CHAPTER 1: NATURE OF INT’L LAW

INTERNATIONAL LAW: A. Is it Law? (or a series of moral & political standards?) Austin/Positivism: Skeptics use this theory to say Int’l law is not ‘law.’

1. THERE IS NO SOVEREIGN TO MAKE THE RULES – i. Argument: There is no global parliament/sovereignty – UN Charter only have the GA power to

make nonbinding recommendations and the Sec Council the power enforce laws in limited circs ii. Opposing Argument: Instead of asking whether there’s a rule-making body, we should ask whether

there is a method for creating those int’l laws (Henkin)a. Treaties & Customary international law - both can only become a law based on the

State’s consent – i. This is diff than domestic law b/c if congress decides to adopt a law and the pres signs

it, you are bound by that law whether u consent or not.b. Practice of states over a long period of time in the belief that they are obligated (jus cogens)

2. NO JUDICIARY TO INTERPRET – no court with jurisdiction to decide a dispute between 2 states about the meaning of a rule of customary law or treaty, unless the states consent to the jurisdiction

i. ICJ has limited jurisdictionii. New Courts Today –ICC, ICTY, Rwanda, Sierra Leon, European Court of Human Rights

iii. What can States do?1. Bring in mediator, arbitrators, etc2. If they don’t voluntarily want to do any of these options, they can each stick with their

interpretations and take action to signal their displeasure3. NO BODY TO ENFORCE IT

i. Domestic law - enforced through the police power instilled in the state. In domestic society, ppl observe the law principally from fear of consequences (both extralegal

and legal) deterrence. Believe it is in their interest to observe. ii. Int’l Law – Congress decides to enact laws that may detail sanctions against other countries. Then

the president may impose the sanctionsa. Ex 1: Treaty on the Non-Proliferation of Nuclear Weapons (NPT) prohibits the making of

nuclear weapons/bombs. Iran signed/accepted the Treaty and in exchange received benefits related to creating nuclear energy, w/ the proviso they couldn’t use it to build weapons. The US thinks Iran is using it to make weapons, and is imposing sanctions on them as a violation of the treaty. UN Sec Council is also imposing sanctions, based on their power under CH. 7 of the Charter, which authorizes an organ of the UN to impose binding resolutions/sanctions on States

i. The UN Sec Council must make a determination about the existence of any threat to the peace, breach of the peace, or act of aggression before imposing sanctions (Art39)

b. Ex 2: NAFTA – trade agreement – has a body to which any state that claims another state is violating it, can bring the claim.

i. States will generally accept the determination to gain their various rights under the treaty

c. Ex 3: Period when Soviet Union refused to let ppl leave the country, and they decided to stop delivering mail to these ppl. The post office decided they wouldn’t deliver mail in the US unless the Soviets started delivering mail to everyone in their country

B. Is it binding Law? Restatement - it is just like other law that promotes order and requires legal obligations.

C. Compliance with Int’l Law – Why do states comply? There is no executive authority and no effective sanctions States are compelled to adhere by external sanction; they see it in their long term self-interest to comply;

they know non-compliance will be reciprocated; wish to maintain a good reputation; out of habit…

“Its probably the case that almost all nations observe almost all principles of intl law and almost al of their obligations almost all the time” (Henkin)

o Everyday nations respect the borders of other nations, treat foreign citizens, diplomats, and property as required by law, and observe thousands of treaties.

o Ex: Mail System, Currency Exchange, Flying treaties (treaties to land or fly over certain countries)

D. Enforcement of Int’l Law - What happens when a state chooses not to comply? Sanctions: force of public opinion; Coercive sanctions (countermeasures and economic sanction); Non-

forcible remedies in national courts’; self-defense; ad hoc Int’l Crim Tribunals for the Former Yugoslavia and for Rwanda;

o Breaches of int’l law entail possible reciprocal suspension of obligations owed to the breaching state and other retaliation

o Countermeasure – a non-forcible act that would normally be contrary to the int’l obligations of a state, but is deemed permissible when taken in response to a wrongful act of another state and in order to induce cessation or and reparation for the act

Example: War is a breach of int’l law o UN Art. 2.4: Prohibition of the threat or use of force against the territorial integrity or political

independence of any state Theory that “there is no int’l law b/c it cannot stop war” No state will obey intl law if doing so means it will be destroyed. Martyrdom is not required

by any legal system (Art. 51 = self defense as an inherent right)

CHAPTER 2. SOURCES OF INTERNATIONAL LAW

1. SOURCES AND EVIDENCE OF INT’L LAW GENERALLY Doctrine of Sources – provides objective standards of legal validation.

o Voluntarism – Says that int’l legal rules emanate exclusively from the free “will” of states as expressed in conventions or usages generally accepted as law.

o Positivism – emphasizes the obligatory nature of legal norms and the fixed authoritative character of the formal sources. In order to be ‘law’, the int’l law must be capable of application by a judicial body (in principle)

Article 38 of the ICJ Statute: a. Int’l Conventions (treaties) , whether general or particular, establishing rules expressly

recognized by the contesting states;i. MAJOR CAVEAT – treaties are ONLY applicable to the extent that they are expressly

recognized by the States who are party to the disputeb. Int’l custom accepted as law, as evidence of a general practice accepted as law; requires:

i. practice by large number of states over a period of time and ii. done in belief there is an obligation to do it;

c. General principles of law recognized by civilized nations i. Jus Cogens – fundamental principles universally recognized by “civilized” nations

ii. e.g., right to legal process, impartiality of trier of factd. judicial decisions/highest teachings of publicists of various nations as subsidiary means

Judicial decisions and well-respected legal scholar’s work can be a SUBSIDIARY source of law for ICJ consideration

This is diff from the common law system – there we look at decisions of higher courts as important precedence. This statute adopted view of civil system that doesn’t give great weight to judicial decisions

In Paquette Habana (see below), the ICJ noted that jurists and scholars might be more familiar with the relevant customs and therefore should be consulted

Restatement §102 : refers to judicial decisions as evidence of whether a rule has become int’l law. (rather than subsidiary means, like the ICJ 38)

2. CUSTOMARY INTERNATIONAL LAW Art. 38(1)(b): “international custom, as evidence of a general practice accepted as law.”

o Customary Law - The acts concerned must amount to a settled practice and there must also be evidence of a belief (subjective element) that this practice is rendered obligatory by the existence of a rule of law requiring it.

o Elements:1) State practice 2) in the belief that there is an obligation to do so – i.e. opinio juris

- the belief that an action was carried out b/c it was a legal obligation (rather than a cognitive reaction or habitual behavior)

3) over a long period of time – this element is now debated Once there is a rule of customary IL, any new state that comes into being is bound by it. Persistent Objection Rule: States are bound by international rules of customary IL unless they object!

(silent = bound) Regional rules of customary law: States are not bound unless they consent to be (silent = not bound)

THE PAQUETE HABANA , US SC 1900 (J. Gray) – LANDMARK CASE

Facts: During the Spanish-American war, two fishing ships flying Spanish flags were captured near Cuba (for violating a US military blockade) and brought to Key West. The US wanted to confiscate the vessels as “prizes of war”Issue: Will the US recognize the international custom that exempts fishing ships from being confiscated as prizes of war?RULE: Where there is no treaty, executive or legislative act, or binding precedent, the court will resort to int’l custom.

o In this case, it was an established rule of international law that small coast fishing vessels, pursuing their peaceful vocation of catching and bringing in fresh fish and are unarmed, are exempt, with their cargoes and crews, from capture as prize of war. (humanitarian law)

* Statement of role of int’l law in the US : “IL is part of our law, and must be ascertained and administered by the courts of justice of approp jurisdiction as often as questions of right depending upon it are duly presented for their determination.”

o The Constitution says NOTHING about international law in this context -- This case established the precedent that in the absence of US law on a subject of international law, customary international law controls

o There is a debate as to whether the inverse is axiomatically true – Does contrary US law always trump international custom? What if there is a domestic exec order? Does it supersede the customary IL?

One argument -When there is a domestic law of the kind described, then the customary law would not apply.

Opposite argument – Read the negative implication – it applies only when there isn’t any legislation or exec act.

* Not a unanimous decision –There is often no certainty of whether something is a rule of customary IL

THE CASE OF THE S.S. LOTUS (France v. Turkey) – P.ICJ, 1927 – LANDMARK CASEFacts: French steamer collided with Turkish steamer in international waters. Turkish sailors and passengers died. The officer on watch of the French ship was a French citizen, and was arrested after complying with Turkey’s request to go ashore to give evidence. The Turkish officials never notified the French consul. He was tried and convicted of manslaughter. France brought this action, alleging that Turkey had no jurisdiction over the officer.

o France argued that Turkey did not have jurisdiction b/c the flag nation is the only State that can exercise jurisdiction over things that happen on a ship bearing its flag (Rule of Customary International Law) – “A state only has Jurisd if it can point to a rule of IL that gives it jurisd.” France argues there is no rule of IL that would grant them jurisd. turkey

The Court rejected this proposition (today, this is a codified rule in LOS)o Turkey argued : there is jurisd Unless IL prohibits it

Issue: Under IL, may a state do whatever it wants unless there is a prohibition, OR may it only do whatever there is a rule of Int’l permitting?Holdings: 2 bases for jurisdiction – case has alternative holdings; no way to know which 1 is holding, which is dicta

1. States are sovereign and can do whatever they want unless there is a rule of IL saying that they cannot. - In other words, under int’l law a state does not need a rule permitting it to exercise jurisdiction. - There is no rule here prohibiting, therefore Turkey has jurisdiction.

2. Territoriality: an offense is committed within a national territory if the offense, or the effects of the offense, occurred there since the effect of the offense was felt on a Turkish ship, Turkey got jurisdiction based on the theory of objective territoriality

LEGALITY OF THE THREAT OR USE OF NUCLEAR WEAPONS (ICJ, Advisory Opinion, 1996)Facts: This came to the ICJ as an advisory opinion requested by the UN Gen Assembly - Asked if threat or use of nuclear weapons in any circumstances ever permitted under IL?

Two jurisdictional rulings: 1) The Court can give the General Assembly an advisory opinion based on Article 96 of the U.N. Charter 2) An advisory opinion on this issue would be answering a “legal question.” The Court said it doesn’t

matter that this is a political question as long as it is also a legal issue. As long as it is not a purely political issue, the Court can give an opinion.

Legal Question Holding: the court could not reach a definitive conclusion on the legal questiono Court relied on LOTUS principle -> look to see if IL prohibits the threat of nuclear weapons in any

circumstance. o Court analyzed 2 treaties to see if they create a custom:

Non-Proliferation Treaty: to reduce the number of weapons held by states. It does not seem to prohibit it, just requires ‘reducing’ it

Partial test ban treaty (?) : restricting the testing, so some other testing must be permissible

o Customary Law Elements: State Practice - US used nuclear weapons on Japan in 1945, but not since. This is enough to

show a general practice not to use them A belief that there is a legal obligation (opinion juris)

Look to Gen Assembly Resolution – resolution which said that using the weapons would be a direct violation of the charter.

o One view: Can indicate an acceptance as an obligation: If a resolution is adopted and a lot of states vote for it, then there must be an underlying assumption that this is the law

o 2nd view: May not indicate acceptance: they only passed the resolution b.c its good PR

Look at Law of Armed Conflict: 1 rule is that you cannot target civilians, only military. Here, the argument is that you could not possibly minimize civilian causalities

Laws of War: The court says it cannot rule out nuclear weapons when a state needs to defend itself for the very survival of its existence

Schwebel’s Dissent: Court should have found self defense b/c using nuclear weapons is permissible in extraordinary circumstances

o Says that if a resolution is adopted unanimously or by consensus AND there is practice may be declaratory of customary IL

Shahabuddeen’s Dissent: Lotus has been extended too far; the principle of sovereignty (that states can do whatever they want unless its prohibited) should not apply to nuclear weapons b/c there is a possibility that it could annihilate mankind

North Sea Continental Shelf Cases (Federal Republic of Germany v. Denmark; Federal Republic of Germany v. Netherlands) 1969Facts: dispute over the delimitation of the continental shelf shared by Denmark, Netherlands, and Germany. Issue: Is Article 6 of the Geneva Convention, which sets forth the principle of equidistance, customary international law? Held: The principle of equidistance in Art 6 is not customary law because, for a treaty provision to become the basis of a rule of international law, it must:

1) Be a rule which is viewed as a “basic rule” or norm - here it was not general enough; 2) Be ratified by a number of states -> it was ratified by very few, took 5 years to go into effect; therefore, they could not have thought that they were ratifying a rule of customary international law

The fact that you were allowed to make a reservation showed that they were not creating a rule of customary law

o Ct follows the Lotus view – held that there is no evidence here that the states that have in the past agreed to draw boundaries according to the principle of equidistance did so b/c they felt legally compelled to b.c of a rule of customary law. (It was a secondary principle)

The Relationship of Custom And Treatieso If a treaty says A and a rule of custom says B, treaty comes first if its binding on both states.

EXCEPTION: jus cogens – rules that even if they are customary, cannot be changed. (ex: i.e cant have a treaty providing for slavery, genocide, apartheid, some acts of terrorism)

if its not jus cogens, they can change it Usually a specific rule of customary IL will prevail over a general treaty rule The parties must show common intent to replace a treaty with a custom. If there is no

intent, treaty and custom have equal weight with priority to the later in timeo Treaty rules may be accepted as customary law and binding on states not parties to it when:

The treaty rule is declaratory of pre-existing custom The treaty rule is found to have crystallized into customary law in process of formation

(other states adopt the same practices that the treaty laid out) The treaty rule is found to have generated new customary law subsequent to its adoption The treaty is ratified very widely (i.e. genocide convention was a treaty but now been

ratified by almost all states in the world – so now theres an argument that its customary law and binding)

o Today, a substantial part of customary IL has been codified in multilateral conventions by IL commission, approved by Gen Assembly – i.e. law on treaties, diplomatic and consular immunities and the law of the sea

o Advantages of recognizing customary law parallel to treaty law: States are not free to withdraw from customary law as they can from treaties In many states, cust law is part of domestic law whereas treaty rules only become domestic

if the legislature decides so Customary law (general IL) has more weight than contractual obligations --may give states

legal interest in complying with them

CHAPTER 3. THE LAW OF TREATIES

1. DEFINITION AND GOVERNING LAW Treaty = binding agreements between subjects of IL that are governed by IL.

o Used to set up/create international law, codify customary international law, or may even be the source of an int’l law

o Other names are int’l agreements, convention, pact, protocol, charter, covenant, declarationo Under US law, a treaty is specifically an agreement that the president ratifies after he obtains a

resolution of advice and consent by 2/3 of the senate Types of Treaties:

o General treaties : establishing rules of behavior which are of fundamentally norm-creating character such as could be regarded as forming the basis of a general rule of law (open to all states)

o Bilateral agreements (2 parties): drafted in contractual terms of mutual exchange of rights and obligations

o Multilateral treaties : > 2 parties The law of treaties is comprised of customary int’l law, general principles (including jus cogens), and the

1969 Vienna Convention on the Law of Treaties.

2. THE VIENNA CONVENTION OF THE LAW OF TREATIES: The Convention was based on draft articles prepared by the ILC; was concluded in 1969 and entered into

force in 1980. o Nixon presented it to the Senate but they never gave advice and consent. (Article II, § 2). o U.S. is not a party to the convention - did NOT ratify it but took the position that the convention

simply codified existing principles of customary international law; ergo the U.S. follows most of its provisions notwithstanding its failure to ratify the convention

Art. 1: The Vienna Convention only applies to: Treaties between States, in writing, and governed by International Law

o Therefore, the Vienna Convention does NOT apply to: Agreements between a state and an int’l organization, A state and a corporation, Oral agreements.

Under the Vienna Convention, the head of state or an appointed minister with the appropriate credentials has the authority to represent a state (and enter into a treaty)

Convention is not retroactive – unless about a rule of jus cogens Interplay Between International Custom and Vienna Convention

o General international law defines a “treaty” more broadly than the Vienna Convention - ICJ has held that an oral treaty is still a binding, valid treaty; agreements b/n an int’l org and a state can also be a binding treaty under general international law

o It is important to determine whether a treaty does or does not codify existing customary law b/c customary law is binding on all states, not just the states that ratify the treaty.

There is a caveat though: a treaty that creates new law can become customary international law by virtue of being ratified by many states

o Pacta sunt servanta – The whole concept, jurisprudentially, that treaties have to be observed is in itself a principle of customary law. (codified in Art. 26 of the Vienna Conv)

Conclusion and Entry Into ForceA. Existence of a Treaty - How do we know when an agreement has come into existence?

Maritime Delimitation and Territorial Questions (Qatar v. Bahrain) ICJ, 1994 Facts: Foreign ministers of the countries met and they negotiated. Qatar invoked the jurisdiction of the ICJ on the basis of 1) exchanges of letters dated Dec 1987 and 2) a document headed “minutes” which had been signed at Qatar in 1990 by the Ministers of Foreign Affairs of Bahrain, Qatar, and Saudi Arabia (as mediator) Bahrain.

o Bahrain argues: the documents are just a record of negotiations and the foreign minister did not have authority to sign a treaty.

Issue: do these documents constitute international agreements creating rights and obligations for Qatar and Bahrain? (obligation to subject to the ICJ all of their disputes)Held: Both the 1987 exchange and 1990 Minutes are International Agreements.

Int’l Agreements may take a number of forms. The Minutes are not a simple record of a meeting, but rather enumerate the commitments to which the parties have consented and constitute an Intl Agreement. They thus create rights and obligations in IL law for the parties.

Art 7 of the Vienna Conv gives the foreign minister the authority to make a treaty (in addition to Heads of State, Heads of Government )

B. Expression of consent to be boundo Art 7 of Vienna Conv: General Rule a person is considered as representing a state for the

purpose of adopting or authenticating the text of a treaty or for the purpose of expressing the state’s consent to be bound by a treaty if (a) he produces full powers and

“full power” = a formal document which designates a named person to represent the state for the purpose of negotiating and concluding a treaty

(b) it appears that the intention of the state was to allow that person to represent the state and thus dispense with full powers (look to how a second state would perceive the state’s intention)

(b) is intended to preserve the modern practice of states to dispense w/ full powers and just rely on heads of state/gov’t

o Methods of Expressing Consent – signature, ratification, acceptance, or any other means if so agreed

C. Obligation not to defeat the object of a treatyo US Constitution Art 2. §2, cl. 2: Treaty Clause – The President may sign on a treaty on his own,

but must get a resolution of advice and consent from 2/3 senate to enter the treaty. If we ratify the treaty, we are bound. Often before it gets ratified it gets signed.

o Obligations of a state that has signed but not yet ratified the treaty? If ratification does take place, a signatory’s misuse of its right prior to ratification may

amount to a violation of its obligations. Article 18: “A State is obliged to refrain from acts which would defeat the

object and purpose of a treaty when:(a) it has signed the treaty or 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 (b) 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.

Ex: US and USSR signed the Strategic Arms Limitation Treaty II in 1979 but did not ratify it. Each accused the other of violating it.

o If both agreed they would destroy a substantial number of their nuclear weapons, you can argue that before the treaty was ratified, it imposed the obligation not to create any new weapons.

Ex: Rome Statute: Art. 18 allows you to make your intention clear that you don’t want to be bound by it

o The US wrote a letter to the UN secretary general saying they don’t intend to become a party to the treaty. (p 137) – this satisfied the ‘until’ clause

They didn’t ‘unsign’ or ‘withdraw a signature’ – they notified that they did not intend to ratify and thereby the obligations imposed by art 18 are no longer applicable

RESERVATIONS

o Reservation: A unilateral statement, however phrased or named, made by a state, when signing, ratifying, accepting, approving, or acceding to a treaty, whereby it purports to exclude or modify the legal effect of certain provisions of the treaty in their application to the state. (Art. 2(1)(d))

Multilateral Treaty Reservation : A state agrees to obligate itself to a treaty, but says that X paragraph doesn’t apply to us.

Bilateral agreements Reservations - like a counter-offer by the reserving state No reservations in bilateral treaties, b.c then you just wouldn’t put the provisions in

o Article 19 – A State may ratify a treaty subject to certain reservations UNLESSa. Reservations are prohibited

Some treaties like the Convention on Sea and the Rome Statute of the International Criminal Court do NOT allow for reservations

O The US has NOT ratified either BUT benefits from most of the provisions in the Convention on the Sea insofar as they are a part of customary international law

b. The treaty specifies that ONLY certain kinds of reservations are allowed and the one at issue is not one of those specified kinds

c. The reservation at issue is otherwise incompatible with the object and purpose of the treatyo Examples:

o Reservations to the convention on genocide (ICJ, Advisory Opinion 1951)Facts: The U.S. ratified the Genocide Convention with a reservation: that nothing in the Convention “requires or authorizes legislation or other action...prohibited by the Constitution of the United States as interpreted by the United States.” The reason for this reservation is that the Convention prohibits incitement to genocide; this prohibition is inconsistent with U.S. First Amendment law. (S.C. defines free speech as “you can say anything you want unless there is an imminent danger of violence.”)Issue: Is the reservation valid under Article 19?Held: Yes – Court says you can reserve, as long as it does not go against the object/purpose of the treaty. This holding is basically a restatement of art. 19(c).

We want this convention to be adopted by as many states as possible, so we’ll allow reservations on this ground

Note: Is the US’s reservation consistent with the object and purpose of the genocide convention?

NO, its inconsistent b/c the point of the convention is to prevent genocide. YES – given america’s history upholding human rights, there is not a serious concern

that this understandable nuance in US const law will result in genocide (the argument is strong that it is consistent)

Convention on Discrimination Against Women (CEDAW) is the most widely accepted convention, but there are an extraordinary number of reservations.

Is the Islamic reservation––the treaty is binding to the extent that it does not conflict with Islamic Sharia law as interpreted by Islamic religious authorities––valid?

We would have to look at how the authorities have been interpreting Islamic law (evaluate whether this reservation is incompatible with the object and purpose of the treaty)

o Can argue that it is inconsistent with object and purpose of CEDAW b/c Sharia law permits the overt discrimination of women (not allowing to drive, participate in schools, etc)

o Reservations to Human Rights Treaties: Many reservations to the human rights treaties US has ratified International Covenant on Civil and Political Rights w/ a reservation that

its not self executing (no form of implementation). The ICCPR established the Human Rights Committee, which reviews and comments on periodic reports made by parties to the covenant.

