PIL OUTLINE3

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Public International Law: Keitner, Fall 2011Brittany Stonesifer

I. Sources and Methods of International Law

1. Nature and History:

a. Natural v. positive law:

Argue both sides of the question does the slave trade violateinternational law in early 1800s when the northern US states

and the UK had outlawed slavery but other countries continues

to engage in the slave trade

b. History: Creation and structure of League of Nations and UN, PCIJ, ICJ,

GA, SC

International law used to be law of nations, but hasdiversified because of incorporation of organizations andindividuals

Most growth in international law has come after periods ofintense global conflict

1. Differentiation: 2. Codification: 3. Institutionalization: 4. Globalization:

c. Nature specificity, enforceability, role of CONSENT

d. Theory:

Realists Liberals International relations theory Institutionalists

2. Sources

ICJ Article 38:o A. Treaties:

International conventions, whether general or particular,

establishing rules expressly recognized by contesting states

o B. Customary International Law (CIL):International custom, as evidence of general practice accepted

as law

o C. General PrinciplesGeneral principles of law recognized by civilized nations

o D. Subsidiary Sources:


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Judicial decisions and the teachings of the most highly qualified

publicist on the various nations as a subsidiary means for the

determination of the rules of law

a. Treaties

1. Treaty nomenclature:o No legal difference between various kinds of international

instruments based on name; treaties, pacts, protocols,

conventions, covenants and declarations are all the same

o Bilateral treaties: Between two nations

o Multilateral treaties: Between three or more nations

o Vienna Convention on the Law of Treaties (VCLT) of 1969:An international agreement is one concluded between States

in written form and governed by international law; US not a

party but sees some provisions as CIL

A. Between states: VCLT governs only nations, notinternational orgs, individuals or companies (governed

by other agreements or CIL)

B. In written form: VCLT governs only writtenagreements, but other agreements may still be

enforceable:

Eastern Greenland(PCIJ; 1933): enforced oralpromise to renounce Norw. claims to Greenland

Unilateral declarations can also be enforceable

K law: Key factor in determining binding andenforceable character is whether State in tended

to create a legal obligation or induce reliance

Gentlemans agreements/ aspirational texts: Notintended to be binding, but may eventually be

state practice that could contribute to CIL

C. Governed by international law: controlled by intent 2. Treaties and CIL:

o Jus tertii: treaties can never bind non-parties or takesomething away from non-parties that they are entitled to

under CIL (though they may confer benefits upon them, which

may potentially later claim reliance through possible treatyarbitration mechanism), with some exceptions:

Objective regimes: treaties that bind non-parties; ICJfound UN Charter to create rights and duties for non-

members; some environmental regimes

o Codification of custom: North Sea Continental ShelfGerm. v. Den./Neth. (ICJ;

1969): Germ. refused to sign equidistant rule in treaty;


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treaty was progressive development (new law) not

codification of custom

o Treaties and CIL are co-equal sources of law; treaties can bestate practice and help for CIL or could violate and circumvent

certain kinds of CIL (exceptjus cogens)

3. Process of treaty-making:o VCLT articulates rules; must have capacity to enter into

agreements (see subjects of international law):

A. Negotiation B. Drafting C. Signature

Authority/ agency becomes important becausesome treaties are legally binding at moment of

signature

D. Ratification Required for most international agreements State makes clear intent to be bound Ex: U.S. treaties must be signed by President and

ratified by 2/3 of Senate

VCLT Art. 18: Between signature andratification, States must not act in a way to defeat

the object and purpose of the treatyunless they

make clear their intent not to ratify the treaty

E. Termination May generally withdraw as a signatory (before

ratification); ex: US with Rome Statute

Some treaties (ICCPR) says no party (post-ratification) is allowed

o Reservations: Attempts by a State to unilaterally change thelegal effect of some part of the treaty

Only applicable to multilateraltreaties (reservationsto bilateral treaty would be rejection and counter-offer)

Reservations to the Genocide ConventionAdvisoryOpinion (ICJ; 1951): Reservations must not be counter

to the object and purpose of the treaty

What defines a reservation? VCLT Art. 19 & 20: Reservation is anything that

purports to change the legal effect of a treaty;declarations and interpretive statements at

ratification are not reservations

Treaties themselves often contain parametersfor reservations, sometimes barring them

entirely

States may object to another nations reservation 4. Application and interpretation:


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o Basic assumptions: A. International agreements generally are only

proscriptive; treaty must specify to be retroactive

B. Applied throughout territorial sovereignty of theState party unless otherwise specified

o Treaty interpretation subject to CIL: Silence may meanacceptance of a prevailing interpretationo Methods of treaty interpretation:

A. Textualism: Focuses on the words in the treaty and uses

cross reading of different provisions to resolve

ambiguity

VCLT Art. 31: Interpret in light of ordinarymeaning in light of prevailing international law

at the time of drafting (Bankovic v. Begium,

ECHR, 2002)

B. Intentionalism: Intent of drafters, including travaux

preparatoires (negotiating history) is disfavored,

largely because of time between signature and

ratification

VCLT relegates to secondary role only used whentext is ambiguous or obscure

When ambiguous, a treaty may be interpretedcontrary to the interests of the drafting state

(esp. when unequal negotiation)

C. Teleological : Interprets to give full meaning to fundamental

purpose of treaty

Captures VCLTs object and purpose goal ICJ (1950) rejected notion of maximum

effectiveness (construing treaty so as to give it

fullest effect)

5. Amendment, invalidity and termination:o A. Amendment:

Generally done by agreement of parties Treaty may contain procedures

Very commono B. Modification:

Some but not all parties agree to material change VCLT Art. 41: so long as treaty does not bar

modification, States can give notice of modification,

provided change does not derogate from rights of other

parties and does not affect an essential provision

o C. Invalidity


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Defects in treaty (presumed not to contain mistakes): Contrary to fundamental domestic constitutional

law

Error Fraud Corruption Coercion

If one provision invalid, rest of treaty may continue State may lose right to claim in validity f acquiesced in

operation over sufficient time

o D. Termination (unilateral): May terminate if another party has breached

obligations

CIL and VCLT Art. 60: Only for materialbreachessential to the accomplishmentof the object or

purpose of the treaty

Changed circumstances: Must fundamentally chanceconditions which led to conclusion of treaty

VCLT Art. 62: Seeks to limit use of changed circ.doctrine:

o i. Change must be fundamentalo ii. Unforeseen by drafterso iii. Current circumstances must have been

essential basis of consent to be bound

o iv. New circumstances must radicallytransform obligation for party seeking

termination

o v. Obligations are yet to be performed War: Matter of CIL; VCLT deliberately silent

Outbreak of hostilities only suspends thoseobligations the performance of which is

incompatible with a state of conflict between the

countries

Certain kinds of treaties (humanitarian) cannotbe terminated by war

b. Customary International Law

Required elements:o 1. General state practice:

Objective component Need not be universal, but should reflect wide

acceptance

Nicar. v. US(ICJ; 1986): Conduct of statesinconsistent with general practice should be


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treated as breaches of the rule not as an

indication of a new rule

Rules change by new state practice; enough statesbreaking the old rules or actively resisting the

formation of new rules

Need not be observed for a long period of time ifuniversal and consistent enough New states are still bound by CIL; must try to change

through new state practice

o 2. Opinio juris: Subjective component Practice done out of sense of legal obligation (rather

than comity or self interest)

If states generally follow the practice but would feel freeto disregard it, not CIL

Responses: International lawyers: redundant requirement

because lawyers just try to prove practice

Academics: something more than action isneeded to prevent anachronistic results

(reasonableness, utility, etc.)

Evidence:o Diplomatic correspondenceo International organization reportso Military manualso Newspaper accounts of contemporary eventso Judicial decisionso GA resolutions?

Development of CIL:o Paquete Habana: (SCOTUS; 1900); small fishing boat not a

war prize so compensation ordered.

