. The Yellow Lighta. Rule of Evidence

i. An international norm can be actionable ONLY if it is universal and obligatory, and it is combined with potential for personal liability

b. Courts in the future should require any claim based on the present-day law of nations to rest on a norm of international character accepted by the civilized world and decided with a specificity comparable to features of the 18th Century paradigms that the court has recognized

i. A demanding but entirely traditional standard for proving the content of customary international law

3. The Green Lighta. Once the demanding and traditional rule of evidence is satisfied, the

courts MAY infer a cause of action from customary international lawi. In the seven years since Sosa was decided, not a single ATS

plaintiff has lost on the ground that Erie bars the inference of a cause of action from customary international law

d. Customary International Law with Relation to Corporations in Domestic Courts i. Process of Civil Liability of ATS has forced companies to adopt human rights codes

ii. Abdullah v. Pfizer 1. Facts During a meningitis outbreak in Nigeria, Pfizer conducted unwitting

experiments with a new antibiotic called Trovana. The medical experiments were performed without consent and Pfizer

did not tell children or parents about other options2. Issue

a. Is the non-consensual medical experiment a violation of Intl’ Law?3. Holding Reverses the motion to dismiss by the DC against Abdullah plaintiffs

a. Nuremberg Codei. One of the many crimes punished was the experimentation of

Jews without their consent by Nazi military officersb. World Medical Association’s Declaration of Helsinki

i. Global guide for physicians stating that human subjects should be volunteers and grant their informed consent to participate in research

c. Council for International Organization of Medical Servicesi. Require the voluntary informed consent of a prospective

subject in a medical experiment or medical procedured. Article 7 of the International Covenant on Civil and Political Rights

i. No one shall be subjected without his free consent to medical or scientific experimentation

e. Cause of Action Exists in this Case!!i. Medical Procedure or Experiments WITHOUT consent is a

norm of Customary Intl’ Lawf. Expands Sosa principle

i. Customary Intl’ Law must be 1. Universal2. Specific and Definable3. Of Mutual Concern to States

iii. TEST FOR STATE ACTION1. There must be a CLOSE NEXUS between the State and the challenged action in

which seemingly private behavior may be fairly treated as that of the State itself

a. Two Ways in Which Nexus Can Existi. Where a private actor has operated as a willful participant in

joint activity with the State or its agents

ii. Where a private actor acts together with State officials or with significant State aid

iv. Kiobel v. Royal Dutch Petroleum 1. Holding Corporations CANNOT have obligations for violations of Customary

Intl’ Law and CANNOT have liability under ATSa. Corporate executives can be sued BUT NOT the Corporation itself

2. RULE!!a. Corporations DO NOT hold ANY liability under the ATS

v. Categories of Wrongs in Relation to Corporations 1. Intl’ wrongs that DO NOT require State action

a. Per Se Wrongs Piracy, Slavery, Genocide, War Crimes2. Intl’ wrongs that DO require a State action

a. Contextual Wrongsi. Tests to prove this

1. Joint Action by private actor and State2. Is there State compulsion?

a. If they are forced to act they can still be held liable

3. Direct v. Secondary Liabilitya. Most courts in dealing with corporation liability dealt with secondary

liability (aiding and abetting)4. Factors to be Considered in AIDING and ABETING Standard

a. Presence (By Itself Is Not Enough)b. + Knowledge

i. For tort liability there has to be something more than just presence + knowledge

c. + Benefiti. Merely benefiting from someone else’s wrong does NOT find

you liable in the eyes of the lawd. + Participatione. + Control

5. Aiding and Abetting Merging Standard before Kiobela. “Knowingly providing substantial assistance”

III. Rules of Conventional International Lawa. U.S. Practices and Constitutional Principles Governing Treaties

i. Treaty Definition1. Intl’ definition is very BROAD (includes protocols, agreements)2. Domestic Definition is NARROW and must meet procedural rules

a. Article II – Treaty Poweri. Allows the President to make treaties with advice and

consent of the Senate provided a 2/3 voteb. Article VI, Section 2 Supremacy Clause

i. All the treaties made under the authority of the United States shall be the Supreme Law of the Land

1. ***NOTE***

a. There is no way signaled to resolve a conflict between a treaty and the constitution or a statute

ii. Missouri v. Holland 1. Facts

a. 1913 Congress passed a law restricting the ability of Americans to hunt migratory birds

i. This was found to be unconstitutional by SCOTUS because the control of birds was a State Only Issue

b. After this the Federal Government entered a treaty with Canada restricting the hunting of migratory birds

i. Congress then passed a statute putting the treaty on force within the United States

c. Missouri then challenged the constitutionality of the treaty by invoking the 10th Amendment

i. Missouri said that the right to control birds within their State was not to be controlled by the Federal government

2. Issuea. Whether treaty and statute were void as unconstitutional as an

interference with the rights reserved to States3. Holding Upheld statute b/c 10th Amendment does not preserves for the

States a power over migratory birdsa. SCOTUS finds that acts of Congress are the Supreme Law of the land

i. The existence of a treaty made all the difference in this case1. Something that would be unconstitutional in the

absence of the treaty (controlling States and their bird population) was found to be constitutional in the presence of the treaty

b. Balancing Testi. When the court finds that a Federal Interest is strong enough

then a treaty can justify a legislation that would otherwise be unconstitutional in the absence of the treaty

iii. Reid v. Covert 1. Facts Wives that murdered husbands who were serving abroad were tried in

military court under military justice with NO jury2. Holding Congress could NOT provide for a military trials against civilians

abroad (Cannot put forth a statute that goes against the Constitution)a. The Constitution holds fundamental rights that cannot be violated

i. Article III states the right to a jury trial along with the 5th and 6th Amendment

b. There is no reason or logic to pick or choose between these rights given by the Constitution and the Executive Agreement made abroad

3. RULE!a. Constitution places EXPLICIT limits on treaties

i. A treaty CANNOT trump or come in conflict with the US Constitution or it will be held invalid!

iv. Self-Executing v. Non-Self-Executing Treaties1. Self-Executing

a. Treaty becomes U.S. law once it enters into force internationallyi. In general agreements that can be readily given effect by

executive or judicial bodies, federal or state, without further legislation unless a contrary intention is manifest

b. What makes treaty Self-Executing?i. Intent of the Parties – Rest. § 111(4)

ii. Language (KEY)1. Must have language of PRESENT ACTION2. Language must be of OBLIGATION and NOT

ASPIRATIONiii. Context

1. Non-Self-Executing if implementation legislation is Constitutionally required

iv. Wildcard Judicial Predisposition1. Mistakes by Court makes some treaties as non-self-

executinga. Plaintiff has no standingb. Treaty does NOT create a private right of

action and is NOT enforceable by individualsc. Private enforcement of the treaty is too hot

politically (Political Question Doctrine)2. Non-Self-Executing

a. Treaty that requires legislation in order to implement it domesticallyv. Asakura v. Seattle

1. Factsa. Treaty language at issue “citizens shall have liberty to practice trade

and do anything necessary to practice it at the same level as citizens”i. Pretty much a non-discrimination treaty between the United

States and Japanb. The city of Seattle had enacted a city ordinance stating that pawn

businesses required a license and to receive a license you had to be a U.S. Citizen

2. Holding Under the Supremacy Clause the treaty is self-executing and binding on all the states because it is the Supreme Law of the land

a. The treaty is apparently self-executingi. Non-Discriminatory treaties have been typically deemed self-

executing without much talk about them3. RULE!

a. To determine if treaty is self-executing look at the INTENT of parties!i. Best way to find the intent of the parties is to look at the

language1. If language is of obligation and present action the

treaty is self-executingii. United States v. Postal

1. Facts The U.S. went 16 miles away from its shore to arrest people in a vessel flagged to the Cayman Islands

a. Article 6 on the Convention of the High Seasi. Ships sail under the flag of one state only and shall be subject

to its exclusive jurisdiction on high seas.2. Holding The treaty was not self-executing therefore Congress needed to

intervene and make it executing for it to become domestic lawa. It is not the language that makes the defendants lose but there are

contextual factors that make them losei. Purposes of the treaty and the objectives of its creators

ii. Existence of domestic procedures and institutions appropriate for direct implementation

iii. The ability and feasibility of alternative enforcement methodsiv. Immediate and long term consequences of self or non-self

execution3. RULE!

a. Intentb. Languagec. Contextd. Judicial Predisposition (Wildcard)

iii. Medellin v. Texas (2008)1. Facts Mexico filed suit in the ICJ because 15 Mexican Nationals were tried by

the United Statesa. Reason for the suit was that the United States did not notify the

consulate that the 15 Mexican nationals had been arrested2. Issue

a. Are States bound by the Constitution to honor the undisputed international obligation of the U.S. under treaties duly ratified by the President with the advice and consent of the Senate?

3. Holding The ICJ Judgment was not binding as Federal Law and therefore, in the absence of some enacted Federal Statute it would not be executed

a. Congress could if they had enacted a statute direct the ICJ Judgment to be enforceable within the United States

b. Which treaties are at issue here?i. Optional Protocol to the Vienna Convention on Consulate

Relationsii. UN Charter, Article 94 Each member of the UN

“undertakes to comply”1. Word “undertakes” implies future action to give

effect to the ICJ’s later actionc. Distinction being drawn here is submitting to jurisdiction and agreeing

to enforce any judgment that may result4. Two hard questions in the aftermath of Medellin?

a. What is the value of an ICJ Judgment in U.S. Domestic Law?i. ICJ decisions are not completely irrelevant, but at the same

time they are not absolutely controlling

1. Authoritative BUT Softa. Like a rebuttable presumption; a default

driveb. Does Medellin alter the doctrine of self-executing treaties?

i. NO The majority strictly interpreted the language of the relevant treaties to determine the parties’ intent

ii. YES The majority erected a test that no treaty can pass1. The points of treaties is to create an obligation and

the language does not get into its domestic implementation (assume that in good faith a country will undertake its obligations”

5. Two Hurdles for Treaties to be binding in domestic courts by Majority in Dictaa. Treat must be self-executingb. Treaty must also provide an existing private right of action

iv. Reservations, Understandings, and Declarations (RUDs)1. Reservations

a. Alter the legal obligation under the treaty unilaterally2. Understandings

a. Interpretive statements that elaborate rather than change the legal obligations under the treaty

3. Declarationsa. Mere statements of policy relating to the treaty that do not alter or

limit the legal obligations under the treatyv. LATER IN TIME RULE

1. LATER IN TIME ONLY KICKS IN WHEN THERE IS UNAVOIABLE CONFLICT!!2. Every conflict between a statute and a treaty is resolved by following the later-

in-timea. If the statute comes first and is followed by an unavoidably

inconsistent treaty, the treaty prevails to the extent of the conflict, and vice versa.

3. The wildcarda. The extent to which courts will use the magic of interpretation to

make inconsistencies disappear (U.S. v. Palestinian Liberation Org)4. Breard v. Greene

a. Facts Case of consular notification because a citizen of Paraguay was not notified about his consular rights

i. Vienna Convention Treaty was ratified in 1969, but Congress passed a statute in 1996

1. Antiterrorism and Effective Death Penalty Act (1996)a. If you do not raise a Habeas Corpus petition

in the state proceeding then you will be foreclosed from using it at the Federal level in subsequent litigation

b. Holding The Court followed the later-in-time rule when it came to the Vienna Convention v. the AEDPA

i. Ability of Breard to ask for relief at the Federal level is negated by the Antiterrorism and Effective Death Penalty Act which was passed in 1996.

vi. Treaty Interpretation in US Courts1. Basic Principles

a. Determine the plain meaning of the textb. If the plain meaning is unclear, construe the treaty consistently with

customary international lawc. Practice of the parties –

i. In Alvarez-Machain the Mexican authorities objected of the way in which the U.S. abducted the defendant.

ii. Factors to Look at to Reveal Practice1. Is there MUTUALITY?

a. Events that occur after the treaty takes place (Is there a State objecting?)

2. NEGOTIATION HISTORY of the partiesd. Executive Submissions

i. They will be given “Substantial Deference” but CAN’T be dispositive

1. The reason for not being dispositive is that treaties are the Supreme Law of the Land and since the beginning of the U.S. it has been the Judiciary’s duties to interpret what the law is

e. SAVE THE TREATYi. In the event that a treaty and a statute collide the court will

attempt to find ways to reconcile them AT ALL COSTS2. U.S. v. Alvarez-Machain I

a. Facts Mexican doctor suspected of murder and torture is abducted and brought within the U.S. jurisdiction to stand trial

b. Issuei. Whether a criminal defendant, abducted to the U.S. from a

nation with which it has an extradition treaty, thereby acquired a defense to the jurisdiction of this country’s courts

c. Holding Abduction cannot be part of the treaty because the treaty did not expressly prohibited

i. Argument for the Government1. Abductions are not explicitly forbidden in the treaty

a. Other treaties show that nations know what language to use when they intend to prohibit abductions, and they didn’t use that language here

ii. Argument for Alvarez-Machain1. The treaty limits the obligation to extradite (no

extradition for “political” or “military” offenses)a. Significant because these provisions have

no apparent meaning or force if they can be

ignored unilaterally by government agents impatient with the extradition process

iii. Article 9 of the Treaty1. Neither contracting party shall be bound to deliver

up its own nationals.2. If extradition is not granted the requested party shall

submit the case to its competent authorities for the purpose of prosecution.

3. What Article 9 means is that if Mexico had denied the extradition of Alvarez-Machain, then the U.S. could submit the case to Mexican authorities for prosecution (could insist that the person be tried)

iv. If Mexico had not protested, then it would have been viewed as an indication that this was a consensual matter

1. The treaty would not have been violated because both parties agreed to the abduction

v. If Mexico had not objected then a violation of Human Rights argument could have been made by the counsel

1. Way of interpreting the treaty in the customary law of human rights

vi. Treaty Violation v. No Treaty Violation1. Ker Doctrine There was NO treaty violation

a. A criminal defendant CANNOT challenge the circumstances under which he go brought to the court when there is NO treaty violation

2. Rauscher There was a treaty violationa. You will be able to challenge circumstances

under which you have been brought before the court if there has been a treaty violation

3. U.S. v. Palestine Liberation Organization (1988)a. Facts

i. Under the UN Headquarters Agreement the United States had to allow the transit, entry, and access to representatives of member states and invitees on official business

ii. In response Congress passed the Anti-Terrorism Act (ATA) to prevent the PLO (Palestine Liberation Organization) from sitting in the United Nations as an observer status member

iii. On the day when the ATA was passed, the U.S. sought an injunction seeking to close the PLO’s office in New York

b. Issuei. Whether the ATA applies to the UN Headquarters Agreement

and thus prohibit the PLO from establishing an office within U.S. territory

c. Holding The ATA does not apply to the UN Headquarters Agreement and the PLO is allowed to remain in the United States

i. Executive Submissions of a Treaty (Executive Branch Agreements) must be given “substantial deference”

ii. UN Headquarters Agreement stated arbitration in case of problems arising between the U.S. and the UN

1. However, this is NOT a dispute between the UN and the US

2. Furthermore, in the event of a conflict between a statute and a treaty the court will try to reconcile AT ALL COSTS

iii. Why doesn’t the later-in-time rule apply in favor of the injunction by the US?