Human Rights Committee’s General Comment No. 24 of 1994 : in tension with the ILC

Committee states it was empowered to determine whether a specific reservation is compatible with the object/purpose of the covenant

o If it decides its inconsistent, then the reservation is invalid, but the state is still bound by the treaty AND the article which it said it would not keep THIS WAS STARTLING – US and UK wrote answers rejecting this (see below)

Arguable that states would simply not join treaties if this was the case!

Observations by the US on General Comment No. 24: challenges the Committee’s claim of authority to determine the validity of reservations and the legal effects of “impermissible” reservations –

o In reality, the compatibility of a proposed reservation is reviewed by the non-reserving parties to the treaty (the other states)

o Possible scenarios for a state filing a reservation: State files a reservation and the other states accept it the reserving state becomes a party

to the treaty with the reservation in force State files a reservation, but one state objects to the reservation

the treaty will enter into force as between it and the reserving state, except for the provisions to which the reservation relates (those provisions fall out of the treaty)

o in practice, most objecting states allow the treaty to enter into force as b/n them and the reserving state

An objecting state can also assert that the treaty does not exist as between them and the reserving state, if it finds the reservation is inconsistent with the purpose of the treaty.

OBSERVANCE, APPLICATION, AND INTERPRETATION A. Observance

o Art. 26: Pacta Sunt Servanda and Good Faith– “Every treaty in force is binding upon the parties to it and must be performed by them in good faith.”

The purpose of the treaty and intentions of the parties should always prevail over the literal application of it. Good faith obliges the parties to apply it in a reasonable way and in such a manner that its purpose can be realized

Pacta Sunt Servanda is a rule of customary IL which signifies that the agreements and stipulations of the parties to a contract must be observed.

o Internal law and Treaty Observance - What if a treaty is contrary to domestic law? Article 27: bars states from raising contrary domestic law as a defense to abrogation of its

responsibilities under a treaty – A state cannot assert its own law as a defense for non-compliance with a treaty it entered into lawfully

“Later in time” rule: If a later statute conflicts w/ an earlier treaty, a domestic court will apply the statute over the treaty. However, the state remains internationally bound by the treaty

Art. 46: a state may invoke the fact that its consent to be bound by a treaty was expressed ‘in violation of a provision of its internal law regarding competence to conclude treaties’ if and only if the violation was ‘manifest and concerned a rule of its internal law of fundamental importance.’

Ex: If its clear that the consent was expressed in violation of a fundamental provision of internal law that others are aware of (the US Const. requirement that 2/3 Senate give its advice and consent)

o The US has extra-constitutionally developed a whole new way of entering treaties (executive agreements) which doesn’t require senate’s advice/consent

To be clear, Article 46 is NOT an exception to Article 27

o Article 27 is a general rule that domestic law NEVER provides a defense for non-performance of a lawfully entered-into treaty

o Whereas Article 46 sets a general rule prohibiting asserting domestic law as an explanation for why a treaty was never entered into in the first place BUT it contains a narrow exception for manners of acceptance that manifestly violate principles of domestic law

o Breard v. Greene (1998): The US S.C. was asked to stay the execution of a Paraguyan national, pending resolution of a dispute over consequences of non-compliance with a treaty. The Dispute had been before the ICJ and the US Courts.

The US gov’t conceded in both forums that there had been a breach of treaty, but the gov’t argued that neither court could accord a remedy for the breach since the petitioner had failed to raise the treaty question in the courts of the state of Virginia at the time of his trial and later appeals.

Held: Assertions of error in criminal proceedings in the US must be first raised in the state court in order to form the basis for relief in habeas. Since Breard did not do so, he cannot raise a claim of violation of the Vienna Convention now.

Interpreting and Modifying Treatieso Article 31 – sets the general rule that treaties should be interpreted in good faith and according to

their plain meaning (emphasis on the text) Even though a unilateral interpretation of an int’l agreement of one contracting state is not

binding upon the other contracting state, countries should still protest what they believe to be an erroneous interpretation

o Article 32 – allows you to consult the legislative history (travaux préparatoires) only to: confirm the plain meaning of the text of the treaty OR When the plain meaning of the treaty, without more, is ambiguous or would lead to an

absurd or unreasonable result o Article 40 – In order to modify a multilateral treaty, ALL parties to the treaty must agreeo Application of the Convention on the Prevention and Punishment of the Crime of Genocide

(ICJ, 2007 – p. 166-167)Facts: Bosnia and Herzegovina sued Yugoslavia (Serbia-Montenegro) under the Genocide Convention in 1993.Ps claimed that Serbia-Montenegro was responsible for many breaches of the Convention in relation to protected groups in Bosnia, particularly the Muslim populationHeld: Serbia did violate their responsibility under the Convention to prevent the crime of genocide and violated their obligations to punish genocide.

ICJ interpreted the provision “the undertaking to prevent and punish genocide” of Art I to find that Art I imposes distinct obligations over and above those in the other Articles (not to commit genocide) , relying on the preparatory work of the convention and the drafting history

Coercion o Article 51 – Coercion of a representative of a State

“The expression of a State's consent to be bound by a treaty which has been procured by the coercion of its representative through acts or threats directed against him shall be without any legal effect”

The ratification of a treaty procured from a State’s representative by acts of coercion or threats of violence has NO legal effect

A treaty ratified under coercion is AUTOMATICALLY invalido Article 52 – Coercion of a State by the threat or use of force

“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 embodied in the Charter of the United Nations (Art. 2(4))”

A treaty ratified under the threat or use of force is AUTOMATICALLY invalid (A country can’t use force to compel someone to sign.)

This presents an interesting paradox: On its face this provision would appear to invalidate all peace treaties, because presumably one state used force in violation of int’l law!

Ex. Negotiation b/n Israel and Palestinians – suppose they enter into a treaty and agree to boundaries on west bank. 10 years later, one of them could turn around and say the agreement is not valid because it only agreed because it was afraid the other was going to use force against them

Conflict with peremptory norm (jus cogens)o Article 53 – A treaty is void if, at the time of its conclusion [non-retroactive], it conflicts with a

peremptory norm of general international law. A preemptory norm of international law is norm accepted and recognized by the

international community of States AND is a norm from which NO derogation is permitted You can’t make a treaty that violates principles of jus cogens -- piracy, slavery,

genocide, use of force in violation of UN Charter, perhaps certain acts of terrorismo Article 64 – “If a new peremptory norm of general international law emerges, any existing treaty

which is in conflict with that norm becomes void and terminates.” The emergence of a new rule of jus cogens is not to have retroactive effects on the validity of

a treaty. The invalidity is to attach only as from the time of establishment of the new rule. Melvina’s problem: How do you modify it if you can’t have a treaty and CIL can’t derogate it

as well? How do you modify a rule which you cannot change by definition? first it says it’s a norm that cant be changed; then they say it can only be changed in

a certain way

Termination or Suspension of Treaties1) Article 54: The termination of a treaty or the withdrawal of a party may take place:

(a) in conformity with the provisions of the treaty; or(b) at any time by consent of all the parties after consultation with the other contracting States.

Most treaties today contain clauses specifying: their duration, the date of termination, an event or condition to bring about termination, or a right to denounce or withdraw from a treaty.

2) Denunciation/ Withdrawal from a treaty which contains no provision regarding termination Art 56 of Vienna: “A treaty which contains no provision regarding its termination and

which does not provide for denunciation or withdrawal is not subject to denunciation or withdrawal unless:

(a) it is established that the parties intended to admit the possibility of denunciation or withdrawal; or(b) a right of denunciation or withdrawal may be implied by the nature of the treaty.

“may be implied by the nature of the treaty” = treaties of alliance and of commerce Ex: The ICCPR does not contain a termination clause. It is clear that the parties did not

intend to admit the possibility of denunciation/ withdrawal, considering the importance of human rights. The committee believes that IL does not permit a state which has ratified or acceded or succeeded to the Covenant to denounce or withdraw from it.

3) Art. 60: Termination of a Treaty as a Consequence of Breach 60(1) 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 If one side breaches a bilateral treaty, it’s not automatically over – but it permits

the other party to invoke it 60(3): A material breach of a treaty, for the purposes of this article, consists in:

(a) a repudiation of the treaty not sanctioned by the present Convention; or(b) the violation of a provision essential to the accomplishment of the object or purpose of the treaty.

Art. 60(5): Exception for humanitarian treaties“Paragraphs 1 to 3 do not apply to provisions relating to the protection of the human person contained in treaties of a humanitarian character, in particular to provisions prohibiting any form of reprisals against persons protected by such treaties.” These are designed to protect human beings, so we don’t want a breach to then make it

void4) Advisory Opinion on Namibia (ICJ, 1971)

Facts: S. Africa had a mandate over Namibia from the League of Nations. In 1996, the GA adopted a resolution to terminate the mandate b/c it found that South Africa had breached it introducing apartheid into South West Africa. Issue: The Security Council asked for an advisory opinion on the question of “what are the legal consequences for States of the continued presence of South Africa in Namibia, notwithstanding Security Council Resolution 276?Holding: the continued presence of S. Africa in Namibia is illegal and S. Africa must withdraw from the territory.

Mandate has the “character” of a treaty (same rules apply)– The Mandate serves as a “treaty” b/n S. Africa and the League of Nations

South Africa’s presence has become illegal b/c imposing apartheid was A MATERIAL BREACH of the mandate, therefore the Security Council can cancel the Mandate (as the successor to the League of Nations)

ICJ assumes that the proposition of “a right to termination should be presumed to exist in every treaty, except humanitarian treaties” is customary international law, despite that the Vienna Convention does not say this

5) Appeal Relating To The Jurisdiction Of The ICAO Council (India v. Pakistan, ICJ 1972)Facts: Pak brought a complaint against India before the ICAO on the ground that India had violated provisions of the Convention on International Civil Aviation and the Int’l Air Services Transport Agreement by unilaterally suspending flights of Pakistan planes over Indian territory. ICAO assumed jurisdiction based on clause in the treaty, and India appealed on ground of breach.Issue: Whether the ICAO has jurisdiction Arguments: India – claimed that its right to unilateral termination or suspension for material breach had

been properly exercised and therefore, the treaties were no longer in force. It followed that the ICAO had no jurisdiction. India’s conduct in suspending Pakistan flights was therefore, outside of the treaties.

Pakistan – objected to jurisdiction on the ground that India’s contention that the treaties were not in force or operation meant that India did not have standing to bring a case on the basis of the treaty jurisdictional clauses.

Court: Rejected the Pakistan argument because if a mere allegation that a treaty was no longer in force could be used to defeat jurisdictional clauses, all such clauses would become dead letter. Rejected the India argument b/c a mere unilateral affirmation of a breach, contested by the other party, cannot be utilized to negate the Council’s jurisdiction.

Court must decide whether xyz constituted a breach. If Pakistan argues Court can’t decide because India is saying they breached it – then every time one party claims breach then the question would never come to the court. THUS, ICJ jurisdictional provisions are never invalidated in these situations

Fundamental Change of Circumstances - allows for treaties to become inapplicable. It is essentially an "escape clause" that makes an exception to the general rule of pacta sunt servanda (promises must be kept).

1) Art. 62: Fundamental change of circumstance

Circs which must be met before a fundamental change of circumstances can be invoked: Change must have been fundamental & must have been unforeseen The circs which have changed must have been an ‘essential basis of the consent to

be bound by the treaty’ The effect of the change must be to transform radically the extent of the obligs of the

party invoking the change The obligs in question are still to be performed under the treaty

o HYPO 1: Israel and Palestine enter peace treaty, signed (and ratified) by Abbas and Netanyahu. Israel agrees to withdraw from parts of west bank. Hamas, who actually won in the elections, creates a coalition with the Palestinian authority and made a coup. Hamas is now in sole charge of Gaza. Suppose they did the same in west bank. The Hamas Charter says it will never acknowledge existence of Israel and will do whatever it can to destroy it. Must Israel still abide by the treaty with PA?

Art. 62 Checklist: Fundamental? – yes Unforeseen? – No, its happened before in Gaza The circs which have changed ARE an ‘essential basis of the consent to be bound by

the treaty’ The effect of the change radically transforms the extent of the obligs of the party

invoking the change - now removal would endanger ppl of israel The obligations in question are still to be performed under the treaty ?

Therefore, Israel might be able to legally terminate the treaty (despite the unforeseen prong)

o HYPO 2: If Israel had already withdrawn before the coup, then there are no obligations still to be performed under the treaty

War Between Contracting Parties1) Article 73:Cases of State succession, State responsibility and outbreak of hostilities: The provisions of

the present Convention shall not prejudge any question that may arise in regard to a treaty from a succession of States or from the international responsibility of a State or from the outbreak of hostilities between States

i.e. Vienna Convention does not contain any provision concerning the effect of the outbreak of hostilities upon treaties

2) Techt v. Hughes (Court of App of NY, 1920)Issue: whether the provision under which rights are asserted is incompatible with national policy in time of warHeld: Mrs. Techt is not an alien friend and not entitled to the statute’s protection. Her claim therefore depends entirely upon the continuing effectivenesss, despite the state of the war, on the treaty of 1848. The treaty is not terminated.

If a treaty is in force, the plaintiff has an estate of inheritance During wartime, treaties of alliance will necessarily fall, and treaties of boundary or cession,

dispositive, or transitory conventions (+ treaties which regulate the conduct of hostilities; treatment of prisoners of war; belligerency) will survive.

Cardozo: Provisions compatible with a state of hostilities, unless expressly terminated, will be enforced, and those incompatible rejected

CHAPTER 4. OTHER SOURCES OF LAW

Art 38 of ICJ Statute - sources of law:a) international conventionsb) international custom, as evidence of a general practice accepted as law; c) the general principles of law recognized by civilized nations;

d) judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.

1. GENERAL PRINCIPLES OF LAW - recognized by civilized nations (Art 38 (c) of ICJ Statute) Prosecutor v. Tadic (International Criminal Tribunal for the Former Yugoslavia (ICTY), 1995)

Background: ICTY was created by the UN Security Council in 1993– authority is the UN Charter o There is nothing specific in the UN charter giving authority for the Sec. Council to create the court,

but the ICTY has interpreted the charter as giving authority to Security Council (p. 235, the ct views that “the security council was endowed with the power to create this int’l tribunal as a measure under Chapt VII in the light of its determination that there exists a threat to the peace.”

Facts: Tadic was the first person tried by ICTY. He was accused of committing atrocities at the Omarska concentration camp in Bosnia-Herzegovina in 1992. It was the first war crimes trial since Nuremberg and Tokyo after WWII. Tadic argued that ICTY had no jurisdiction b.c the Tribunal had been created subsequent to the acts to which he was accused. He argues that the International Tribunal was not established by law, and therefore was created in violation of the “GENERAL PRINCIPLE” that “You cant try someone except by a court which has been established by law.”Holding: this International Tribunal has been established in accordance with the approp procedures under the UN Charter and provides the necessary safeguards of a fair trial. It is thus “established by law.”

i. 3 possible interpretations of the term “established by law.”1. Established by the legislature there is no legislature in the UN, so this interpretation cant

apply in an international law setting2. Establishment by a body which, though not a Parliament, has a limited power to take

binding decisions a. Ct believes that the Security Council, when acting under Chap VII of the UN Charter,

makes decisions binding by virtue of Art. 25 of the Charter therefore, it was endowed with the power to create this Int’l Tribunal in light of its determination that there exists a threat to peace

3. Establishment must be in accordance with the rule of law must be established with the proper Int’l standards; must provide all the guarantees of fairness, justice, and even-handedness, in full conformity with internationally recognized human rights instruments.

a. This is the most likely meaning of the term in this context!ii. Alternative Argument: this general principle only applies to domestic tribunals. Par. 42

5 categories of general principles that have been applied to IL (Schacter):1) Principles of municipal law recognized “by civilized nations” (how ICJ 35 defines general

principles) In reality, neither courts or political organs of States have significantly drawn on municipal

law principles as an autonomous and distinct ground for binding rules of conduct2) General principles of law derived from the specific nature of the int’l community

i.e. necessary principles of co-existence pacta sunt servanda, non-intervention, territorial integrity, self-defense, and legal equality of the States.

3) Principles “intrinsic to the idea of law and basic to all legal systems” analytical propositions “no one can transfer more rights that he possesses” juridical postulates/legal logic the later supersedes the earlier law, if both have the same

source even though these principles are “intrinsic”, they still rest on the implied consensus of the

relevant community 4) Principles valid through all kinds of societies in relationships of hierarchy and co-ordination

Idea of unity of the human species, evidenced by 3 global developments: Global movement against discrimination on grounds of race, color, and sex Move towards general acceptance of human rights Increased fear of nuclear annihilation

5) Principles of justice founded on the very nature of man as a rational and social being Principles of natural justice – 2 aspects

The minimal standards of decency and respect for the individual human being largely spelled out in human rights instruments

Concept of equity which includes such elements of natural justice as fairness, reciprocity, and consideration of the particular circumstances of a case.

Humanitarian Principles o Corfu Channel Case (UK v. Albania), ICJ 1949

Facts: Mines exploded in Albanian territorial waters which damaged British warships and killed the personnel on the ships. Proc: UK claimed Albania was internationally responsible and had a duty to pay damages. Held: Albania had an obligation to warn the UK of the existence of a minefield & Albania had to know that its territory was used for acts contrary to the rights of other states

This is based upon certain general and well-recognized principles elementary considerations of humanity, the principle of freedom of maritime communication

Substantive Equity: Estoppel, unjust enrichment and abuse of rights have been treated as general equitable principles of law

o Litigants before int’l tribunals assert ‘clean hands’ doctrine in reliance on Diversion of Water from the Meuse and other cases, but aren’t always able to persuade the court that the facts warrant the application of the doctrine.

2. JUDICIAL DECISIONS AND PUBLICISTSA. JUDICIAL Decisions ICJ: Art. 38(1)(d) of the ICJ Statute – directs the court to ‘apply judicial decisions and the teachings of the

most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.’

o It is subject to Art 59, which states that the “decision of the ct has no binding force except bet the parties in respect of that particular case.” Stare decicis does not apply to ICJ decisions.

However, despite the above provisions, ICJ decisions are usually regarded by int’l lawyers as highly persuasive authority of existing IL

Cardozo: a decision of the ICJ is the “imprimatur of jural quality” when the Ct speaks with one voice or the support of most judges. When they are significantly divided, they have diminished authority.

o States do not wish the world courts to ‘create’ new law however, there are discretionary elements in the art of judging

o Many judges on ICJ are well known legal scholars. Decisions of Other International Tribunals

o Other International Tribunals: ICJ is not “above” these other courts Arbitral tribunals: These decisions are referred to as persuasive evidence of law European Court of Justice and the European Court of Human Rights: hand down

decisions that express/interpret principles and rules of IL Inter-American Court of Human Rights Int’l tribunals of specialized subject-matter jurisdiction: Int’l criminal tribunals for the

former Yugoslavia and Rwanda; Int’l tribunal for the law of the seao Will the decisions of these courts will be treated by the ICJ and other law-applying bodies as a

‘subsidiary means’ under ICJ article 38(1)(d)? Precedents in International Tribunals - Even though Art 59 excludes stare decisis, the Court still cites its

earlier decisions and incorporates their reasoning, creating a consistent jurisprudence

o The US Supreme Court has declined to follow an interpretation of an int’l treaty rendered by the ICJ. It has held that the ICJ’s interpretations are not binding on them, since it is not even binding on the ICJ itself.

Ex: Sanchez Llamas v. Oregon & Medellin v. Texas - one of the arguments was article 59 Decisions of National Courts - may be treated as a subsidiary source independently of their relation to

state practice.

B. THE TEACHINGS OF THE MOST HIGHLY QUALIFIED PUBLICISTS IF THE VARIOUS NATIONS The use of the scholarly writer in IL has been more important than in municipal systems. The basic

system of IL is largely the work of publicists. The extent to which writers are referred to as “subsidiary” authorities differs according to the tradition of the court and the individual judge.

o In the civilian system, reference to textbook writers and commentators is normal practice. The practice of the ICJ has typically been to refer to scholarly writings only generally.

o The major treatises of IL usually cited by states and tribunals were generally produced by jurists of Western Europe many of the legal scholars were pressured by their county to conform to the ‘official’ point of view or were biased themselves

o International bodies of publicists The International Law Commission – an organ of the UN of 34 ppl elected by the UN

Gen Assembly based on gov nominations They are supposed to agree on what the IL is on various matters and write it up.

Sometimes draft what later become treaties if states agree (i.e. Vienna Convention)

They’re publications have been used as a reputable place for determining what the law is (but not a source of law in the sense that treaties and customary law are)

International Law Association – great weight afforded to resolutions adopted by consensus or large majorities of reps of diff regions

Branches in many countries – we have the US branch Set up committees of ppl from diff branches and committees prepare reports on

various issues; meet biannually to determine whether they should be adopted.o Cited quite frequently.

The Restatement of the Foreign Relations Law of the U.S – prepared by American Law Institute (a private organization of prominent lawyers, judges, and law professors. You become a member by invitation by another member of the institute)

The ALI appoints someone to be a reporter for the Restatement. They then draft proposals and send them to rest of the members. Then they discuss them at a meeting.

o Reporter was Prof. Henkin for the Foreign Relations Restatement. Many groups opposed this restatement, so they postponed the adoption to give others to comment on it

Contains rules of IL as it applies to the US in relations with other states and also rules of US domestic law with substantial significance for US foreign relations

o ALI adopts standards that aims at an objective determination of general IL – it’s viewed by US courts as the most authoritative US scholarly statement of contemporary IL

3. UN DECLARATIONS AND RESOLUTIONS A. General Assembly Declarations and Resolutions

Not mentioned in Art 38 of ICJ Statute as a source of determining IL. Charter doesn’t grant authority to Gen Assembly to enact binding rules of conduct or adopt binding

decisions It can only discuss any questions abt the Charter and make recommendations to the UN members or the Sec Council (Art 10)

o One caveat – they can adopt a budget and require all members to pay

Legal effect of resolutions that express/clearly imply legal principles or specific rules of law - o Can be considered by gov’ts and courts as evidence of international custom or as expressing a

general principle of lawo Can serve to set forth principles for a future treatyo If its been adopted without a negative vote or abstention, there is a strong presumption that it

contains a correct statement of law (if its not unanimous, then its more questionable)o Generally becomes binding because it has become customary law

There are many Gen Assembly resolutions adopted by large majorities, and yet state practice is to the contrary - Since they’re not binding, they don’t have to abide by them so they vote for things that sound good b/c its good PR.