Points to usage, treaties, royal order precluding seizureof fishing boats, US practice during revolutionary war,

1785 treaty between US & Prussia Art23, US practice in

1846 during war w/ Mexico as evidenced by letters,

similar French & English prohibitions during several

wars to distill CIL

Even though Young Jacob (English High Court; 1798)ruled no opinio juris, this changed in those 100 years

o S.S. Lotus: France v. Turkey (PCIJ; 1927); Where effects are felt on Turkish territory, nothing can

stop Turkey from asserting jdx

Court embraces principle thatinternational law ispermissive (all is permitted unless clearly prohibited)


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extreme positivism/permissive view of international

law (states can do anything not prohibited)

Permissiveness favors the autonomy of states The burden of proof is on France to show that Turkey

violated an existing principle of international lawby

asserting jdx Compare with opposite burden shift in US courts

where plaintiff faces bars to justiciability

But Courts finding yields a non-liquet(unclear law) asto how to interpret in absence of evidence

No expressed consent No law Noviolation

o Though being able to function withoutconsent gives international bodies

authority and establishes global rule of

law

Ct says nothing specifically allowed or prohibitedTurkish jrx so allow it

But in the absence of evidence this holdingseems weak per Nuclear Weapons Advisory

case decision, judge said should declare

lacunae/non-liquetwhere unclear

Presumptions in the formulation of CIL:o Asylum: Colom. V. Peru (ICJ; 1950): military leader sought

refuge in Colombian embassy after failed coup

Regional custom of diplomatic asylum (Colombia askedfor leaders safe passage, Peru denied and won case)

Colombia bears burden to show Perus violation ofregional custom is violation of CIL:

Counter to normal presumption: silence atregional custom is rejection

Disrupts formation of regional custom Protects institutional role of ICJ because

overrules fragmented rules and institutions

Presumptions may shift for political reasons orwhen ICJ wants to declare contentof

international law

oAnglo-Norwegian Fisheries UK v. Norw. (ICJ; 1951): Norwayclaimed ocean by drawing straight lines

Court back to presumption that silence isacceptance

Norways bidding and UKs lack of protest means UKcant protest now


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o Right of Passage: Port. v. India (ICJ; 1960): duringdecolonization, India refused to allow passage of troops to

isolated Portuguese colony

Presumption that silence is acceptance Question about rights of passage too broad; Court

considered based on course of dealing between States Right of passage for civil admin. binding CIL;

right for troops was mere comity

Since Portugal didnt protest formation acceptance

c. General Principles/ Res justi

Principles recognized by most of worlds legal cultures Civilized nations in Article 38 refers to common law, civil law,

Islamic law and ideological legal systems

Used to fill gaps where CIL and treaties are not on point Jus Cogens:

o Peremptory Normso Even if have (1) general practice and (2) opinio juris (accepted

as law), still have problem of persistent objector(e.g., arguably

US capital punishment) some things are binding on all

nations, without consent and may never be derogated from (no

treaties or CIL)

o What arejus cogens norms? No clarity; very ill-defined. Some clear ones are

prohibition on:

Slavery Genocide Agression

Additionally other norms that are probablyjus cogens: Prohibition against piracy (yet Congress can

authorize letters of marquee & reprisal)

Prohibition against Terrorism Humanitarian laws (Geneva Conventions)

Apply to states andindividuals Per Military Activities Against Nicaragua (conspicuous

example of prohibition on use of force as jus cogens),

may even trump domestic law

d. Other Sources and Evidences

VCLT Art. 38: Differentiates between sources and evidences ofinternational law; some materials have only subsidiary significance

In addition to general principles, CIL and treaties (which are allpositivist) some natural law principles shape international conduct:

o 1. Equity


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Abuse of right: one may not use their rights so as toinfringe the rights of others

Unjust enrichment: grants relief in absence of formalcontract

Clean hands: a party that seeks equity must do equity Caveats:

A. Equity does not mean balance or judicialcompromise; ICJ Art. 38: Expressly bars court

from deciding based on what is just and good

unless the parties agree to that

B. Equity does not mean equality or socialjustice; Libya-Tunisia Continental Shelf: Court

refused to grant Tunisia resources simply

because they were poor

o 2. Humanityo 3. Growing trend to consider representative democracy an

affirmative value of international lawo 4. Stewardship and rational use of global resources

Legislation, judicial decisions and scholarship:o ICJ Art. 38: Recognizes these sources but only as a subsidiary

means of establishing evidence of the content of international

law

o 1. UN Resolutions: Do UN General Assembly Resolutions (UN Charter Art.

10: Only recommendations) make law?

Some scholars say because only theyre onlyrecommendations, they lack opinio juris because

chose not to make binding law By contrast, ICJ has considered GA resolutions as

evidence of state practice in occupation of

territory and IHL

TOPCO Arbitration Texas Overseas Petrol v.Libya (Arb. 1977): Libya relied on GA resolutions

to claim tribunal under concession contract had

no jdx; court rejected because resolutions not

supported by wide enough cross section of states

o 2. Judicial decisions: ICJ, specialized tribunals, ICC, etc. have no stare decisis

between courts or for their own decisions; should be

regarded as subsidiary

ICJ Art. 59: Except between parties to a dispute, adecision of World Court has no binding

In reality, however, most courts follow their ownprecedent, at least for procedure

o 3. Legal publications:


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ICJ statute recognizes teachings of the most highlyqualified publicists of the various nations as evidence

of international law

Classics are favored before newer writers, but mostrelied-upon seconfary sources are reports by UN

International Law Commission, American Law Institute,etc.

Integration of sources and methods:o Trail Smelter Arbitration US v. Can. (1941): Rule emerged

that one should not use ones territory in a way that injures the

rights of anothers territory; rule started as general principle

rooted in natural law state practice became CIL

codified in treaties CIL continues to shape and change treaty

rules

II. Subjects and Objects of International Law

Subjects: Entities that bear international legal rights and duties; known asinternational legal persons

Objects: Who and what being acted upono Distinction has been blurringo Most notable shift in modern international law is inclusion of International

Orgs and individuals as subjects

Used interchangeably:o Nations/ nation-states/ states/ countrieso

Self-determination/ secession/ irredentism/ uti possidetis Not interchangeable:

o Peoples: some sort of collective entity making claims to politicalindependence

Doesnt include women/ children/ elderly/ etc Generally, doesnt include tribes or religious groups b/c matter of

internal law and not seeking political autonomy

May include groups that are defined by ethnic or cultural traitso Sovereignty: internal control and insulation from external control; exclusive

jurisdiction; independence; not accountable to other powers; non-

intervention

Exists on a sliding scale; can be small country with relatively littlepower1. States

State identity, sovereignty:o Essence of statehood is sovereignty and self-determination;

relates back to consent


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o Rights of sovereignty: Capacity to enter into agreements Only states are able to become full members of

international organizations

States may claim breaches of international lawobligations and seek redress

Enjoy privileges and immunities from other nations jdx States may engage in war or armed conflict as an

instrument of policy

No international right to cessation, unless a formercolony

o 1933 Montevideo Convention Art. 1: Elements of statehood;expressed CIL:

A. Permanent population Whether a population is small, nomadic or

widely dispersed is not important so long as

population is a group of persons leading acommon life and forming a living community

B. Defined territory Need not be perfectly demarcated but only

relatively consistent

Must be naturally formed part of the Earthssurface

C. Government D. Capacity to enter into relations with other states

C and D are often combined to be a question ofsufficient independence to exercise international

rights and discharge responsibilities Ex: Liechtenstein delegated foreign relations to

Switzerland which qualified it from League of

Nations but was later allowed to sign ICJ statute

and has litigated cases before World Court

o CIL implied 5th qualification of self-determination, but stillmany notable exceptions

o Stimson Doctrine: US articulated principle after League ofNations refused to accept Manchukou; US and UN will not

accept forcible creation of entities in violation on international

law; useful from historical perspective

o Sui Generis entities: Some international territories do notaspire to statehood but are instead disputed area placed under

the nominal sovereignty of one nation but with actual

supervision of an international organization

Recognition:o Unspoken assumption that other nations are prepared to treat

an entity as a fellow nation


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o Area defined by theoretical constructs: Constructive recognition: Theory that recognition by

other states is a requisite

Declaratory theory: Statehood is purely objective andrecognition is largely irrelevant