1. Congress failure to speak with one clear voice requires us to interpret the ATA as inapplicable to the Headquarters Agreement

a. The Headquarters nor the ATA is mentioned in the agreement

b. The ATA does not purport to apply “notwithstanding” the treaty

c. No member of Congress expressed a clear and unequivocal intent to supersede the Headquarters Agreement by the passage of the ATA

d. RULE!!i. If Congress wants to use its power to create a statute to

override a treaty it can do so, but it must do so with CLEAR and UNEQUIVOCAL language

vii. Presidential Power and Executive Agreements1. U.S. v. Curtis Wrights

a. Stands for the idea that the President is the sole organ of the Federal government in the field of international relations

i. This may be misleading because in treaty interpretation Congress and Courts have a voice

b. SCOTUS has NEVER struck down an executive agreement on the grounds that it exceeded executive constitutional authority

2. Department of State Circular 175 a. Congress requires ALL executive agreements other than treaties to be

transmitted to themi. Not necessarily for action but also for information so that

Congress has some idea of what is going on3. Types of Executive Agreements

a. Agreements Pursuant to Treatiesb. Agreements Pursuant to Legislaturec. Agreements Pursuant to the Constitutional Authority of the President

(Presidential Executive Agreements)i. United States v. Pink

1. Facts After the Russian Revolution the Soviet government nationalized corporations which had assets in the U.S.

a. Soviets claimed that those U.S. based assets belong to them

i. Americans stated that they would only give them recognition if the Soviets would give them the assets, which the Soviets then did

2. Holding Court sides with the United States because the president had an implied power to make an executive agreement

a. As far as state law is concerned the executive agreement is the same as a treaty

b. The executive agreement is not a treaty when it comes to the Constitution

i. The reason for this is that nothing was passed on to the Senate to vote on consent

c. If an executive agreement is not a treaty within the treaty power then under what Constitutional authority was this passed?

i. The president has an explicit power to appoint and receive ambassadors, which brings with it the power of recognition

d. Congressional-Executive Agreementsi. International agreements authorized in advance, or approved

after the fact, by a majority of both houses of Congress1. This approach has had a major appeal in the last few

years for a number of reasonsa. By seeking authorization by a majority in

both houses the executive does not fall prey to the veto power of 2/3 majority in both houses

b. By incorporating the House of Representatives in the process they will be willing to help the executive in other matters

4. Dames & Moore v. Regan a. Facts When Iranian militants occupied the U.S. Embassy in Tehran,

the United States president decided to terminate all proceedings against Iran in exchange from the hostages

i. By executive order pursuant to an executive agreement President Carter nullified attachment or leans on Iranian assets in the United States

ii. He also suspended claims against Iran that were supposed to be heard in U.S. Courts and transfer them to an Claims Tribunal

b. Issuei. No explicit Congressional agreement so must determine

whether the president had the power to suspend the claims in U.S. courts by executive agreement?

c. Holding President has the authority to suspend the claims under his powers

i. Past practice does not create power but long continued practice, known to and acquiesced by Congress, would raise a presumption that the action had been taken in pursuance of its consent.

1. Here Presidential Agreement allowed because government acted in acquiescence

ii. The tilt in favor of executive power is especially pronounced when the president is acting in conformity with the power delegated to him by Congress

1. On the other hand the president power will be at its weakest when it acts contrary to Congressional authorization

viii. Federalism v. International Treaties/Agreements (States retain some foreign policy power)

1. Crosby v. National Foreign Trade Council a. Facts Mass State Act prohibited having business relations with

Burmai. There was a federal act sanctioning the Burma government

for violations of human rightsb. Issue

i. Whether the Burma Law passed by Mass restricting the authority of its agencies to purchase foods or services form companies doing business with Burma was invalid under the Supremacy Clause

c. Holding Stated that Burma Law was invalidi. State law incompatible with Federal Objectives occupying the

field1. Statutory Preemption

a. State law is preempted by Federal Lawii. Why is the Mass Law incompatible?

1. Law interfere with the delegation of power to the President in having discretion when it comes to sanctions against Burma

a. President had the power to waive sanctions 2. Federal Law limited sanctions to U.S. persons and

new investment whereas the Mass Law was not limited

3. State statute seems to direct the president to proceed diplomatically in developing a strategy towards Burma

a. This compromises his “one-voice” to interact with other countries

iii. Congress Failure to preempt statute does not implicitly show permission

1. Congress need not explicitly preempt state law because the preemption can exist implicitly

d. RULE!i. Statutory Preemption

1. Federal Statute will preempt State Statute when effectively occupies a field that a State statute tries to legislate.

2. American Insurance v. Garamendi a. Facts California implemented HVIRA law to monitor insurance

companies within their state to make sure that they did not ignore any claims by Jewish Holocaust Victims

i. Information gathering statue making sure that California did not dealt with insurance companies who had taken the money of Jewish citizens

ii. Federal government entered into an agreement with Germany after the statute was enacted establishing a foundation where funds would be used to compensate all those “who suffered at the hands of German Companies” during the Nazi era

b. Issuei. Whether or not HVIRA is preemptive by an executive

agreement by the president to settle claims by Jewish policy holders during the Holocaust

c. Holding HVIRA preempted by Federal Lawi. The California Statute implicitly interfered in the President’s

oversight of foreign affairsii. Basic fact is that California seeks to use an iron fist, where the

President has consistently chosen kid glovesd. Dissent

i. They do not find any consistent preemption when it comes to the California State Law

1. There is no executive agreement or any other formal expression that disapproves of the state’s disclosure clause

ii. Tilt in favor of state discretion by limiting Federal Discretion1. Enough of a green light in this case by the Federal

Government to let California do what they dide. RULE!

i. Foreign Affair Preemption

1. Based on the Constitution a State Statute will be preempted when it interferes with Presidential Powers.

b. International Principles Governing Treaties i. Vienna Convention on the Law of Treaties

1. Definition of Treaty (Article 2)a. An international agreement concluded between states in written form

and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation

2. Pacta Sunt Servanda Honor Your Promises (Article 26)a. Every treaty in force is binding upon the parties to it and must be

performed by them in good faith (Customary Law)i. You have to honor a treaty even when it goes against you

3. Internal Law and Observance of Treaties (Article 27)a. A party may NOT invoke the provisions of its internal law as

justification for its failure to perform a treaty...b. DUALISM

i. The status of an international norm internationally and domestically are two different, unrelated things

c. Domestic v. International Forumi. Domestic Forum Later-in-Time Rule still applies

ii. International Forum no Later-in-Time Rule1. A treaty will ALWAYS trump a domestic statute in an

International Forum4. General Rules of Interpretation (Article 31)

a. 31(1) - A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose

b. 31(2) - Context for the purpose of the interpretation of a treaty shall comprise in addition to the text, preamble and annexes

i. Any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty

ii. Any instrument which was made by one or more parties in connection with the conclusion of the treaty and accepted by other parties as an instrument related to the treaty

c. 31(3) - There shall be taken into account together with the contexti. Any subsequent agreement between the parties regarding

the interpretation of the treaty or the application of its provisions

ii. Any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation

5. Supplementary Means of Interpretation (Article 32)

a. Recourse may be had to supplementary means of interpretation including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of Article 31, or to determine the meaning when the interpretation according to Article 31:

i. Leaves the meaning ambiguous or obscureii. Leads to a result which is manifestly absurd or unreasonable

b. CANNOT USE HISTORY TO CONTRADICT THE TEXT6. Coercion of a State by Threat or Use of Force (Article 52)

a. A treaty is void if its conclusion has been procured by the threat or use of force in violation of the principles of international law

ii. Termination Doctrines under Vienna Convention on the Law of Treaties1. Termination or Suspension of the Operation of a Treaty as Consequence of

Breach (Article 60)a. 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 or in part

b. A material breach of a multilateral treaty by one of the parties entitles:i. The other parties by unanimous agreement to suspend the

operation of the treaty in whole or in part or to terminate the treaty either

1. In the relations between themselves and the defaulting State OR

2. As between all the partiesii. A party specially affected by the breach to invoke it as a

ground for suspending the operation of the treaty in whole or in part in the relations between itself and the defaulting State

c. ”Material Breach of Treaty”i. A material breach of a treaty consists in

1. A repudiation of the treaty not sanctioned by the present convention OR

2. The violation of a provision essential to the accomplishment of the object and purpose of the treaty

2. Hyposa. Treaty explicitly grants riparian states equal rights to the waters of a

river that flows from State A to State Bi. State A dams the river

1. Clearly qualifies as a material breach because it violates a provision essential to the accomplishment of the object and purpose of the treaty (sharing its resource)

b. Landmine Treaty prohibits the deployment of landminesi. State A (party to the treaty) mines its borders

1. Clearly qualifies as a material breach

ii. State A (party to the treaty) sells its entire inventory of landmines to non-party

1. Closer case What’s the object and purpose of the Landmine Treaty?

a. If the object and purpose of the Landmine Treaty is to stop the proliferation of landmines, then the sale will be a material breach

c. Trade treaty requires all disputes to be referred to the ICJi. One party refuses to appear in the ICJ

1. Probably not a material breach of the object and purpose of the treaty because trade is the main purpose, not showing up at the ICJ

3. Rebus Six Stantibus – Fundamental Change of Circumstances (Article 62)a. A fundamental change of circumstances which has occurred with

regard to those existing at the time of the conclusion of the treaty, and which was NOT foreseen as 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

1. Conditions that were essential and assumed to continue when the treaty was made are not the same

ii. The effect of the change is radically to transform the extent of obligations still to be performed under the treaty

b. EXCEPTIONSi. A fundamental change in circumstances may not be invoked

as a ground for terminating or withdrawing from a treaty1. If the treaty establishes a boundary2. If the fundamental change is the result of a breach

by the party invoking it either of an obligation under the treaty or of any other international obligation owed to any other party to the treaty

iii. Controversial Provisions Showing CONSENT is NOT everything as to a State’s legal obligation

1. Obligation not to defeat the object and purpose of a treaty prior to its entry into force (Article 18)

a. A state is obliged to refrain from acts which would defeat the object and purpose of a treaty when

i. It has signed the treaty of has exchanged instruments constituting the treaty subject to ratification, acceptance, or approval, until it shall have made its intention clear not to become a party to the treaty OR

ii. It has expressed its consent to be bound by the treaty, pending the entry into force of the treaty and provided that such entry into force is not unduly delayed

b. Circumstances in which a treaty can bind a party who has NOT EVEN signed the treaty

2. Rules in a Treaty Becoming Binding on Third-States through Intl’ Custom (Article 38)

a. Nothing in Articles 34 to 37 precludes a rule set forth in a treaty from becoming binding upon a Third-State as a customary rule of international law, recognized as such

iv. Jus Cogens Peremptory Norms1. Treaties conflicting with a peremptory norm of general international law

(Article 53)a. A treaty is void if it conflicts with a peremptory norm of general

international law from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character

2. Emergence of a New Peremptory Norm of General International Law Jus Cogens (Article 64)

a. If a new peremptory norm of general international law emerges, any existing treaty which is in conflict with that norm becomes void and terminates

v. Reservations (Article 19)1. A State may, when signing, ratifying, accepting, approving or acceding to a

treaty, formulate a reservation UNLESSa. Reservation is prohibited by the treatyb. Treaty provides that only specified reservations, which do not include

the reservation in question, may be madec. In cases not falling under the last two, the reservation is incompatible

with the object and purpose of the treaty2. Acceptance Of and Objection To Reservations (Article 20)

a. When it appears from the limited number of the negotiating States and the object and purpose of a treaty that the application of the treaty in its entirety between all the parties is an essential condition of the consent of each one to be bound by the treaty, a reservation requires acceptance by all the parties

b. An objection by another contradicting state to a reservation does not preclude the entry into force of the treaty as between the objecting and reserving States unless a contrary intention is definitely expressed by the objecting state

3. Hypoa. Nuclear Test Ban Treaty of 1963

i. Parties agree to prohibit, prevent, and not to carry out any nuclear weapon test explosion, or any other nuclear explosion at any place under its jurisdiction or control

ii. Reservation1. The treaty shall not be deemed to inhibit the use of

nuclear weapons in armed conflict (Does not Conflict)

b. What if...i. A accepts the reservation

1. Article 21a. A reservation established with regard to

another party:i. Modifies for the reserving state in

its relations with that other party the provisions of the treaty to which the reservation relates to the extension of the reservation

ii. Modifies those provisions to the same extent for that other party in its relations with the reserving state

2. Both will be able to bomb away under the reservation because both accept it

ii. B rejects the reservation (X-B)1. Article 21(3)

a. Does the objecting state also oppose the entry into force of the treaty as between the two States?

i. Yes Then there is no treaty relation between them at ALL (BOMB AWAY)

ii. No Then the provisions to which the reservation relates simply do not apply as between the two parties (BOMB AWAY)

iii. A-B, A-C or B-C1. Article 21(2)

a. Both will be able to bomb away under the reservation

iv. C remains silent (X-C)1. Article 20(5)

a. Unless the treaty otherwise provides a reservation is considered to have been accepted by a State if it shall have raised no objection to the reservation by the end of a period of 12 months after it was notified of the reservation or by the date on which it expressed to be bound by the treaty

2. Both States will be able to bomb away under the reservation UNLESS State C objects and speaks up about

4. Reservations to the Convention on Genocide a. Issue

i. What happens as a matter of law when on State in a multilateral treaty makes a reservation and another State objects?

b. Reasoningi. Certain limitations on Reservations

1. Key is whether the reservation is compatible with the object and purpose of the treaty

ii. The intention of the Genocide Convention was to get as many parties in as possible

1. A hypothetical reservation limiting the Genocide Convention to private actors would be against the object and purpose of the treaty

iii. What happens when the reservation is NOT against the object and purpose of treaty, but a State objects regardless?