Filartiga v. Pena-Irala (2nd Cir, 1980) *Landmark - resurrected the Alien Tort Statute//human rightsFacts: a wrongful death action brought in fed district court by 2 nationals of Paraguay for the death of their daughter/sister who was tortured by Pena-Irala, the Inspector General of the police at that time. They gained personal jurisdiction b.c Pena-Irala was visiting the US at the time and the sister/father saw the article. They got a lawyer who brought an action based on the Alien Tort Statute, which states “the district courts shall have orig jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the U.S.” (this statute was adopted 100 years earlier but had never been adopted by a US court.)

o Claimed that the conduct that led to the wrongful death constituted torture and violated the “law of nations” (customary IL).

Held: Deliberate torture under the color of official authority violates the law of nations o Court relied on 2 Declarations, adopted without dissent by the General Assembly, as evidence that a

prohibition of torture had become part of customary IL:o The Universal Declaration of Human Rights: a Gen Assembly resolution

Eleanor Roosevelt was the major force behind this resolution – declared it was a common standard of achievement, not a binding agreement imposing obligations

Some say The Universal Declaration of Human Rights is now an authoritative statement of the int’l community, rather than just a binding treaty to its parties

o 1975 UN Gen Assembly Declaration on the Protection of all Persons from Torture : also not binding

o Also cited the Int’l Cov of Civil and Political Rights as a source of customary law, but not as a treaty, b/c it had not yet been ratified by the US

o Torture is prohibited by the laws of 50 or more states tried to establish rule of customary law, but Amnesty Int’l had conducted a survey which found most states DID use torture therefore, it fulfills the element of ‘opinio juris’ but not the ‘practice’ element.

o At the time, the Torture Treaty was not yet in force!*this case allowed people in the US to bring actions from torture committed abroad

Sosa v. Alvarez-Machain (US, 2004)Facts: Alvarez-Machain was a doctor in Mexico. Allegations that Mexican drug cartel captured US DEA agent. They tortured him to get info. When he passed out, Alvarez revived him so he could be questioned more. The DEA agent died. DEA said if anyone brought Alvarez to the US, they would get a $50K reward. He was kidnapped, brought to border, and arrested by DEA. He was tried and acquitted by district ct. Then he brought an action under the Alien Tort Statute against the US for being involuntarily detained without legal authority by bounty hunters operated as US agents who captured him in Mexico and brought him to the US. Issue: whether Alvarez had been arbitrarily arrested in violation of IL, whether arising from treaties or from customary IL

To state a cause of action under ATS, must show that substantive violation of the treaty or customary law to get into court for jurisdiction purposes (here he tried to use customary law)

o P argued that this detention violated customary law relying on UN resolution argued his abduction by Sosa was an “arbitrary arrest” within the meaning of the Universal

Declaration of Human Rights : court held that b/c the Declaration was non-binding at its inception, it could not established the relevant rule of IL

o Also within Article 9 of the Int’l Covenant on Civil and Political Rights . Art 9: Everyone has the right to liberty and security of person. No one shall be

subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.

P claimed it was so widely ratified that its provisions constitute customary IL and therefore he could invoke the Alien Torts Act – US reservation to ICCPR said it could not be enforced in US courts though (not self-executing)

Held: There is no relevant treaty obligation creating obligations enforceable in US courts The Declaration and the Covenant themselves do not establish the relevant and applicable rule of IL (they are not customary law)

Ct said a single illegal detention of less than a day, followed by the transfer of custody to lawful authorities and a prompt arraignment, violates no norm of customary IL (that the minimal period of time involved here is not so egregious as to constitute a violation of customary IL)

Note: the SC clarified the Filartiga Court’s use of the ATS to say that ATS is solely a jurisdictional statute; it does not itself provide a cause of action. (don’t forget, a cause of action can be found in a treaty or in customary IL)

B. Security Council “Law-Making” Nothing in the UN charter gives the Sec Council authority to make law, but the UN charter gives the

Council power to take compulsory measures under Chap VII (Art. 39-51) of the Charter, which UN members are bound to implement under Arts 24 and 25.

o Starting in 1990, the Council has acted in many international and internal conflicts by imposing economic sanctions and other nonforcible measures.

Legal challenges to Security Council’s legislative authority have been brought and continue to be brought. The authority has not yet been fully tested or settled in the post 9/11 era.

o They have began exercise of authority that are “law-making” in character adopting resolutions ‘affirming’ or ‘declaring’ certain propositions of law which were widely accepted but not entirely beyond dispute

1991-2001: asserted itself w. respect to global threats from terrorism, weapons of mass destruction, and violations of human rights. (sanctions for Libya, Iraq)

Resolution 1373: adopted 9/28/01 (4 weeks after 9/11). Reaffirms resolution 1368 (dated 9/12/01) (1) All States Shall ,“acting under ch. VII of the UN Charter”:

(a) Prevent/suppress financing of terrorist acts(b) criminalize the willful collection or provision of funds w/ the intention that the funds will be used,

or the knowledge they will be used, to carry out terrorist attacks (US criminalized this) (c) freeze assets of those who commit terrorist attacks – (d) cannot make funds or financial resources available to benefit those who commit terrorist attacks

(2) All States Shall:(a) prohibits recruitment of terrorist groups(c) deny safe haven to those who plan or commit terrorist attacks(e) terrorists acts are established as criminal offenses with sever punishments ensure that terrorists are brought to justice and (g) prevent movement of terrorists across borders

(3)(f): before granting someone an asylum, you must make sure they did not commit a terrorist act(6) Establishes a committee of security council to monitor implementation of the resolution; calls upon all

states to report to committee 90 days after the adoption on the steps it will take

o Resolution 1373: Requires ALL states to take obligatory measures to combat terrorism this is an intrusion on states. Is this legal? What provisions in the charter give it this power?

o Art 39, 41, and 42 of UN Charter the res doesn’t correspond to what the articles state; but that doesn’t mean its unlawful; You can argue both ways

Strong Argument: The kinds of things art.’s 41 and 42 permit the sec council to do (41) impose economic /communications sanctions that could cripple a state OR 42) use force to attack a state) then a fortiori they can do something less intrusive

No one today strongly agrees w. sec council’s authority to do it, but its certainly not explicit in the charter

o This is as close as you get to law-making at the Int’l Level Three possible legal limits to Council legislation :

1) Restrictions deriving from the text of the UN Charter - Council’s leg power must be exercised in a manner that is conducive to the maintenance of int’l peace and security (It’s a single-issue legislator)

a. Certain provisions in the Charter provide for only recommendatory powers of the Council.2) The principle of proportionality - Council legislation must be necessary in order to maintain int’l

peace and security Council legislation is always emergency legislation3) The concept of the integrity of treaties - Can the council make decisions to amend treaties?

a. Lockerbie Case– ICJ held that obligs imposed by the council take precedence over obligs under int’l treaties. A precondition is that the council may impose the obligation in the first instance.

b. RULE: The council cannot impose whole treaties on states since they contain not just substantive obligations, but also purely technical or administrative precisions whose imposition will not be necessary to address a threat to Int’l peace and security.

4. UNILATERAL ACTS - what are the legal consequences of unilateral declarations by states (as opposed to agreements “between states”)?

Nuclear Tests Case (Australia & New Zealand v. France) ICJ, 1974Facts: Australia and NZ brought applications to the ICJ demanding cessation of atmospheric nuclear tests being carried out by France in the South Pacific. France asserted that it was done testing and it wouldn’t do any more. The court dismissed the applicationsHeld: France’s prime minister and Minister of Defense’s unilateral act declaring that that they would not conduct anymore tests is binding. France also conveyed to the world at large that it intended to terminate the testing.

o Reason: it is well-recognized that declarations made by unilateral acts may have the effect of creating legal obligations.

Not all unilateral acts imply obligations, but when states make statements by which their freedom of action is to be limited, a restrictive interpretation is called for. It doesn’t matter if the statement is oral or in writing. The only criteria is whether the declaration reveals a clear intention.

The principle of good faith is key in unilateral declarations (just like pacta sunt servanda in treaties)

Frontier Dispute Case (Burkina Faso/Mali) ICJ, 1986Facts: Mali’s unilateral act: statement by Mali’s head of stateHeld: The declaration is not a binding unilateral act. The court must assess the intention of the state that made the declaration to determine whether that intention confers on the declaration the character of a legal undertaking

**there was nothing to keep the parties from manifesting an intention to accept the binding character of the conclusions of the Organization of Africa Unity Mediation Commission by the normal method, which is a formal agreement on the basis of reciprocity.

o Greater caution was taken in this case b.c the declaration was not directed at Burkina Faso, it was just generally states

CHAPTER 5: STATESA. ELEMENTS OF STATEHOOD

i. Traditionally, States played an exclusive role in the development of international law

o International Legal Persons –entities/ persons capable of possessing int’l rights and duties under IL and endowed with the capacity to take certain types if action on the int’l plane (i.e. making treaties)

O BUT today, NGOs and other international organizations are gaining increased influenceO Moreover, in a revolutionary step, an increasing amount of international law is becoming concerned

with individuals rather than State or organizationsII. Traditional Requirements of Statehood: Article 1 of 1993 Montevideo Convention –

O Territory – No min to how large the territory must be; also ok if the state is annexed to a foreign power; no requirement that territory be connected or contiguous

It can still meet this requirement if a border is in dispute, as long as some territory is not in dispute

Ex. Israel in 1948; U.S. and Canada had a border dispute we only settled ten or twenty years ago

O A permanent “people” / Population – no minimum population O Government control over the population – this does not mean that there cant’ be a civil war

going on. But if there is anarchy, there’s no state. Note that no one talks about what kind of government there has to be.

O Capacity to conduct foreign relations New York, for example, cannot conduct foreign relations Halberstam: Palestine doesn’t meet the requirements for statehood b/c the Chairman

represents Palestine only (even more pronounced now that Palestine parliament is controlled by Hamas)

III. Restatement requirement (§202): A state may not recognize another state that came into existence by the threat or use of force in violation of the UN charter.

o Problem: there probably isn’t a state in the world that didn’t come into being as a result of threat/use of force!

What if it came into being by use of self-defense? Technically, a state coming into being by use of self-defense is okay. However, then every country would argue it was using self-defense, and this would lead to instability in int’l system.

IV. Benefits of statehood:O Sovereignty over its territory (this is required to be a state) extends beyond its land and internal

waters to the adjacent belt of sea (coastal waters, at most 12 miles in), the air space above it, and the bed and subsoil beneath it

O Status as a legal personO Capacity to join with other states to make international law

v. UN Membershipo The purpose of the UN is to get as many members as possible and create a universal organizationO UN Membership is NOT automatic O Article 4 UN charter : Membership in the United Nations is open to all other peace-loving states

which accept the obligations contained in the present Charter and, in the judgment of the Organization, are able and willing to carry out these obligations.

Admission is effected by a decision of the G.A. upon the recommendation of the Security Council

O Some entities that fail to meet the criteria set forth in Article 4 have been recognized in exceptional circumstances

O During the cold war, the US and soviet union managed to keep lots of states out of the UN through their Veto power

The situation was resolved when they allowed 10-15 states to come in at once, some which were communist and some which were western-type governments

vi. Entities with Special StatusA. The state of the Vatican city and the Holy See - treated as 2 distinct legal personsB. Palestine

o Palestinian Liberation Org – seeking creation of a Palestinian state since the six day war in 1967

o Resolutions of UN Gen Ass. have accorded observer status to the PLO and the capacity to participate in Gen Assembly activities that are normally reserved for states.

o Nov 1988: PLO declared Palestine an independent state. Still not admitted to UN as a member state, but over 100 countries ‘recognize it’ as a state

o Sep 1993 – Yitzhak Rabin said the Gov of Israel will recognize PLO as a rep of the Palestinian people, when Arafat recognizes the right of state of Israel to exist in peace and security.

B. RECOGNITION OF STATEHOODi. Recognition = An authoritative statement issued by competent foreign policy decision-makers in a country,

whereby. the decision-makers signal the willingness of their state to treat with a new state or to accept that consequences flow from a new situation

O Not an important factor today.ii. Entities are recognized as “states” when -

o Break up of an existing state into a number of states o Devolution or secession by part of a territory of an existing state o Foreign control is exercised over affairs of a state, whether by treaty, unilateral imposition or

delegation of authority o States merge or form a union o Claims by constituent units of a union or federation to the attributes of statehood o Territorial or non-territorial communities which have separate int’l status by virtue of

treaty/customary law iii. Is recognition a requirement of Statehood? Two views:

o Declaratory – a State becomes a State by declaring itself as such; Recognition by other states is not a requirement of statehood

This is the adopted authority – Art 3 of Montevideoo C onstitutive – a State becomes a State ONLY when it is recognized as such by other States (the

other states, by their recognition, constitute or create the new state.)o § 202 of the Restatement now says that a state may not recognize another state if it violates int’l law

International law prohibits states from acquiring territory by the use of force. Restatement doesn’t say states have to refuse to recognize it; it just says they may not. That is, a state that acquires its territory may not be recognized by other states

iv. Prohibitions on recognizing statehoodo A duty NOT to recognize an entity as a new state may be applicable when an entity fails to satisfy

relevant criteria or when it came into existence in violation of fundamental principles of IL o Ex: in 1965, British colony of Sothern Rhodesia unilaterally declared itself independent under a

white-dominated (apartheid-like) gov. Sec. Council declared that Rhodesia should not be recognized as a state by an international organization b.c it is controlled by a “minority regime” that violates the principles of self-determination. (held it Rhodesia’s statehood constituted a “threat to the peace” b/c other states said they would attack them, even though S. Rhodesia at this point had not committed a breach of the peace.) It later got independence from UK as Zimbabwe

v. Taiwan – One Country/Two Systems: problem of recognition of governments (not statehood)o Republic of China (ROC) had authority over both mainland china and Taiwan o Oct 1949 - Communist revolution gov of People’s Republic of China (PRC) established on

mainland in Beijing and ROC retreated to Taiwan and continued to assert that it governed all of China.

o Taiwan is not recognized as a state, yet has a considerable economic presence internationally US recognized the PRC in 1979, yet continue to maintain unofficial relationships with Taiwan

through the 1970 Taiwan Relations Act. Taiwan retains commercial relations with the US from the Taipei Economic and Cultural Representative Office (TECRO)

2000: President Shiu-Bian of the Democratic Progressive Party (DPP) was elected in Taiwan – he pledged not to declare independence unless the mainland attacked Taiwan

C. Principles of Self-Determination of “Peoples”i. Concept of Self-Determination – one element in state formation concerns the will of the people in a

particular territory to determine whether they should be constituted as a state. a. In 1945, UN charter embraced self-determination as a “principle.”

i. Art. 1, § 2 : “To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace”

1. UN charter doesn’t provide for a RIGHT to self-determination; it doesn’t include it as a purpose either.

2. UN Gen Assembly passed numerous resolutions referring to right of self-determination, but of course, these are not binding.

b. First half century of UN charter – applied to the decolonization of non-self governing territoriesc. Treated as a principle of IL in treaty and non-treaty instruments 2 int’l conventions on human

rightsi. Legally binding documents that have been ratified by many states that provide for a right to

self-determination Art. 1 of Int’l Covenant and Civil and Political Rights Art. 1 of the Covenant of Economic, Social and Cultural Rights

d. “Peoples” are entitled to self-determination i. Who are peoples? Language, culture, ethnicity or religion that distinguish a group of

people Native Americans Curds in turkey/ curds in Iraq Chechnyans in Russia

e. Legal consequences of the construction of a wall in the occupied Palestinian territory (ICJ, 2004) – ct found that Israel’s constriction of a barrier enclosing portions of the West Bank with Israel posed a risk of altering the demographic composition of “occupied Palestinian territory,” by contributing to the departure of Palestinian pops from certain areas. That construction severely impedes the exercise by the Palestinians of their right to self-determination, and is therefore a breach of Israel’s oblig to respect that right.

f. Meaning of the “the right of self-determination of peoples” - (post cold-war, highly contested)

i. Most basic: an independent state1. If we give all peoples this right, it could cause problems You could have 1,000’s of

small independent states that are not viable and you would also be dismembering existing states

2. Limitations on self-determination( Prof. Franck): Resolutions that say right of self-det cant impair the territorial integrity or political unity of the state

a. Cant impair an existing state – Historically, this right was applied to former colonies. (Yugoslavia)

ii. A right to join with another existing state and become part of a federationiii. Free Participation in the political process

ii. Reference Re Secession of Quebec (S.C. of Canada, 1998)Issue: Is there a right to self-determination under international law that would give the government of Quebec the right to effect the secession of Quebec from Canada unilaterally?Held: No. Quebec people are not oppressed, they are not denied access to gov (they are represented in all branches of canada’s gov) they do not have the right under IL to secede unilaterally from Canada. They are entitled to self-determination, but are not entitled to an independent state.

Ct’s definition of self-determination - even if you are a ‘peoples’, you are entitled to independence only if you don’t have internal self determination (i.e. cant vote or participate in the political process in their country)

There are propositions on which a IL allows parts of sovereign states the legal right to secede unilaterally from the parent state:

1. Unilateral secession is not specifically prohibited, and what is not specifically prohibited is inferentially permitted

2. Implied duty of states to recognize the legitimacy of secession brought about by the exercise of the well-established IL right of “a people” to self-determination (this right is not a general principle of IL)

A “people” may include only a portion of an existing state the definition is hazy, but in this context, the “people’s” right to self-determination does not ground a right to unilateral secession

Scope of right to self-determination – o Right to internal self-determination: a people’s pursuit of its political,

economic, social, and cultural development within the framework of an existing state

o Right to external self-determination: arises only in the most extreme cases those under colonial rule or foreign occupation, some believe also applies when a people is blocked from the meaningful exercise of its right to self-determination internally, it is entitled to exercise it by secession.

D. RECOGNITION OF GOVERNMENTS –i. This is NOT the same as recognizing a state. Each time a government changes, you don’t have to re-

recognize the government. A state may have diplomatic relations with an unrecognized government ii. Issues of Foreign Gov’t Recognition

1. Ex: When a rebel insurgency defeats military forces an existing gov (i.e. when the Soviet Union began in 1917 by overthrowing the Czar)

2. Ex: When an existing gov is toppled by a military coup, or when an existing gov refused to allow a democratically elected opposition to assume control. Foreign govs must decide which entity to recognize.

iii. What difference does it make to not recognize a government?1. Countries that don’t recognize them may not make treaties with them2. If the US doesn’t recognize a foreign gov’t, that gov’t cannot sue in our US courts (i.e. Eastern Germany

wasn’t recognized for a while, so it couldn’t sue here on a business contract) -> Exception: National Petrochemical co of Iran v M/T Stolt Sheaf

3. To get around the problem, some states developed 2 types of recognition (UK did this as well)i. A de facto gov that is in fact controlling all or most of the country – de facto recognition means

they are the gov in fact but not legally the gov or should be the gov.ii. A de jure gov that has a legit claim to governance but is either in exile or controls only a portion

of the countryiv. Recognition and the UN:

1. When there are 2 competing governments in one country, who gets the right to represent the country in the UN? 2 views:i. General Assembly view: appoints a Credentials Committee to have each representative of each

state present their credentials at each meeting i.e. determine on a case-by-case basis, or make political decisions

ii. Security Council : “The question at issue should be which of these 2 gov’s in fact is in a position to employ the resources and direct the ppl of the state in fulfillment of the obligations membership” (i.e. see who is in actual control of the state) The UN should accord the gov that is obeyed by the bulk of the population the right to

represent the State in the UN.

2. Conference on Security and Cooperation in Europe (CSCE), Document of the Moscow Meeting on the Human Dimension (1991): right after the Soviet Union broke up; attempt at a coup; soviet union insisted on inclusion of Par. 17.2

Condemns forces that try to obtain power from a representative gov against the will of the people as expressed in free and fair elections

Participating states (17.2)“will support vigorously, in accordance with the UN charter, in case of overthrow or attempted overthrow of a legit elected gov of a participating state by undemocratic means, the legit organs of that state upholding human rights, democracy, and the rule of law, recognizing in their common commitment to countering any attempt to curb these basic values”

This conference also issued the Helsinki Accords -- > states that the Western world recognized the Soviet Union’s influence of the various countries in eastern Europe. This was considered a great coup for soviet union.

Basket 5: listed various human rights for gov’ts to give to their ppl Published this in the Pravda newspaper, and human rights activists started

Xeroxing it – the gov then banned that issue of the Pravda. This was supposedly the end of the soviet union.

o Today, the int’l community doesn’t refuse to recognize govs just because their non-democratic (I.e., China’s communist gov)

3. Effective control: measured by the degree to which gov commands the obedience of the people within the state.i. Majority of gov’ts rejected the effective control test as the criteria for choosing between rival govts

v. Various Doctrines: (p. 353-54)1. Tobar Doctrine (1907): States of the Western Hemisphere should deny recognition to govs that

come to power pursuant to non-constitutional means. (in their OWN state)i. named for Ecuador’s foreign minister

2. Brezhnev Doctrine: denied the legitimacy of any gov that ousted a socialist/communist governmenti. Named for Soviet President Leonid Brezhnev

ii. At the time Hungary and Czech had tried to get out from Socialist governments. 3. Reagan Doctrine: favored support for insurgencies seeking to establish democratic gov’t against a

non-democratic regime. The US would use force to protect democratically elected governments. (direct response to Brezhnev)

vi. Is recognition really necessary?o Estrada Doctrine = recognition of the government is unnecessary once the state has been recognized.