In reality, there is a mixo In transfers of power, as long as there has been no state

succession, change in government should not affect recognition

Tinoco Concessions Arbitration (Majority rule) UK v.Costa Rica (1923): Where a government is the de facto

ruler of a country, recognition by specific nations does

not matter and that governments acts are

presumptively valid

During period of transition or civil war, theinternational community will have to at some critical

mass of state recognition ofde facto rulers; effective

control of territory test(ex: During fighting in Libya,eventually UN gave GA seat to NTC, not Ghadafi

loyalists)

De jure would be government that has noeffective control (ex: Dhali Llama in Tibet)

o Consequences of Non-recognition by US; point now is whetherwe have diplomatic relations with country more than formal

recognition:

1. Access to US court limited: A. If seeking to be plaintiff in a case filed in US

court, must be affirmatively blocked by executive

B. If sued as defendant, will still be accordedforeign sovereign immunity so long as they are

de facto regime

2. Validity of entities acts may be questioned State succession:

o Occurs when there has been a fundamental transformation inthe identity of the State itself, not just its government

(substantial change in territory, decolonization, etc.)

o Area largely governed by CIL and legal consequences dependon nature of change and type of issue involved

o Treaties: Newly independent states start with a clean slate;decolonized states may pick and choose treaty obligations of

former colonial master

Ex: US still would have been bound to Rome statuteafter Bush took office b/c US was same country; Former

Yugoslavia shed some of its obligations b/c new states

were formed


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o Property and debts: Public property of ceded territory may beseen as assets while debts are liabilities

o Torts: International law relieves successor state of liability fortortuous acts of predecessor regime

o Contracts: Given uneven treatment by international decisions;some courts have ruled no obligation to respect predecessorscontracts, while World Court has ruled that successor is

obliged to pay compensation if it cancels contracts

o Brown (UK v. US) (1923): Bederman overstates that new statesstart with a clean slate. Instead, in decolonization context,

state can pick and choose which contractual and treaty

obligation it wished to uphold, but state had to pay

compensation if it chooses to cancel the contracts of a

predecessor

2. International Organizations

International law has been slow to recognize the international legalpersonality of international organizations or institutions but has

recognized the status of certain orgs

Generally now, extent of rights and obligations depend on teleologicalapproach

History and structure of International Orgs:o 1815 Final Act of Vienne: Ended conflict after French

Revolution and Napoleonic conquests; established first modern

international organizations

o League of Nations in 1919:

Aimed at resolving international disputes; not good atmaintaining international peace but helped protect

rights of minority populations and resolving small

disputes

Established blueprint for UN: Assembly: Each member state had one vote Council: Great powers had permanent seats and

smaller nations rotated through

Secretariat: Created permanent, independentstaff

Permanent Court of International Justice (PCIJ):o United Nations in 1945:

General Assembly, Security Council, Secretariat, ICJo Agencies:

Many specialized agencies with various degrees ofconnection to UN; most notable:

World Bank and IMF International Maritime Org International Civil Aviation Org


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World Meteorological Org World Health Org

o Regional Orgs: Org of American States European Union

o Types of International Orgs: i. International Public Orgs: Only States can be members

ii. NGOs Mostly individual members Mostly influence law but are not subjects (except

some orgs like International Committee of the

Red Cross [ICRC])

iii. Multinational Public Orgs: Run by consortia of governments; includes orgs

like OPEC

International Orgs as Subjects:o Reparations for Injuries Suffered in the Service of the UN

Advisory Opinion (ICJ; 1949): UN diplomat killed by Jewish

troops after sent to mediate between Jewish radicals and

Palestinians; question whether UN could bring claim (1)

against non-recognized state and (2) whether UN had

international legal personality

Though not in UN Charter, UN had a right to bringclaims because this was key to the organizations

success (teleological approach)

UN could bring claim against nonmembers because ofits objective nature

Constitutional Law and Institutional Liability:o Certain Expenses of the UN(ICJ; 1962): France and Soviet

Union refused to pay dues for peacekeeping forces deployed to

Africa and Middle East by GA (rather than SC as prescribed by

Charter); Court rejected separation of powers and stated

ultra vires (beyond the powers) acts could only be challenged

if contrary to the entire object and purpose of the organization

(expanded legal personality of international organizations)

o International organizations can now:

Conclude treaties with each other and with states Bring claims for reparations when suffering loss or toprotect their interests

o Meaning unclear for certain international orgs: International Tin Council: Org engaged in what would

otherwise be prohibited price-fixing in most countries;

collapsed on its own; in subsequent litigation, UK and

US would not lift the corporate veil (provide


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exceptions to corporate personhood and allow suits of

member nations/ individuals)

3. Individuals

A. Nationality:o Since international law is originally predicated on actions of states

and has only recently accepted individuals as subjects, nationality is

essential for individuals to exercise rights and duties

o Jus sanguinis: Nationality transferred by blood from parentso Jus soli: Nationality conferred on basis of birth place

Many states, including the US, use some combinationo Statelessness: Stateless persons have no right to abode or travel and

can be arrested if found in any particular jurisdiction

Mitigation: Some international agreements on refugees andreducing statelessness

States prohibited from terminating nationality if thatwould mean the individual would become stateless

American Convention on Human Rights establishesright to nationality, which limits the power of states to

make constitutional changes to nationality rules

o Dual nationality: Problems of dual nationality:

Treason if two countries of nationality are at war witheach other

Double taxation Inability to have claim brought on ones behalf

Nottebohm Liechtenstein v. Guat. (ICJ; 1955): Nottebohm livedand owned land in Guat. but was German citizen; at start ofHitlers rise decided to become Liechtenstein citizen; Guat.

refused to recognize Liechtenstein nationality and confiscated

property bc at war with Germ.

Rule: Other countries are not obliged to respect a grantof nationality; must be a real and effective/ genuine link

between an individual and his state of citizenship

B. Duties:o Piracy and universal jurisdiction:

Piracy considered one of the oldest crimes which an individualcould commit in international law

Some international crimes of individuals (including piracy)give rise to universal jurisdiction (any nation can prosecute

because the crime was erga omnes)

o Nuremberg Trials (1945) Key point for imposition of international law duties on

individuals


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Guided by London Charter, which created particularinternational crimes (crimes against peace, war crimes, crimes

against humanity) subject to the jdx of any subsequently

created International Military Tribunal

Court rejected defense that actions were acts of state whichgranted immunity to the individuals, thereby vindicatingnotion of individual responsibility under international law

Superior Orders/ Command Responsibility: That a defendantacted pursuant to an order shall not free him of responsibility,

but may mitigate the punishment; subordinates thus under

legal duty to refuse orders he reasonably thinks are unlawful

(knew or should have know standard)

Followed by 1948 Genocide Conventiono Ex dedere aux judicare: Principle in many treaties creating individual

duties in which a state promises to prosecute or extradite for a certain

crime

o Modern tribunals: ICTY and ICTR:Ad hoc tribunals created to try war crimes;

have informed much of the content of individual responsibility

ICC: Created by Rome Statute in 1998 (US not a party); if stateparty is unable or unwilling to prosecute one of its own

nationals, ICCs jdx can be triggered; establishes permanent

forum for establishing law of individual responsibility

C. Rights:o Role of states:

Because international law is predicated on the role of statesand most international law is implemented by states, they are

the source of most rights However, natural law theory would suggest that humans are

endowed with certain rights apart from the will of their

governments

Individuals, though endowed with certain rights ininternational law, do not have the same rights as states or

international orgs

o Remedies: Rights generally do not exist without remedies; in

international law, individuals have limited remedies:

i. Diplomatic protection:o Espoused by state of nationality, not individualo Assumes injury by state other than ones owno Depends on political will of state

ii. International human rightso Can be claimed by individual and against ones

own state

4. State Responsibility and Diplomatic Protection


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State responsibility includes the entire ofnations duty to respectinternational law rights of other countries and, when it violates them, to

make proper amends and reparations

Lack of consensus on content of State Responsibility; consists of CIL in someareas as well as supplemental bilateral agreements

History and theory:o Equality: Within recognized limits, governments should treat aliens in

the same way as it would treat its own nationals

o International Minimum Standard: There is a threshold of treatmentbelow which no civilized nation should drop

Harry Roberts Claim: US citizen arrested in Mexico and keptin terrible conditions; court rejected argument that Roberts

was not singled out for bad treatment; Mexico still violated

international obligations

o Contract: Can agree to arbitration (need 1. Choice of law and 2. Tospecify who does the arbitration)

o US/ Mexico 1930s Farm Nationalization dispute/ Hull-Haycorrespondence: The foreigner who voluntarily moves to a country

which is not his own, in search of personal benefit, accepts in advance,

together with the advantages he is going to enjoy, the risk to which he

may find himself exposed. It would be unjust that he should aspire to

a privileged positions.