1. If a State reserves compatible with object and purpose of the treaty and another accepts it then they are both bound by the treaty

5. Human Rights Committee – General Comment 24 a. What principles are there in GC #24 that cut back on the discretion of

States to formulate their own reservations?i. Countries have to be much more articulate in explaining

exactly how the reservation will affect their compliance with the treaty as a whole

ii. Paragraphs 11 & 121. Supportive Guarantees Framework for securing

the rights in the covenant2. Supportive Rights Procedures, Domestic

Remediesiii. Paragraph 17

1. Clear that the patchwork quilt that is the natural consequence of the reservations decision does not fly with this particular committee

6. CEDAW a. Kuwait reserved to Article 7(a) because it wished at the time to

continue to deny women their right to votei. Government of Finland objected to this

b. Holding Kuwait’s reservations are inconsistent with the object and purpose of the treaty because any effort to deny women the right to participate in public life is in direct conflict with the purpose of CEDAW

Traditional Approach VCLT/Reservation Case GC # 24Unanimous Consent Required

for Reservation to be Accepted

PREVAILING DOCTRINEReservation Must BE

Compatible with Object and Purpose of the Treaty

Committee decides whether a reservation is legal or not

7. Hypotheticala. X Reserves, A Accepts, B Rejects, C Remains Silent

i. Assuming that X’s reservation is consistent with the object and purpose of the Nuclear Test Ban Treaty (NTBT)

1. X-Aa. These two parties share the reservation

through RECIPROCITY2. X-C

a. Silence can qualify as acceptance3. A-B, A-C, B-C

a. These relationships are unaffected 4. X-B

a. Must Ask Does B also oppose the entry into force of the NTBT for X?

i. If B Opposes the entry into force then there are NO relations under the treaty between X and B

ii. If B does NOT oppose the entry into force then the PROVISIONS to which the reservation related to DO NOT APPLY as between the two states to the extent of the reservation

Is State X's reservation

consistent with object and purpose?

No

- ICJ : State X is NOT a party

- HRC : State X IS a party, but without

the reservation

Does State B object to the reservation?

No

Art. 21(1): X & B share the reservation

Does State B object to Entry of Reservation into

Force?

No

The targeted provision is supsended

between X & B Art. 21(3)

If State B objects to Entry of Reservation into Force then:

NO treaty relations

Dispute Settlement and the Enforcement of Rules in Exemplary International Settings

I. ICJ Jurisdiction a. ICJ Role as a settler of disputes is limited, but its very real

i. Decisions are cited as authoritative interpretations of the law1. However, decisions are not given precedential value

b. Four Types of Jurisdiction Reviewi. Compromis

ii. Compromisory Clauseiii. Optional Clauseiv. “Transferred Jurisdiction”

c. Different Basis for ICJ Jurisdictioni. Article 35(1)

1. Courts shall be open to the States parties to the present statutea. Does this mean that a State can be dragged involuntarily to the court?

Does the court have jurisdiction just for being a member of the UN?i. No!!! There has to be some additional consent by the

party being dragged into the ICJb. Parties can come in as petitioners but they must go willingly and

consensuallyii. Article 36(1)

1. Jurisdiction of the court comprises all cases which the parties refer to it and all matters specially provided for in the Charter of the United Nations or in treaties and conventions in force

a. Two Types of Jurisdictions from this:i. Compromis

1. An agreement to submit a particular existing dispute to the court for resolution

ii. Compromissory Clauses1. A provision in a treaty requiring submission of future

disputes under that treaty to the ICJiii. Article 36(2) – Optional Clause

1. States parties to the present statute may at any time declare that they recognize as compulsory ipso facto and without special agreement, in relation to any other state accepting the same obligation, the jurisdiction of the Court in all legal disputes concerning

a. The interpretation of a Treatyi. Any question of International Law

ii. The existence of any fact which, if established, would constitute a breach of an international obligation

iii. The nature or extent of the reparation to be made for the breach of an international obligation

2. Clause is Optional... but Jurisdiction is Compulsorya. If State agrees to this then they will be bound in a broad arrange of

cases in front of the ICJiv. Article 36(5) – Transferred Jurisdiction

1. Declarations made under Article 36 of the Statute of the Permanent Court of International Justice and which are still in force shall be deemed, as between the parties to the present statute, to be acceptances of the compulsory jurisdiction of the International Court of Justice for the period which they still have to run and in accordance with their terms

v. Article 36(6)1. In the event of a dispute as to whether the court has jurisdiction, the matter

shall be settled by the decision of the courtd. ICJ Jurisdiction Cases

i. Oil Platforms Case (1996)1. US – Iran Treaty (1955)

a. Compromissory Clause in the Treatyi. Any dispute between the High Contracting parties as to the

interpretation or application of the present Treaty, not satisfactorily adjusted by diplomacy, shall be submitted to the ICJ, UNLESS

1. The High Contracting Parties agree to settlement by some other pacific means

2. Jurisdictional Issuea. Can we ground a case about the use of military force in the 1955

Treaty of Friendship?i. Were the US actions in attacking the platforms a breach of

the treaty and thus falling under ICJ jurisdiction?3. Holding Iran has jurisdiction and the attacks on the platforms were

something that could affect “commerce” within the two countriesa. US actions are within the reach of the treaty

i. Article X(1)1. Between the territories of the two parties there shall

be freedom of commerce and navigationii. Certain Norwegians Case

1. Facts French Nationals owned loans in Norway with clauses that expressly promised to get payment in gold

a. Norway passed legislation allowing payment with Bank of Norway Notes

i. France wants to put the case within ICJ jurisdiction1. However, in its acceptance of compulsory

jurisdiction under Article 36(2) France had declared that matters within its domestic jurisdiction as determined by them, were outside ICJ’s jurisdiction

2. Holding Norway allowed to invoke the conditions contained in the French Declaration

b. Reciprocity creates mirrorsi. In other words, what States use as shields can come back and

hunt them1. In a dispute between A and B

a. A cannot be subject to more jurisdiction than its opponent would be if the tables were reversed

c. The same conditions that France put in its acceptance transfer to Norway

iii. Military and Paramilitary Activities in and against Nicaragua (U.S. v. Nicaragua)1. Optional Clause – US

a. The US accepts the optional clause in relation to any other State accepting the same obligation... providing that this declaration shall not apply to:

i. Disputes the solution of which the parties shall entrust to other tribunals by virtue of agreements already in existence or which may be concluded in the future

ii. Disputes with regard to matters which are essentially within the domestic jurisdiction of the US as determined by the US

iii. Disputes arising under a multilateral treaty UNLESS1. All parties to the treaty affected by the decision are

also parties to the case before the court2. The US specially agrees to jurisdiction

b. This Clause would remain in force for a period of five years and thereafter until the expiration of six months after notice may be given to terminate the declaration

2. The US notified that the Declaration of 1946 would be modified with relation to Central American States or matters in Central America

a. The notification stated that this would take place immediately3. US Arguments

a. Reciprocityb. Some issues are inappropriate for judicial resolutionc. Nicaragua had not submitted itself to the jurisdiction of the court

4. Holding The U.S. was bound by the ICJ Jurisdictiona. Court stated that Nicaragua had accepted the compulsory jurisdiction

of the ICJ because they had made a valid declaration which was essentially transferred to the new ICJ

i. Nicaragua had accepted the compulsory jurisdiction of the court in 1929

1. This potentially triggered the transferred jurisdiction provision of ICJ Statute, however, the instrument of ratification was never deposited

ii. “Constant acquiescence of that State in those affirmations constitutes a valid mode of manifestation of its intent to recognize the compulsory jurisdiction of the Court under article 36, paragraph 2.

b. Court refused to accept the April 6 letter that sought to modify the US jurisdiction with respect to Central America

i. The Court says that this “modification” was actually a termination inconsistent with the 1946 Declaration

1. US stated formally and solemnly that any change should take effect only after six months had elapsed from the date of notice

ii. US argued that Nicaragua could terminate the option clause at any time and thus reciprocity allowed them to do that

1. Formal (Explicit) conditions of creation, duration, and termination ARE NOT subject to reciprocity

a. But reservations and other acts going to the scope and substance of the commitment ARE subject to reciprocity

2. Nicaragua could not have just terminated their optional clause right away, they would have had to give reasonable time

c. US argued the Multilateral Treaty Reservation (Vandenberg Agreement)

i. Vandenberg Agreement - stated that the US acceptance of the Optional Clause did not extend to disputes arising under a multilateral treaty, unless all parties affected by the decision were also parties before the court or the US specially agreed

1. The court responded to this by stating that not all Nicaragua’s allegations were based on multilateral treaties and that instead they were based in principles of customary international law

iv. Yugoslavia v. U.S. Case 1. Facts Yugoslavia claims violations of “No use of Force” by the U.S. and some

NATO countriesa. This was at the time that NATO was bombing certain areas of

Yugoslavia2. Remedies

a. Yugoslavia asked for indication of “Provisional Measures”i. US shall cease immediately its act of use of force and should

refrain from acts, threats, or use of force against Yugoslavia.3. ICJ - Article 41

a. Court shall have the power to indicate, if it considers circumstances so require, any provisional measures which ought to be taken to preserve the respective rights of either party

b. Pending the final decision, notice of the measures suggested shall forthwith be given to the parties and to the Security Counsel

4. Holding ICJ lacks jurisdiction to oversee the casea. Genocide Convention Compromissory Clause

i. Disputes shall be submitted to the ICJ at the request of any of the parties to the dispute

b. HOWEVER US made a reservation in the Genocide Conventioni. Before any dispute to which the US is a party may be

submitted to the jurisdiction of the ICJ the specific consent of the US is required in this case

e. Complying with ICJ Jurisdiction i. UN Charter – Article 94

1. Each member of the UN undertakes to comply with the decision of the ICJ in any case to which it is a party

2. If any party to a case fails to perform the obligations incumbent upon it under a judgment rendered by the Court, the other party may have recourse to the Security Council, which may, if it deems necessary, make recommendations or decide upon measures to be taken to five effect to the judgment.

II. The Role of Regional and Specialized Courts in the Articulation and Enforcement of Intl’ Lawa. Relationship between EU Law and National Law

i. Van Gend en Loos v. Nederlandse Administratie der Belanstingen 1. Facts Import dispute

a. V.G. challenged the application of an 8% duty while Dutch custom collectors stated that in 1958 the particular import had been subjected to 10% duty

2. Holding Community constitutes a new legal order of international law for the benefit of which states have limited their sovereign rights, albeit within limited fields, and the subject of which comprise not only member states but also their nationals

a. Independently of the legislation of members states community law therefore not only imposes obligations on individuals but is also intended to confer upon them rights which become part of their legal heritage

3. Margin of Appreciationa. Deference given by EU institutions to national interpretation of EU

Lawb. ECJ is laying out the idea that EU law is NATIONAL law

ii. Simmenthal Case 1. Facts Simmenthal was importing beef from France to Italy

a. Italy imposed a fee for veterinary and public health inspectionsi. Simmenthal sued in argument that Italy was violating an EU

agreement2. Holding Italy was not allowed to uphold fees

a. EU takes precedent over a National Statuteb. A national court which is called to apply provisions of the Community

has the duty to give full effect to those provisions if necessary refusing its apply its own national legislation

b. Integrative Black-Letter Doctrine in EU Jurisprudencei. Regional international law creates rights in individuals that are enforceable in the

domestic courts of every memberii. In cases of unavoidable conflict, EU Law prevails over members’ domestic law

1. Members’ domestic courts may invalidate national laws on the strength of EU law without waiting for the domestic legislature or a superior court to do so

c. Velasquez-Rodriguez v. Honduras i. Holding Honduras was responsible for violating the American Convention by

designing and implementing a deliberate plan to cause forced disappearances

1. Pattern of Disappearancea. Forcible Abductionb. Of Individual deemed dangerousc. Using weapons restricted to government used. And recurring modes of operation (blindfolds, safe houses)e. Combined with official denial of information and the systematic lack of

judicial protection2. It is the responsibility of the Honduran government to protect its citizens

a. An illegal act which violates human rights and which is initially not directly imputable to a State, can lead to international responsibility of the State, not because of the act itself, but because of the lack of DUE DILIGENCE to prevent the violation or respond to it as required by the convention

ii. RULE!!1. State must show DUE DILIGENCE as required by the convention in order to

remedy human right violationsa. If the State fails to assume this active role, then it can be held liable

under Intl’ Law for Human Rights Violationsiii. Five Levels of Significance of Velasquez

1. Finds that disappearance was a violation of international human rights law, even though “disappearance” was not mentioned by name in human rights instruments

2. Embraces a form of pattern-and-practice liability for States3. Shifts the burden of proof once the plaintiff establishes a prima facie case of

disappearance4. Establishes liability when the state fails to exercise “due diligence” in the

protection of human rights, suggesting that a state could be held indirectly liable even for the acts of private actors

a. Due Diligence cannot be anything that the government would not be capable of accomplishing in the first place

5. Illustrates the “civic faith” that leads the loser in a case to comply with ita. Honduras actually paid compensation to Velasquez-Rodriguez

RelativesIII. International Arbitration

a. Fundamentals of International Arbitral Practice i. Arbitration Clauses are one prime alternative to “Compromissory Clauses” referring

disputes under treaties to the ICJii. Doctrine of Diplomatic Protection

1. Power of a State to take up (espouse) the claim of his own national injured by the action of another nation

2. Diplomatic Protection is in other words the power to elevate a dispute to the level of state-to-state negotiations on behalf of an individual

3. Three Ways of Losing Diplomatic Protectiona. Non-Exhaustion of Local Remediesb. Waiverc. Insufficient Nationality

iii. Exhaustion of Local Remedies1. Article 15

a. Local Remedies DO NOT need to be exhausted wherei. There are no reasonably available local remedies to provide

effective redress, or the local remedies provide no reasonable possibility of such redress

ii. There is undue delay in the remedial process which is attributable to the State alleged to be responsible

iii. There was no relevant connection between the injured person and the State alleged to be responsible at the date of injury

iv. The injured person is manifestly precluded from pursuing local remedies

v. The State alleged to be responsible has waived the requirement that local remedies be exhausted

2. The Ambatielos Claim a. Facts Conflict b/w a Greek national and the UK government for the

purchase of shipsi. Greek espoused the claim internationally

1. UK argues that Ambatielos did not exhaust local remedies before his claim was taken to the international level

b. Holding Ambatielos failed to exhaust his local remedies when he failed to call the witness and thus the arbitration is dismissed

i. Ambatielos did NOT call an important witness who was key to establishing his case and had failed to appeal in the UK courts

1. “Local Remedies” include not only reference to court or tribunals, but also to use of procedural facilities which municipal law makes available to litigants before courts and tribunals

a. It is the whole system of legal protection, as provided by municipal law, which must have been put to the test before a State, as the protector of its nationals, can prosecute the claim at the international plain

ii. Only those remedies which are essential to establishing the claimant’s case included the “Local Remedies” Rule

1. NOTE**a. If the local remedies are ineffective there is

NOT an obligation to exhaust them3. What happens if the claimant is in the US and fails to press for relief?