The concept of recognition is insulting to other governments. o Many countries have not abandoned the institution of recognition as a political tool

o US has moved to deemphasize the use of recognition in changes of foreign governments. o In April 1980 UK announced a change in recognition policy – they will no longer afford

recognition to governments. They will recognize all States in accordance with common int’l doctrine.

vii. Unrecognized Governments1. Capacity of unrecognized governments to bind the state

i. Tinoco Claims Arbitration ( Great Britain v. Costa Rica, 1923) – William H. TaftFacts: The Tinoco regime came to power in Costa Rica in 1917 by a coup and maintained control for 3 years. It was not recognized by US and the UK. When Tinoco fell, the restored Costa Rican gov nullified all contracts by Tinoco, including an oil concession to a British co.

o UK argued: Tinoco was the only gov in power when the liabilities were created and its acts could not be repudiated

o Costa Rica argued: Tinoco was not a recognized gov capable of entering contracts on the state’s behalf. Also argued UK was estopped fro claiming that the Tinoco gov could confer

rights on British subjects b.c Britain itself did not recognize the gov’t.Held: there is no estoppel b/c Great Britain, by non-recognition, did not dispute the de facto existence of the Tinoco regime and b/c the successor gov’t had not been led by British non-recognition to change its position.

2. Unrecognized Governments in Municipal lawi. Salimoff & Co v. Standard Oil of NY (Ct of App. Of NY 1933)

Facts: Salimoff (P) was the equitable owner of oil property that had been seized by a nationalization decree and confiscated by the Soviet gov in Russia. When the soviet gov sold oil extracted from that property to Standard Oil (D), Salimoff sought an accounting, alleging that the confiscatory decrees by the unrecognized Soviet gov had no legal effect. The complaint was dismissed and P appealed.Rule: when no right of action is created at the place of wrong, no recovery in tort can be had in any other state

The US gov recognizes that the Soviet gov has functioned as a de facto gov since 1917, riling within its borders. The courts cannot refuse to recognize a de facto gov merely because the State dept has not recognized the Soviet gov as a de jure gov. Affirmed.

Note: Salimoff claimed that the Soviet gov was nothing more than a band of robbers and had no legitimacy. The court asked the rhetorical Q whether Soviet Russia was a band of robbers or a gov. Ct said “everyone knows it is a gov.”

ii. National Petrochemical co of Iran v M/T Stolt Sheaf (2d cir 1988)Proc: a corp wholly owned by Iran sued as a plaintiff in a US fed court. District court dismissed the claim on the ground that the US had never recognized the gov of the Islamic Republic of Iran and that an entity owned by an unrecognized gov cannot bring suit in US courts. On appeal, US gov urged the P be granted access to court. Held: The absence of formal recognition does not necessarily result in a foreign gov being barred from access to the US courts. Reversed the district court. o 2 reasons for the holding:

o The practice of extending formal recognition to new gov’ts has altered its no longer always clear whether the US recognizes the foreign gov’t or not

o Since recognition is within the control of the state dept, and here they filed an amicus brief asking to allow them to sue, the court allows them to sue

The exec branch must have broad unfettered discretion in matters involving sensitive, fast-changing foreign relationships.

E. Acquisition of Territoryi. Whether a state has title to territory, based on one of the following:

1. Title By Discovering Or Occupying Terra Nullius – how European countries acquired territory that was unclaimed by any other sovereign recognized by European powers 2. Title By Military Conquest

Before IL prohibited the use of force in int’l relations in Article 2(4), territorial changes often came about through conquest.

o US has a lot of territory by conquest –After invading Mexico and occupying Mexico City in the Mexican-American war in 1846-48, the US secured the territory that became AZ, CA, NV, UT, CO.

What is the basis of position that a state cannot acquire territory by the use of force? o Declaration on Principles of IL Concerning Friendly Relations and Cooperation among

States in Accordance with The UN Charter (1970): every state must refrain from the threat or use of force against the territory or political independence of another state. To do is a violation of IL.

Territory obtained from use of force is null and void b/c you cannot benefit from your own illegal act

o Ex 1: Suppose state A attacks state B. State B defends itself and manages to get some territory from state A. is that acquisition illegal? (there is a split on this question)

Counterargument: Art. 51 allows you to use force under the charter if youre acting in self-defense. Since this is not an illegal act, then you should be able to keep the land.

o Ex 2: Security council’s resolution concerning Iraq’s attempted annexation of Kuwait (1990): UN condemned Iraq’s invasion and occupation of Kuwait and demanded they withdraw their forces. Decided the annexation of Kuwait has no legal validity.

Since Kuwait took land legally (in self defense against Iraq) should they be able to keep it?

Argument of those who say “you cannot keep the territory” Iraq-kuwait example is one of the few where its clear who the aggressor was. In many situations, both sides argue they were acting in self-defense.

Policy argument for why a victim state should be able to keep the territory deter countries from being aggressive/attacking others

Counter: in most conflicts, most states would name the other as the aggressor, which would undermine 2(4)

o Ex 3: 1967 War – Documentation that Egypt was the aggressor. Asked Jordan to join it in the attack on Israel. Israel sent a note to Jordan telling them not to join Egypt and they will not attack you. Jordan rejected that note. They had the war and Israel acquired territory.

Israel argued since they were attacked and acted in self defense, they have a right to the territory.

Security Council Resolution 242 – Affirms that the fulfillment of Charter principles requires the establishment of a just and lasting peace in the Middle East which should include the application of both the following principles:

(i) Withdrawal of Israel armed forces from territories occupied in the recent conflict

o does not require Israel to withdraw from all the territories. They felt that should be the subject of negotiation that’s why all Arab states opposed this resolution.

(ii) Termination of all claims or states of belligerency and respect for and acknowledgment of the sovereignty, territorial integrity and political independence of every state in the area and their right to live in peace within secure and recognized boundaries free from threats or acts of force

o If Israel is illegally holding the territories, then building settlements would be illegal – if they are mandated territories, then both Israelis and Arabs have the right to have settlements there

3. Title By Treaty Of Cessation A state can prove that it lawfully received it from a prior sovereign, either by purchase or as a

concession in exchange for some other benefit. 4. Title By State Succession

A state can demonstrate that it ‘succeeded’ to the territory when the predecessor state dissolved or disappeared, or when a new state broke way from an existing state.

5. Title Based On Longstanding Effective And Peaceful Possession (Prescription) One state obtains title to a certain territory and a second state then enters into the territory and

effectively and peacefully administers it got an extended period of time.

CHAPTER 7. INDIVIDUALS AND CORPORATIONS

1. STATUS, RIGHTS, AND OBLIGATIONS OF THE INDIVIDUAL IN ILA. The status of the Individual – Ways in which individuals have played a role in IL:

1. Crimes under customary IL for which individuals could be tried and punished by national courts (piracy and slave trading)

2. Forceful intervention by a state to protect its own national from mistreatment in another state, and

interventions to protect the nationals of the targeted state (humanitarian intervention)3. Individuals (and corps) have long been implicated under the customary Int’l Law of state

responsibility – if an alien person is injured by a wrongful act/omission by a state, and if he cant gain redress under the legal system of that state, the state of which the injured person is a national may intercede and assert a claim against the offending state.

4. Int’l agreements create rights in individuals and juridical entities against foreign states. (treaties of friendship, commerce, navigation)

5. Many int’l agreements, int’l custom, and national law have long governed transnational transactions involving private parties.

B. Individual as Object or Subject of IL:1. Object of IL = states decide whether and how to protect individuals, just like property interests2. Subject of IL = capable of advancing certain int’l rights and of being held to certain int’l obligs

C. Rights of the Individual: Lagrand Case (Germany v. US, ICJ 2001)

Facts: Art. 36(1)(b) of the Vienna Convention on Consular Relations gives the right of aliens upon arrest to have their consulate notified. The US law enforcement personnel failed to immediately inform Lagrand (and his brother, who was executed) of this right. The Lagrands had German nationality but had been living in TX since infancy.

Germany argued: Art. 36 confers an individual right upon the foreign national concerned US argued: the purpose of the treaty was to establish consular rights between countries and

was not directed at the individual. Art. 36 creates rights in the State, and nowhere (else) in the Vienna Convention does the document mention individual rights

Issue: whether the actions of the policemen could also be said to violate individual rights held by the LaGrand brothers under IL, not just by Germany?Held: The text of Art 36(1) creates individual rights which may be invoked in this court by the national State of the detained person. These rights were violated in the present case.

Remedy: the US, by means of its own choosing, shall allow the review and reconsideration of the conviction and sentence by taking account of the violation of the rights in the Vienna Convention

Other Cases (Melvina):o Breard v. Greene (1998): Assertions of error in criminal proceedings in the US must be first

raised in the state court in order to form the basis for relief in habeas. Since Breard did not do so, he cannot raise a claim of violation of the Vienna Convention now.

o In Avena and Other Mexican Nationals ((Mexico v. US, 2004) – ICJ said the US had to review the decisions by means of its own choosing.

o After Avena, litigation was brought in US courts to attempt to obtain review and reconsideration of the imposition of the death penalty based on the Court’s decision.

In Medellin v. Texas, the US S.C found that the Avena judgment did not give rise to self-executing obligations under US law. Outcome of the decision ICJ judgments do not have to be binding on US courts

The European Community system is the most advanced in recognizing the status of the individual.

D. Obligations of the Individual – there are a growing number of circumstances where IL has recognized an individual’s responsibility for conduct labeled as criminal under IL.

1. Piracy - Individuals committing “an offense against the law of nations” -> US Const gives Congress power to define and punish piracies and felonies committed on the high seas and offenses against the law of nations.

2. Geneva Conventions - Individuals accused of violations of the laws of war may be punished by the country of which they are nationals, by the enemy, or by international authorities. (this is regulated by the four 1949 Geneva Conventions)

3. Anti-terrorist conventions require any state party to make the offense punishable by severe penalties and either (1) to investigate and prosecute an alleged offender in custody or (2) extradite

the person to another party having jurisdictioni. Ex’s: conventions dealing with hijacking of airplanes; sabotage of aircraft; hostage taking;

seizure of ships on high seas (very narrow conventions, avoided the word ‘terrorism’)ii. Genocide Convention

4. Nuremberg Charter - Multinational military tribunals in Nuremberg - first modern instances of trials of individuals by an int’l tribunal for crimes under IL.

i. IMT at Nuremberg established by the London Agreement (1945) bet France, UK, US, and USSR. (1 judge from each). Nazis charged with:

1. Crimes against peace – planning, preparation, initiation of a war of aggression or in violation of Int’l Treaties

2. War crimes – violations of the laws of war3. Crimes against humanity - involved crimes against a country’s own citizens 4. Conspiracy to commit any of the foregoing crimes

ii. Defendants claimed:1. Int’l law is only concerned with actions of states and does not encompass

punishment of individuals2. When the conduct is an act of state, individuals who carry it out are not responsible

iii. Tribunal reject D’s claims -- Individuals can be punished for violations of IL! Crimes against int’l law are committed by men, not entities. (you cant put a state in prison)

2. NATIONALITY OF INDIVIDUALS A. Significance of Nationality – whenever IL is being construed as it relates to individuals, a threshold issue

will be to ascertain the nationality of the individuals. Most basic right You have no right to live in a country without their nationality

o In WWII, germans denied Jews of nationality, so they couldn’t go anywhere to live Disadvantages of a nationality taxes, serve in the military Government can require you to do certain things, even if you are not currently in the country

o IL recognizes the right of a state to enact laws that regulate its nationals, even when theyre out of its territory.

B. Acquisition and Denial of Nationality – State’s national law determines how persons acquire that state’s nationality. Bases for Nationality:

1. Children born within the state 14th Amendment confers Constitutional right to US nationality in the US jus soli: nationality is provided to individuals born within the territory

2. Children born to parents who are already nationals of that state (jus Sanguinis) jus sanguinis: nationality is provided only to individuals whose parents are nationals. This leaves open the possibility of dual nationality

3. Persons who apply for nationality and meet specific conditions ( naturalization) Dual nationalities.

o Advantages – get the protection of 2 Stateso Disadvantages – can be taxed or conscripted into the army by 2 countrieso Ex: In Switzerland, nationality is based on parents. In US, its based on birth. So someone born in

the US with Swiss parents would have dual nationality. Statelessness/ No nationality:

o Can arise when someone is born to alien parents in a country that doesn’t recognize nationality by birth

o Can arise when someone is born on a rogue (flagless) ship (Hanna Case) Ex: A man was born on a ship but nobody knew what flag it flew. He did not know his

parents nationality. He was illegally living in Canada, but he had nowhere to go. Canada put him in jail for not leaving. Canada could not keep him in prison if he couldn’t find a place to go

o A State can strip nationality – ex. Nuremberg Lawso Does a person have a right to nationality//protected from statelessness?

Art. 15 of Univ. Declaration on Human Rights – “everyone has a right to a nationality and that no one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality”

BUT there is nothing – no customary rule of int’l law, or treaty, or anything else – that says a nation has an obligation to give anyone nationality. The law that determines nationality is up to each state itself. (There is, however, a lot of law about taking away someone’s citizenship.)

C. Limits on the Conferring of Nationality - Nottebohm Case (Liechtenstein v. Guatemala, ICJ 1955)

Facts: Nottebohm (P) was born German and lived in Guatemala (D) for 34 years, retaining his German citizenship. 1 month after WWII began in 1939, he applied for citizenship with Liechtenstein, a neutral country (his brother lived there, he paid taxes there). He intended to remain in Guatemala. Liechtenstein approved the naturalization app and impliedly waived its 3 year residency requirement. P briefly visited Liechtenstein and then was not allowed to re-enter Guatemala, since he was a “German national.” (his Liechtenstein citizenship was not honored). Guatemala confiscated his property b/c he was an enemy alien.Proc: Liechtenstein brought an action before the ICJ to compel Guatemala to recognize P as one of its nationals. Guat challenged the validity of P’s citizenship, the right of Liechtenstein to bring the action and alleged its belief that P remained a German national. Proposition of Law: A state that has greater contacts w/ a person need not recognize the assertion of nationality from a state with fewer contacts (Therefore, Lichtenstein cannot sue on his behalf!)

Court treated Guatemala as though it was the State of Effective Nationality based on Nottebohm’s strong connections there Guatemala did NOT have to recognize Nottebohm’s Liechtenstein nationality Nottebohm was a Liechtenstein national for the purpose of Liechtenstein domestic law BUT

as a matter of international law, Guatemala (and ONLY Guatemala) doesn’t have to recognize it

Problem w/ this: court effectively says there is no state that could bring an action on his behalf. Since he has no Guatemalan nationality, he is stuck in limbo.

D. Dual Nationality Iran-United States Claims Tribunal , Case no A/18 (1984)

Background: in 1979, Iranian militants seized US diplomats and consular personnel and held them hostage. US blocked Iranian assets in the US. US companies with claims against Iran filed suit in US courts and levied attachments against the blocked Iranian assets. Jan 1981, the Algiers Accords was adopted, which resulted in the release of the hostages, creation of an arbitral tribunal in The Hague to hear clams, the return of Iranian assets to Iran. Issue: Does the Claims Settlement Declaration grants the tribunal jurisd over brought by the US against Iran, on behalf of a dual US-Iranian citizen? Doctrine of Effective Nationality - If a person has dual nationality, then the State of dominant and effective nationality can sue or afford diplomatic protection against the other state of nationality (can only be one state)

Criteria to become State of Effective Nationality – Genuine Link Doctrine:o Habitual Residence, Family Ties, Property, Voting, Participation of Public Life

State of Effective Nationality can protect you even against the other State of nationality BUT both could protect you against third party states

o Eritrea Ethiopia Claims Commission : Eretria advance claims against Ethiopia on behalf of dual nationals who possessed both Eritrean nationality and the nationality of a state other than Ethiopia.

Held: dominant and effective nationality doctrine must be restrictively applied and limited to cases where a claimant holds a nationality of the 2 disputing States.

CHAPTER 9. DISPUTE SETTLEMENT / THE INTERNATIONAL COURT OF JUSTICE

A. THE INTERNATIONAL COURT OF JUSTICE (ICJ)i. Permanent International Court of Justice:

o The precursor to the ICJ - heard 38 cases between 1922-1940o The PCIJ and the ICJ are similar in structure

ICJ established in 1945 as an “organ” of the UN The PCIJ was affiliated with the League of Nations BUT was NOT an “organ” of the League

ii. International Court of Justice (ICJ): o UN Charter established the ICJ (Arts. 92-96)

Art 92: established the ICJ Art 93: All UN members are ipso facto parties to the ICJ Statute

This legal relationship needs to be distinguished from whether any given state accepts the Court’s jurisdiction as proved in Art. 36 of the statute. (i.e. courts don’t automatically get jurisdiction over a party)

Art 96: The General Assembly or the Security Council may request the ICJ to give an advisory opinion on any legal question.

o 15 judges - elected for 9 years by majority votes of the security council and the general assembly of the UN, each body voting separately

There can only be one judge from each nationality. Ad hoc judge: A party to a case may designate an ad hoc judge if it doesn’t have a judge of

its nationality (art 31) Debate: Some say objectivity, neutrality, and reputation of the court is threatened by

this system. Others say it gives the court the opportunity to settle disputes in a way that meets the needs of the parties.

Nominations come from national groups, not the governments All questions are decided by majority vote, and the President breaks any ties

o ICJ Statute: prescribes the scope of the Court’s authority and jurisdictiono Only states may be parties to ICJ cases (not organizations or individuals)

iii. ICJ Jurisdiction Generally: o Article 36 of ICJ statute –

1. The 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.2. The 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 treaty; b. any question of international law; c. the existence of any fact which, if established, would constitute a breach of an international obligation; d. the nature or extent of the reparation to be made for the breach of an international obligation.

o The Court has jurisdiction over:i. Consenting Parties:

o All Members of the UN are “parties” to the Court a. BUT that does NOT mean that the ICJ automatically has jurisdiction over all

UN Membersb. Conversely, States do NOT have to be a UN Member to submit to ICJ

jurisdictiono NO State can be compelled to submit to ICJ jurisdiction

a. States can accept ICJ jurisdiction in advance – The ICJ was established at the same time as the UN and at that time, 1/3 of the Member States submitted to jurisdiction

b. States can also accept ICJ jurisdiction for a particular case

o METHODS OF CONSENT TO JURISDICTION (can be unconditional or on reciprocity)a. Consent by Agreement between the parties to a specific case (compris)b. Consent by a provision in a treatyc. Consent to Compulsory Jurisdiction by a Declaration by the states

under 36(2) (deposited with the Secretary General of the UN)

ii. Over all matters provided for in the UN Charteriii. As provided in treaties and conventions

o The Court decides all disputes pertaining to jurisdictiono Article 59 – a decision of the ICJ ONLY has binding force with respect to the parties to a particular

dispute

iv. ICJ Jurisdiction To decide contentious cases between states (based on consent by the parties)o Consent to Jurisdiction by Treaty:

i. Armed Activities on the Territory of Congo (Congo v. Rwanda, 2006)Facts: Congo complained of Rwanda involvement in military activities in Congo’s territory. Congo sought to found jurisdiction of the ICJ on 9 treaties with dispute settlement clauses providing for ICJ jurisd. Rwanda argued that it had entered reservations to the treaties’ dispute settlement clauses or that the provisions in questions did not cover the matters in disputeHeld: Court upheld Rwanda’s preliminary objections and dismissed the case for lack of jurisdiction.

o Articles II, III, and IX of the Genocide Convention – Rwanda said it excluded any dispute settlement obligation in its reservation. DRC claimed it withdrew it, but the court said that Rwanda had never taken formal acts to withdraw.

o Rule of IL: subject to agreement to the country, the withdrawal by a contracting state of a reservation to a multilateral treaty takes effect in relation to the other contracting states only when they have received notification thereof. Here, Rwanda did not notify (through the UN Secretary General) its withdrawal of reservations to the states party to the convention.

o Article 29 of the Convention on Discrimination against Women – the Congo made protests against Rwanda’s actions in violation of int’l human rights law. However, for a dispute to come before the court under this article, it must have been the subject of negotiations about the interpretation of the Convention. (no evidence here). This article cannot service to found the jurisdiction of the court in this case.

Principle of Law: In order for the withdrawal of a reservation to take effect, the country must notify the depository of the treaty that it is doing so. Doing so in its domestic law is not enough.*the mere fact that the rights and obligs of general IL are at issue in a dispute cannot in itself constitute an exception to the principle that its jurisdiction always depends on the consent of the parties*

o Consent by a Declaration by the states under 36(2)i. Compulsory Jurisdiction under the Optional Clause - As of 2009, 66 states were bound

by declarations under Art 36(2) Many declarations that join the optional clause system are accompanied by

Court must determine by the party’s declaration if they have accepted the same obligations

reservations - the most common excludes disputes committed by the parties to other tribunals or which the parties have agreed to settle by other means.

ii. U.S. & ICJ Jurisdiction: o The US Declaration was made by President Truman in 1946. Truman allowed the

US initially to submit to ICJ jurisdiction in all of the contexts listed in Art. 36(2), w/ the following Reservations:

a. Provided, that this declaration shall not apply to –A) “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, or”

B) “The Connelly Amendment”: “disputes with regard to matters which are “essentially within” the domestic jurisdiction of the U.S. as determined by the U.S.A.” i.e. the US can nullify the acceptance of jurisd in any case by asserting its within their domestic jurisdiction (they have the right to decide for themselves what is international and what is domestic)

C) ‘Multi-lateral treaty Exception’: US excluded jurisdiction unless all the parties to the treaty are also parties to the case OR the US specifically consents to jurisdiction

o President Reagan terminated the Declaration in 1985 - One reason was b.c under the principle of reciprocity, the respondent state could also invoke the Connelly Amendment (States can reciprocally invoke the reservations that other states file.) o Bulgaria Case - US brought an action against Bulgaria for shooting down a

plane. Bulgaria invoked the Connelly Amendment. US answered that it cant be in the domestic jurisdiction of Bulgaria b.c they shot down a plane. Bulgaria said ‘its as determined by Bulgaria.’