Substance and procedure:o ILCs Draft Articles on Responsibility of States for Internationally

Wrongful Acts (Adopted in 2001 after very long drafting period; UN

GA adopted Articles in Resolution as recommendations):

Art. 1-3: Act or omission (same under international law) byState, attributable to State and is breach of international law(Corfu Channel; ICJ, 1949: Albania knew or should have

known mines were in channel)

Art 7: Includes ultra vires acts but not private acts Art 8: Includes private individuals if acting under direction or

control of state (Military and Paramilitary Activity in

Nicargua; ICJ, 1986: Responsible to actual degree of control)

o An international claim, (1) if otherwise admissible, arises when (2) anact or omission, (3) attributable to a State, (4) wrongfully violates a

duty owed under international law to another State or its nationals,

when (5) it is the cause of the claimants injuries and (6) there is no

justification to excuse it

o 1. Admissibility: States espouse the claim of their injured nationals (can choose

whether to bring the claim, whether to settle or compromise,

what to do with damages, etc.)

Nationality: State can only bring claims on behalf of its ownnationals; if one has dual nationality, one can bring a claim


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against one of those states, provided it is not the dominant and

effective one

Barcelona Traction Belgium v. Spain (ICJ; 1970): Forcorporations existing in multiple states, the state of

incorporation is the only one which can bring a claim (in

context of expropriation at least) Algiers Accords: Created Iran-US Claims Tribunal in

1981; adopted rule allowing US to bring claims on

behalf of any corporation in which US national owned

50% or more of stock

ILCs Draft Art. on Diplomatic Protection, Art. 9: Addsexception to Barcelona Traction: Where corporation is

controlled by national of another state and has no

substantial business activities in the state of

incorporation, and the seat of management and the

financial control of the corporation are both located in

another state, that state shall be the state of nationality;Addresses concerns in Barcelonaby making nationality

either/ or, not multiple states

Most claims for expropriation are handles underBilateral Investment Treaties (BITs)

Local remedies rule: Injured aliens should seek redress in localcourts before seeking satisfaction through own governments

espousal under international law, unless it would be clearly

futile to do so or remedies offered are not adequate and

effective relief

Calvo Clauses: Waiver in international agreement (usuallyforeign investment) in which aliens specifically disavow rightsto diplomatic protection; courts have found to bar breach of K

claims but not tortious claims

o 2. Attribution: States are only responsible for injuries suffered by a foreign

national if those injuries were somehow caused by state action

(ex: mugging by street thugs doesnt count)

State action includes those done under color of lawand evenultra vires(beyond the powers) or illegal acts under domestic

law (ex: even if not responsible for acts of street thugs, police

must take reasonable measures to protect lives and property of

foreigners)

Revolutionary movements or insurrections that later come topower may also be held responsible for earlier conduct; if not

successful, state may be responsible for injuries cause by not

quelling rebellion

o 3. Wrongfullness:


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Denials of justice: Host states law enforcement or judiciaryfailed to operate properly and, as a result, injured rights of

foreigner; now almost a strict liability standard to follow these

rules

Failure to protect: States charged with omission; most statesadopt some standard of due diligence

Some standards codified in agreements like 1963 ViennaConvention on Consular Relations (right of consular visits,

access to aliens incarcerated in criminal proceedings

Other claims (wrongful expulsion, contract breaches,expropriations) reviewed under tort standards for negligence

or contract standards for breach

Burden is on claimant to show state acted inconsistent withinternational law

o 4. Causation, defenses and remedies: Affirmative defenses might include classics such as

comparative negligence and assumption of risk Damages:

Restitution: intended to restore status quo ante Compensation: party pays for actual damage done Satisfaction: Non-money damages; apology

Expropriations and contract breeches:o Margin of appreciation: International law grants fairly broad

discretion to host states to expropriate or nationalize sectors of their

economies

o Unless restrictions accumulate to the point of irreversibleinterference with foreign investors property rights, generally not

regarded at regulatory takings NAFTA and WTO revisit this somewhat (shocker!)

o If act does amount to regulatory taking, compensation must beprompt, adequate and effective; generally this means fair market

value and claims of appropriate compensation at deep discount for

mass nationalizations have been largely discounted

5. Human Rights:

A. Substance:o Treaty of Versailles of 1919: First authentic human rights regime;

mostly protected ethnic minorities but also established group rights(rather than individual rights)

o UN Charter of 1945: Art. 55(c): Called for universal respect for, and observance of,

human rights and fundamental freedoms for all without

distinction as to race, sex, language or religion; Art. 56: Vested

the UN with power to take joint and separate action to

accomplish this


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Enabling provisions allowing UN to proceed with developinghuman rights norms

o UN Declaration of Human Rights of 1948: Led by Eleanor Roosevelt Enunciates civil and political rights as well as economic, social

and cultural rights Not legally binding document; not a treaty Many contained civil and political rights have become regarded

at CIL and some have become incorporated into treaties

o ICCPR and ICESCR of 1967: UN adopted two separate treaties to distinguish between

positive (ICESCR) and negative (ICCPR) rights, especially as

related to property rights differences between the capitalist

and socialist states

US ratified ICCPR in 1992, but took reservations, said thetreaty was not self-executing and essentially made ICCPR

exactly congruous to constitutional protections ICCPR monitored by Human Rights Committee Legal Consequences of Construction of a WallAdvisory (ICJ;

2004): ICCPR applies to states parties exercise of jurisdiction

outside of its own territory

o Other human rights treaties: Body of universal human rights instruments dedicated to

other, more specific, issues

US has only become party to a limited numbero Jus cogens norms:

Certain CIL norms have become jus cogens obligations thatcannot be derogated by treaty (genocide, slavery, torture, etc.)

Also, states that have systematic policy of abusing humanrights may have committed violations of CIL (though unclear

what amounts to systematic policy; regional systems

somewhat help inform this)

o Regional systems Council of Europe (1940s); Org of American States (1950s);

African Union (1980s)

Sometimes difficult to enforce because rule of law isprerequisite

May function as laboratories of new rights and form seeds ofCIL

Sometimes represent different values/ moral relativity (whichundermines natural law arguments that human rights are

universal):

i. Property: Rarely described in human rightsinstruments; 1952 protocol to ECHR provides limited

right to peaceful enjoyment of possessions


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ii. Death penalty:o Protocol 6 to ECHR bans death penaltyo Soering Case Soering v. UK (ECHR; 1989): Court

blocked extradition from UK to US because D

could have faced death row phenomenon

which amounted to degrading treatment; didntaddress Protocol 6 b/c neither US nor UK were

parties; UK forced to choose btwn ECHR and

extradition treaty; case subsequently resulted in

Habeas reform in US to reduce length of time on

death row

o Judge v. CA HRC (2004): Under shiftinginterpretation of ICCPR, CA (abolitionist country,

even if didnt sign Additional Protocol 2 on DP)

cant extradite D to US (non-abolitionist country)

without seeking assurances; classic treaty

interpretation; influenced by recent CA sup ctdecision

o US made a reservation to Art. 6(2) prohibition ofcapital punishment for offenders under 18 when

ratifying ICCPR to allow DP for 16 and 17 year

olds

o Derogations: Generally only allowed in emergency situations; war does not

generally eliminate obligations

ICCPR Art. 4: Parties may depart from obligations if: i. Time of public emergency which threatens the life of

the nation ii. Derogation is strictly required by the exigencies of

the situation

iii. Certain core rights (right to life, against torture andenslavement, freedom of thought and conscience) must

be preserved

iv. Notice of the derogation must be communicated toother parties

B. Models for enforcement:o Slavery Conventions (1820s 1926):

Treaties imposed international duty on all states andprescribed universal jdx

Requires commitment of individual stateso Genocide Convention (1948):