a. Remedies remain open, but the procedure In question must be ESSENTIAL to the claim

4. If the Remedy is NOT ESSENTIAL then it does not have to be pusued!iv. Waivers

1. Tattler v. Great Britain

a. Facts Canada seized a US fishing vessel for violation of a fishing treaty

i. The private party had to pay a fine and sign a waiver of further claim

b. Holding The arbitral commission finds that the waiver was not protested

i. The owner waived and thus the US stands in no better position than that of the owner

1. Therefore, the US is also subject to the waiverd. Hypo

i. State adopts the claim and then the individual tries to waive1. In this circumstances the individual is waiving

something that is not hers/his to waive anymore2. Anticipatory and Retroactive Waivers bind US Government

a. X1 ------ Transactional Event ---- X2 ---- Espousal ------- X3i. X-1 Anticipatory Waiver

1. Calvo Clause a. Under these clauses, the foreign national

waives all rights of diplomatic protection by his/her government

b. May appear in constitutions or statutes or contracts between States and private entities

ii. X-2 Tattler Caseiii. X-3 Retroactive Waiver

b. When the waiver comes earlier the vehemence in which the US will press the claim will be reduced!

v. Insufficient Nationality1. A State cannot exercise its right of diplomatic protection on behalf of those

who are not its citizens (NOTTEBOHM Case)2. Barcelona Traction (Multinational Corporations)

a. Facts Belgium wanted to bring a claim for Belgium Shareholders against Spain

i. Barcelona Traction was not a Belgium Corporation and Spain stated that it was Canada who had to bring the claim because Barcelona Traction was a Canadian Corporation

1. Belgium Citizens were only shareholders in a foreign corporation

b. Holding The state of incorporation generally has the exclusive right of diplomatic protection (Republic of Guinea v. DRC)

i. Real and Effective Links Test1. Criteria to be Considered

a. Nationality State of Incorporationb. Control Nationality of the Corporation’s

directors, managers, and shareholdersvi. Trail Smelter Case

1. Facts Canadian Corporation was operating a Smelter in British Columbia that released fumes into the state of Washington

a. The US espoused the claim of the state of Washington and brought a diplomatic claim against Canada

2. Holding Canada is responsible for the acts of a Corporation with Canadian Nationality

3. RULE!!a. Sic Utere No State can use territory in a way that injures another

i. Under the principles of international law as well as of the law of the US, 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

vii. Rainbow Warrior Case 1. Facts French secret service agent sank the Rainbow Warrior, which was a

ship that belonged to Greenpeace while the ship was docked in New Zealanda. Two French agents were arrested because they had killed a person on

boardb. Both France and New Zealand served the claim to an arbitrational

tribunali. Fined France and stated that the two agents (Major Mafarat

and Captain Prieur) would be transferred to a French military base in the island of Hao for a period of “no less than three years”

1. The agents would be prohibited from leaving the island for any reason, except with the mutual consent of both governments

c. Major Mafarat was evacuated for health reasons without New Zealand’s consent and was allowed to stay in France even after treatment

i. He was never returned to Haod. Captain Prieur was evacuated to go back to France for pregnancy

reasons and she was not taken back to Hao2. Holding France had breached the agreements

a. Is this a material breach? If so, what remedies does it trigger for New Zealand?

i. Major Mafarat1. France did not breach its obligation from New

Zealand by removing the agent from Hao due to health reasons

a. However, the French had committed a material breach by not returning the agent to the island of Hao once his treatment was completed

ii. Captain Prieur1. France committed a material breach by not acting in

good faith because they had decided to act

unilaterally to remove her from the island due to health of her father one day before a medical exam was conducted by both countries

a. France also breached by not returning the Captain to the island of Hao after pregnancy or father’s health improved

b. Remediesi. New Zealand ended up receiving satisfaction

1. Satisfaction can take various formsa. Mentions Regretsb. Punishment of the responsible individualsc. Safeguards against Repetitiond. Payment of symbolic or nominal damages

or of compensation on a broader basise. Decision of an international tribunal

declaring the unlawfulness of the State’s conduct

ii. The arbitration panel also decided to made the findings public and to create a fund to promote close and friendly relations between both countries

3. Defense of Duressa. Must prove three elements

i. Existence of very exceptional circumstances of extreme urgency involving medical or other considerations of an elementary nature

ii. Reestablishment of the original situation of compliance as soon as the reasons of emergency invoked have disappeared

iii. Existence of a good faith effort to try to obtain the consent of the other party

The Concept, Consequences, and Limitations of Statehood

I. Statehood’s Prerequisites (And How They Morph)a. Doctrine of Statehood

i. What are the Criteria for Statehood?1. Montevideo Convention 1933 - “The State as a person of international law

should possess the following qualifications”a. Permanent Population

i. Is there a numerical minimum for population?1. NO The population must constitute a “stable

community” but there is no quantitative test2. Population must be significant and permanent

ii. What effect does “nomadic population” have on a State?1. Even nomadic grounds have some particular

affiliationb. Defined Territory

i. Will border disputes “undo” statehood?1. NO Absolutely settled borders are not

prerequisitec. Government

i. What’s the right test for whether there is “government” or not?

1. International Law has never had a norm accepting or rejecting a certain type of government

2. The standard is functional and pragmatic, rather than normative or ideological

a. The government must be capable of maintaining stable control over its population

3. Government needs to be “legitimate”ii. When will the breakdown of civil order in a state “undo”

statehood?1. Somalia It is broken down into two States yet it is

still a member of the UNd. Capacity to Enter into relations with other States

i. A matter of capacity, not ideology1. The ability to send, receive, and protect diplomats;

sign and live up to treaties; meet international obligations

ii. Major Element Independence1. Therefore, colonies, protectorates, trusts, and

territories ARE NOT Statesiii. Federations

1. Where local matters are handled by states and international matters are handled by the Federal government

2. Disputed Criteriaa. Recognition

i. Constitutive Theory1. Recognition has legal effects

a. An entity is not a State in international law unless it is generally recognized as such by other States

ii. Declaratory Theory1. Recognition has NO legal effects

a. An entity that satisfies the requirements is a State with all the corresponding capacities, rights and duties, and other States have the duty to treat it as such

iii. US AVOIDS RHETORIC OF RECOGNITION1. US practice has been to de-emphasize and avoid the

use of recognition in cases of changes in

governments and to concern themselves with the question of whether the US “wishes to have diplomatic relations with the new government”

ii. Who Determines whether the criteria are met or not?1. THERE IS NO CENTRAL PROCESS for determining when or whether a “State”

has come into existencea. However, the judgment of Statehood can be made by a variety of

actorsi. Other States get to decide themselves

ii. The ICJ can put an input on whether a State has met the criteria

iii. UN also has a say1. They are not dealing with Statehood per say but they

are dealing with the influence of Statehood2. Rest. of U.S. Foreign Relations

a. Whether an entity satisfied the requirement s for statehood is ordinarily determined by other states when they decide whether to treat that entity as a State.

3. Is withholding recognition an interference with the target State’s domestic affairs?

a. Estrada Doctrinei. The granting of recognition is an insulting practice implying

judgment upon the internal affairs of foreign affairs1. Proper to look at the objective factors and not

whether you disapprove of the government of notii. Withholding of recognition is an effort to undo the citizen’s

choice of governmentiii. Effects of Non-Recognition

1. Rest. (Third) U.S. Foreign Relations Lawa. Under the law of the U.S.

i. An entity not recognized as a State, or a regime not recognized as the government of a State, is ordinarily denied access to courts in the U.S.

ii. A regime not recognized as the government of a State is not entitled to property belonging to that State located in the U.S.

iii. Courts in the U.S. ordinarily give effect to acts of a regime representing an entity not recognized as a state, or of a regime not recognized as the government of a state, if those acts apply to territory under the control of that regime and relate to domestic matters only

1. The non-recognition is a weapon against a government

a. It would be collateral damage if the people living in the regime and their acts

(marriages, divorces, etc) were not legal binding

iv. Advisory Opinion on Kosovo 1. Issue

a. Whether or not the unilateral declaration of independence in Kosovo was in accordance with Intl’ Law

2. Holding Unilateral Declaration was NOT prohibited by Intl’ Lawa. General International Law (Lex Generalis)

i. There is nothing under the UN Charter prohibiting this declaration of independence

ii. Self Determination1. There had been a number of declarations prohibiting

declaration of independentsa. However, these prohibitions were

determined by illegal declarations of independence (i.e. illegal use of force)

2. International law of Self-Determination developed in such a way as to create a right to independence for the peoples of non-self-governing territories and peoples subject to alien subjugation, domination and exploitation

a. Many States have come into existence as a result of the exercise of this right

iii. Declaration of independence does NOT violate neither of these two General International Law provisions

b. Law Regarding Kosovo (Les Specialis)i. Resolution 1244

1. Established an interim administrative body to Kosovo to promote stability of the region

2. Resolution established the Constitutional Framework for provision of self-government which defined responsibilities relating to the administration of Kosovo

3. Resolution DOES NOT VIOLATE declaration because it was intended for International Actors

a. The Kosovo Declaration of Independence was drafted by people who acted together in their capacity as representatives of the people of Kosovo outside the framework of the interim administration

b. State Succession i. Easy Cases Governments who come to power peacefully (Continuity)

1. A mere change in government DOES NOT by itself terminate any international obligations or alter international rights

a. Also applies to contractual undertakingsii. Hard Cases Decolonization, Military Coups, Fracturing of Country

1. Do newly decolonized States inherit all the treaty obligations of the colonial power? (Ex Namibia)

2. Which international rights and obligations of a previously unified state devolve onto the newly independent parts? (Ex USSR, Yugoslavia)

3. Do governments that come to power through revolution (or invasion) inherit the treaty obligations of the overthrown regime? (Ex Russia in 1917)

iii. Traditional Customary Rule1. All international obligations adopted by the imperial power for the colonized

territory become binding on the new state once it achieved its independenceiv. Clean-Slate Doctrine (Nyerere Doctrine)

1. PREVAILING PRACTICE2. No automatic succession upon independent and newly independent States

a. States can pick and choose which obligations they will follow3. EXCEPTION

a. Uti Possidetis Treaties Establishing Borders 4. Vienna Convention on State Succession – Article 16

a. “A newly independent State is not bound to maintain in force... any treaty by reason only of the fact that at the date of the succession... the treaty was in force in respect of the territory to which the succession... relates.”

v. Contemporary practice of States is to endorse the Clean Slate Doctrine as a legal matter AND choose Continuity as a practical matter

vi. Tinoco Claims Arbitration 1. Facts Arbitration between UK and Costa Rica with William Taft presiding

a. Government of Costa Rica had repudiated activities by Tinoco government

2. Issuea. Whether a cause of action held by some British Citizens existed against

Costa Rica under activities of Tinoco Government.3. Holding Costa Rica is bound by actions of Tinoco Government

a. Costa Rica argued that the government had come to power through illegitimate means and it had never been recognized by the US or UK

i. Therefore, the obligations could be nullified because the government was not a legitimate one

1. UK could not ask for compensation because they had failed to recognize the Tinoco Government in the first place

b. Doctrine of Continuity i. The mere change in government does NOT undo

international personality1. The State persists through this domestic changes

and the State is bound by its governments that had ceased to exist

c. What is the relevance of recognition to the power of succession?i. Recognition can have evidentiary value in determining

whether an entity fulfills the criteria for Statehood

1. The failure of the US and the UK to recognize the Tinoco government does NOT overcome the fact that the government exercised stable and successful control over the population to be deemed a State

vii. Autocephalos Greek-Orthodox Church v. Goldberg 1. Facts

a. Long complex history of fighting for the island of Cyprus between Turkey and Greece

i. Greek Orthodox Church has a mosaic of Jesus which was declared a holy relic

b. Turkey invaded the northern part of Cyprus up to the “Green Line”i. The rest of the Island occupied by Greece was recognized as

the Republic of Cyprusii. The Northern Part was only recognized by Turkey

c. Greek Church where the mosaics were kept had been located in Turkish side and the church was vandalized

i. The mosaics were stolen and then sold to Goldberg who bought it in Europe

d. Cyprus notified many organizations and museums that they were looking for the mosaics and they were finally located in Mrs. Goldberg’s possession

2. Holding The Church had more valid claim to the mosaicsa. Claim that the Turkish Government was a “de facto” government who

passed decrees providing that property and artifacts found on the Turkish side of the island were owned by Turkey

i. The decrees were passed before the church was looted and therefore, the mosaics should be kept by Goldberg

b. Goldberg also claimed that the US had given effect to the nationalization decrees of the unrecognized regime

viii. Reconciling Tinoco and Autocephalous1. Failure of Recognition as Evidentiary Value

a. In Tinoco the only parties withholding recognition were the US and UK, while in Authocephalous the only State to have recognized the Turkish government in Northern Cyprus was Turkey itself

2. Institutional Setting Argumenta. Tinoco Claims is an international arbitration, but Autocephalous is a

decision by a U.S. Domestic Courtc. Statehood’s Pre-Requisites and How they Morph

i. States You will have EXCLUSIVE JURISDICTIONii. Nottebohm Case

1. Facts Liechtenstein decided to represent their “national” Nottebohm in a case against Guatemala at the International level

a. Nottebohm had requested citizenship in Liechtenstein in 19392. Issue

a. Whether Liechtenstein has standing to sue Guatemala in the ICJ for their treatment of Nottebohm, a Liechtenstein national.