U.S. answers that that means ‘as determined in good faith by the US.’ Then the US withdrew the case from the ICJ b.c it decided it didn’t want to have to be upheld in later cases to the ‘good faith’ standard – b.c then it would no longer be up to the US, but rather up to the ICJ!

o Case of Certain Norwegian Loans : (p. 596)Facts: France sues Norway for a matter clearly not under domestic jurisdiction. Norway says claims it IS domestic jurisd. Here, the majority of the court decided that they could not hear the case b/c it accepted the French Version of the Connelly amendment. (accepted Norway’s reciprocal use of the French reservation)

Judge Lauterpacht: maintained that you cant have a reservation like this (“Connelly”), b.c ultimately it must be for the court to decide whether it has jurisdiction or not. If the state makes a reservation like this, then the entire declaration is invalid. (“a self-judging reservation is invalid, if not separable, invalidated the acceptance of compulsory jursd”)

The US now includes a reservation in every treaty saying that ICJ does not have jurisdiction to interpret the treaty The US only goes to the ICJ on a case-by-case basis now

iv. Case Concerning Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States of America) 1984 ICJFacts: US supported El Salvador and the contras in their military activities against Nicaragua. Nicaragua sued the US for engaging in military activities, an illegal use of force in violation of UN Article 2(4). US did NOT participate in the merits phase of the case, but instead objected to ICJ Jurisdiction. The court determined that there was jurisdiction

US arguments against Jurisdiction:1. Nicaragua never accepted the compulsory jurisdiction of the ICJ, and therefore,

Nicaragua can’t sue the U.S. o U.S. Declaration: “We are accepting it only in relation to any other state

accepting the same obligation” Art. 36(2): ICJ only has jurisdiction w/ respect to states that have also

accepted the same obligationo Nicaragua responds: it did accept it pursuant to Art. 36(5) – anyone who has

accepted compulsory jurisdiction at the PICJ is now carried over to the ICJ.o US says: the court never received an instrument from Nicaragua saying they

accepted the jurisdiction of the PICJo Nic says: we adopted it domestically their Senate decided to ratify it, and it

was published domestically as required by Nic domestic law The instrument never made its way back the PICJ The registrar of PICJ notified Nic that they didn’t get it this would

be no jurisdiction under the Congo v. Rwanda caseo Court Held: Because Nic was listed in various yearbooks publishing the

members of the ICJ(even though this listing was incorrect), jurisdiction is granted this is far-reaching jurisprudence

The Yearbook that listed Nic had a footnote that said there was a telegram in which Nic had said they were going to ratify it, but then the ratification was never received. (the Yearbook essentially made a mistake) however, no states objected to Nic’s jurisdiction, so the court is simply holding Nic ratified

2. In a previous case, the US tried to sue Nic, and Nic asserted that they were not parties to the court!

3. Argument by Declaration filed by US on April 6 th 1984 o US purported to limit its previous declaration of 1946 filed the ‘1984’

notification on April 6, 1984. This stated: “the aforesaid declaration shall not apply to disputes with any Central American State or arising out of or related to events in Central America, any of which disputes shall be settled in such manner as the parties to them may agree. Notwithstanding the terms of the aforesaid declaration, this proviso shall take effect immediately and shall remain in force for two years.”

Nicaragua filed the action on April 9, 1984 The original US declaration of 1946 said: “this declaration shall remain in

force for a period of 5 years and thereafter until the expiration of 6 months after notice may be given to terminate this declaration”

Therefore, the 1984 notification was an attempt to ‘modify’ it rather than ‘terminate’ it

The Court did not accept this argument b.c 6 months are required for this statement to take effect (didn’t consider the difference between a modification or termination

o Then the U.S. argued reciprocity even if you don’t accept the distinction between termination and modification, Nic didn’t have the same 6 month requirement. Therefore, Nic can’t invoke the benefit of the U.S. 6 month requirement b./c both the US declaration and the ICJ statute speak of reciprocity

Ct answers: distinguishes between substantive and procedural aspects of the declaration. The reciprocity requirement doesn’t apply to procedure

4. Argument based on multi-lateral treaty reservationo US reservation to its declaration said it wasn’t accepting compulsory jurisdiction

on cases arising under a multilateral treaty, unless all parties to the treaty affected by the decision are also parties to the case before the court”

o The treaty focused on was the UN Charter, Art. 2(4), which prohibits use of force Nic claimed the US was using force in Nic and that violated Art. 2(4) US argued Honduras, El Salvador, and Costa Rica needed to be a party to

this case in order to have jurisdictiono Ct answered: Art. 2(4) has in fact become customary int’l law, so we wont be

relying on the treaty, but rather customary IL The fact that Honduras, El Salvador, and Costa Rica are not parties to this

case doesn’t mean anything – they can intervene at any time.5. Claim by Nic that court had jurisdiction based on the 1956 Treaty of Friendship,

Commerce and Navigation between Nicaragua and the United States doesn’t really deal with the issues in this case

*US did not invoke the Connelly Amendment as one of their arguments b/c they thought the other arguments were strong enough not to invoke it

Issues to be left for the decision on the merits:1. Whether Honduras, El Salvador, and Costa Rica were permitted to intervene2. Whether Honduras, El Salvador, and Costa Rica would in fact be affected by the decision

iii. ICJ Jurisdiction to render advisory opinionsa. Authority:

Art. 96 of Charter: the Gen Assembly or the Sec Council may request advisory opinions ICJ 65(1): The Court may give an advisory opinion on “any legal question” at the request of

whatever body may be authorized by or in accordance with the Charter of the United Nations to make such a request.

4 additional organs of the UN and 16 specialized agencies have been authorized to request advisory opinions.

b. A state may not request an advisory opinion, but it may request an authorized int’l org to make a request.

i. The court has been asked to render 25 opinions through 2009.o The courts decision to render an advisory opinion is discretionary the court MAY give an

advisory opinion (Art 65(1) of ICJ statute) The ICJ has never refused on the basis that its not within their discretion. They have refused

based on the organization requesting did not have competence to ask. The P. ICJ has declined to exercise its discretion to render advisory opinion on a case when

the question was contentious and one of the 2 states would not be before the courtso An advisory opinion is not binding.

o Legality of the Threat or Use of Nuclear Weapons (ICJ, 1996)Facts: The Gen Assembly and World Health Org requested advisory opinions from the ICJ regarding the legality of nuclear weapons.Issue: whether the court has jurisdiction to reply to the request of the Gen Assembly for an advisory opinion, and if yes, is there any reason it should to decline to exercise the jurisdiction?

Court analyzes Art 65(1) of ICJ and 96(1) of Charter.RULE: the ICJ may give an advisory opinion on any legal question at the request of whatever body may be authorized by or in accordance with the Charter of the UN to make such request.

The court should not refuse an advisory opinion request Only “compelling reasons” are justified for a refusal to grant such an advisory opinion. The charter of the UN authorizes the Gen Assembly to make such a request

Court also rejected arguments that it should refrain from rendering an advisory opinion on the basis that such a reply might negatively affect disarmament negotiations, and that he

court would be exceeding its authority and acting in a law-making capacity. Held it had authority to answer the Gen Assembly’s question.

However, the court held that it lacked the jurisdiction to grant such an opinion the World Health Org. (the subject matter did not connect w. the activities of the World Health Org to meet the requirements of Art 96(2).)

o 3 conditions must be met when a request is given by an agency:1. The agency must be duly authorized under the charter to request opinions

from the court --> this is ok2. The opinion requested must be on a legal question --> this is ok3. This question must be one arising with the scope of the activities of the

requesting agency --> this fails Art. 2 of WHO’s Constitution authorizes the org to deal with the

effects on health of the use of nuclear weapons. However, the question in this case relates not to the effects of the use of weapons on health, but to the legality of the use of the weapons in view of their health and environmental effects.

o Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (ICJ, 2004)Facts: The Gen Assembly asked the court for its opinion on the legal consequences arising from the construction of the wall being built by Israel, the occupying power, in the occupied Palestinian territory, including in and around East Jerusalem…considering the rules of IL, including the 4th Geneva Convention, and relevant Sec Council and Gen Assembly resolutions?

Israel and other states argued the question should not be answered, either for lack of jurisdiction or prudential reasons

Held: the Court finds it has jurisdiction to give an opinion on the question requested by the Gen Assembly and that there is no compelling reason for it to use its discretionary power not to give that opinion

Authority of ICJ:o Art 10 of UN Charter – gives ICJ competence on “any questions or any matters”o Art 11(2): gives competence on “questions relating to the maintenance of int’l peace

and security brought before it by any Member of the UN” this is exactly the case here

Israel’s Arguments: 1. Given the engagement of the Sec Council with the situation in middle east, the G.A.

acted ultra vires under the charter when it requested the adv opinion. (i.e. not in accordance with Art 12(1) of the Charter)

o Held: no contravention of Art 12(1) by the Gen Assembly b/c its not making a recommendation here

2. The request for the opinion is not on a “legal question” (i.e. reasonably specific)a. Held: no obstacle b/c the question is sufficiently specific

3. No jurisdiction b.c of the “political” character of the question posed. Held invalid4. The request concerns a contentious matter b/n Israel and Palestine, and Israel has

not consented to the exercise of that jurisdictiona. Court: This is not just a contentious, bilateral matter between Israel and Palestine –

the wall is direct concern of the UN, as the regulator of peace and security internationally (consent is not necessary in an advisory opinion)

b. A counter-argument: A state could have the GA submit a question as an advisory opinion, thus circumventing the consent requirement

c. Court Response an advisory opinion does not obligate the parties to do anything5. An advisory opinion on this matter could impede a political, negotiated solution to

the Israeli-Palestinian conflict. It would undermine the “Roadmap”.a. Policy Argument -- Denied

6. This question is only one aspect of the conflict, and it could not be properly addressed in the proceedings Held Irrelevant

7. The court doesn’t have the requisite facts and evidence to enable it to reach its conclusion.

a. Court holds that it has sufficient info – it has the report of the Secretary General and a dossier of detailed info on the route of the wall and its humanitarian and socio-economic impact on the Palestinian population & many other participants also submitted written statements to the court.

8. Palestine’s acts of violence against Israel are the reason that this wall is being built. Israel was building the fence to keep out suicide bombers. It cannot then, seek from the court a remedy for a situation resulting from its own wrongdoing. “Clean hands” principle (One who seeks equity must do equity) is a compelling reason not to issue the opinion

a. Held: The Gen Assembly, not Palestine, requested this opinion. The Palestinian authority is not coming into the court. So it is ok.

b. Gen Assembly adopted Resolution ES-10/13, on Oct 27 2003, by which it demanded that “Israel stop and reverse the construction of the wall in the occupied Palestinian territory, which is in departure of the Armistice Line of 1949 and is in contradiction to relevant provisions of IL.”

i. adopted before the request for the ICJ opinion – this had already decided that it was illegal

ii. Art 65(2): Questions upon which the advisory opinion of the Court is asked shall be laid before the Court by means of a written request containing an exact statement of the question upon which an opinion is required, and accompanied by all documents likely to throw light upon the question. To help the agency do what its supposed to do.

c. *On the Merits: Court found the construction of the wall to be contrary to IL and declared that Israel is under an oblig to cease its constriction and dismantle the wall.

i. Ct relied on self-determination of the Palestinians, invocation of self-defense, human rights obligations

CHAPTER 10. INTERNATIONAL LAW IN NATIONAL LAW

IL is binding on the state, and the state is obliged to give it effect, but IL does not replace the national law of the states.

Art. 46 of Vienna Convention on Treaties: A state cannot plead its own law as a reason for non-compliance with IL

A. CUSTOMARY LAW AS “LAW OF THE LAND”a. Paquette Habana (1900): “int’l law is part of our law, and must be ascertained and

administered by the courts of justice of approp jurisdiction as often as questions of right depending upon it are duly presented for their determination. For this purpose, where there is no treaty and no controlling executive or legislative act or judicial decision, resort must be had to the customs or usages of civilized nations.”(Justice Gray)

i. Paquette Habana said customary law is part of our law, without a constitutional basis. (The supremacy clause covers treaties, but not customary law)

ii. Held if there is no treaty (as there was not in Paquette Habana) then we look to cust law. It can also be read more broadly that if there is a treaty, it overrides the customary

law (rather open-ended) Today there are many scholars challenging this notionb. Theories: IL became part of our law with independence in 1776.

i. Inheritance Theory: Law of nations came into our law as part of English common law; by “inheritance”

In this view, IL is state law. It could only become fed law if an act of congress or the Const so provided.

Restatement follows this viewii. Sovereignty Theory: law of nations came by implication from our independence, by virtue of

int’l statehood. In this view, IL’s status as state or fed law may turn on the Int’l character of our

independence and the status of the states between 1776-89. During these years the 13 colonies were independent States.

c. What is customary international law?i. Erie RR. Co v. Tompkins (1938) - denied the existence of any federal general common law

Under Erie, the fed courts were supposed to follow states on anything except fed law; but if you did that with issues on customary IL, you would have 50 different views

ii. Now its established that customary IL in the US is a kind of federal law, like treaties, and it is accorded supremacy over state law by Article VI of the Const.

iii. Sosa v. Alvarez-Machain (US, 2004) - For 2 centuries we have affirmed that domestic law of the US recognizes the law of nations we will not now say that fed courts must avert their gaze entirely from any int’l norm intended to protect individuals.

* Take-away point: the court accepted the essential features of the standard position by treating customary IL as fed law suitable for judicial application

d. Constitutional Provisions the only reference to IL is in Art. I, Section 8, which gives congress power to ‘define and punish’ offences against the law of nations: SC and Congress have given this clause a broad meaning

i. Civil Remedies for Violations This clause authorizes congress to provide remedies in tort for such offences instead of criminal penalties.

Alien Tort Statute: gave US district courts original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations to a treaty of the US

ii. Constitution does not explicitly address customary IL anywhereiii. President’s Duty to comply or authority to violate customary IL

Restatement §111: under Pres’s constitutional authority, as sole organ of the nation in its external relations, the president has the power to take various measures includes some that might violate IL.

a. Policy argument: if the pres’s couldn’t violate IL, then IL would be superior to national law. The US is not prepared to do that.

B. JUDICIAL APPLICATION OF CUSTOMARY INT’L LAWa. Restatement Position

i. § 111 -122: Issues of customary law, like those arising under treaties, are matters of federal, not state law

Matters arising under customary law ‘arise under the laws of the US’ for the purposes of the jurisdiction of the fed courts, US Const article II, and 28 USCA §1331, and are part of the “laws” of the US which are supreme to state law.

Civil actions arising under IL are within the jurisd of the US district courts. b. Views From Executive Branch: courts give “great” or “particular” weight to the position taken by

the US Gov’t on questions of IL b/c it is deemed desirable that so far as possible the US speak with one voice on such matters

c. Judiciary: A determination of IL is a question of law for the court, not a question of fact for the juryi. Political Question : The exec branch has sometimes resisted adjudication of IL issues on the

ground that the issues are nonjusticiable political questions (judges define this term very differently)

Courts have refused to review some presidential decisions on the ground that they were political questions

a. Ex’s: presidential decisions to recognize boundaries of government are within his authority those decisions did not necessarily have to be based on the political question doctrine. They could have instead been based on saying that the president has that power.

b. Ex: case involving a claim for insurance. Some commentators argue all questions involving foreign relations are political

questions One S.C. case said not all questions involving foreign relations are political questions

C. THE ACT OF STATE DOCTRINE: Will courts apply international law to the acts of foreign states? Act of State Doctrine : U.S. Courts may NOT inquire into the validity of an act of a foreign state committed

within the borders of its own sovereign territoryo The doctrine is meant to prevent the US courts from sitting in judgment of the official public

acts of a sovereign government might embarrass the executive or interfere with the executive’s ability to negotiate.

o This doctrine is not a rule of IL – it’s a rule of judicial self-restraint. It may apply to foreign acts of state that raise no issues under IL.

o The Act of State doctrine is not found in the US Constitution – it arose out of the basic relationships between branches of government in a system of separation of powers.

IL does also does not require the doctrine o Halberstam distinguishes this doctrine from sovereign immunity

Sovereign Immunity is jurisdictional – Sovereigns must raise this issue in their initial pleading and a determination that immunity applies bars the Court from reaching the merits of the case

Act of State is NOT jurisdictional – rather it functions more like a defense; When US courts accept act of state rationale they are essentially enforcing the sovereign’s act

o Its an exception to the Paquete Habana rule

Banco Nacional de Cuba v. Sabbatino (US 1964)

Facts: An American commodities broker contracted to purchase Cuban sugar from a wholly owned subsidiary of CAV, a corp. organized under Cuban law whose stock was owned principally by US residents. The broker agreed to pay for the sugar in NY upon presentation of the shipping docs. Then a law was enacted in Cuba giving the gov’t the power to nationalize by forced expropriation of property any enterprises in which American nationals had interest. The broker made a contract w/ Banco Nacional de Cuba (P) who presented the proper documents to allow the shipment to NY and facilitate payment. However, the sugar was seized and never came to the US. Court appointed Sabbatino (D) as receiver of CAV’s NY assets and enjoined it from removing the payments to the state. The Banco Nacional then instituted this action to get the payment from the American broker to enjoin Sabbatino from exercising dominion over such proceeds.

Cuban gov’t argued: Act of State Doctrine - The money belongs to the Cuban gov’t, not the US Company, b/c Cuba nationalized it.

District Ct: held that the Act of State doctrine does not apply b/c the act of state here (the Cuban law nationalizing property), violates int’l law. The Rule of IL is that nationalizing of property must be done without discrimination, must be prompt and with adequate compensation; here, discrimination against US companies and no compensation. So, US company gets the money. Issue: Does the judiciary have the authority to examine the validity of a taking of property within its own territory by a foreign sovereign even if the taking violated IL?Held: No, Reversed. The Cuban gov’t gets the money. Ct honors the Cuban law, even though it violates customary IL.RULE: (J. Harlan): Pursuant to the Act of State Doctrine, the judiciary will not examine the validity of a taking of property within its own territory by a foreign sovereign gov’t, recognized by this country, in the absence of int’l agreements to the contrary, even if the taking violates customary international law

US courts MUST enforce a foreign act of state, even if that law violates IL or US law!!!o If the US did what the Cuban gov did, it would be a violation of the US Const If a US

citizen had a sugar plant in Hawaii and the gov’t decides to take it and pay them nothing, it would be unconstitutional

Court decided that rather than laying down/reaffirming an inflexible rule in this case, the judicial branch will simply not examine the validity of a taking of property within its own territory by a foreign sovereign government in existence 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.

Halberstam: If the US did what the Cuban gov’t did (i.e. if one had a sugar plant in Hawaii and the gov’t decided to take it and pay nothing) this would be a violation of the US Constitution!

Exceptions to the Act of State Doctrine: 1. Exception When Congress so Directs:

Hickenlooper Amendment (1964): Congress limited the Act of State Doctrine Reversed Sabbatino This amendment changes the presumption, so the court now presumes that it may

proceed with adjudication on the merits unless the president states officially that such adjudication in the case would embarrass the conduct of foreign policy.

In other words, courts cannot decline to decide a case under act of state doctrine UNLESS the President expressly authorizes the court to do so.

The Hickenlooper amendment was unsuccessful and was almost never applied Courts decided that unless the same property that was confiscated ended up in the US,

the Amendment wouldn’t apply. Rule of Law amendment: Congress tried to go even further in destroying the act of state

doctrine never got adopted 2. Exception for Extraterritorial Gov’t Action: its accepted that the Act of State Doctrine does not

apply to a taking by a state of property located outside its territory at the time of the taking 3. Treaty Exception: the act of state doctrine will not apply in the case of a claim based on an act

alleged to be in violation of a treaty. a. Kalamazoo Spice Extraction v. Ethiopia (6 th circuit) : reflects the proposition from Sabbatino

that applying the act of state doctrine is approp when there is insufficient consensus on the applicable IL, yet inappropriate when such consensus exists (i.e. a treaty)

4. Exception for commercial activities: in Alfred Dunhill of London v. Cuba (US 1976), 4 judges argues that the doctrine did not apply to a foreign sovereign’s commercial acts, even though those acts were done within its own territory.

5. Kirkpatrick v. Environmental Tectonics Inc (US 1990) Kirkpatrick and Tectonics were competing for a contract to construct a hospital on an air force base in Nigeria. Kirkpatrick won the contract by offering Nigerian officials bribes. Tectonics sued in U.S. fed court. Kirpatrick (D) invokes act of state doctrine.

Held: The Act of State Doctrine ONLY applies when the Court is called to evaluate the validity of an act of a foreign sovereign and does NOT apply when the Court merely is asked to evaluate the motivation of the foreign sovereign’s action

Court ruled that this case did not require it to determine whether the Nigerian officials acted lawfully BUT rather just that they granted the contract because of a bribe – this was enough for Kirkpatrick to be subject to liability (criminal and civil) in the US

6. Exception for Human Rights: Act of state cannot be used to shield individuals from violations of human rights. I.e. the Torture Victim Protection Act

7. Does not apply to purely private acts of heads of governments8. Exception for counterclaims: the doctrine cannot be raised as a defense to a counterclaim.

a. Ex: First National City Bank v. Banco Nacional De Cuba,9. BERNSTEIN EXCEPTION: Court does not have jurisdiction (Act of State WILL apply) unless the

Department of State explicitly says otherwise a. Bernstein Exception arose out of a plurality 2 nd circuit decision b. The S.C. NEVER adopts the Bernstein Exception

i. First national city bank v. Banco Nacional de Cuba Majority of justices found the act of state doctrine inapplicable A plurality (Rehnquist, etc) of justices were willing to recognize the

Bernstein Exception and regard the executive’s statement as conclusive on the matter.

c. Bernstein is diff from Hickenlooper -- They are inverse of one anotheri. Under Hickenlopper – the court has jurisdiction unless a president says otherwise

a. Hick is a better law for plaintiffs –the executive has to file with the court and say please do not consider this case b/c it will embarrass my branch of gov’t. Plaintiff doesn’t have to do anything; the D has to do something if he wants the doctrine invoked

ii. Under Bernstein – court does NOT have jurisdiction unless that pres says they DOa. Here, the plaintiff has to get the executive to come into court on his behalf

and say that the act of state doctrine does NOT apply. d. Example: in 1970’s, a Class Action brought by group of ppl that had had accounts in French

banks during WWII. A law was adopted by Vichy FR to seize all the property. The action was brought by the survivors or their heirs in US court. Banks invoked Act of State Doctrine

Act of State = the law that gave the banks the authority to confiscate Why should the Doctrine not apply, in terms of Harlan opinion in Sabbatino?