Prescribes universal jdx Requires parties to enact domestic legislation Allows for referral of suspicions of genocide to UN Security

Council


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Allows ICJ jdx over all cases which involve genocide Requires political will of parties

o ICCPR (1967): Art. 40 requires submission of regular reports on compliance

international shaming

Art. 41: States may allow interstate complaints to request UNbody to investigate actions of another party 1966 Optional Protocol: First mechanism to allow individual

complaint process; individuals must be (1) names and (2) local

remedies must have been exhausted

o ECHR (1950): Allows institutions to hear inter-state complaints and those by

individuals against own states of nationality

Decisions of ECHR are self-executing to member nationso National Courts:

Most human rights enforced domestically US hasAlien Tort Claims Act (1979): District courts haveoriginal jdx over any civil action by alien for tort in violation of

Law of Nations or self-executing treaties to which US is party

without reservation; only aliens may bring claim (Torture

Victim Protection Act of 1991 extends some rights to US

nationals)

Filartiga v. Pena-Irala (1980): Claim for torturesucceeded b/c both international crime and tort

Sosa v. Alvarez-Machain (2004): ATCA is only jdxstatute and does not alone establish cause of action; if

based on CIL, law must be sufficiently definite and

established (technically at point when ATCA wasenacted, though would probably allow for some

violations of IHL)

ATCA does not grant jdx over foreign states orsovereigns, only individual defendants

ATCA is civil action (as is all Human Rights law, whereasIHL is criminal law)

o Direct state action: May punish states politically by breaking of diplomatic

relations, instituting financial sanctions, etc.

o Responsibility to protect (R2P): Developing doctrine imposing an affirmative responsibility to

protect from human rights abuses

Frequently involves physical invasion of offending state andmay clash with other international law norms promoting peace

and security

6. Objects of International Law:


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Territory and common areas:o Rules of acquisition:

i. Discovery: old rule in which colonizers were free to claimland occupied by indigenous peoples

ii. Effective occupation: Isle of Palamas Arbitration (1928): by1898, this rule had supplanted Discovery as CIL; states mustexercise effective control of land territory to claim title

Standard depends on nature of land (less occupation forremote islands, etc.)

Implied choice of law issues, which court resolved bypicking critical date when legally significant event

took place

Enforces notions of repose similar to adversepossession

iii. Acquisitive prescription: Gaining rights to territory in CILthrough long and unprotected use; similar to adverse

possession and relianceo Uti possidetis: Modern states in decolonization are obliged (at least

initially) to follow state bounds drawn by colonial predecessors

o Servitudes: States may agree to limits on use of territory (such asdemilitarization of certain areas, preferential rights for canals, etc.)

o Air space: States land territory included air space above itwhich endsat lowest altitude a satellite can continually remain in orbit without

disintegrating

Law of the Sea International Environmental Law International Economic Law

III. International Law and US Law

1. International Law and Domestic Law:

Domestic law (also called municipal law) as grounds for international lawviolation:

o International courts may interpret and apply domestic law in disputesbetween states, but are free to apply and interpret national law as

relevant to disputes before them

o International tribunal may reject a domestic ruling if it is self-serving,fraudulent or erroneous

o International courts will often look for common ground betweendisputants domestic law

o States may not invoke national law as basis for refusing to performinternational legal obligation and international courts generally

decline to follow an authoritative interpretation of CIL or treatymade by one of disputants


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Exception: VCLT Art. 46: If party signed treaty in obviousviolation of domestic constitutional law, such treaty is null and

void

International Law in Domestic Law:o International law does not care how international law is applied

domestically and assumes obligations are carried out in good fair,with State Responsibility attaching for failure to observe CIL or treaty

o Monism: Theory that international law and domestic law are part ofthe same legal system, but that international law is higher in

prescriptive value than national law

Most proponents are human rights advocates Some states differentiate between treaty monism and CIL

monism

Civil law countries tend to be more monist (perhaps reflectingmore positivist and group rights values)

o Dualism: Theory that international law and domestic law are separatesystems which operate on different levels and international law canonly be enforced in national law if incorporated or transformed

Most common law countries are firmly dualist, which presentssome problems for US (perhaps reflecting more negativist and

individual rights values)

2. International Law in US Law:

Constitutional provisions:o Congress has power to define and punish offenses against the law of

nations as well as role in making treaties

oPresident may receive and send ambassadors and is commander inchief

o Judiciary has power to resolve disputes involving internationalquestions and is explicitly granted jdx over maritime and foreign

ambassador cases

o Under domestic law, neither treaty nor CIL can abrogate from rightsgranted under Constitution (see Reid v. Covert; 1957)

o Not yet decided whether US can constitutionally delegate certainauthority to international institutions

o Just because a treaty or CIL rule may be unconstitutional does notnecessarily mean international obligations are voided; SCOTUS has

sought to avoid problems by employing principles of international lawto interpret substantive provisions of the Constitution

CIL:o While treaties are clearly federal law, Constitution doesnt mention

CIL

o Though there should be no judge-made federal common law, mostfavored interpretation is that CIL is a matter of federal law because US

states have no accountability under international law


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o Federal courts preempt states interpretation of CIL/ state laws to theextent that they interfere with foreign relations interest, even in

absence of explicit act of Congress

o CIL cannot take precedence over a contrary statute or treaty indomestic law because of the institution, democratic way treaties are

enacted, though CIL should be used to interpret treaties and statuteso Newer treaties which codifies CIL can change statute or older treaty

(last in time rule)

o If no treaty or statute on point, US courts must follow CIL (seePaquette Habana case)

o While Executive cant willfully violated clearly applicable and bindingCIL, courts are reluctant to challenge for fear of political question

Treaties:o Power:

Const. Art. II 2: President shall have power, by advise andconsent of 2/3 of Senate to make treaties; Art. VI 2

(Supremacy Clause): Treaties are supreme la of the land andjudges in every states shall be bound

Senate initiates treaty process and president later concludesratification; president may attach reservations, understandings

and declarations (RUDs) but only reservations change legal

effect

Missouri v. Holland(1920): Regulation of migratory birds wasstate power, but US concluded treaty with UK

Rule: Senate power to make treaties exceeds delegateddomestic Congress powers under Art. 1; Senate may

make treaty that is (1) motivated by exigency and great

national interests, and (2) does not violate expressconstitutional prohibition; largely moot now because of

broad Commerce Clause powers

Senate cant conclude treaty that would take awaypower which expressly requires approval of House of

Representatives (declare war, etc.)

o Self-executing vs. non-self-executing treaties: Foster and Elam v. Neilson (1829): Created distinction Self-executing: Binding on US courts without further action/ at

moment of ratification

Non-self-executing: Require further act of legislation to makebinding

Medellin v. TX(2008): Presumption against self-execution;also, US does not necessarily follow treaty interpretations

made by ICJ

Distinction is not clearly defined, but look to: Does treaty have contractual flavor?


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Whether terms of treaty mention further actionneeded?

Specific enough in content and manifests intent byparties to be binding in US law without further

implementing legislation?