3. Holding Liechtenstein has NO STANDING in the present claima. Real and Effective Nationality Test

i. Establish Nationality by looking at several factors1. Habitual residence of the individual2. Centre of the Individual’s interest3. Family ties4. Participation in public life5. Attachment shown by him for a given country and

inculcated in his childrenb. Links of Nottebohm to Guatemala

i. He had lived in the country for 34 years, he had business relations there, had family there, and worked in the country

1. However, he was still a German national with German family until the war started and he asked for Liechtenstein Citizenship

c. Why can Liechtenstein simply state that Nottebohm is one of their nationals?

i. It is for Liechtenstein as it is for every sovereign State, to settle by its own legislation the rules relating to the acquisition of their nationality

1. HOWEVER, when you bring a case to the ICJ, the court has its own institutional prerogative to protect

d. A person CANNOT manipulate nationality for own convenience4. RULE!

a. A State cannot confer Nationality on a person absent real and effective links

II. Allocation of Authority Among Statesa. Jurisdiction to Prescribe: The Application of US Law to Acts Committed Abroad

i. Authority of a State to make its laws substantively applicable to particular persons, property, or events

1. EX Spain applying its criminal law in the Pinochet case or Belgium in the Congo Case

2. EX Extraterritorial application of US trademark laws or Title VIIii. Internationally Recognized Grounds of Jurisdiction to Prescribe

1. Territorya. American Banana (Where the Act is Done)

i. General and Almost Universal Rule1. Character of an act as lawful or unlawful must be

determined WHOLLY by the law of the country where the act is done

b. Jurisdiction to Prescribe STOPS at the water’s edgei. Includes ports, maritime belt, territorial sea, and ships that fly

the state’s flagc. Subjective v. Objective

i. Subjective Territoriality Principle

1. A state has jurisdiction to prescribe as to conduct that occurs (even partly) within its territory

a. Jurisdiction to prosecute and punish crimes commenced within their territory, but completed or consummated in the territory of another state

ii. Objective Territorial Principle1. Jurisdiction to prescribe as to effects within a state’s

territorya. Jurisdiction to prosecute and punish crimes

commenced in another state, but :i. Consummated or completed

within their territoryii. Producing gravely harmful

consequences to the social or economic order inside their territory

2. Testa. Actor must have intent to affect +

substantial effects2. Nationality of Actor

a. A State may generally apply (but not necessarily enforce) its laws to its own nationals, wherever in the world they go

i. EX US Citizens are subject to US summonses and subpoenas, tax laws, selective service laws

3. Protective Principlea. International law recognizes that each state may exercise jurisdiction

over crimes against its security and integrity or its vital economic interests

i. Practice suggests some core crimes within a state’s protective jurisdiction including counterfeiting, passport fraud, attacks on diplomats, espionage, etc.

b. The more you get away from the core crimes the less likely the Protective Principle will work

i. The hard cases are drug offenses and political expressions targeting a foreign government

4. Passive Personality – Nationality of the Victima. Many countries, though historically NOT THE U.S. have attempted to

legislate protections for their citizens anywhere in the world, and not just obligations.

i. EX Spain in Pinochet, prosecuting on the basis of human rights abuses against Spanish citizens in Chile

b. Recently, the US has moderated its opposition to jurisdiction based on the nationality of the victim

i. E.g. terrorist attacks on a state’s nationals by reason of their nationality

5. Universalitya. Every state has the right to extend its legislative jurisdiction to certain

egregious offensesi. Offenses that every State thinks should be criminalized

ii. The State has jurisdiction to prescribe even without a territorial connection OR a citizenship connection to the crime OR to the actor OR to the victim

b. A State has jurisdiction to define and prescribe punishment for certain offenses recognized by the community of nations as of universal concern, such as piracy, slave trade, attacks on or hijacking of aircraft, genocide, war crimes, and perhaps certain acts of terrorism, even where none of the bases of jurisdiction indicated in Section 402 is present.

i. Section 4021. Subject to Section 403, a state has jurisdiction to

prescribe law with respect toa. (1)(a) - Conduct that, wholly or in

substantial part, takes place within its territory

b. (1)(b) - The status of persons, or interests in things, present within its territory

c. (1)(c) - Conduct outside its territory that has or is intended to have substantial effect within its territory

d. (2) - The activities, interests, status, or relations of its nationals outside as well as within its territory AND

e. (3)- Certain conduct outside its territory by persons not its nationals that is directed against the security of the state or against a limited class of other state interests

ii. Section 4031. Even when one of the bases for jurisdiction under

Section 402 is present, a state may NOT exercise jurisdiction to prescribe law with respect to a person or activity having connections with another state when the exercise of such jurisdiction is unreasonable!

2. Whether the exercise of jurisdiction over a person or activity is unreasonable is determined by evaluating ALL relevant factors including where appropriate:

a. Link of the activity to the territory of the regulating state

b. Connections, such as nationality, residence, or economic activity

c. Character of the activity to be regulated

d. Existence of justified expectationse. Importance of the regulation to the

international political, legal, or economic system

f. Extent to which the regulation is consistent with the traditions of the international system

g. Extent to which another state may have an interest in regulating the activity

h. Likelihood of conflict with regulation by another state

c. The idea that universal jurisdiction is too vague has not been sustained by the court

iii. Helms Burton Act 1. Creates a separate cause of action for US Citizens against the trafficking of

private property which Cuba seized2. Effects Doctrine

a. International law recognizes that a nation has the ability to provide for rules of law with respect to conduct outside its territory that has or is intended to have substantial effect within its territory

3. Protective Principlea. Security or Economic Interests at stake?

i. Cuba has been perceived as a national security threat and thus it falls within the US jurisdiction to prescribe

iv. US v. Usama Bin Laden 1. Facts Defendant charged with multiple violations of US Criminal Law in

connection with US Embassy bombings in Kenya and Tanzaniaa. Defendant moved to have this claims dismissed because the statutes

on which the charges rested were not intended to regulate conduct outside of the US (presumption that the US law only applies territorially)

2. Argumenta. Defendant states that US law exclusively applies in a territorial nature

and that Congress is the only one allowed by clear and concise language to change this so that US law applies extraterritorially

3. Holding Motion to dismiss was denied because Jurisdiction to Prescribe was applied successfully here

a. Look at Nature of the Offense (BOWMAN)i. Congressional Intent is NOT NEEDED for some statutes and

come crimes1. Courts may infer the requisite intent from the

“nature of the offense”b. Defense argues that extraterritorial jurisdiction to prescribe is fit if the

nationality of the actor is satisfied (Bowman applies only to US citizens)

i. The Court denies this for three reasons

1. Given that foreign nationals are in at least as good a position to perform extraterritorial conduct as are US nationals, it would make little sense to restrict statutes to only US Citizens

2. Bowman has NOT been limited to the conduct of US Nationals

3. The territorial principle is not the only way of having jurisdiction to prescribe

a. Protective Principle applies in this situation because the security interests of the US were at stake

c. Defense argue violation of Due Processi. Court rejects this because Due Process of Defendant is not

violated here because the extraterritoriality application of statute is satisfied by the protective principle

d. Defense argues that US Criminal Statutes do not cover the deaths of Kenyan and Tanzanian Citizens

i. Court rejects this and states that the deaths of those citizens are covered under both the Universal Principle and Protective Principle of Jurisdiction to Prescribe

b. Jurisdiction to Enforce and Adjudicate i. Authority of a State to induce or compel compliance with its law

1. EX Arrest of person or property (UK arresting defendant I Pinochet Case)2. EX US abduction in Alvarez-Machain or the service of court documents

abroadii. Includes Administrative Sanctions, Police Activity, Sanctions, Court Processes

iii. Rest. § 4324. Measures in Aid of Enforcement of Criminal Law1. A state’s law enforcement officers may exercise their functions in the territory

of another state only with the consent of the other state, given by duly authorized officials of that state

iv. Rest. § 4331. External Measures in Aid of Enforcement of Criminal Law: Law of the US

a. Law enforcement officers of the US may exercise their functions in the territory of another state ONLY:

i. With the consent of the other state and if duly authorized by the US AND

ii. In compliance with the laws both of the US and of the other State

v. BLACK LETTER PRINCIPLES1. States may NOT take enforcement measures in the territory of another state

without consenta. Remedy of violation of this principle is NOT dismissal of the case

2. Male Captusi Rulea. The illegality of a suspect’s seizure will NOT preclude trial and

punishment UNLESS the affected State protests

vi. Jurisdiction to Enforce is INTRINSICALLY territorialc. General Jurisdictional Principles

i. A State can have jurisdiction to prescribe (i.e. ability to apply its law) without necessarily having the jurisdiction to enforce that law

1. EXAMPLE Sheinbein commits crime in MD but then leaves to go to Israela. Jurisdiction to prescribe

i. US murder laws apply to him (crime committed in MD)b. Jurisdiction to enforce (Not Available)

i. US can’t enforce the law (by arresting, trying, and sentencing the defendant) because Sheinbein is physically in Israel

II. Jurisdictional and Prudential Limitationsa. Foreign Sovereign Immunity Act of 1976

i. ONLY APPLIES IN DOMESTIC COURTSii. Confrontations between countries can be avoided if each country is immune from the

jurisdiction of every other country’s courtsiii. Immunity was once treated as a Political Question

1. Courts would automatically defer to the Executive Branch in granting or denying immunity under the FSIA

2. Tape Letter a. State Department trying to give guidance on the extent in which

Sovereign Immunity would be grantedb. Policy for the United States

i. Represents the shift from the absolute approach to the restrictive approach

1. Restrictive Approacha. Makes a public v. private distinction

i. We are going to recommend immunity only when the adjudication involves public acts of the foreign sovereign, but NOT when it comes to commercial acts

ii. When the government acts like a private person then it is answerable in a foreign courtroom like a private individual would be

iv. FSIA – 6 Important Things1. A Grant of Subject Matter Jurisdiction – Section 1330(a)

a. The district courts shall have original jurisdiction without regard to amount in controversy of any nonjury civil action against a foreign state as to any claim for relief in personam with respect to which the foreign state is not entitled to immunity either under Section 1605-1607 of this title or under any applicable international agreement

2. A rebuttable Presumption of Immunity – Section 1604a. Subject to existing international 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 of the US and of the States except as provided in sections 1605-1607 of this chapter

3. Exceptions to Immunity – Section 1605(a)(1)-(7)a. Waiverb. Commercial Activity with US nexusc. Takings in violation of international lawd. Rights in certain US Propertye. Non-Commercial torts in the USf. Arbitrationg. Terrorism

4. The Restrictive Approach to Immunity: Commercial Activity Exception – Section 1605(a)(2)

a. A foreign state shall not be immune from the jurisdiction of the courts of the US or of the States in any case in which the action is based upon a commercial activity carried on in the US by the foreign state

5. Definition of Commercial Activity: Nature NOT Purpose – Section 1603(d)a. A commercial activity means either a regular course of commercial

conduct of a particular commercial transaction or act. The commercial character of an activity shall be determined by reference to the nature of the course of conduct or particular transaction or act, rather than by reference to its purpose.

6. Courts, NOT the Executive Branch, Determine Claims of Immunity – Section 1602

a. Claims of foreign states to immunity should henceforth be decided by courts of the US and of the States in conformity with the principles set forth in this chapter

v. Argentine Republic v. Amerada Hess Shipping Co. 1. Facts Two Liberian Corporations suing the Argentine Government for

bombing a vessel that belonged to thema. The Hercules was an oil transporting vessel from Alaska to Cape Horn

in South Africai. When it was passing through the zone of war between

Argentina and U.K. the Argentine military bombed the vessel1. his bombing was done despite notification by the US

government2. Claim

a. Alleged that attack on a neutral vessel on the High Seas and outside a declared war zone was a violation of international law under the Alien Tort Statute

3. Holding FSIA provides the SOLE BASIS for obtaining jurisdiction over a foreign state in the Courts of the United States

a. The Alien Tort Statute is NOT an alternative route to jurisdiction over a foreign State

i. One of the FSIA exceptions must apply for the court to have jurisdiction

b. Should international law deny sovereign immunity for a state’s violation of international law?

i. Court of Appeals Argument1. If sovereign acts were immunized today from

scrutiny under international law, the exception would nearly swallow the rule.

a. Allowing sovereign immunity for violations of international law would deprive the law of its content

ii. Court rejects this because international law may tolerate an unredressed wrong if the alternative is subjecting one sovereign state to the compulsory process and judgment of another

c. Does Ameralda Hess undermine Filartiga?i. No because Ameralda Hess simply means that the defendants

being sued under the Alien Tort Statute will have to be individuals personally involved in the conduct

d. Why should we tolerate in the name of FSIA violations of international law and assume that Congress wanted to obstruct big violations of intl’ law by putting forth the FSIA?

i. RECIPROCITY1. If the US opens its courts to the adjudication of suits

against other States, the others will do the same4. RULE

a. The FSIA provides the EXCLUSIVE means of hauling a foreign state before the courts of the U.S.

vi. FSIA tries to balance Day in Court v. Comity1. Making sure that plaintiffs have the opportunity to have their day in court while

keeping comityvii. Samantar v. Yousuf

1. Facts Respondents are natives of Somalia who passed suit against a former PM of Somalia for acts that he had made while he was in power

a. The acts were incomprehensively brutal violations of human rights2. Issues

a. Whether a foreign state’s immunity from suit under the FSIA, extends to an individual acting in his official capacity on behalf of a foreign state?

3. Holding Samantar is NOT entitled to immunity under the FSIAa. Language of the Statute

i. Definition of “Agency or Instrumentality”1. A foreign state... includes... an agency or

instrumentality of a foreign state as defined in subsection (b)

2. An “agency or instrumentality of a foreign state” means any entity

a. Which is a separate legal person, corporate or otherwise

b. Which is an organ of a foreign state or political subdivision thereof, or a majority of whose shares or other ownership interest is owned by a foreign state or political subdivision thereof, AND

c. Which is neither a citizen of a State of the U.S. as defined under Section 1332(c) and (d) of this title, nor created under the laws of any third country

3. This language refers to agencies, corporations, partnerships and the like (NOT INDIVIDUALS!!)

a. If Congress meant to include individuals acting in the official capacity in the scope of the FSIA, it would have done so in clear and unmistakable terms

b. Legislative Historyi. House Committee Report

1. Explained that “separate legal person” was intended to include a corporation, association, foundation, or any other entity which, under the law of the foreign state where it was created can sue or be sued in its own name, contract in its own name or hold property in its own name

4. NOTESa. Does the FSIA cover individuals?

i. Artful Pleading Problem1. Plaintiffs can evade the FSIA altogether by NEVER

naming a State as the defendant and ALWAYS naming an individual official instead

ii. Does Samantar mean that individual officials can NEVER get immunity? NO!!

1. Immunities under the common law are possible, even if the FSIA does not apply

b. Multi-Factor Test? (Maybe?)i. Ratification/Authorization

1. Does the target State claim the act as its own?ii. International Illegality

iii. Domestic Illegalityiv. Chronology (current v. former officials)

1. Comity concerns reduce when we are dealing with a current official

v. Actor’s Motivation1. Personal motive will make it less likely that it could

be seen as an expression of sovereignty

vi. Executive submissions1. Maybe we should go back to the Executive branch

when it comes to foreign officialsviii. Waiver Exception

1. 1605(a) – A foreign State shall not be immune from the jurisdiction of courts of the United States or of the states in any case

a. (1) In which the foreign State has waived its immunity either by explicitly or by implication, notwithstanding any withdrawal of the waiver which the foreign state may purport to effect except in accordance with the terms of the waiver.