The Harlan opinion says the Doctrine will only apply to:1. A recognized government2. An extant gov’t The Vichy gov’t is not extant--its no longer in

existence3. In the absence of relevant Treaties this law violated CERD, so the

acts should be invalid Counterargument: CERD treaty was adopted later; cant be applied retroactively Response: Racial discrimination was a violation of customary IL at that time

Great consensus that these racial disc laws were invalid i.e. its approp for court to decide look to other highlighted Paragraph on p. 673 ‘It should be apparent…

national nerves than do others.” Halberstam suggested the lead counsel ask for a Bernstein Letter from the state

dept Lead counsel refused to do that

First National City Bank v. Banco Nacional De Cuba 406 U.S. 759 (1972)*Facts: In July 1958, First National loaned $15 million to a predecessor of Banco Nacional’s. The loan was secured by a pledge of US Gov’t bonds. Banco Nacional repaid $5 million of the loan before Castro came to power. The $10 million balance was renewed for one year w/ collateral– Jan 1959, Castro came to power. In Sep. 1960, the militia seized all of the branches of First National City Bank located in Cuba. Then First National retaliated by selling the collateral securing the loan, and applying the proceeds of the sale to repayment of Banco Nacional’s principal and unpaid interest. An excess of at least $1.8 million over and above principal/unpaid interest was gained from the sale. Now First National has $1.8 million that they didn’t give to CubaProc: Banco Nacional sued First National in the Federal District Ct to recover the $1.8 million excess

First National counterclaimed: asserted the right to recover damages as a result of the expropriation of its property in Cuba (i.e. their branches were seized and Cuba didn’t pay them for it.)

Cuba asserted the Act of State Doctrine applied to the Cuban law which nationalized US property

District Court: held that congressional acts since the Sabbatino decision had overruled that case – dismissed the claim. (If Sabbatino had been applied, Cuba would have won.)

Court of Appeals for the Second Circuit: the congressional acts relied upon by the District Court did not govern this case – applied Sabbatino and barred the counterclaim.

Issue: whether act of state doctrine prevents the American bank from litigating the expropriation of its property located in Cuba as a counterclaim against the Cuban bank. *Plurality Opinion: (REHNQUIST, CHIEF JUSTICE and WHITE): Act of state doctrine is not a bar to First National’s counterclaim (first national bank deserves the money)

Adopts the Bernstein Exception : Where the Executive Branch (president), charged as it is with primary responsibility for the conduct of foreign affairs, expressly represents to the Court that application of the act of state doctrine would not advance the interests of American foreign policy, that doctrine should not be applied by the courts.

Concurrence (Powell): agreed with the judgment, but questioned the view that the courts had to follow direction by the Exec Branch (unwilling to accept Bernstein Exception)

“Believes that Separation of Powers prohibits the court from taking direction from the Executive (separate branches). This would make judiciary subservient to the executive (opposite of Justice Harlan in Sabbatino Case)

o Basically feels that the exec can give his opinion if he believes something will severely interfere with the conduct of foreign relations, but that the court still has discretion over the matter

However, there are some circs when the judiciary should act –when the underlying issue is the validity of expropriation under customary international law.

Dissent (Brennan, Stewart, Marshall, and Blackmun): Sabbatino applies here – court does not have to follow direction by the Exec Branch in such cases; Unless it appears that an exercise of jurisdiction

would interfere with delicate foreign relations conducted by the political branches, federal courts have an obligation to hear cases such as this.

D. TREATIES IN US LAWa. US Constitution Provisions:

i. Art II, § 2: President enters into treaties with the advice and consent of the Senate (2/3 affirmative vote)

Senate’s Advice and Consent: The senate’s action is not called “ratification.” The president ratifies treaties after the Senate gives its advice/consent. The president is not bound to follow the advice of the senate.

ii. Art. 2 §3 – President shall receive ambassadors and public ministers This has been interpreted to vest the President with exclusive authority to negotiate

treaties After negotiation, he submits the document to the Senate for ratification

iii. Article IV: Treaties are the supreme law of the land (They trump State law)iv. Art I, § 10: No individual State shall enter into any Treaty. With the consent of congress, they many

enter into an Agreement or Compact with a foreign power. Its unclear what distinguishes a treaty from an agreement/compact

v. 10th Amendment – all power not delegated are reserved for the States

b. Constitutional Limitations on the Treaty Poweri. Jefferson: Believed there were 4 limitations on the treaty power:

1. Treaties cant violate bill of rights – IN 2. Cant modify structure of gov’t – IN3. Treaties cant violate state’s rights – OUT4. Treaties must only deal w/ matters of int’l concern (not matters domestic in nature) - OUT

3rd Restatement: threw this limitation out - almost everything is of international concern –

ii. Missouri v. Holland (US 1920) *LandmarkFacts: Missouri (P) sought to prevent Holland (D), a game warden of the US, from attempting to enforce Congress’s Migratory Bird Treaty Act. This Act was the enactment statute of a treaty between the US and Canada (UK) proclaimed by the President.

Missouri argues: the statute is an unconstitutional interference with the rights reserved to the states by the 10th Amm. Holland’s acts invade the sovereign right of the state of Missouri and contravene its will manifested in statutes.

o Missouri also argues that Congress had tried to pass this Act before, but it had been declared unconstitutional by the federal district court on the ground congress didn’t have the power to regulate birds in states

o Contends that a treaty can’t be valid if it infringes on the Const, and that there are limits to the treaty making power. One of the limits is that what an act of congress could NOT do unaided, in derogation of the powers reserved to the states, a treaty cannot do.

District Ct: Dismissed – held that the act of Congress was constitutional.Issue: Are treaties the supreme law of the land when made under the authority of the US?RULE: (Holmes) Acts of Congress are the supreme law of the land only when made in pursuance of the Constitution, while treaties are declared to be so when made under the authority of the United States. (affirmed – treaty is the supreme law and binding on Missouri)

PROPOSITION 1: Treaties may deal with matters that are not within the enumerated powers of congress.

o The enumerated powers are not a limitation on the treaty powers. o Policy Argument : If we didn’t assert this proposition, Congress wouldn’t be able to

conduct relations with foreign countries. (Ex: migratory birds, murder, etc)

PROPOSITION 2: Congress may legislate pursuant to a treaty even if they wouldn’t have the power to do so in the absence of a treaty.

o The necessary and proper clause gives congress the authority to make laws necessary to implement actions by any branch of the US gov’t

Halberstam: These propositions undermine all of federalism: This decision gives power to Congress to legislate on matters it couldn’t otherwise legislate, by simply making a treaty about it -- expands the powers of congress

Holmes hints to a limitation on the treaty power: this treaty doesn’t violate any of the provisions of the bill of rights (except the 9th and 10th amendments)

o I.e. You could not enter into a treaty eliminating jury trials iii. Bricker Amendment: from 1950-55, Senator Bricker of Ohio tried to amend the Const to reverse

Missouri v. Holland. Wanted to add that a treaty could not become law in the U.S. except by an act of congress which would have been valid in the absence of a treaty. DID NOT PASS.

Eisenhower did not submit the Genocide Convention to the senate b.c he was afraid the Bricker amm. might pass

iv. Reid v. Covert (1957) : The Court held that the military trials were unconstitutional because of numerous constitutional guarantees to individuals of a trial by jury

No agreement with a foreign nation can confer power on the congress, which is free from the restraints of the Constitution. The prohibitions of the Const were designed to apply to all branches of the National Govt and they cannot be nullified by the Exec or by the Exec and Senate combined.

v. The Later in Time Rule - If there is a conflict between a treaty and a statute, the later in time (most recent) rule prevails (Whitney v. Robertson)

1. Under Art VI ( Supremacy Clause), they are both on the same level, so presumably when congress adopts a statute that’s inconsistent with the treaty, they are aware of this, but adopt it anyways

2. Conversely, if the US decides to ratify a treaty (Pres + 2/3 Senate) he must also be aware of deciding to do this

Breard v. Greene (US 1998)Facts: Breard (P) was scheduled to be executed following his conviction for murder of his girlfriend’s parents. P later filed for habeas relief in fed court, arguing that the arresting authorities had wrongfully failed to inform him that, as a foreign national, he had the right to contact the Paraguayan consulate.

Breard argued that US violated Art 36 of the Vienna Conv on consular relations Paraguay asked the ICJ to take the case, and also asked for a provisional remedy. The

ICJ asked the US to take whatever measures it could to prevent his execution in Virginia, so it could hear the case.

US argued he could not raise this habeas petition b.c he didn’t raise it in state proceedings. US also argued that it was a state matter so there was nothing they could do about it

RULE: when a statute which is subsequent in time is inconsistent with a treaty, the statute to the extent of conflict renders the treaty null

Breard’s argument that the Vienna Conv was violated must fail b/c Congress enacted the Antiterrorism and Effective Death Penalty Act (codified the rule that you must raise a claim in state courts in order to raise it in a fed habeas petition, 1996) after the Vienna Convention on Consular Relations (1963). The Exec Branch has authority over foreign relations and may utilize diplomatic channels to request a state of execution. Petition denied.

Dissent (Ginsburg): the governor should stay the execution b/c of the complex issues

c. The Doctrine of Self-Executing And Non-Self-Executing Treaties

i. Self-Executing = A treaty that automatically creates binding federal law, in the absence of implementing legislation

Some commentators argue that all treaties are non-self executing, and that there is a presumption of NON-self-execution. Only if a treaty says it is self-executing will it be regarded as so.

ii. Foster v. Nielson (US 1829) *Landmark Case - Basis for self-executing treaties*Facts: Foster sued to recover a tract of land in Louisiana that the Spanish governor had granted him. Neilson (D) successfully argued that the grant was void b.c it was made after the transfer to france and the US of the territory on which the land sat. Foster relied on a treaty b/n the US and Spain which said all grants of land made by Spain would be ratified by the US. The Case was taken to the SC on a writ of error.RULE: (Marshall): when the terms (language) of a treaty require a legislative act, the treaty cannot be considered law until such time as the legislature ratifies and confirms the terms.

The treaty does not operate in itself to ratify or confirm title in land. The leg must act before the terms of the contract are binding - Foster may not keep the land

o “SHALL BE ratified” this is the key term in the case. Shall refers to the fact that congress must act

o If the treaty said “those grants are hereby confirmed”, the court would enforce it. Some Intl Agreements are intended to apply by their terms, and some are merely a contract

to do so. Marshall never used the word “self-executing”iii. US v. Percheman (1833): Overruled Foster

Facts: Concerned the same treaty at issue in Foster - There was a discrepancy between the Spanish and English versions of the treaty that cast doubt on Marshall’s earlier conclusion that the treaty was self-executingHeld: the treaty IS self-executing (Marshall changes his mind)

Although Marshall had earlier ruled that the treaty was non self-executing and therefore had to be read in light of Congressional legislation bringing it into force, here he looked at the Spanish version and reached a different conclusion

*Foster and Percheman demonstrate that whether an ICJ judgment is to be given effect by US courts will depend on the language of the treaty in question

iv. Halberstam Article on Self-Executing Treaties: Started looking to the intent of the president when negotiating the treaty and the senate’s

intent in ratifying the treaty this goes beyond what Marshall said Senate put a clause in the Human Rights Treaties that it is non-self executing. Is this

constitutional? This is different than what foster did.

Sosa Case - party relied in a provision in the ICCPR, not as a treaty provision, but as customary IL. The court said he relied on it as customary IL b.c he couldn’t rely on it as a treaty provision since the senate declared it to be non-self executing

Halberstam said the court took this position, implying that non-self-executing declarations are constitutional

v. Medellin v. TX (SC 2008) - After this case, the US withdrew from the ICJ Optional Protocol (which gave ICJ specific jurisdiction to decide claims arising out of the Vienna Convention Facts: Medellin, a Mexican, was convicted of murder and sentenced to death in TX. On appeal he argued he had not been notified of his right of access to the Mexican Consulate, as required by Art 36 of the Vienna Conv on Consular Relations. First S.C. dismissed cert to allow him to litigate certain new issues in TX courts. TX denied relief and it went to SC again

In Case concerning Avena and other Mexican Nationals. (Mexico v. USA, 2004), the ICJ held that based on violations of the Vienna Conv, the 51 Mexicans were entitled to review and reconsideration of their state-court convictions and sentences (whether the D was prejudiced by not having the opportunity to consult with this consulate)

o The TX federal court couldn’t hear it if it wanted to b/c this issue was not brought up in state court therefore, the US could not comply with ICJ judgment

Bush issued a Memo to the Attorney General in Feb 2005 – said the US would discharge its int’l obligations under Avena by having the cases sent back to state courts for review state court said they had no jurisdiction

Medellin argued that the ICJ’s holding in Avena is a binding obligation on all the US courts b/c of the supremacy clause

HOLDING 1: The ICJ’s judgment in Avena is NOT directly enforceable as domestic law in a state court in the US None of the treaties (Optional Protocol, UN Charter, or ICJ Statute) are self-executing, and in the absence of implementing legislation, the Avena judgment is not binding domestic law.

Court Relies On:o Art 94(1) of UN Charter: “Each Member of the UN undertakes to comply with the

decision of the ICJ in any case to which it is a party.” The court interprets it as a commitment by the UN members to take future actions to comply with the decision, and NOT an acknowledgment that the ICJ decision will have immediate effect in the courts of the member states.

o Art. 94(2): The enforcement provision – the sole remedy for noncompliance w/ an ICJ judgment is referral to the UN Security Council by the aggrieved state. The Council, if it deems necessary, can make a recommendation or decide on measures to give effect to the judgment.

Evidence that the ICJ judgments were not meant to be enforceable in domestic courts = the US retained the right to exercise its veto of any Sec Council Resolution

o Art. 59 of ICJ Statute: only arbitrates disputes between national governments, not individuals like Medellin

o The long-standing approach of looking at the texto Petitioners haven’t cited a single case where a country says they treat ICJ judgments

as binding in domestic courts.o Petitioners say the optional protocol gives the ICJ jurisdiction this should

itself give the judgments enforceability in US courts b/c US agreed to the compulsory jurisdiction by the ICJ

Court says: the protocol doesn’t say anything about enforcing judgment in domestic courts

Absent a clear and express statement to the contrary, the procedural rules of the forum state govern the implementation in that state (Breard)

o Court’s Policy argument: if Art 94 was interpreted as requiring that ICJ judgments be given domestic effect, then all judgments would have to be given domestic effect. Therefore, even those cases involving important national security matters would have domestic effect

Even the dissent doesn’t argue all ICJ judgments should have automatically effect in the US

Holding 2: The Pres’s memo does not constitute directly enforceable federal law that pre-empts state limitations on the filing of successive habeas petitions.

The conviction and death sentence stand.Concurrence (Stevens): the UN Charter does not nec incorporate int’l judgments into domestic law. The language is ambiguous, but the best reading of “undertakes to comply” is that one contemplates future action by the political branches

The cost to texas of complying with Avena would be minimal, but the cost of refusing to respect the judgment are significant other state’s may not observe the convention

Even though he concurred, he said that TX should just comply with the judgment PROBLEM: TX has no jurisdiction under their statute! Halberstam doesn’t understand what

Stevens is saying, b/c TX courts cant complyo They could amend the statute to say “except where a treaty requires the US to do x,

y, x…” *SEE Fn2 IN THE CASE: P. 702, DEFINES SELF-EXECUTING.*Dissent (Breyer, Souter): President correctly concluded that the congress need not enact additional legislation concludes the ICJ judgment is enforceable as a matter of domestic law without further legislation

d. Interpreting Treaties; Statutory Interpretation In Light Of Int’l Obligations i. Hamdan v. Rumsfeld (US 2006)

Facts: Hamdan, Bin laden’s driver, was captured in Afghanistan and detained in Guantanamo as an enemy combatant since Jun 2002. In 2003, Bush designated him as eligible for trial by military commission, and in 2004 he was charged with conspiracy to commit offenses connected with Sept 11. (Bush had released an order on Nov 13, 2001 allowing military commission to try non-citizens affiliated with Al Qaeda.) Hamdan filed habeas corpus petitions to challenge the authority of the tribunal.Issue: Whether Hamdan can legally be tried by a military commission?SC Held: trial by military commission has not been authorized by congress and the commission’s structure and procedure violates the Uniform Code of Military Justice and the 4 Geneva Conventions.

“Common Article 3” of the Geneva Conventions: in a “conflict not of int’l character occurring in the territory of one of the parties, each party to the conflict shall be bound to apply certain protections for those people who are not actively part in the hostilities” (i.e. ppl placed in detention.)

Court finds Com. Art. 3 is applicable here and requires Hamdan to be tried by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples (same court that would try a country’s own citizens; excludes special tribunals)

o The other convention was adopted specifically to deal with civil wars, so it didn’t apply

Court cites the cliché that you should interpret statutes to comply with int’l obligations –court interpreted the Congressional Act establishing military commissions as an invalid grant of power to Bush

Hamdan Decision is contradictory to the Medellin Decision: Medellin – court relies on the fact that this has always been the interpretation of the

executive, and we defer to the executive on treaties Hamdan – SC can autonomously interpret a treaty and reject the Executive’s

position o the senate can express its understanding of a treaty provision that’s

ambiguous – if it indicates its interpretation, the Pres must honor it: the treaty so understood is the treaty to which the Senate Consents

e. Suspension or Termination of Treatiesi. Foreign Affairs and the US Constitution (Henkin) –

Constitution doesn’t explicitly say who can terminate a treaty Congress can sometimes terminate a treaty on its own (it can breach a treaty)

o Congress can enact legislation inconsistent with treaty obligs (LATER IN TIME ACT)

The president can make treaties, but only with consent of senate, so shouldn’t that also be required for termination?

o President represents the US – in Belmont, the opinion says he speaks for the US (that doesn’t mean he decides for the US)

o Today, it seems accepted the Pres can do this on his owno Ex: termination of Taiwan Treaty – Goldwater v. Carter Senator Goldwater brought

an action against the President saying that he needed the advice and consent of the senate to terminate the treaty

The US S.C. held: it was a political question and could not be determined by the court

o Can a pres breach a treaty, when he undertakes to uphold all the laws?? This has not been resolved by the S.C.

Charlton v. Kelly (US 1913): P brought a writ of habeas to prevent his extradition as a fugitive from justice in Italy. He argued that as a US citizen, he was not extraditable under the treaty since Italy had refused to extradite Italians to the US. Italy argued that this treaty does not apply to their own citizens.

o Arguments against extradition (you are rep’n the P):1. Italy breached the treaty, therefore, the treaty is void RULE 1: court wont

accept this argument b.c even if a treaty is breached by one side, its for the executive to decide whether to void it or still comply with it.

The executive did not void the treaty here, so its in effect.2. Italy argued the treaty doesn’t apply to non-citizens. So under the treaty, he’s not

extraditable. court rejected this argument (saying the treaty does apply to citizens)

Rule 2: Court follows the interpretation of the treaty by the PresidentHeld: The SC dismissed the petition – since extradition treaties need not be reciprocal, even in the matter of surrendering citizens, we are bound to surrender our citizens to Italy even though Italy won’t surrender their citizens to us.

E. Executive Agreements – Restatement §303 Types of Executive Agreements:

o Sole executive agreementso Congressional executive agreementso Executive agreements that implement an existing treaty that was entered into with the advice and

consent of the senate There is no express authority for this in the const, but is widely accepted practice.

o Today, most int’l agreements are not treaties, but are exec agreements CONGRESSIONAL- EXECUTIVE AGREEMENTS

o Made by the pres as authorized in advance or approved afterwards by joint resolution of both houses of congress (through legislation)

The subject of the agreement must be within the enumerated powers (this is diff from treaties)

I.e. on postal relations, foreign trade, lend-lease; foreign assistance nuclear reactorso Eliminates the one-third-plus-one veto of the senate and also provides a role to the house of repso Its an alternative to a treaty, but has not replaced treaties altogether

The UN charter was approved as a treaty, but implementation was left to congressional-executive cooperation

Recently its used to establish US military bases in other states and to accelerate approval of int’l trade agreements.

o Ex’s: NAFTA and WTO

Case Act of 1972: the pres must transmit to congress all int’l agreements other than treaties within 60 days of their conclusion. If he feels it cant be publicly disclosed, hell transmit it to the foreign affairs committee of both houses.

o Policy arguments: More democratic because everyone gets a change to speak about it Eliminates issues about self- executing and non-self-executing agreements (always already

being executed)

SOLE EXECUTIVE AGREEMENTSo Made by the President on his own constitutional authority o Congress doesn’t legislate; No constitutional authority

o US v. Belmont (US 1937) - Exec Agreements can be validFacts: A Russian corp. had deposited money in Belmont (D), a private bank in NYC, prior to the 1918 nationalization and liquidation by the Soviet gov’t of the corporation.

Litvinov Agreement (1933): Litvinov, the foreign minister of the soviet union, sent a letter to Pres. Roosevelt saying that the Soviet Union was assigning all its claims against American companies to the US gov’t. In return, Pres Roosevelt sent a letter to Litvinov agreeing to recognize the soviet union.

When the US sought to recover (claim) the money, NY refused– said it would be contrary to the public policy of the state of NY to recognize or enforce the nationalization decree.

The Act of State Doctrine did not apply here (like in Sabbatino) b/c the property wasn’t in Soviet Union, it was in the US

S.C. Held: the nationalization is enforceable (reverse/remand) 2 propositions of law:

1. Sole Executive agreements are valid/constitutional2. Sole Executive agreements supersede state law, just like treaties

Reasoning: the constitutional power of the president is to appoint ambassadors receive ambassadors power to recognize foreign states power to resolve problems with the foreign country (executive agreement) That agreement supersedes inconsistent states law

Halberstam: this logic/reason is tenuous Pres has the sole authority to speak for the government (there is a reference to the

foreign affairs power but theres nothing in the Const which gives the pres the foreign affairs power) this is correct, but has nothing to do with deciding for the company

Appointing ambassadors = grant of power. Receiving ambassadors = shall receive. (not a power; rather, a mere

formality w/ no significance). Doesn’t need senate approval

o Are the BUSH-SHARON LETTERS an executive agreement? Not a congressional exec agreement - Congress adopted a concurrent resolution which

strongly endorses the principles articulated by President Bush in his letter to Prime Minister – but did not codify this in a statute

Evidence that they are a Sole Exec Agreement?o The fact that the 2 letters are dated the same date shows that they were carefully

thought out, deliberate, and same date. This might lend to showing that it IS an exec agreement.

The Litvinov letters are also all the same dateo Some commentators said US made a commitment to Israel that it would recognize

Israel’s presence in certain “territories” if Israel withdraws from certain military installations and all settlements from the West Bank

It could be viewed as an agreement w. respect to the Gaza strip – “I therefore, want to reassure you” – since you are doing X, I will do Y

o Dames & Moore v. Regan (US 1981): upheld the agreement with Iran arising out of the taking of US hostages, in which the US agreed to terminate many cases in the courts of the US and to have claims resolved by a joint arbitral tribunal.