Use normal methods of treaty interpretationo Conflict between treaty and statute:

Last in time rule: If self-executing, earlier conflicting statutes isabrogated to the extent of the conflict

If non-self-executing, no preemption until Congress acts toimplement treaty through domestic legislation

Later statutes can override domestic effect of treaties (thoughno effect on international law) except:

i. Later statutes cant eliminate rights that have vestedunder the treaty

ii. Charming Betsy(1804): Statute cant abrogate fromearlier treaty unless Congressional intent to overridewas clear and manifest

o Interpretation in US courts: Consistent with 1969 VCLT, courts start with text US more likely to then look attravaux(leg. history) than

international tribunals

US courts look at understanding of ratifying Senate whichinduced them to be bound

US courts attempt to harmonize interpretation withexpectations of treaty partners

o Termination: Presumed that the President, acting alone, can initiateneeded action to end US treaty obligations

Executive Agreementso Executive agreements have the same binding effect in international

law as treaties

o Most international agreements are conducted this wayo A. Congressional-executive agreements: enacted the same way as

ordinary legislation (majority of Congress, signed by Pres)

o B. Executive agreements: President acting alone; limitations: Must promptly report agreements to Congress, who may

protest

May be acting pursuant to specifying details in self-executingor legislated treaty or inapposite to non-self-executing treaties

May be acting pursuant to Art. II powers (Recognition ofambassadors and states and Commander in chief); courts are

reluctant to challenge this

Executive agreements may preempt earlier statutes or treatieseither directly or through dormant powers doctrine

3. Jurisdiction:


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Types of jurisdiction:o Prescribe vs. Adjudicate vs. Enforce: each is analytically distinct

Lotus Presumption Fr. v. Turk. (PCIJ; 1927): States are free toassert their jdx to the limit international law allows; views

international law as permissive system and gives parties

incentive to make aggressive assertions of jdx; Exceptions: i. Comity: Hilton v. Guyot(1895): The recognition

which one nation allows within its territory of the leg,

exec, or judicial acts of another nation

o US courts should not lightly assume thatCongress intends to apply legislation

extraterritorially to individuals or to matters

clearly subject to international regulation

o US court may decide that even though it has jdx,it should instead be heard by foreign tribunal

(either through choice-of-forum clause or forum

non conveniens doctrine) ii. Interest-balancing iii. Reasonableness: 1987 R3d of Foreign Relations Law

of the US 403: A state may not exercise jdx to prescribe

law with respect to a person or activity having

connection with another state when the exercise of jdx

is unreasonable (heavily criticized); factors:

o Link of the activity of the territory; connectionsbetween regulating state and the person

principally responsible for the activity; character

of the activity, importance of regulation, extent

to which other states regulate such activities,degree to which the desirability of such

regulation is generally accepted; justified

expectations that may be affected by regulation;

importance of regulation to international

political, economic or legal system; whether

consistent with international system; extent

another state may have interested in regulating

activity; likelihood of conflict

Bases for jurisdiction (in order of strength):o i. Territoriality and Effects

States exercise nearly complete jdx competence on their ownterritory; Exceptions:

A. Consent through treaties to self-derogations ofterritorial sovereignty (ex: SOFAs governing issues like

criminal prosecution of military members in other

countries, Reid v. Covertand Boumediene v. Bush)


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Effects doctrine: When state wishes to exercise jdxover person or thing outside of own territory, but which

causes effects inside the states borders; becoming

recognized widely

o US v. Alcoa (1945): US may apply Sherman Actanti-trust law to non-US companies if anti-competitive conduct that has actual effects inside

US; here, court put burden on D to show no

actual impact

o ii. Nationality States are largely free to require compliance by its nationals,

even when they are living abroad

SCOTUS has ruled that US may try and punish nationals foroffense committed abroad even though they may also be

nationals of the state in which the offense was committed

Whip-saw effect: When compliance with US law would putindividual at odds with law of state of residence, or visa versa;softened by:

A. SCOTUS will interpret ambiguous act as not applyingextraterritorially

B. Foreign sovereign compulsion: US national will berelieved of obligation to respect US law when to do so

would place it in irreconcilable conflict with a foreign

nations law; some courts grant defense with showing of

good faith effort to comply, but other courts reject

o iii. Universality Any national can prosecute or assert jdx over person suspected

of certain crimes Some infractions established by CIL, then codified in treaty;

some have recently progressively developed

Ex: UK found Spain had jdx over Chilean PresidentPinochetbecause of accusations of torture; state official can be

prosecuted as individual but not sued for torture; being

challenged in ECHR

Ex: Alien Tort Claims Acto iv. Protective principle

States may sometimes exercise jdx over non-nationals forconduct which occurs outside US but that nevertheless is

prejudicial to the states security, but this depends on how a

nation defines national security

o v. Passive personality Weakest basis for jdx Idea that state can exercise jdx for a crime based on the

nationality of the victim


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Historically, US has been very critical, though this has wanedlately; US v. Yunis (1991): Where Congress was express in its

intent to extend passive personality to certain crimes

(terrorism, etc.) the normal presumption is overcome

Extradition and Mutual legal assistance:o States may request aid from other states executive or judicialauthorities in the pursuit of criminal or civil procedures (service of

process, taking of evidence, authentication of documents, etc.)

o Letters rogatory: Requesting assistance from tribunals of anotherstate

o Antelope (1825): The courts of no country shall execute the penallaws of another; US refuses to enforce foreign judgments that they

believe would violate US foreign policy

o Extradition: Surrender by one state of an individual accused orconvicted of a crime in another nation; mostly conducted pursuant to

treaty; Requirements:

Rule of non-inquiry: No independent review of the merits ofthe charges is made; courts merely inquire as to (1) whether

the individual surrendered is the person sought and (2)

probable cause

Common treaty requirements: Must be sought by legitimate government under an

arrest warrant by a court of competent jdx

Principle of double-criminality: Ds crime must bepunishable in both the requesting and the sending

states; usually pursuant to list of crimes

Whether the statute of limitations has run Speciality: D may only be tried or punished in the

requesting state for those crimes for which he was

extradicted

Some bar death penalty Political offense exception: Sending state is not obliged

to extradite a suspect charged with political offences;

attentatclauses make murder of head-of-state or family

not a political offense

o 1985 Supplemental Extradition Treatybtwn USand UK largely eliminate political offense

exception4. Jurisdictional Immunities:

Foreign Sovereign Immunities:o Absolute to Relative Immunity:

Immunity of States in domestic courts of other nations hasalways been matter of CIL


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Schooner Exchange v. McFaddon (1812): France seized prizeship from private Americans and rechristened it as a war ship;

US said ship was immune from arrest b/c it was part of the

military force which supports the sovereign power

Distinguished btwn jus imperii (on behalf of thegovernment) and jus gestionis (on the private orcommercial account of the sovereign or govt official)

1926 Brussels Convention: Withdrew foreign sovereignimmunity for state owned commercial vessels; paralleled

spread of restrictive form of foreign sovereign immunities

with exempted commercial activity

Tate Letter (1952): Widespread and increasing practice ofgovernmental engaging in commercial activities makes

necessary a practice which will enable persons doing business

with them to have their rights determined in the courts (no

immunity for commercial activity)

o US Foreign Sovereign Immunities Act (1976): Seeks to convert questions of foreign sovereign immunity from

political and diplomatic questions into judicial and legal ones;

means US courts no longer need permission from State Dept to

try case

FSIA does not govern immunity of foreign officials suedindividually; that is governed by common law

FSIA is exclusive means of gaining jdx over foreign sovereigntyin the US (in this sense, limits Alien Tort Claims Act and blunts

much human rights litigation because suits can only be brought

against private individuals)

Foreign sovereign entity bears burden to show that it iscovered/ protected by FSIA, but once covered, the entity is

presumptively immune unless one of the exceptions applies

(means P carries burden of showing that US court has jdx)

Exceptions are thus the heart of FSIA: i. Commercial activity exception:

o FSIA defines as either a regular course ofcommercial conduct or 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 itspurpose.

o Debt restructuring and finance by foreignsovereigns is commercial activity and there is no

immunity

o 1605(a)(2): Plaintiff must show someconnection btwn activity and US:


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A. Commercial activity in US B. Act performed in US in connection with

commercial activity outside US, OR

C. Act outside US in connection withcommercial activity outside US but that

has direct effect on US Saudi Arabia v. Nelson (1993):

State sponsored torture is a

sovereign act and can never be

commercial

ii. Waivers of immunity:o Friendship, Commerce and Navigation (FCN)

treaties with US contain some; other treaties

have forum-selection clauses

o Implied waiver is possible in very narrowcircumstances (entering appearance in US court

without invoking immunity, filing counter claim,etc.)

o Human rights advocates have claimed thatsovereigns who engage in jus cogens violations

waive immunity; idea that universal jdx cancels

out immunity

This view has generally been rejected (Al-Adsani v. Kuwait, UK;Saudi Arabia v.