2. Three Examples of Implied Waivers in the House Report accompanying FSIAa. Where a foreign state has agreed to arbitration in another countryb. Where a foreign state has agreed that the law of a particular country

should govern a contractc. Where a foreign state has filed a responsive pleading in action without

raising the defense of Sovereign Immunityix. Commercial Activity with a Nexus to the United States Exception (Most Litigated)

1. The commercial activity must be the basis or foundation for the legal claima. The Commercial Activity must provide the gist or gravamen of the

complaint2. Saudi Arabia v. Nelson

a. Facts Saudi Arabia owns a hotel in their country and advertised in the U.S. for open positions

i. Nelson responded and after all the training he moved to Saudi Arabia to work for the hotel

ii. While at work Nelson reported hazardous conditions at the hotel

1. All of a sudden one day he was arrested and tortured

b. Holding Nelson’s claim barred by the FSIA and does NOT fall within the Commercial Activity Exception

i. LOOK AT NATURE NOT PURPOSE1. Nature Test

a. Principal inquiry Is behavior similar to that performed by private individuals.

2. Jure Gestionisa. Used to describe commercial or private

activity3. Jure Imperii

a. Used to describe sovereign or public activityii. The Court ignores the advertisement and training in the US

because this activity was NOT the one giving rise to the claim1. The Court then looked at the activity taking place in

Saudi Arabia of arrest and torture, and determined that this was an exercise of police activity by the Saudis

a. Police Activity within the sovereign territory of a State is left to the State itself

iii. But For” Argument1. But if it was not for the recruitment, he would not

have been subject to arrest and torturea. While the commercial activities may have

led to the conduct that eventually injured Nelson, they are NOT the legal basis for the suit

c. Concurrence The claim is based on a commercial activity but this activity did not take place within the U.S.

x. Noncommercial Torts Exception - §1605(a)(5)1. No Sovereign Immunity if:

a. A non commercial tort (assault, battery, false imprisonment; BUT NOT for example tortuous interference with contractual rights)

b. Is committed by a foreign state (including an agency or instrumentality of the state)

c. Causes personal injury or damage to or loss of property d. In the United States ANDe. Which is not among the excluded actions

i. Cannot be based on a “discretionary function”ii. Cannot be among the named action-types (e.g. malicious

prosecution, abuse of process, slander)2. Letelier v. Republic of Chile

a. There is NO discretion to commit an illegal act!3. Risk v. Halvorsen

a. Facts Custody disputes regarding Mr. Risk and Norwegian wifei. Norwegian consulate violated California court order by

helping Mrs. Risk to remove the children from the US to Norway

b. Claim Mr. Risk sued the Norwegian government for conspiring to violate and violating the 1984 California Court Order

c. Holding Discretionary function appliedi. Acts were admittedly illegal, but still discretionary (i.e. issuing

travel documents and other forms of support as regular consular functions)

1. A discretionary act of public policy has immunityxi. Enforcement of Arbitral Agreements

xii. Terrorist Acts Exception – § 1605(a)(7)1. A foreign State shall NOT be immune from the jurisdiction of courts of the U>S.

or of the States in any casea. In which money damages are sought against a foreign state for

personal injury or death that was caused by an act of torture, extrajudicial killing, aircraft sabotage, hostage taking, or the provision of material support or resources

i. If such an act or provision of material support is engaged in by an official, employment, or agency, except that the court shall decline to hear a claim under this paragraph

1. (A) If the foreign state was not designated as a State sponsor of terrorism under the Export Administration Act of 1979 or the Foreign Assistance Act of 1961 at the time the act occurred; unless later so designated as a result of such act or the act is related to [The Flatow Litigation]

2. (B) Even if the foreign state is or was so designated ifa. (i) The act occurred in the foreign state

against which the claim has been brought and the claimant has not afforded the foreign state a reasonable opportunity to arbitrate the claim in accordance with accepted international rules of arbitration

3. (ii) Neither claimant nor the victim was a national of the US when the act upon which the claim is based occurred

2. Alejandre v. Republic of Cuba a. Facts Members of humanitarian organization who would locate and

provide assistance to Cuban refugees who faced life-threatening conditions as they fled Cuba

i. Cuban Air Force shot down the small civilian plains1. Killing 4 members of “brothers to the rescue”

b. Holding Courts find that each of the statutory elements are satisfied, but a default judgment is not appropriate against a foreign state, so there must be an evidentiary hearing

i. Anti-Terrorism and Effective Death Penalty Act of 1990 (AEDPA) amended FSIA to allow suits

1. No immunity available to States that have been designated as “terrorist states” by the State Department if the state commits a terrorist act or provides support to terrorist organizations

ii. 1008 Amendment First step for screening cases in and a Second step for screening cases out

1. Is the answer to EACH of the following three questions YES?

a. Are money damages sought against a foreign state for personal injury or death caused by a qualifying act?

i. In an act of torture, extrajudicial killing, aircraft sabotage, hostage taking, OR

ii. The provision of material support or resources for such an act

b. If so, is that act or the provision of resources engaged in by an official acting within the scope of his office?

c. If so, has the foreign state been designated as a state sponsor of terrorism?

2. If the answer to all three is YES then jurisdiction is proper UNLESS the answer to EITHER of the following two questions is NO

a. If the act occurred in the foreign state against which the claim has been brought, did the claimant afford the foreign state “a reasonable opportunity to arbitrate the claim?”

b. Was either the claimant or the victim a national of the US when the act upon which the claim is based occurred?

3. Main thing to look for is ways that the new law expands the possibilities of jurisdiction

a. 2008 Amendments to the FSIAi. How does 1605A differ from 1605(a)(7)

1. Replaces “shall decline to hear a claim if” with “shall hear a claim if”

a. Under the new law there is a mandatory green light for designated states, BUT not necessarily a red light for non-designated states

b. “Shall hear a claim if X is satisfied” is not the same as “Shall hear a claim ONLY if X is satisfied”

2. Expands the class of potential plaintiffsa. Includes not only nationals of the US but

also members of the armed forces, employees performing US government contracts

3. Provides a private right of action4. Defines and Expands recoverable damages

a. Specifying the possibility of punitive damages, applied retroactively

5. Defines standard of liabilitya. States, not just employees and officials

could be liablexiii. Enforcement of Judgments under FSIA

1. § 1610a. Under limited circumstances you can attach sovereign property

xiv. Siderman v. Argentina

1. Facts Jose Sideman was jailed and tortured for seven days for being Jewish after a military coup started in Argentina

2. Claim Expropriation of INOSA (his company) and torture3. Holding Sidermans are allowed to bring forth both claims within jurisdiction

of the courta. Expropriation Claim

i. Commercial Activity Exception - § 1605(a)(2) 1. The activities that form the basis for the claims are

Argentina’s continuing management of INOSA, its operations of the Hotel Gran Corona, and its receipt of profits from the company’s operations ARE CLEARLY ACTIVITIES IN WHICH A PRIVATE PARTY MIGHT ENGAGE

2. Each of the three clauses under the Commercial Activity Exception specifies a different type of nexus

a. Jurisdiction is proper if the claim is “based upon a commercial activity carried on in the US by the foreign state” (CLAUSE 1)

b. Jurisdiction is proper if the claim is “based upon an act performed in the US in connection with a commercial activity of the foreign state elsewhere” (CLAUSE 2)

i. EX State A denies a visa from the consulate in the U.S. of a businessman who would be starting a company in State A

c. Jurisdiction is proper if the claim is based on “an act outside the territory of the US in connection with a commercial activity of the foreign state elsewhere and that act causes a direct effect in the US”

3. The Sidermans claims satisfy Clause 1 and 2ii. International Takings Exception - § 1605(a)(3)

1. A foreign state shall not be immune from the jurisdiction of courts of the US or of the States in any case

a. In which rights in property taken in violation of international law are in issue and (1) that property or any property exchanged for such property is present in the US in connection with a commercial activity carried on in the US by the foreign state; or (2) that property or any property exchanged for such property is owned or operated by an agency or instrumentality of the foreign

state and that agency or instrumentality is engaged in a commercial activity in the US

2. First Clausea. Dealing with the foreign state itself and the

property or anything exchanged in the property must be present in the US

3. Second Clausea. Dealing with an agency or instrumentality of

a foreign State which is involved in a commercial activity operated within the US by the agency or instrumentality

4. In the present case the Court decides that the Taking Exceptions cannot apply to Argentine Citizens

a. Appropriation of property of Argentina’s own citizens does not violate international law

5. However, the daughter of the Sidermans is a citizen of the US and can sue because

a. A State is responsible under international law for Injury Resulting from Taking by the State of the property of a national of another state that

i. Is not for public useii. Is discriminatory OR

iii. Is not accompanied by provision for just compensation

6. Even though the property was not within the US, Sidermans daughter could bring forth the Second Clause in the Takings Exception

b. Torture Claimi. Noncommercial Torts - § 1605(a)(5)

1. The Court states that this exception does not apply in this case because the tort must take place in the US

ii. Jus Cogens Theory 1. Jus Cogens

a. International Law states that treaties in violation of Jus Cogens norms cannot be held valid

b. The Court agrees with the argument, but state that they are not writing on a clean slate because under the FSIA it has been ruled that there is NO exception for violation of Jus Cogens

iii. Existing Treaty Exception

1. This exception is very narrow and it applies when international agreements expressly conflict with the immunity provisions of the FSIA.

a. The Universal of Declaration of Human Rights is not an “international agreement” within FSIA

b. The UN Charter is a treaty of the US, but the Sidermans have been unable to point out any language in the charter regarding individual remedies or compensation for violations of its substantive rules of conduct

iv. Implied Waiver Exception - § 1605(a)(1) 1. A foreign state shall not be immune from the

jurisdiction of the courts of the US or of the states in any case

a. In which the foreign state has waived its immunity either explicitly or by implication, notwithstanding any withdrawal of the waiver which the foreign state may purport to effect except in accordance with the terms of the waiver

b. Diplomatic, Consular, and Head-of-State Immunity i. Legal Status of Embassies and Consulates

1. You are NOT supposed to take any enforcement mechanisms that interfere with the function of embassy/consulate

2. Inviolability Concepta. Host state must refrain from acting within the diplomatic premise

i. Diplomatic missions are immune from searches, seizures, attachment, execution, or any other form of enforcement jurisdiction that might interfere with the premise’s official use

b. Host state must also protect the embassy/consulate from private interference

i. BUT!! Intl’ Law cannot preempt Constitutional Principles1. It is allowed for people to demonstrate, but they

cannot do so within 500 feet of diplomatic premisesii. Personal Immunity for Diplomats and Consuls

1. The immunity does NOT cover every person traveling with a diplomatic passport

a. ONLY covers people accredited as diplomats under their Home State2. Diplomats can be WAIVED by home State

a. EX Georgian Government waived the immunity of diplomat Gueorgui Makharadze

3. Article 31 – Vienna Convention on Diplomatic Relationsa. A diplomatic agent shall enjoy immunity from the criminal jurisdiction

of the receiving State. He shall also enjoy immunity; from its civil and administrative jurisdiction, EXCEPT in the case of:

i. A real action relating to private immovable property situated in the territory of the receiving State, unless he holds it on behalf of the sending State for the purposes of the mission

ii. An action relating to succession in which the diplomatic agent is involved as executor, administrator, heir or legatee as a private person and not on behalf of the sending State

iii. An action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving State outside his official functions

4. Former Diplomats DO NOT retain immunity from being suediii. Head of State Immunity

1. United States v. Noriega a. Facts Noriega makes the argument that he was the De Facto leader

of Panama, but loses at the trial level because the U.S. never recognized him as the head of state of Panama even while he was in power

b. Holding Court decides to allow the suit to go forthi. Noriega argues that the lower court should have dismissed

the indictment against him based on head of state immunity1. The court should defer to the Executive Branch for

directiona. The FSIA does NOT address Head of State

immunity and therefore, pre-FSIA principles must apply

b. There Executive Branch’s position on Head of State Immunity falls into one of three categories

i. Explicit suggestion of Immunityii. Express Decline of Immunity

iii. No guidance on the Subjectii. In this case the Executive Branch was far from giving a

suggestion of immunity1. They were actively prosecuting Noriega and

therefore, Head of State Immunity does NOT applya. The Executive is expressly declining

Immunity for Noriega2. Former head of states get considerable less protection than the sitting head of

statesc. The Act of State Doctrine

i. Court MUST have Subject Matter Jurisdiction BEFORE IT EVEN LOOKS AT ACT OF STATE DOCTRINE!!!!!!!!

ii. Doctrine of Abstaining1. When the doctrine applies, the court will abstain from taking the case

a. Similar to Political Question Doctrine2. When you apply this doctrine you are SUSPENDING judgment and respecting

the validity of acts made by a foreign sovereign

iii. The Classic Formulation1. Undherhill v. Hernandez

a. Every sovereign state is bound to respect the independence of every other sovereign state, and the courts of one country will NOT sit in judgment on the acts of the government of another done within its own territory

b. The acts complained of were acts of a military commander representing the authority of the revolutionary party as a government which afterwards succeeded and was recognized by the US

iv. Banco Nacional de Cuba v. Sabbatino 1. Facts Cuba adopted Law No. 851 which denounced US action and authorized

the Cuban leaders to expropriate any property or enterprise in which American nationals had interest

a. Estate CAV had sent sugar to a Broker (Whit) who had the moneyi. Whit entered into a second contract with an instrumentality

of the Cuban government (Banco Nacional)1. Whit refused to send payment to Banco Nacional

and instead turned the money over to Estate CAV (Sabbatino)

2. Holding Banco Nacional allowed to bring the suita. The Act of State Doctrine does NOT allow US Courts to take this suit

i. The expropriation has to be considered valid and therefore, the government of Cuba prevails

b. The court should not be involved in assessing the legality of a foreign government’s act

3. RULE – SABBATINO FORMULATIONa. The Judicial Branch will NOT examine the validity of a taking or

property within its own territory by a foreign sovereign government, extant and recognized by this country at the time of suit, in the absence of a treaty or other unambiguous agreement regarding controlling legal principles, even if the complaint alleges that the taking violates customary international law

1. Foreign Sovereign Government must be extant and recognized by the US at the time of the suit

2. There must be no treaty or other agreements controlling the legal principles

b. Doctrine has Constitutional underpinnings because the Court cites Separation of Powers

i. Executive Branch has clear authority to override the Act of State Doctrine due to the power over foreign relations

ii. Congress also has the power to override the Act of State Doctrine

v. Six Factors in the Act of State Doctrine Analysis1. Territoriality Requirement

a. The act/behavior of the sovereign country must be WITHIN the acting government’s territory

2. Diplomatic Requirementa. Government must be “extant and recognized”

i. The foreign government must be in existence and recognized by the U.S. at the time of the suit

1. The reason for this requirement is that the doctrine could not compromise relations that are not in existence

3. Unclear Law Considerationa. There has to be unclear law or unclear legal standards before the Act

of State Doctrine can applyi. If the law is unsettled in a way, then the Act of State Doctrine

is more likely to apply1. E.g. limitations on a state’s power to expropriate the

property of aliensb. A clear international standard can OVERRIDE the Act of State

Doctrinei. Some think that ONLY A TREATY can provide a clear enough

international standard to override the Act of State Doctrineii. Agreement against using customary international law as a

clear international standard has been REJECTED1. Courts BROAD reading to the term “agreement”

4. Congressional Overridea. Common Law bends to the will of the Legislature

i. The Second Hickenlooper Amendment and the Federal Arbitration Act

1. Examples of Congress overriding the Act of State Doctrine and directing the Judiciary to legal standards in order to resolve disputes

5. Executive Suggestiona. Not dispositive, BUT taken into accountb. First National City Bank v. Banco Nacional de Cuba

i. Facts Executive sent a letter to the judiciary stating that the Act of State Doctrine shouldn’t be apply to this case

1. Expropriation of American assets in Cuba made a US Bank sell the collateral securing the loan and made some profit

ii. Holding The Bernstein Exception giving the judiciary a green light to determine this case would mean that the counterclaim could be heard

iii. Dissent This case is closer to Sabbatino and the Act of State Doctrine should apply

1. The Executive Branch’s green light should not be dispositive

c. What is the status of Executive Suggestions (i.e. Bernstein Exception) as a matter of law?

i. The Courts will get Executive Suggestion into account

1. However, unlike the power of Congress to override the Act of State Doctrine, all you can say is that the Executive Suggestion is relevant BUT NOT dispositive

6. Public Act Requirementa. The public act must be ratified and owned by the sovereign state

i. In Dunhill, SCOTUS refused to apply the Act of State Doctrine in the absence of a showing that “the conduct in question was the public act of those with authority to exercise sovereign powers and was entitled to respect in our courts.”