F. International Law in US Constitutional Interpretation *The court is divided on the issue of whether or not to rely on international authorities in constitutional

interpretation Roper v. Simmons (US 2005)

Facts: Simmons was convicted in Missouri of a murder when he was 17. The SC had considered const challenges to the juvenile death penalty twice before. (Thompson v. OK held it unconstitutional under 8th and 14th amendments to execute a child under 16 at the time of the offense; Stanford v. Kentucky (1989) upheld the death sentence of a person who had been over 16 but under 18.)

The Missouri SC upheld Simmon’s contention that a new national consensus against the juvenile death penalty had taken hold after Stanford.

SC sustained the Missouri SC.Held (Kennedy): the death penalty is disproportionate punishment for offenders under 18 (violation of the 8th amendment)

The US is the only country in the world that officially allows the death penalty for minors Art 37 of the UN Convention on the Rights of the Child (ratified by all countries except US and

Somalia) expressly prohibits the juvenile death penaltyo No ratifying country has entered a reservation to this provision

Eighth Amendment : no cruel and unusual punishments [shall be] inflicted. International law is not controlling – however, if you’ve already decided, you can cite it for

“respective and significant” confirmation Dissent (Scalia, Rehnquist, Thomas): reaffirmed the position in Stanford; rejects that the practices of other countries are relevant

Would he also reject the views of other countries in interpreting a multilateral treaty?o No, because here they were only discussing the US CONST o Ex: In a case dealing with the Warsaw Convention (plane liability) in the US, Scalia said if

this were an initial question with us, he would interpret it otherwise, but since it’s a multilateral convention, we will interpret it the same way as other nations

CHAPTER 11: BASES OF JURISDICTION

A. Jurisdiction Under IL Lotus Case: classic int’l decision on the exercise of extraterritorial prescriptive jurisdiction.

o Asserts that IL allows the exercise of national jurisdiction unless a specific prohibition on doing so is identified in IL.

o The burden of establishing that an exercise of national jurisd violates IL rests on the state asserting the violated.

Accepted principles of jurisdiction: All based on the fact that the nation has an interest in the matter, except the ‘universal’ principle

1) Nationality principle– a state’s interest in exercising jurisdiction over persons/things that possess its nationality (emphasis on those committing the offense; country has jurisdiction to prosecute its nationals)

2) Territorial principle – what happens in the territory of the state is the state’s primary concerna. Acts in the State -If a Frenchman kills someone in times square, NY has jurisd to try him b. Act is out of the state, but the effect is in the state – more controversial

i. If someone stands on the border bet Maine and Canada and shoots someone on the other side, the country in which he shot someone has jurisd.

1. Prob: when the effect is not criminal in everyone’s view, but only criminal in some country’s view. Ex: US prohibits restraint of trade (anti-trust laws) and Germany does not -- we think we have jurisdiction and German doesn’t think we do

3) Passive personality principle – great interest in protecting its nationals as victims of crimesi. terrorism – we’d have jurisdiction over bin laden b.c he targeted of the US victims b/c of

their nationality 4) Protective principle - interest in protecting itself against acts, even from those performed outside

its territory, that threaten its existence or proper functioning as a state5) Universal principle - some activities are so universally condemned that every state has an interest

in exercising jurisdiction to combat them - earliest example is piracy Restatement §401: 3 Categories of Jurisdiction – Jurisdiction can mean the authority to:

o Prescribe – pass lawso Adjudicate – interpret and apply the law to a particular disputeo Enforce – use police power to enforce a judgment

Restatement: § 402: Bases of Jurisdiction to Prescribe: A State has jurisdiction to make laws with respect to:

1. Territorialitya. conduct that, wholly or in substantial part, takes place within its territory territoriality +

act in stateb. the status of persons, or interest in things present within its territory territoriality + act

in statec. conduct outside its territory that has or is intended to have substantial effect within its

territory territoriality + effects in state2. Nationality : activities, interests, status, or relations of its nationals outside as well as within its

territory 3. Protective : certain conduct outside its territory by persons not its national that is directed against

the security of the state or against a limited class of other state interests Restatement § 403: Limitations on Jurisdiction To Prescribe - gives reasonableness as an overall

limitation on the exercise of jurisdiction. This emerged as a principle of IL.o Even when one of the bases for jurisdiction under § 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 Reasonableness is determined by evaluating all relevant factors

o International shoe: court used reasonableness as a way to confer jurisdiction. This could be where the restatement got it from

o Reasonable factors: Link of the activity to the territory of the regulating state Connections between the regulating state & the person responsible Character of the activity to be regulated Existence of justified expectations that might be protected/hurt by regulation

These are things a legislature could consider, but a court is not in a position to o Even if its not unreasonable, a state should defer to another state if that state’s interest is

clearly greatero **these limitations don’t apply to universality

Restatement § 404: Universal Jurisdiction To Define And Punish Certain Offenses - piracy, slave trade, attacks/hijacking airplanes, genocide, war crimes, and certain acts of terrorism universality principle (acts so heinous it doesn’t matter whose interest it is in, b/c it is in everyone’s interest)

Restatement does NOT mention the passive personality principle – today is applied more to crimes like terrorism

B. National Law + Principles of IL on Jurisdiction Presumption #1 : statutes should be construed not to apply extraterritorially unless the legislative intent to

do so is clearly expressedo “all legislation is prima face territorial” – Oliver Wendell Holmeso If congress expressly indicates in the US law that it should be applied extraterritorially, then US

courts will do so.o Even if intent to apply a statute extraterr. is not expressly stated, courts may view such intent as

implicit if necessary to achieve the statute’s purposeso US v Bowman - SC held that a statute punishing conspiracy to defraud a US-owned corp. was

applicable to conduct taking place on the high seas. “to limit the statute’s scope to strictly territorial jurisdiction” would curtail its usefulness

and lee open a large immunity for frauds committed in other countries and on high seas Presumption #2 : US statutes are generally interpreted so as to be consistent with international law, unless

congress clearly intended to do otherwise. (J. Marshall in Charming Betsy Case)o This rule helps restrict the excessive use of national law – less likelihood of unwarranted intrusion

into matters in which other states have greater interests. o Where congress clearly intends to apply US law extraterritorially, courts will do so even if it violates

IL

C. Jurisdiction Based on the Territorial Principle Territorial Principle – A state may exercise jurisdiction with respect to transactions, persons, or things

within its territory; Its universally accepted by states Persons And Things Within The Territory

a. Settled by Marshall in Schooner Exchange v. McFaddon; reaffirmed in Munaf v. Geren (2008)b. This principle is true w/ respect to American citizens who commit crimes abroad in another nation

whether or not the pertinent criminal process comes with all the rights guaranteed by the constitution

Persons And Things Outside The Territory But Having Effects Within It (Effects Doctrine)o US v. Aluminum Co. of America (Ct of Appeals, 2nd cir, 1945)

Facts: Agreements by non-U.S. companies were entered into outside the US with the purpose of restraining trade inside the U.S. – precipitated prosecution under the Sherman Act.o §1 Sherman act = every K, combination or conspiracy, in restraint of trade or commerce

among the several states, or with foreign nations is declared to be illegal - extremely broad act

Issue: Whether agreements were unlawful under the Sherman Act, even though made abroad, if their intention was to affect imports in the US and did, in fact, affect them?RULE (Learned Hand): the Sherman Act applies to foreign conduct – US can regulate activity if:

It was intended to produce an effect in the US, AND It did in fact produce some substantial effect in the US

Focused on the intent of Congress - “As a court of the US, we cannot look beyond our own law.” In deciding what congress wanted to do, we will assume they wanted to act consistently with Int’l Law. Note: after this case, courts began applying the “jurisdictional rule of reason” when exercising extraterritorial jurisdiction. Balanced interests of foreign jurisdictions with the US

Objective Territorial Principle: applies where the offence “takes effect” or “produces its effects” in the territory.

o Always applies in cases of direct physical injury (homicide) – outside of that, it gets trickyo Hartford Fire Insurance v. California (US 1993)

Facts: P claims that D insurers violated US antitrust laws by agreeing to restrict the terms of coverage of commercial general liability insurance available in the US. British D’s (whose conduct was only in UK) argued it was unreasonable for US antitrust laws to regulate such conduct and that applying the Act to their conduct would conflict with British lawIssue: whether there is in fact a true conflict between domestic and foreign lawHeld (souter): U.S. courts have jurisdiction under the Sherman Act for lawful agreements made abroad that result in the restraint of trade in the U.S. There is no conflict with British law.

o No conflict = the company is capable of complying with both lawsDissent (scalia): even where the presumption against extraterritoriality does not apply, statutes should not be interpreted to regulate foreign persons/conduct if that regulation would conflict with principles of IL

o This assertion of legislative jurisdiction by the US is unreasonable and inapprop in the absence of statutory indication

D. Jurisdiction Based on The Nationality Principle Based on Nationality of National Persons:

o Blackmer v. US (US 1932)Facts: Blackmer (D) was a US citizen who lived in France. He was served with a subpoena to appear in court as a witness in a crim trial in the US. When he failed to respond, contempt proceedings were initiated and he was found guilty and fined. Blackmer appealed, claiming the fed statute was unconstitutional (alleging inadequate notice)Proposition of law: Under the constitution, a US citizen living abroad that’s required to return to the US to testify can be held in contempt and criminally penalized for failure to do so.

Congress acted pursuant to its authority in enacting the statute and it could prescribe a penalty to enforce it. Affirmed

Note: this holding is now codified in 28 USC 1783 Based on Nationality of Vessels, Aircraft, Space vehicles and other objects

o Vessels: usually considered to be nationality of the flag they fly. There is a debate about whether IL also requires that there be a genuine link between the state and the vessel.

o A state that flies no flag – no nationality o 2 flags – no nationality

Some states don’t fly US flags b/c they don’t want US tax and labor laws to apply Do the disability laws apply to ships flying foreign flags?

o McCulloch v. Sociedad Nacional de Marineros de Honduras (US 1963): SC would not apply the National Labor Relations Act to maritime operations of foreign flag vessels employing alien seamen, even though the foreign corps owning the vessels were wholly owned American companies and the vessels were operating in the regular course of trade

between foreign and US courts The court referred to the complications in int’l relations that might ensue from the

application of the acto Spector v. Norwegian Cruise Line (US 2005): disabled and non-disabled passengers

brought an actions against the cruise line that operated foreign flag shops, alleged violations of Title III of the Americans with Disabilities Act

Held: congress likely intended its statutes to apply to entities in US territory that serve, employ, or affect American citizens, even if they are foreign flag ships. There should be Title III protection.

The cruise ships in US waters are places of public accommodation and specific public transportation within the meaning of the ADA, but the court still held that the provision requiring the removal of architectural barriers did not apply if removal would result in noncompliance with the Int’l Convention for the Safety of Life at Sea.

o Are these 2 cases completely inconsistent? No, the court did not overrule it, but it did make an exception for disability when the

ships were coming to and from the US Aircraft

o Tokyo convention on offences and certain other acts committed on board aircraft- controls crimes committed in the air

Allocates primary jurisd to the state of registration of aircraft and establishes limited exceptions for other interested states

Establishes the power of the aircraft commander to restrain persons in flight and deliver them to authorities of a contracting state in whose territory the plane may land

o Lockerbie Case (Libya v. UK; Libya v. US – ICJ, 1992): Libya argued –it had no oblig under Montreal Convention to surrender to the US or

UK the 2 Libyan nationals who were suspected in the explosion of the US aircraft en route to the US over Lockerbie, Scotland.

ICJ denied Libya’s request for provisional measures to restrain the US and UK from pursuing sanctions against Libya in the UN Sec Council

The US and UK maintained that the Montreal Convention did not contemplate that a state which may itself have been complicit in terrorist activity should shield its own nationals from prosecution

o Libya did not abandon its legal position of the interpretation of the convention

E. Jurisdiction Based on the Principle of Passive Personality Not a specific basis of jurisdiction under the Restatement Harvard did a study in the 1930s that said few countries accepted it Today, its more broadly accepted

for certain crimes, especially terrorism US v. Yousef (2nd cir, 2003)

Facts: Yousef developed a plan in the Philippines to have 5 ppl place bombs aboard 12 US planes going from southeast Asia to US cities. He was caught in the Philippines & they surrendered him to the US. Yousef was tried on charges related to a conspiracy to bomb US commercial airlines in Southeast Asia. He was convicted and now appeals Arguments / Holdings: Yousef argues that the Gov’t exceeded its authority by trying him in the US for his conduct.

Count 12: charged Ds with violating 18 USC §371 by conspiring to place bombs on board planes and destroy aircraft, in violation of 18 USC §32(a) 1 and 2 (crimes to do various things to US aircraft). These statutes were to implement the Montreal Convention.

it was implementing the offences in Art. 1(c) of Montreal Convention – “places a device/substance on a plane which will destroy the aircraft”

Art 5: jurisdiction for US to try a person who commits the offence, even though its not committed in the US and the offender is not a national of the US

o Argues that the statute violates international law.o Held: since it had jurisd over the substantive crimes charged, it has had derivative

jurisdiction over the conspiracy charges. Also argues that customary IL does not provide a basis for jurisd over these counts and that

the US law is subordinate to customary IL. failso US law provides a separate and complete basis for jurisd, and is not subordinate to

customary IL. Regardless, customary IL does provide a basis for jurisd by the US.o The passive personality principle gave jurisd bc each count involved a plot to bomb the

US aircraft that would have been carrying US citizens that were going to US cities. “passive personality” = nationality of the victim

o The territoriality principle also applies b.c the purpose of the attack was to influence US foreign policy and the D intended their actions to have an effect on and within the US.

o The conduct also is in violation of the Montreal Convention Philippines had an obligation to extradite or try Yousef Art. 7 of Montreal Convention.

o This is based on universality principle Halberstam: this is 100% Universal Jurisdiction, b.c its only if the offender is found in the state

o Held: the district court had jurisd over the D’s extraterritorial conduct pursuant to fed law.

US v. Bin Laden (SDNY 2000): Facts: charged 15 D’s with offenses under a number of fed statues for acts committed abroad, including the bombing of US embassies in Kenya and Tanzania in 1998Findings Based On:

Passive personality principle - several of the statutes under which the D’s were charged were justified under IL by the passive personality principle. D’s challenged that the US traditionally rejected this principle, but the court held it has been increasingly accepted as applied to terrorist attacks.

Protective principle – court found congressional intent that the American terrorism act was intended to reach conduct by foreign nations on foreign soil under this principle of IL

Universality Principle – embassy bombings involved murders of internationally protected persons (diplomats)

Subjective Territorial Principle – court held it did not apply; congress did not intend the provisions on murder on federal lands to apply to embassy properties

o In 2001, congress expanding the definition of territorial jurisdiction to cover consular bldgs in other states

F. Jurisdiction Based on the Protective Principle Protective Principle (§403 Restatement) : a state may exercise jurisdiction with respect to 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.

US v. Vasquez-Velasco (9th Cir, 1994)Facts: VV was convicted in a jury trial of committing violent crimes in aid of a racketeering enterprise in violation of 18 USC § 1959.Held: §1959 does apply extraterritorially to reach the crimes committed by VV in Mexico

The extraterritorial application of the precursor to §1959 (1952B) in these kinds of circs is consistent with congressional intent

o Since drug trafficking by its nature involves foreign countries and b.c DEA agents often work overseas, the murder of DEA agents in relations for drug enforcement is a crime against the US no matter where it occurs.

The extraterritorial application of a statute like §1959 to the murder of a DEA agent is consistent with principles of IL (the objective territorial and protective principles)

o The court would have still exercised jurisdiction because it’s following a US statute that gives the court jurisdiction

The extraterritorial application of §1959 to violent crimes associated with drug trafficking is also reasonable under IL principles

o Even though the crime here was not the murder of DEA agents, but rather US citizens, it still applies b.c the cartel members mistook the men for agents and killed them in retaliation. Therefore, their murder has an equally direct and adverse impact to the nation’s security interest in combating the importation and trafficking of illegal narcotics.

G. Universal Jurisdiction Restatement §404

o Piracyo Slave tradeo “perhaps terrorism”o Genocide and war crimes

Eichmann - Israel convicted him in part on Universal theory – used this theory to refuse the contention that there was no jurisdiction because the D had been captured n a foreign country in violation of IL

Applies to “grave breaches” of the four geneva conventionso Reasonableness - this limitation is not imposed on the exercise of universal jurisdiction

Regina v. Ex Parte Pinochet (UK, 1999)Facts: a warrant was issued by an English magistrate for the arrest of Pinochet, a former head of Chile, at the request of Spain. Alleged that while the head of Chile, Pinochet conspired with other to take hostage, torture, and kill many ppl, including Spanish citizens Pinochet was arrested and contented in the English court that he was immune from arrest and could not be extradited.

The house of lords rendered judgment twiceo The first was vacated because one of the law lords had not disclosed that his wife was in

Amnesty Int’l, which had written an amicus brief on the case,o Second judgment – rules that Pinochet could NOT claim immunity in regard to torture,

which had been made a universal crime under the International Convention against Torture.

Pinochet was returned to Chile for poor health.Decision: Court asserts universal jurisdiction based on torture

Torture has become jus cogens and Chile has accepted it as so. – this justifies states taking universal jurisdiction over torture wherever committed

US v. Yousef (2nd Circuit)Facts: the district court had concluded that universal jurisdiction applied to “terrorist” acts.Held: Rejects the District Court’s position - Terrorism, unlike piracy, war crimes, and crimes against humanity, does not provide a basis for universal jurisdiction

Universal jurisdiction arises under customary IL only when 1) crimes are universally condemned by the community of nations and 2) by their nature occur either outside of a state or where there is no state capable of punishing, or competent to punish, the crime (as in time of war)

o Is this correct, based on the Pinochet case? NO b/c torture occurred within a state so there are state capable of punishing them

“While this nation unequivocally condemns all terrorist attacks, that sentiment is NOT universal” HALBERSTAM SAYS THIS IS NOT CORRECT

o US bases their own belief of universal jurisdiction for terrorism on the same rationale for pirates as the “enemies of all mankind”

H. Jurisdiction to Enforce

US v. Alvarez-Machain (US 1992) – kidnapping to gain jurisdiction Facts: Machain was a doctor in Mexico who allegedly worked with a group of drug traffickers; they kidnapped a U.S. agent and tortured him for info. The doctor allegedly revived the agent every time so that the traffickers could keep torturing him. The U.S. offered $50,000 to anyone who would bring him to the U.S. and a Mexican official brought him to the border. Machain moved to dismiss the indictment

Machain’s main argument (basis of the 9th Circuit decision): his kidnapping violated the extradition treaty between the U.S. and Mexico. Even though the treaty had no provision saying a person may not be tried if they are brought to the other state in a manner inconsistent with the treaty, he argued that it was implied.

S.C. Held: The presence of an extradition treaty between the US and another nation does not necessarily preclude obtaining a citizen of that nation through abduction. Court conceded that the abduction was shocking and that it may be in violation of general international law principles.

Even if the abduction is a violation of IL, the trial is not - Male captus bene detentus – a bad capture can be the basis of a lawful detention . (it doesn’t matter how the person came into the jurisdiction. ) The remedy for that violation of IL is not to deprive the court of jurisdiction.

Cites the Ker Case (1886): US sent agents to Peru and had a legal warrant to present to the courts of Peru. There was a revolution in Peru and no one to present it to, so they just took him and brought to trial in US. SC held no violation of due process.

Frisbee Cases (1952): D kidnapped in Chicago by Michigan police officers. Claimed violation of due process – Court held NO.

Machain argued use of the Exclusionary Rule (applied to fed gov’t only) - Analogy: Just as you cant use evidence that was seized in violation of the 4th amendment, you shouldn’t be able to try a person who was seized in violation of the 4th amendment

The US has never extended this reasoning to the seizure of a person. It was rejected in Frisbee v. Collins. Fed Kidnapping Act makes kidnapping a federal crime to bring someone from one

state to another – subject to capital punishment Said you can prosecute the police offers who illegally seized under the fed

kidnapping actNote: SC could have applied the rule: that it violates due process, so application of the exclusionary rule

Note 3, p 826: Is there any reasonable doubt that, if at the time of the negotiation and conclusion of the treaty, the parties had considered the possibility that either party would engage in abduction in violation of IL, they would have included in a treaty a provision prohibit this?

o Halberstam: This is incorrect – there was a case before Alvarez where the same thing happened, and Mexico said they couldn’t have jurisdiction over someone they kidnapped. Mexico put in a provision that would have prohibited this, and the US would not sign that provision.

o The parties did consider it but they rejected it

Attorney General of Israel v. Eichmann (Israel DC 1961)Facts: Eichman was a Nazi responsible for the organization of the transportation to the gas chambers, mostly in Hungary. Israel kidnapped Eichmann from Argentina and brought him to trial in Israel for war crimes WITHOUT consent of Argentina

Argentina argues that the capture of Eichmann is a violation of their state sovereignty - Sec Council did not ask Israel to give him back

Eichmann argued that Israel did not have jurisdiction and moreover could not punish him for crimes under a law passed after the crimes were committed (ex post facto)

Held: Court ruled that Israel had jurisdiction and could prosecute Eichmann both under Israel criminal law and customary international law (which criminalizes genocide)

International law is incorporated into Israeli law – Court here did NOT see any conflict between Israeli law and international law

POLICY QUESTION: Should the IL or US law be changed to say that whenever custody of someone is obtained illegally, he cannot be tried in the jurisdiction of the country that took him illegally?

o Yes: we don’t want people kidnapping peopleo No: We cant always get people through extradition. Some serious criminals, worse than Alvarez, are

in countries without extradition. Without abduction, they will never be tried Encourages breaking the law b/c someone can commit a crime and then flee to a state

without extraditiono Halberstam: Defended SC decision in Alavrez-Machain - should be limited to gross violations but it

should be limited to jurisdiction (she is in the minority view)

I. Jurisdiction Based on Agreement Under IL, a state has jurisdiction to prescribe and enforce law in another state’s territory to the extent

provided by international agreement with the other state o These agreements are commonly made when armed forces of one state are present in another

state’s territory by consent. Wilson v. Girard (US 1957)

Facts: Girard was a specialist third class in the US army in Japan and he wounded a Japanese woman during a military exercise in Japan. The US notified Japan that he would be delivered to the Japanese authorities for trial. Japan indicted him.