Nelson, US)

iii. Terrorist states exceptiono Covers situation where damages sought for (1)

personal injury or death or damage to or loss ofproperty (2) occurring in the US and (3) caused

by tortious act or omission of foreign state (4)

while acting within the scope of his office or

employment, except:

When act or omission is based ondiscretionary function OR

When the claim arises out of maliciousprosecution, abuse of process, libel,

slander, misrepresentation, deceit, or

interference with contract rights

o Assassinations and political murders cannot bediscretionary policy

o New 2008 exception; 1605A: Permits USnationals (private right of action) to bring suits

against foreign sovereigns for personal injury of

death arising from torture, extra judicial killing,

air sabotage and hostage taking; no


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requirement that tort occur in US but D state

must be one that is designated by State Dept as

state sponsoring terrorism (only 5); 10 year

statute of limitation; claimant must give

offending state opportunity to arbitrate

o Remaining issues Under FSIA, proceedings subject to special removal to federalcourt and no right to jury trial

Executive still has role as amicus curiae and may makedetermination as to who constitutes a head-of-state

Status based immunity: Not mentioned in FSIA and haveabsolute immunity under CIL for criminal and civil suits; after

leaving office maintain immunity for official acts (in UK means

also for things like torture; unclear for US)

Arrest Warrant CaseCongo v. Belg. (ICJ; 2002): Congosminister of foreign affairs, facing war crimes charges in

Belgium, was immune head of state, but wouldnt be immune ifhome state waived immunity if proceeding before

international court (thats why Malosovic would be

prosecuted)

Enforcement of judgments: i. Only commercial property of foreign sovereign or

actual foreign instrumentality that is D in suit may be

attached or executed against

ii. Must be some ink between property to be attached orexecuted against and the claim

Acts of State Doctrine:o Unlike FSIA, allows court to reach merits of the case, but is a

prudential rule of judicial self restraint or choice of law, resulting in

claims being dismissed on the merits

o Doctrine solely restricted to common law stateso Underhill v. Hernandez(1897): The courts of one country will not sit

in judgment on the acts of the government of another, done within its

own territory

o Bernstein letters: Executive indication that it has no dispute with UScourt adjudicating a dispute involving the actions of a foreign

government; indicates act of state doctrine is escape valve to avoid

political embarrassment; indicated that individuals should instead

bring claims to Executive to be espoused by US government

o Banco Nacional de Cuba v. Sabbatino (1964): Indicated that thoughthe Constitution does not mention act of state doctrine, it does have

constitutional underpinnings in separation of powers; any case which

involves an action by a recognized foreign government within its own

territory is barred from adjudication by US courts unless there is a

controlling treaty provision


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o Second Hickenlooper Amendment: Reaction to Banco Nacional;courts are not to apply act of state doctrine for expropriation cases

unless the Executive tells them to

o W.S. Kirkpatrick & Co. Inc. v. Environmental Tectonics Corp.(1990):Distinguishes situations where a party seeks to declare invalid the

official act of a foreign sovereign performed within its own territory(protected) and those where the court merely imputes the unlawful

motivation of foreign officials (not protected; bribery, etc.)

Diplomatic, Consular and Organizational Immunity:o Embassies are no longer considered to be territory of foreign state

that occupies them

o Embassies cant be evicted for nonpayment of rento Diplomats:

Type and intensity of immunities depend on nature ofdiplomatic officials and establishments

Diplomats represent the sending state in all political andmilitary relations with the host govt

Governed by 1961 Vienna Convention on Diplomatic Relations Complete immunity from host states criminal jdx and most

civil proceedings

Diplomatic pouches (shipments to and from embassies)supposed to be inviolable

When diplomats commit serious crimes (rare) receiving statecan either demand sending state waive immunity or that

diplomat immediate leave (persona non grata)

o Consuls: Consuls protect interests of nationals resident in host country Governed by 1963 Vienna Convention on Consular Relations Only limited immunity for conduct carried out in pursuance of

functions

Both diplomats and consuls have relief from taxes andpersonal obligations

Immunity for both can be waived by home govt.o International organizations:

Immunity of UN missions generally respected Organizations themselves generally dictate their immunity

through an instrument of the institution

UN employees are subject to civil service protections; immunefrom harassing civil litigation, etc.; protections are functional

IV. War and Peace

1. Counter-measures

Divided into two categories:forcible and non-forcible A. Non-forcible


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o Retorsions: An unfriendly, but legal, response made to anothernations illegal act

Withdrawal of diplomats and embassy staff Termination of voluntary aid and support Sanctions:

No state is legally entitled to trade, but growing bodythat severe economic sanctions may run afoul to WTOfree-trade or human rights norms

May foreswear this option in FCN or other BITso Reprisals (non-forcible): Illegal act made in response to another

states illegal act

Most agree these are necessary to promote respect forinternational obligations

Air Services Agreement Arbitration US v. France (1978):France would not allow change in gauge (smaller than agreed

Pan Am plane) into airport; US made reprisal by suspending

Paris-LA flight to force France into arbitration; court ruledcounter-measures are necessary part of punch and counter-

punch; US action was a violation of 1946 agreement, but

permissible and proportional; once effective dispute

settlement triggered, counter-measures must cease

VCLT: Only where there has been a material breach of anagreement can another party terminate or suspend

performance; must be careful of anticipatory breach

UN ILC Draft Art. of State Resp.: Limit reprisals in situationwhere there is available dispute-settlement mechanism

Reprisals against nationals of offending nation resident in hurtnations territory: Consistent rules of State Responsibilitytoward aliens, but may violate human rights norms

Remedies: i. Satisfaction: State admits wrong-doing and

undertakes to conform future behavior with

international law norms; declaratory judgment;

clarified content of international law

ii. Restitution: State affirmatively engages in remedialsconduct; one tribunal has rejected specific performance

and another has granted

iii. Cash awards: Sometimes as settlement; Ex gratiapayment: makes amends without admitting fault; lump

sums; usually only compensatory damages (sometimes

with interest, rarely with attorneys fees or punitive)

B. Forcibleo International Legal Norms Regarding the Use of Force Before WWII

Legal Norms Prior to WWII


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Jus ad bellum: laws of war and using force in intl relations;the law going to war

Jus in bellum: laws of warfare itself History:

o St. Augustine: just war doctrine: punish rule-breakers in very limited circumstances, like self-defense (obj)

o St. Thomas Acquinus: punish guilt, wrongdoers.Force ok if used for a moral purpose. (subj)

o Peace of Westfalia, positivism, all states equal, nomore just war

o Napoleonic Wars: tech development and total war(not just armies involved but all of society,

including citizens)

o Lieber code of 1863: minimize violence, putdistance between military targets v. civilian and

non-military targets. The basis for...o Hague Conventions of 1899 and 1907 (definejus

in bellum): minimize violence and protectnoncombatants

Use of Force Ruleso Caroline Doctrine:Diplomatic corespondance

between UK and US; preemptive use of force OK ifthe necessity of self-defense is instant,

overwhelming and leaving no choice of means and

no moment for deliberation; UK agreed it must

show proportionality and necessity

o Developments from WWI to WWIIo The League of Nations: collapsed after Italy invaded

Ethiopia; recommended arbitration and provided for

punishment for aggressors

o The Kellogg-Briand Pact (1928): renounces war as aninstrument of policy and instead says we should use

arbitration. Still good law.

o The Use of Force After WWIIo The Charter of the International Military Tribunal (in

response to Nuremberg tribunals) (Article 6), Art 7: no

immunity for anyone; official position does not free you

from accountability. No problem with imposing ex postfacto laws because the standards, while not codified, were

part of CIL at the time of violation.

o Overview of the UN Charters Use of Force Regime UN Charter, Articles 2(4), 51

Art 2(4): All members shall refrain in theirinternational relations from the threat or

use of force against the territorial integrity


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or political independence of any state, or in

any manner inconsistent with the Purposes

of the UN.