1. No statute, decree, order, or resolution of the Cuban government itself was offered in evidence indicating that Cuba had repudiated its obligations in general or any class thereof or that it had

b. W.S. Kirkpatrick v. Environmental Tectonics i. Facts American company wants to win over a contract to

build an aeromedical center.1. Kirkpatrick bribes to gain the contract and

Environmental learns of thisa. Environmental sues in the U.S. for civil

remediesii. Holding Act of State Doctrine does not apply

1. The taking of bribes is NOT an Act of State because it is simply a contract with the State

2. Nothing in the present suit requires the court to declare invalid, and thus ineffective as “a rule of decision for the courts of this country,” the official act of a sovereign act

a. Taking a bribe is NOT a public act and it has not been ratified by the Nigerian government

3. Nobody claim that the act by the Nigerian government was legal or valid, therefore, the legality is NOT at issue

vi. Is there a Commercial Activity Exception?1. There is a split when it comes to this (SCOTUS has never embraced it)

a. However, Act of State Doctrine has been triggered even by commercial acts (i.e. OPEC)

2. Argument Act of State Doctrine does NOT apply OR is at its weakness when a commercial act is involved

vii. The lower courts have been applying the Act of State Doctrines even though SCOTUS has never applied it in 45 years (Sabbatino)

1. What this shows is that the doctrine is useful and it will not be dropped all together

viii. Mere prospect of “embarrassment” is NOT enough to invoke the Act of State Doctrineix. Sison v. Marcos

1. Facts Jose Maria Sison was strapped to a table and tortured in order to teach officers how to do their jobs in the Philippines

a. He sued the former head of state Marcos who was living in Honolulu for human rights violations

2. Holding The AOSD has little or no applicability to the situation of a deposed ruler from whom his former domain seeks accounting

a. Marcos is a private citizen residing in the USi. Neither the US government not the Government of the

Philippines objects to the judicial resolution of claimsd. Distinguishing FSIA from Act of State Doctrine (AOSD)

i. Beneficiaries1. Only states and their agencies or instrumentalities are covered by FSI, but even

private parties may invoke Act of State Doctrine (AOSD) in principleii. Effects

1. FSI is a matter of jurisdiction. Certain kinds of parties are NOT within the subject-matter jurisdiction or the personal jurisdiction of the court

2. The AOSD is a matter of justiciability. The court retains jurisdiction even after the doctrine applies and resolves an issue.

iii. Sources1. The FSIA is controlled by the statute. Secondarily you will look at the decisions

interpreting the statute2. The AOSD is a creature of Federal Common Law and one will have to look at the

prior casesiv. Exceptions

1. FSIA is clearly subject to a commercial activity exception. Dunhill suggests that the AOSD is NOT necessarily limited in the same way. (SCOTUS split 4-4 on this)

2. FSIA can be waived!!! Can the AOSD or any other separation of powers concern be waived by one of the parties?

a. The waiver argument under the AOSD might not be able to be waivedv. Executive Suggestions

1. They are given very different weights in both settings!a. FSIA was passed to get the courts to be “Decider” in matters of

Sovereign Immunityb. Under the AOSD it is clear that the Executive still has a role to play

Applying the Rules in Critical Settings

I. The International Law Governing Resort to Forcea. Generally

i. Contribution of the UN to this body of law is in fact a relative failureii. Role of International Organizations

1. IO’s can contribute to the creation of Intl’ Law without creating the law themselves

a. EX By offering an incubator for soft law to evolve and emerge as binding law

iii. International Legal Limitations on the Use of Force

1. Kellogg-Briand Pacta. Established in between World Wars

i. Condemns recourse to war for the solution of international controversies and renounces it as an instrument of national policy in relations of States with one another

b. Solution and Settlement ONLY by pacific means2. Nuremberg Trials - Crimes against Peace and Aggression – Article 6

a. Crimes Against Peacei. The planning, preparation, initiation or waging of a war of

aggression or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing

b. War Crimesa. Crimes Against Humanity

3. Rome Statutea. Aggression

i. The planning, preparation, initiation, or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the UN

b. Article 2i. Definition of Act of Aggression

1. The used 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

ii. Acts of Aggression 1. Invasion or attack of armed forces of a state of

another state, any military occupation, annexation by use of force, blockade of ports

4. UN Charter- Article 2a. (3) - All members shall settle their international disputes by peaceful

means in such a manner that international peace and security and justice are not in danger

b. (4) – All members shall refrain in their international relations from the THREAT or USE OF FORCE against the territorial integrity or political independence of any state, or in any manner inconsistent with the purposes of the UN

i. Use of force from one state against another is illegitimatec. (7) – Nothing contained in the present Charter shall authorize the UN

to intervene in matters which are essential within the domestic jurisdiction of any state or shall require Members to submit such matters to settlement under the present Charter, but his principle shall not prejudice the application of the UN Charter

i. Right of States to be left alone

1. However, this zone of discretion is NOT inert and things are constantly evolving

a. EX The right of police power has changed so that states cannot torture own citizens

5. JUS AD BELLUM – Restrictions on Resort to Forcea. Self-Defense – Article 51

i. Nothing in the present Charter shall impair the inherent right of individual or collective self defense if an armed attack occurs against a Member of the UN, until the Security Council has taken measures necessary to maintain international peace and security

1. Intl’ Law does NOT require a State to disappear or stand still while others are violating its rights

ii. ELEMENTS 1. UNILATERAL RIGHT

a. A State requires NO approval from any external body before it may avail itself of its sovereign right to defend itself

2. State may JOIN OTHERS for Self-Defense means, such as partners in security alliances

3. Right of Self-Defense is an INTERIM RESPONSEa. States entitled to use force ONLY until the

“collective security machinery” has responded satisfactorily to the initiation of proceedings

4. Limited to situations in which ARMED ATTACK has occurred

iii. ANTICIPATORY SELF-DEFENSE1. Must show that the threat is “instant,

overwhelming, leaving no choice of means, and no moment of deliberation” (Caroline)

2. Oil Platform Case a. Court said the requirement that measures

avowedly in self-defense must have been necessary for that purpose is strict and objective, leaving NO room for any measure of discretion.

3. Israeli-Wall Case a. Court said that the right of self-defense

DOES NOT kick in when it is in response to Non-State Actors

b. Humanitarian Intervention – (Questioned?) (R2P?)i. It MAY be OK for States to intervene with the use of force for

the purpose of avoiding or stopping a humanitarian catastrophe

ii. Legal Problem

1. It seems ENTIRELY outside the UN Charter2. Nothing in the Human Rights Treaties mentions

Humanitarian Interventioniii. Systematic and Theoretical Argument for Humanitarian

Intervention1. Natural Law States exist solely to protect the

rights of their citizensa. When States cease to protect the rights of

its citizens THEN it ceased to be a legitimate State and can be subject to violations of Intl’ Law

i. You have to earn the right to be left alone BUT you forfeit it when you stop caring and protecting your own people

iv. Humanitarian Intervention has been pre-textual in the past! (BIG PROBLEM)

1. No State could really be trusted to have the clean motive that humanitarian intervention required

a. Mixed Motives!!v. NOTE***

1. Humanitarian Intervention gets more respect after the intervention takes place!!

c. Enforcement Measures – UN Charter, Chapter 7i. Article 39

1. The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security

ii. Article 411. The Security Council may decide what measures not

involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the members of the UN to apply such measures.

2. These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication such as the severance of diplomatic relations.

iii. Article 421. Should the Security Council consider that measures

provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary

to maintain or restore international peace and security.

2. Such action may include demonstrations, blockade, and other operation by air, sea, or land forces of members of the UN

iv. Under what provision(s) of the UN Charter is a decision of the Security Council binding?

1. Article 25a. Members of the UN agree to accept and

carry out the decisions of the Security Council in accordance with the present Charter

2. Article 48(1)a. The action required to carry out the

decisions of the Security Council for the maintenance of international peace and security shall be taken by all the members of the UN or by some of them, as the Security Council may determine

3. Article 48(2)a. Such decisions shall be carried out by the

Members of the UN directly and through their action in the appropriate international agencies of which they are members

4. Article 49a. Members of the UN shall join in affording

mutual assistance in carrying out the measures decided upon by the Security Council

d. Regional Arrangements – UN Charter, Article 52i. Article 52(1)

1. Nothing in the present charter precludes the existence of regional arrangements or agencies for dealing with such matters relating to the maintenance of international peace and security as are appropriate for regional action, provided that such arrangements or agencies and their activities are consistent with the purposes and principles of the UN

ii. Article 52(2)1. Security Council shall, where appropriate, utilize

such regional arrangements or agencies for enforcement under its authority. But NO ENFORCEMENT action shall be taken under regional arrangements or by regional agencies without the authorization of the Security Council

iii. NATO claims they are not subject to this1. They claim that they existed prior to the charter and

they do not need the consent of the Security Council in order to start enforcement mechanisms

6. The Kosovo Report a. Facts Early 1990’s ethnic Albanians in Kosovo stepped up a

campaign of attacks against Serbians in their effort to split off from Serbia

i. March 24, 1999 Bombings attack by NATO1. To stop the killing in Kosovo and to put an end to the

Humanitarian Situation taking place in Kosovob. Issue Was this attack lawful?

i. NATO cannot claim self-defense in Kosovo because NATO was not being attacked

ii. Chapter VII will not work because there was no explicit Security Council agreement for the use of force

1. Russia, China, and Libya were blocking Security Council action and therefore, the intervention could not be pursuant to Chapter VII when it began

iii. Chapter VIII will not work because NATO considers itself outside of the UN Charter

c. The Security Council found that the NATO intervention in Kosovo was illegal but legitimate and morally right

i. It did not gain approval from the UN Security Council but it was justified because all diplomatic avenues had been exhausted and it liberated the majority of population in Kosovo that was under oppression by Serbians

d. Interpretations of Kosovo Decisioniv. Broad

1. Coalition of States may intervene in any other State when it anticipates the widespread deprivation of human rights

a. It cannot be squared with the structure and purpose of the UN, which gave the Security Council a monopoly on the legitimate use of force

v. Narrow1. An intervention may proceed without prior approval

of the Security Council whena. The Security Council finds a threat to peaseb. Target government refuses to abide by the

demands of the Security Council (Target Government Stonewalls)

c. Some collective intergovernmental organization intervenes to prevent a humanitarian catastrophe (IGO Acts)

d. Those states use force that is necessary and proportionate (Proper Amount of Force)

e. Security Council does not condemn the intervention (Acquiescence)

7. Legality of War in Iraq a. “Self-Defense” of Kuwait

i. U.S. in going into Iraq in 2003 has to maintain the capacity to respond to a Material Breach of the Cease-Fire resolutions from the First Gulf War

1. Problem The Security Council has occupied the field!

b. “Self-Defense” of the United Statesi. After the 9/11 attacks the United States should be able to go

into Iraq and use force1. Problem Must show that the threat is “instant,

overwhelming, leaving no choice of means, and no moment for deliberation” (Caroline Incident in 1842)

2. Problem Pre-emptive self-defense (“The Bush Doctrine”) is not accepted at international law

e. Humanitarian Intervention (R2P?)i. At the time of the invasion, Saddam Hussein was arguably the

only man in the world who had probably committed every crime within the jurisdiction of the ICJ

1. This would be simply a pre-textual argument for the use of force and it would not work

a. Problem The legality of humanitarian intervention is controversial

i. A fortiori the legitimacy of intervening for the purpose of changing governments is doubtful.

ii. Humanitarian intervention is generally limited to humanitarian “triggers” and does not extend to political change generally

b. Problem Humanitarian Intervention is generally linked to protecting the intervening state’s nationals (even after Kosovo??)

c. Problem Slippery Slope: Why not have regime change wherever human rights are violated

ii. No reason why Humanitarian Intervention would be an appropriate basis for action in the present circumstances

f. Chapter VII of the UN Charteri. “Loaded Gun” Theory (Revival Argument)

1. Resolution 678 (1990)

a. Authorized member states to use “all necessary means” to restore peace and security after Iraq’s invasion of Kuwait

2. Resolution 687 (1991)a. Adopted after Iraq was expelled from

Kuwait, imposed cease-fire obligations on Iraq, including the obligation to disarm

3. The Security Council repeatedly declared Iraq in material breach (Nov. 2002)

4. The continuing material breach of the conditions laid down in Res. 687 revived the authorization to use force under Res. 678

ii. Responses to the “Loaded Gun” Theory1. Resolution 678 authorizing force turned on Iraq non-

compliance with resolutions existing as of that date2. Resolution 687 created a permanent cease-fire that

terminated Resolution 678 authority and imposed alternative remedy for the enforcement of weapons inspections

iii. Even if a material breach of Resolution 687 could resurrect the authorization to use of force, it is (1) for the UN to determine that the breach warrants the use of force and (2) limited to enforcement of Resolution 687, not “regime change”

b. The “Responsibility to Protect” and the Legality of the War in Libya i. RESPONSIBILITY TO PROTECT

1. Argumenta. States themselves individually have the first primary responsibility to

assure that its citizen’s human rights are protected.i. If the State fails in this, then it is up to the International

Community to step up and put an end to violationsb. States have to earn their right to sovereignty and to be left alone

i. They do this by protecting their citizen’s rights2. ELEMENTS (Must Exist At the Time the Intervention Begins!)

a. Just Cause Thresholdi. Are there exceptional circumstances?

1. Two ways in which this element can be satisfieda. Large-Scale loss of life , actual or

anticipated, with genocidal intent or not, which is the product of deliberate state action, state neglect, inability to act, or state failure.

b. Large-Scale Ethnic Cleansing , actual or anticipated, whether carried out by killing, forced expulsion, acts of terror, or rape

b. Right Intention

i. The primary purpose of the intervention must be to stop human suffering

c. Last Resorti. All reasonable non-military options should be exhausted

d. Proportional Meansi. Scale of military intervention, duration, intensity, must be

proportional to the threat1. Excessive military force relative to the threat will

NOT be justifiede. Reasonable Prospects of Successf. Right Authority

i. The Security Council (or some other legitimate body) must authorize the use of force

3. Why is R2P an improvement in the concept of Humanitarian Intervention?a. Legal Framework

i. Establishes elements that must be satisfied in order for intervention

b. Article 2(7)i. State is left alone UNTIL it cannot protect its own citizens

c. Article 2(4)i. You do not refrain in the circumstances where the

government fails to actd. Three MAIN Reasons

i. Implies evaluating the issues from the point of view of those needing support, rather than those who may be considering intervention

ii. Implies that the primary responsibility rests with the state concerned

iii. It is an umbrella concept that includes the Responsibility to Prevent and the Responsibility to Rebuild

e. UN Outcome Documenti. We (head of states) are prepared to take collective action, in

a timely and decisive manner, through the Security Council, in accordance with the UN Charter, including Chapter VII, on a case by case basis and in cooperation with relevant regional organizations as appropriate, should peaceful means be inadequate and national authorities manifestly failing to protect their populations from genocide, war crimes, ethnic cleansing, and crimes against humanity and its implications, bearing in mind the principles of the UN Charter and International Law

II. International Property Lawa. The International Regime Governing the Seas

i. 1982 Law of the Sea Treaty1. US has not ratified this treaty but has stated that most of it is customary

international law anyway

a. Reason they did not ratify it was the “deep sea bed”i. US resisted the central planning aspect of “The Authority”

ii. Zones of Jurisdiction in the Ocean1. Internal Waters (Ports, Harbors, Rivers, Lakes, Canals)

a. State sovereignty is as plenary as it is in land territory2. Territorial Seas (Expanded from 3 miles to 12 miles)

a. RULE!i. A coastal state CANNOT interfere with innocent passage in its

territorial waters!1. War ships are capable of innocent passage!

a. So long as they don’t have hostile intent at the time of the passage

b. Corfu Channel Case i. Facts UK sues Albania for the damage of ships and Albania

claimed that UK was not engaged in innocent passage1. As long as UK was not engaged in innocent passage,

then Albania was not to be held liablea. UK ships were in military formation

ii. Holding Sending the war ships through the channel did not violate the sovereignty of Albania

1. What is innocent passage?a. Passage that is NOT prejudicial to the

peace, good order, or security of the coastal states

2. UK had not violated the sovereignty of Albania by sending the ships to the passage

3. The court stated that this passage was a “class of innocent highways to which passage cannot be prohibited by a coastal state at times of peace” War ships are capable of innocent passage in principle

4. Operation Retaila. Is innocent passage for the Brits to have

ships in mine sweeping operations after?i. NO IT IS NOT!

3. Contiguous Zone (Band of Ocean between the 12 mile territorial sea and the High Seas)

a. Coastal State has intermediate sovereignty!i. Less power than in the territorial seas and more power than

in the high seasb. Article 33 – Law of the Sea Treaty

i. Coastal state can exercise the control necessary1. To prevent infringement of its customs, fiscal,

immigration or sanitary laws and regulations within its territory or territorial sea

c. The contiguous zone CANNOT extend beyond 24 nautical miles from the baselines from which the breadth of the territorial sea is measured

4. Exclusive Economic Zone (Can extend up to 200 nautical miles off the baseline)a. Gives coastal rights over the living and non-living resourcesb. Truman Proclamation

i. Reserve the shelf resources and the fish stocks in the conservation zone to the United States

ii. President Truman claims complete sovereignty in this areaiii. Was this proclamation lawful at the time?

1. Terra Nullius Land Belonging to No Onea. First to occupy land belonging to no one

could claim it2. Other States made similar claims which were more

aggressivec. EEZ’s can be claimed around islands!

5. High Seasa. Freedoms Prevail!! NOT State sovereignty!b. Restatement

i. High Seas are opened and free to ALL Statesii. Private vessels are not subject to interference in the High

Seas, but they may be boarded with the permission of the flagged state

1. Exceptionsa. Rest. 3rd of US Foreign Relations Law

i. Piracyii. Slave Trading

iii. Pirate Broadcastingb. Exception in War-Time for “approach and

visit”c. Exception for ad hoc bilateral agreements

i. Many countries in Central and South America have entered into these agreements with the U.S. to allow them to interdict ships to see if they are carrying drugs

c. Limitations to the High Seas – Law of the Sea Treaty i. Article 88

1. Requirement that the High Seas be reserved for peaceful purposes

ii. Article 3011. In exercising their rights, States must refrain from

the threat or use of force against the “territorial integrity or political independence of any state”

iii. Contemporary Problems in the High Seas Regime1. Haitian Interdiction Program

a. Does the US interdiction program violate the law of the high seas by stopping Haitian vessels in international waters?

i. States must generally refrain from taking any action which unreasonably interferes with the free navigation on the high seas by nationals of other states

2. Limits on Private Actiona. Piracyb. Slave Tradingc. Pirate Broadcasting

i. Idea that you don’t want States broadcasting into other States

3. Freedom of Navigation Exercises a. Gulf of Sidra – Libya (“Line of Death”)

i. US used to send vessels and planes into the line of death zoneii. Recognized territorial sea with respect to coastline so that

there was no implication of acquiescenceb. Arguments and Counterarguments for Legality

i. These acts violate the Law of the Sea Treaty1. Article 88 High seas shall be reserved for peaceful

purposesii. Article 301 In exercising rights, States must refrain from

the threat or use of force against the “territorial integrity of political independence of any state”

1. However, “territorial integrity” does not mean that every claim that you make with respect to territory is respected/legal

4. Proliferation Security Initiative (PSI) (2003-Present)a. US-led multilateral effort to interdict shipments of Weapons of Mass

Destruction (WMD), their delivery systems, and related materials, including on the high seas

i. Concerned with existential danger of WMDs if they were to fall into terrorist hands

b. Paris Principles of September 2003 Principles for interdiction, in response to high profile incidents

i. So-San Incident 1. N. Korea ship, cargo listed as cement, was carrying

WMD componentsa. Yemen officials stated that they had

purchased the components and Spanish officials allowed them to proceed

2. US Nothing under International Law prohibits Yemen from accepting missiles from North Korea

a. Stopping the vessel was fine under International law, but seizing the cargo was a different matter

3. Release of So-San Ship shows depth of commitment to regime of high seas protection including the legal protection for the international mobility of vessels

c. PSI has framed the negotiation of numerous bilateral consent treaties with the leading ship-registry states, under which each state recognizes the right of the other to interdict ships sailing under its flag on the high seas if they are suspected of transporting WMD

i. The right can normally be exercised only if a request for authorization is first made to the flag state

1. But the treaties also stipulate that the authorization may be presumed if such request is made and two hours pass without a response

ii. States can get around the prohibition by getting the consent of flag state

1. Have to make request first and authorization can be presumed if two hours shall pass without response

d. No treaties stipulate what a State can do with WMD if find on boardi. Interdicting State NOT authorized to confiscate it

vi. Dispute Settlements1. Dispute settlement handled by the will of the parties.

a. The parties may select any method of settlement they wish, including arbitration or ICJ Settlement

i. If the parties fail to agree, the dispute may be settled only by arbitration

2. There are special rules of settlement in three distinct casesa. When the dispute is related to a state’s EEZb. When the dispute is related to boundariesc. When the dispute is related to seabed mining

b. The International Regime Governing Airspace and Outer Space i. Air Law

1. A landowner owns the airspace above her land “to the skies”2. The Chicago Convention of 1944

a. Recognized complete and exclusive sovereignty of a State in the airspace above its territory

i. Subject to proportionality and not deadly force when it comes to civilian airliners

b. But there are treaty-based limitations on this complete and exclusive sovereignty, including the traditional “five freedoms of air” (There are now 9)

i. These “freedoms of air” can be seen as “easements”3. How far does the principle of “complete and exclusive” sovereignty go?

a. Downing of KAL 007 Is the destruction legal?i. State Practice Round 1 (Acknowledgement and

Compensation)1. Customary International Law does not allow a

commercial passenger carrier to be shot down!2. 1954 China shot down a Café Pacific airline carrier

from Bangkok to Hong Kong

a. Ultimately China acknowledged responsibility and willingness to consider pay of compensation to victim’s families

3. 1955 Bulgaria shot down an El Al airline carriera. Bulgaria acknowledged responsibility and to

pay compensation to victim’s families4. 1973 Israel shot down Libyan Airlines Carrier

a. Israel claimed that the airspace that was invading was military sensitive and that there had been reports of a terrorist attack

i. However, Israel acknowledged fault and the payment of compensation

5. THIS CASEa. Treaty based argument is not enough of a

defense!!ii. State Practice Round 2 (Stone-walling by the USSR)

1. History with the USSR has had an aggressive response to aircrafts in its air space.

2. 1952 Swedish Air Linesa. USSR shot down the plane and issued a

declaration “if a foreign aircraft violates a state frontier and penetrates the territory of a sovereign they will be forced to land in their territory and if not it can be shot down”

3. 1978 Korean Airlinea. USSR shot down the plane killing 2 and

injuring 11i. Pilot was able to land the plane

successfully over a frozen lake4. THIS CASE

a. Argument USSR has opted out of the Customary International Law that you cannot shot commercial airlines at all by opting for a more aggressive custom

iii. Is the USSR a persistent objector to the Customary Norm against shooting down civil airliners?

1. USSR never asserted a legal right to open fire for no reason against commercial airliners

a. However, they have always said that they have shot down planes that they considered as a threat and that refuse to land once they invade airspace

2. Defense by USSR would fail for the following reasonsa. It was not put in legal terms!

b. USSR cannot opt out because shooting down civilian airplanes is as good a jus cogens norm and because of the concept of proportionality

i. The Genetic Marker of a jus cogens norm is that NO OPTING OUT IS POSSIBLE

ii. Distinction Between Air Law and Outer Space1. “Complete and Exclusive” sovereignty expires where the atmosphere ends

a. Outer Space treaties block the establishment of sovereignty in out space

i. Air space is within a state’s “complete and exclusive sovereignty” and outer space is exactly the opposite (res communis)

2. Where does Outer Space begins?a. Customary Definition

i. No formal objection has been made by any state against the orbiting of satellites over its territory! (Acquiescence)

ii. Satellites orbit in outer space, because NO STATE has protested satellite over-flights, implying that there are no sovereign claims there.

1. Bogota Declaration of 1976 (ONE POSSIBLE EXCEPTION)

a. Devices to be placed in a fixed position on an equatorial State’s segment of the geostationary orbit shall require previous and express authorization on the part of the State concerned, and the operation of the device shall be governed by the national law of that State”

b. Geostationary orbit is a LIMITED NATURAL RESOURCE

c. Is declaration legal under Outer Space Treaty (OST)? (Arguments by Declarants)

i. Not all the parties to the Bogota Declaration are parties to the OST

ii. OST was drawn up by and for the benefit of the space powers (similar to adhesion contract)

iii. The applicability of the OST depends on where space begins, an ambiguity the space powers intentionally left unresolved

d. Are Bogota Declarants persistent or subsequent objectors?

i. The assertion of sovereignty came AFTER and not DURING the emergency of the customary norm

ii. There is no patter of acquiescence for this objection

2. Most powers have stated that the legal status of the Bogota Declaration is nonexistent

a. As a political matter this declaration has generated gravitational force that is not to be ignored

iii. Outer Space and The COMMON HERITAGE PRINCIPLE1. The outer space areas that are over the high seas2. Constellation of Principles

a. The resources within the heritage should be used for exclusively peaceful purposes

b. The resources within the heritage should be sharedc. The technology for exploiting the resources should be sharedd. An international authority should be created as a trustee for the

heritage3. U.S. as persistent objector!! Not a subsequent one!

a. The U.S. view was that the first one to exploit it would be the first one to get there

i. As the Common Heritage Principal changed and emerged, the U.S. started to object the new conception as law

b. To be a persistent objector the objection must be founded on LAW not FACT!

c. International Environmental Law i. “Dense Regulatory Environment” at the International Level

1. Regional and global treaties on transfrontier pollution from a variety of sources2. Treaties on the conservation and protection of certain species, certain

ecosystems, biodiversity, and the global climate3. Treaty based regimes for the disposal of certain pollutants (e.g. toxic wastes,

radioactive materials), as well as guidelines for the emission of other pollutants (e.g. CFCs, Sulfur Oxides)

4. Agreements making environmental warfare an international crime against humanity

5. Provisions for the exchange of critical information in the event of accidental pollution

6. Regional efforts to harmonize domestic laws and policies around an international standard

7. Treaties governing trade issues (e.g. trade in products from endangered species)

ii. Stockholm Declaration (1972)1. Lex Ferenda (“Soft Law”) to Lex Lata (Established Law)

a. While pre-normative acts DO NOT create rights or obligations on which reliance may be placed before an international court of justice

or of arbitration, and failure to live up to them does not give rise to international responsibility, they do not create expectations and exert on the conduct of states and influence that in certain cases may be greater than that of rules of treaty or customary law.

2. States have the sovereign right to exploit their own resources pursuant to their own environmental policies, and the responsibility to ensure that activities within their jurisdiction or control DO NOT CAUSE DAMAGE TO THE ENVIRONMENT OF OTHER STATES OR AREAS BEYOND THE LIMITS OF NATIONAL JURISDICTION

iii. Restatement (Third) of Foreign Relations Law1. Section 601: State Obligations with Respect to the Environment of Other States

and the Common Environmenta. A state is obligated to take such measures as may be necessary, to the

extent practicable under the circumstances, to ensure that activities within its jurisdiction or control

i. Conform to generally accepted international rules and standards for the prevention, reduction, and control of injury to the environment of another state or of areas beyond the limits of national jurisdiction AND

ii. Are conducted so as not to cause significant injury to the environment of another state or of areas beyond the limits of national jurisdiction