o Included all military action, includingtemporary occupation

o Included threat of force, though whatthis means is not clearo Art. 1 prohibits aggression; 1974

Resolution defines this as whatever

the international community and UN

organs think it is; aggression

presumed with occupation,

bombardments, blockades and direct

attacks

Art 51: inherent right to individual orcollective self defense if armed attack occurs;

also based in CILo Caroline assumed to be built in to thiso Collective self-defense: May ask for

help of neighbors; Military and

Paramilitary Activities in Nicaragua

(ICJ; 1984): US funding of guerillas to

topple leftist government; once court

found jdx, Reagan withdrew; US

claimed collective self-def. for El

Salvador but lost; must be a formal

request for assistance

Humanitarian Intervention - Kosovoa. Status quo: only if authorized by SC or self-defense. This

was taken prior to any SC authorization

b. Excusable breach approach: illegal but morally/politicallyjustified

c. Evolving CIL recognizes as legally justifiedd. Codification: not really done yet. On par w/ self-defensee. US argues that it was in response to the excessive and

indiscriminate use of force by Serbia in violation of IL,

regional security, threat to safety of international observers

in Kosovo

f. UK claims that extreme circumstances made actionsnecessary to avert a human catastrophe

Collective Security: UN and Regional Use of Force and Peacekeeping Efforts

B. UN Use of Force and Peacekeeping Efforts (UN Charter. Chapter VII,Articles 39-42)

1. Article 39: SC has responsibility to determine threats and authforce


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2. Article 40: SC may take provisional measures to chill outconflicting parties

3. Article 41: non-force sanctions are ok to punish; SC decides whatto use

4. Article 42: use of force ok necessary to maintain/restore intl peacea. Art 43 was meant to create UN army, never happenedC. UN and US Response to Iraq

1. The Iraqi Invasion of Kuwaita. UN Security Council Resolution 678: authorize use of force

2. The Cease-Fire and the Aftermath: 687: ceasefire3. The Second Gulf War

a. UN Security Council Resolution 1441: weapons inspectionbut no automaticity. Still had to get approval from SC

before invading.

b. War legal because article 2 has been amended by CIL?Repeated use of US force without prior SC authorization

could have created a new normc. US: ok under CIL, done it before, Caroline, bla.d. UK justification: 687 authorizes reinvasion if later stuff

breached.

i. Didnt meet obligations, material breach, use offorce authorized

ii. Dumb bc 1441 doesnt auth use of forceRegulation of the Conduct of War: International Humanitarian Law Jus in Bellum

D. Development of International Humanitarian Law1. Lieber Code: Civil War. Union unilaterally gives to soldiers.

Minimize damage to civilians etc2. Field Code: built on Lieber. give to soldiers, rules about war.3. Hague Regulations (1899, 1907): Russian Tsar wants min

damage/violence

4. Geneva Conventions (1949): protect 4 classes5. Geneva Protocols (1977)

E. The Scope of Application of International Humanitarian Law1. 4 Basic Principles of Humanitarian Law/Geneva Conventions

a. Limit use of force to avoid unnecessary sufferingb. Distinguish btw combatants and noncombatantsc. Treat noncombatants humanely/respectfullyd. Occupying power must respect existing legal order

2. International Armed Conflict: Common Article 2: during war, btw2+ parties

3. Armed Conflict Not of an International Character: CommonArticle 3

a. Establishes bare minimum standards for any conflict: sickcare, discrimination/genocide, etc


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b. POWs entitled to humane treatment: no torture, no harshinterrogation, red cross gets access, get exercise and

medical treatment, correspondence with family, inform the

other government that theyre held, released upon

cessation of violence.

4. Wars of National Liberation: Protocol I & II: Goals distinctionand proportionalityprotect civilians in the course of combata. Deals w/ asymmetrical wars of insurrection, colonies b. Combatant: act like soldier, get benefits. Act like terrorist,

dont.

i. Commanded by superior officerii. Wear insigniaiii. Carry arms openlyiv. Obey laws & customs of war

F. Substantive International Humanitarian Law Rules1. Protocol I, Article 35: warfare methods not unlimited, prohibits

superfluous injury, cant harm environment2. Protocol I, Article 48: distinguish combatant and civilian

population, targets, objectives

3. Occupying powers must respect legal orderG. Problems of Application: The Law of Armed Conflict and Fight Against

Terrorists

1. Dont really fall into any category. Break all laws of war. How totreat?

2. Martens Clause: if gap in rules, act in way consistent w/ humanitySubstantive International Criminal Law

H. Nuremberg and Individual Criminal Responsibility1. Judgment of the International Military Tribunal: Kellogg-Briand

puts everyone on notice. Individuals not immune. Clearly violated

law.

a. Kind of ex post facto thoughb. Set the bar: put people on noticec. Crimes against peace, war crimes, Hague conv violations:

fair game

2. Why have a war crimes tribunala. The Holocaust was particularly unprecedentedb. Closure for victimsc. Better to deal with crimes in a tribunal than to impose

reparations on Germany again, like in Versailles, which

ended up alienating them

d. World needs to know the extent of the egregiousness of thecrimes

I. Additional Individual Responsibility Issues1. Immunity


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a. Arrest Warrant of 4/11/00 (DROC v. Belgium): universaljrx statute calls for C official to be tried for war crimes. D

says I have official immunity B cant sue. In CIL, immunity

applies even if IL violation.

i. Direct opposite holding as Lotus: should be ok bc nospecific positive immunity law on point

ii. Immunity applies when hes in officeiii. C.f. Pinochet: IL violation cant be official act. No

immunity. (See FSI infra)

2. Command Responsibilitya. In re Yamashita: leaders responsible for troops actions

while in command.

i. Codified in ICTY/ICTR articles3. Vicarious Responsibility

a. Prosecutor v. Furundzija: although D didnt rape victim,guilty bc he was complicit in or assisted IL violation

4. Following Orders and Duressa. Prosecutor v. Erdemovic: soldier has a duty to disobeymanifestly illegal order. NOT a complete defense,

mitigating factor.

i. Can only defeat this by showing extreme duressb.c. Article 13: file/bring case

i. State brings case to proscii. UN SC can ask a prosecutor to investigateiii. Prosc can act sua sponte

(A) Lots of discretionpartly why the USchose not to be a party to the ICC; nopolitical check on the prosecutor

(B) Panel can overrided. Article 17: admissibility (SMjrx) hinges on domestic action.

i. Complementarity: ICC jrx only triggered if state failsto act

ii. If state doesnt make a good faith effort, the ICC canstill exercise jurisdiction (1 reason why the USs

decision dont make sense, son)

5. US Positiona. Bush administration insists that we have a unique role in

the world as a protector. We dont want our solders tohave to respond to frivolous claims, thus taking away their

ability to respond where they are needed.

b. Idea that we dont have to respond to the ICCs jurisdictionc. No checks on prosc

i. Good, but panel can overrideii. Crit: funny bc thats the US way in domestic cts

d. Protect soldiers/servicemen


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i. Crit: subject to ICC jrx if in member state.ii. if US were member, then US could investigate/try

and ICC would have to respect

(A) exception: bad faith circumventing ofjrx

6. Legit ICC criticism: violates positive lawa. Able to subject people to jrx even if they dont recognize jrxi. Crit of crit: if you submit to foreign states laws

anyways, the ICC is merely a part of that

(delegation)

7. Other problemsa. Is not joining the ICC equivalent to saying we are not bound

byjus cogens norms?

b. Are we separating ourselves from the rest of theinternational community?

c. Deeply ingrained US fear of international participation andinternational organizations

8. Advantage and disadvantages to each type of tribunalsa. Ad hoc, Hybrid, and truth commissions need definite start

and end points

b. Ad hoc and Hybrid are borne of political conflict and mayhave pre-decided the outcome

c. Precedent can only be set by the ICCJ. Alternatives to Criminal Prosecution

1. Leila Sadat, Universal Jrx, National Amnesties, and TruthCommissions: South Africa: no prosc if you tell everything you did,

historical record

PIL OUTLINE3

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Transcript of PIL OUTLINE3