Art III of a security treaty between Japan and the US authorized the making of Administrative Agreements between the 2 govs concerning the conditions governing the disposition of armed forces of the US in Japan. The agreement covered the jurisdiction of the US over offenses committed in Japan by US armed forces, and provided that jurisdiction in any case might be waived by the US.

Subsequently, another protocol agreement was signed by the 2 governments, pursuant to the NATO agreement. It authorized that in crim cases where the right to jurisdiction is concurrent, the military authorities of the US would have the primary right to exercise jurisdiction over member of the army for offenses arising out of any act or omission done in the performance of official duty.

o The US claimed : the right to try Girard on the ground that his act was done in the performance of official duty giving the US primary jurisdiction.

o Japan insisted: that Girard’s action was not within the scope of his official duty and therefore it had right of jurisdiction.

The US ultimately waived whatever jurisdiction it might have.o Also, japan could have tried him without a treaty on the basis of territoriality

Girard sought a writ of habeas corpus from the US, asserting his due process rights were violated. It was denied but he was given declaratory relief and an injunction against his delivery to Japanese authorities. Wilson, the Sec of Defense, appealed

Held: A sovereign nation has exclusive jurisdiction to punish offences against its laws committed within its borders, unless it expressly or impliedly consents to surrender its jurisdiction

Japan’s cessation to the US of jurisdiction to try American soldiers for conduct constituting an offense against the laws of both countries was conditioned by the protocol agreement, which provided that “the authorities of the state having the primary right shall give sympathetic consideration to a request from the authorities of the other state for a waiver of its right in cases where that other state considers such a waiver to be of particular importance.”

Also, there has been no prohibition against this under the Const or legislation subsequent to the security treaty. In the absence of such statutory or constitutional barriers, the wisdom of the arrangement is exclusively for the determination of the executive and legislative branches. These branches have decided to waive jurisdiction and deliver Girard to the Japanese authorities.

Judgment of district court reversed.

Reid v. Covert:

US had a treaty with Germany that says US can try US nationals who are the spouses of soldiers who are in criminal, for crimes committed in germany. A wife killed her husband in Germany. US tries her in germany before a military court. She argues it violates her right to trial by jury.

SC held if the US exercises its jurisdiction, then it must comply with the Const. The US could have waived jurisdiction, but it did not

Munaf v. Geren (US 2008): Facts: Munaf, a US citizen, was arrested in 2005 for kidnapping, by US military officers. His sister petitioned for habeas. Issue: whether fed courts have jurisdiction to consider habeas petitions of US citizens detained b y US-led coalition forces in Iraq pending a transfer to Iraqi authorities following a conviction in an Iraqi crim court.Held: habeas corpus extends to American citizens held overseas by American force operating subject to American chain of command even if a part of a larger multinational force.

However, the petition failed to state a claim on which relief could be granted in light of Iraq’s authority as the territorial sovereign to persecute crimes committed on its territory

J. Extradition Extradition: the formal process by which an individual is delivered from the state where he is located to

the requesting state to face prosecution, or if already convicted, to serve a sentence.o US: Secretary of state decides whether or not to extradite someone

There is NO general requirement under IL for a state to extradite an offender – extradition may only be permitted if there s a treaty or statute authorizing it

Court’s role in the extradition process:o Normally a request will come to Sec of State from Foreign Officer of other country. The Sec of State

will give it to the justice Dept, who sends it to the US attorney. o Then the Court must decide

1. whether there is sufficient evidence to reasonably believe that the person committed the crime (hearing or grand jury indictment);

2. whether that person is the right person. Even if the Court says yes to both questions above, the Sec of State is NOT REQUIRED to

extradite It’s a political decision. This is not an advisory opinion - if the court says NO, then the Sec of State CANNOT do it

A court cannot deny extradition on the ground that a person would not get a fair trial in the other country (due process argument):

General rule of judicial non-inquiry: See Ahmad v. Wigen (2d Cir 1990): reject defendants’ in extradition cases efforts to resist extradition on the ground that they would be subjected to standards of procedural due process falling short of those in the requested state or would otherwise suffer unjust treatment following extradition.

o Courts cant inquire b/c congress hasn’t given them the power to do that. o Pragmatically, the Sec of State probably will not extradite to those countries

Challenged in the context of Torture Some US courts have treated torture as exceptions to the rule. Art 3 of the Torture Convention prohibits the extradition of a person to a state where there are subst . grounds for believing he would be subjected to torture there.

o Munaf v. Geren (S.C) = this is not a matter for judicial decision. Principle of Speciality (Rauscher Principle) : an offender can only be tried for the crime for which

he/she was extradited; otherwise the requesting state must permit the individual to leave the state to which he was surrendered.

o US v. Rauscher (1886): If one nation agrees to extradite an individual to be tried for a specific crime, the receiving nation cannot then try them for another crime

This proposition was extended beyond its intended scope in the Demjanjuk case – Israel SC reversed the conviction on the ground that the evidence did not establish beyond a

reasonable doubt that he was “Ivan the Terrible” and sent him back to the US. The Principle of Specialty ensured he could not be tried on the grounds of just being another guard who abused ppl, b/c they had extradited him to try him as Ivan the Terrible

“Double criminality” requirement: the offense at issue must be a crime in both the requesting state and the requested state - The elements of the offense need not be precisely the same, provided that the fugitive could be punished for the act in both states.

o Ex: things protected under 1st amendment (obscenity)o Abu Daoud Case: he was arrested in France for committing the massacre of Munich Olympics.

France released him and expelled him to Algeria. Israel and Germany requested his extradition. Germany based their jurisdiction on territoriality; Israel based their jurisdiction on passive personality.

France rejected extradition to Israel b/c the act did not occur on Israel and France did not recognize personality in 1972. They recognized it in 1975. This was in 1977

Proposition: France asserted they would not extradite unless the jurisdictional bases existed in France at the time of the act, not at the time the extradition is sought.

“Political” Offenses - most treaties do not allow for extradition for “political offenses”, meaning an offense arising from political activism, such as treason, sedition, or espionage.

o “Political offenses” is interpreted differently by every countryo US follows this interpretation :

1. that the act has to be for the purpose of overthrowing an existing gov’t2. must be done by someone who is part of a political organization3. the org itself has to have a hierarchy of authority4. the act has to be on order from the org5. the act must be against a military target

o Today, the US has treaties with many states (like UK) that allow extradition, as long as there are means of trial available in that state

o 2 important cases on the political offense doctrine: 1. IRA Doherty Case2. Terrorist puts a bomb in a trashcan near a school and 3 dozen kids are killed. He escapes to

US and invokes political exception; Exception fails b/c attack was on a civilian, not military o HYPO: JFK assassinator escapes to another country – extradite?

May not have been to overthrow country May not be an organization Not clear president is a military target

o Pentagon = predominantly civilian target

Ch 12: Immunity From Jurisdiction

1. Jurisdictional Immunities of Foreign states: A. Absolute Immunity – States enjoy complete indemnity from suit in US courts, regardless of what the suit

is for a. Schooner Exchange v. Mcfaddon (US, 1812) - CJ Marshall

Facts: a libel suit was brought against the schooner Exchange, by 2 American citizens who claimed they were entitled to possession of the ship. They claimed the ship was illegally seized on the high seas in 1810 by forces acting on behalf of the French Emperor (Napoleon) .The Exchange was then made into a French Military ship. Principle of public law: national ships of war, entering the power of a friendly power open for their reception, are to be considered as exempt by the consent of that power from its jurisdiction

As a gesture of comity, members of the Int’l community have implicitly agreed to waive jurisdiction over other sovereigns in cases involving foreign ministers or the persons of the sovereign.

B. Restrictive Immunity – Immunity is confined to suits involving the foreign sovereign’s public acts (jure imperi), and does not extend to cases arising out of a foreign state’s strictly commercial/private acts (jure gestionis). (States CAN be sued when they act in commercial capacity)

a. State Department used to dictate whether or not immunity would be extendedi. The US Supreme Court ruled that lower US courts were bound by executive decisions with

respect to sovereign immunity - they may not deny immunity if the state dept says it “recognizes and allows” it

ii. The Court distinguished between public and private acts of the State The distinction between public and private is not always easy to draw

b. US adopted Restrictive Immunity in “Tate Letter” (1952) – letter from US Dept of State ( which interprets immunities to be accorded under IL) to US Dept of Justice (which represents the interest of the US gov’t in US courts)

C. Foreign Sovereign Immunities Act (FSIA) a. Adopted in 1976; embraced the Restrictive Theory of immunity (codified the Tate Letter) Also

transferred responsibility for immunity determinations from the Executive to the judicial branchi. Public v. Private distinction is made on the basis of the NATURE of the act in question (NOT the

purpose)ii. Congress has the authority to adopt the FSIA under the commerce clause

b. Argentine Republic v. Amerada Hess Shipping Corp . (US, 1989)Facts: Argentina military plane bombed and destroyed plaintiff’s ships. Plaintiff company sued Argentina in US court. Argentina asserted sovereign immunity under the FSIA. P based jurisdiction here on the alien tort statute. (bombing ship in high seas was the violation) Plaintiff corp. argued that the suit fell under one of the exceptions to FSIA Held: The Alien Tort Statute is not a basis for jurisdiction here. The Court held that the FSIA “provides the sole basis for obtaining jurisdiction over a foreign state in the courts of this country,” by pointing to one of the exceptions. A court cant hear a case against a foreign state unless you can point to an exception under the FSIA. o The Court rejected the corporation’s assertions that this case triggered one of the exceptions to

FSIAc. Republic of Austria v. Altman (US 2004)

FACTS: Heir of original owner of paintings sued Republic of Austria and state-owned Austrian gallery, seeking return of paintings taken by Nazis in violation of international law. Court got jurisdiction by displaying the paintings in the US.Issue: Does the FSIA apply retroactively?

Austria argued that because the Acts complained of occurred before both the FSIA and the

Tate Letter (1970’s), it enjoyed absolute immunity from suito If this was not retroactive, then Austria would have had immunity based on

Absolute Immunityo If it did apply retroactively, then it would have had immunity under the FSIA

(exception 1605(a)(3) – “Rights in Property located in the US were improperly taken under International Law”)

Proposition: FSIA applies to any action THAT IS BROUGHT after the act was adopted regardless of when the events giving rise to the action occurred (noted in FSIA § 1602)

d. Mohamed Ali Samantar vs. Bashe Abdi Yousef (US 2010) Facts: Families of victims of torture and extrajudicial killings seek damages from Samantar (the ex president of Somalia) based on his alleged authorization of those acts. Ps claim damages through the Alien Tort Statute. Samantar claimed sovereign immunityHeld: The FSIA does not govern Samantar’s immunity b/c it does not apply to individual foreign officials. It only applies to foreign states.

e. §1602 – The court decides whether an exception applies!i. “Claims of foreign states to immunity should henceforth be decided by courts of the United

States and of the States in conformity with the principles set forth in this chapter.”f. §1603 -

- (a) defines “foreign state” = includes a political subdivision and any agency or instrumentality (an entity which is a separate legal person form the foreign state and yet is either an “organ” of the state or whose majority shares are owned by a foreign state)

o Dole Food Company v. Patrickson (US 2003)Principle: the FSIA defines states and state agencies to include not only gov’t entities, but also corporations. A corporation is included if the government itself owned the majority of the shares of the corp (indirect subsidiaries do not qualify )The court would not pierce the corporate veil to interpret this provision of the FSIA

g. § 1604 –Provides States with immunity in US courts UNLESS an exception applies - “Subject to existing international agreements to which the United States 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 United States and of the States except as provided in sections 1605 to 1607 of this chapter.” [listed below]: i. if we had a treaty granting immunity, and the FSIA didn’t say the provision “Subject to existing

international agreements”, then it would supersede the treaty b/c of later in time rule

h. Exceptions : §1605i. Waiver – a foreign state can waive its immunity 1605(a)(1)

State will waive its immunity IF:a. the State does not assert immunity at trial

i. implied waiver = when a state party files a general appearance before a courtb. the State included an explicit provision of waiver of immunity in the

contract or treaty at issue ( language that says “agree to the jurisdiction of US courts and will not claim sovereign immunity”)

Siderman De Blake v. Republic of Argentina (9th Cir 1992):Facts: P sought to recover for torture and wrongful seizure of property by Argentine authorities. Argentina pleaded sovereign immunityHeld: Argentina impliedly waived its defense of sov. imm by requesting the assistance of CA state courts in proceedings conducted against the P in Argentina relating to the conduct that formed the basis for this action

ii. Commercial Activity (1605(a)(2)) 1605(a)(2): A foreign state is not immune from suit in any case where the action is

based upon an act outside the territory of the US in connection with a commercial activity of the foreign sovereign elsewhere and that act causes a direct effect in the United States.

a. Foreign state engaged in commercial activity in the USb. Act performed in the US in connection with a commercial activity of the foreign

state elsewherec. Act outside the territory of the US in connection with a commercial activity of a

foreign state elsewhere and that act caused a direct effect in the US Republic of Argentina v. Weltover, Inc . (US 1992)

Facts: No country would extend Argentine businessmen any credit because of the instability of Argentine currency. As a result, the government agreed to back private loans with US dollars

Argentina couldn’t meet these promises so it issued special bonds payable on a specific date in NY

i. On that date, Argentina couldn’t payii. The bond holders sued in US District Court

iii. Argentina claimed sovereign immunity – Held: In order to determine whether an activity is commercial, look to whether the particular actions that the foreign state performs (whatever the motive behind them) are the type of actions by which private parties engage in ‘trade and traffic or commerce. Court ruled that there were two bases of jurisdiction under the commercial activity exception

Court looked at:o The nature of the act (not the purpose) Issuance of bonds is per se

commercial activity o Moreover, the activity had a clear effect in the US

Either one of these (but certainly both) is sufficient Saudi Arabia v. Nelson (US, 1993) - Shows that the FSIA tried to codify the restrictive

theory, yet 4 justices give 4 different opinions while interpreting the actFacts: Nelson was recruited through an American corp to work at a hospital in SA. Reported fire hazards - taken to a jail cell, beat and tortured and never charging w/ a crime. He sued under the commercial activity exception. Held: S.A. has immunity. This suit is not based on any commercial act by S.A; the conduct is abuse of power by the Saudi Police, which is a government act. Concurrence (White, Blackmun, Kennedy) Dissent (Stevens): S.A’s minimum contacts with the US are plainly sufficient to subject them to suit here, on a claim arising out of their commercial activity relating to Nelson. (treat bases of jurisdiction separately from minimum contacts)

iii. Rights in Property located in the US were improperly taken under International Law (1605(a)(3)) – property must be present in the US

iv. Inheritance or Rights in immovable property located in the US (1605(a)(4)) - immunity is denied in regard to claims of immovable properly situation in the US, irrespective of whether the property is of a commercial nature. This denial extends to property used for diplomatic and consular purposes.

Permanent Mission of India to the UN v. City of NY (US, 2007)Facts: Permanent Mission of India to the UN is located in a building in NYC owned by the gov’t of India. It has diplomatic offices and houses employees of the mission. Under NY law, real prop owned by foreign gov’ts is exempt from taxation, if used exclusively for diplomatic offices or to house “ambassadors or ministers” to the UN. NYC has issued taxes against the portion of the building that houses lower-level employees, and the Indian Mission has not paid. NYC sued the Mission.

Held: property ownership is not inherently a sovereign function - the FSIA does not immunize a foreign sovereign from such a suit.

Int’l practice at the time of the FSIA’s enactment supports NYC’s view that these sovereigns are not immune

v. Noncommercial Torts that occur in the US (1605(a)(5)) – Denies immunity for most non-commercial torts causing, “personal injury or death, or

damage to or loss of property.”a. Congress’ primary goal in enacting this exception was to eliminate a foreign

state’s immunity for car accidents, slip-n-falls in foreign embassies , and other torts committed in the US, for which liability is imposed under domestic tort law.

Argentine Republic v. Amerada Hess Shipping Corp :Held: This exception ONLY covers torts occurring within the territorial jurisdiction of the US, not those “outside of the US” or those with “direct effects” in the US

If Congress wanted to include “direct effects” in the torts exception, they would have done that like they did in commercial exception. They specifically limited torts to injury IN THE US.

vi. Enforcement of Arbitration 1605(a)(6) - permits an action to enforce an arbitration agreement to which a foreign

state is a party if: (A) the arbitration takes place or is intended to take place in the United States, (B) the agreement or award is or may be governed by a treaty or other international agreement in force for the United States calling for the recognition and enforcement of arbitral awards, (C) the underlying claim, save for the agreement to arbitrate, could have been brought in a United States court under this section or section 1607, (D) paragraph (1) of this subsection is otherwise applicable.

vii. Terrorist-State Exception – 1605A First appeared through an amendment 1605, under 1605(a)(7) as “Torture, sabotage,

hostage taking, extrajudicial killing or the provision of material support or resources...for such an act....” Replaced with 1605A.

1605A(c) – provides a cause of action against terrorist states and their agents US citizens who are victims of state-sponsored terrorism can sue a responsible foreign state directly.

a. This exception only applies if the State Dep’t has designated the state as a terrorist state. i. State-sponsored terrorism list: Syria, Cuba, Iran, and Sudan

ii. HYPO: suppose Nelson, from the Saudi Arabia case, had sued under this section for torture? No jurisdiction b/c it would not be found to be a state sponsor of terrorism.

b. The action must be commenced within 10 years. Gates v. Syrian Arab Republic (2008):

Facts: Americans Armstrong and Hensley were murdered by Al-Qaeda in Iraq on video. Their families sued the Syrian Government for damages under the FSIA.Issue: Whether Syria, and its officials acting within the scope of their employment, provided material support/resources to al-Qaeda in Iraq.Held: Jurisdiction over Syria is consistent with §1605A(a).

Ps have presented evidence satisfactory to the Court to support all the elements of a claim under §1505A.

It was Syria’s foreign policy to support al-Qaeda in Iraq to topple the Iraqi democracy.

viii. Counterclaims – A state that submits to jurisdiction so it can sue the United States submits itself to jurisdiction to be sued

If the counterclaim arise out of the same transaction or occurrence it can be for any amount BUT if it doesn’t than it cannot be for more money than is sought in the original claim

Chapter 15: Use of Force

1. Use of Force Between States A. Customary IL on force prior to the 20 th Century .

Early customary IL regulated the conduct of war – did not prohibit war. o War was considered the normal means of one state getting new territory

If state A attacked state B, and lost, it could lose its territory this was a powerful deterrent of war

o Distinction between “just” and “unjust” wars – unjust wars were not prohibited thougho Jus In Bello – Rules of customary IL governing the conduct of war itself; implicitly says states have a

right to go to war. (this is the law that existed for many centuries) War had to be declared – to put everyone on notice. Then other states could declare

themselves as neutral or belligerent. If declared neutral, they were immune from attack from belligerent states.

Congress declares war in the US – Blockade: a legal way of fighting a war

The state that wanted the blockade was required to declare it, and to have the naval power to enforce it. (if it couldn’t enforce it, it wasn’t valid)

Neutral states had to honor the blockade –if they ran the blockade, they become a belligerent party (even if they werent delivering military supplies)

o If they breached the blockade – the other state could then take the ship as prize of war and became the property of that state

Laws concerning treatment of prisoners, attacks on civilianso Jus Ad Bellum – Newer law; asked can you or cant you go to war?

B. Pre-UN Efforts to Discourage or outlaw war Kellogg-Briand Pact (1929) – first effort under IL to ban broadly the resort to war as an instrument of

national policy (prohibited war limited to a certain number of states who accepted) League of Nations: created to promote int’l cooperation and to achieve int’l peace and security. Founded

as a result of the Treaty of Versailles in 1919o Did not prohibit war - War was only illegal if not begun in compliance with the requirements of the

Covenant with regard to prior resort of pacific settlement (peaceful procedures) to the dispute. A state resorting to war in violation of its undertaking with regard to pacific settlement was deemed to have committed an act of war against all other members.

If found illegal, then members of the league were required to impose sanctions (economic, financial, travel, military)

o The League failed b/c they left it up to the individual state to determine if a breach had occurred. Ex: War between Italy and Abyssinia.

The Nuremberg Charter and Trialso Crimes against humanity – murder, extermination, enslavement, deportation of state’s own

civilian populations NOT jus in bello ,so this was a “new crime” Was this ex post facto? No, b/c no one was convicted ONLY of this crime. They were all

combined with another crime – This act was not innocent when it was done Murder is ALWAYS A CRIME, even if it wasn’t specified under international laws as

crimes – so its not ex post facto.o Crimes against the peace – planning or waging of a war of aggression. this is a violation of

international treaties (Kellogg-Briand Pact; Treaty of Versailles limited German’s rights to acquire arms)

o War crimes – Jus in bello - ill-treatment, slave labor of prisoners of war

C. Use of force under the UN Charter 1. Overview:

Art 2(4): member states must refrain from the “threat or use of force” (these are broader concepts than “aggression”)

Art. 51: nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs

2. Prohibition of the Use of Force Art. 2(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 other manner inconsistent with the Purposes of the United Nations.

o 2(4) is now customary law binding on all states and a rule of jus cogenso Doesn’t use the word “war” but was meant to outlaw the use of military force to acquire territory or

other benefits from another state. didn’t want it to be limited to the “declaration of war” under customary IL. So acts of war, without declaration of war, are still prohibited under the charter

o Is only military force prohibited or is economic force and other coercive measures too? Economic force can mean anything from doing nothing –> boycott, trade sanctions, etc.

which ones would or wouldn’t be permissible?

G.A. Res. 3314 : Definition of Aggression (1974)o Problem with this definition Every article really contradicts every other article. This is b/c each

article was adopted by consensus. Therefore, its impossible to tell if the US would be entitled, required, or prohibited from helping a country suppress a revolt.

Articles:o Aggression = use of armed force by a State against the sovereignty, territorial integrity or political

independence of another State, or in any other manner inconsistent with the Charter of the United Nations, as set out in this Definition. (no economic coercion)

o Article 3: Any of the following acts, regardless of a declaration of war, shall, subject to and in accordance with the provisions of article 2, qualify as an act of aggression:

(a) The invasion or attack by the armed forces of a State of the territory of another State, or any military occupation, however temporary, resulting from such invasion or attack, or any annexation by the use of force of the territory of another State or part thereof,(b) Bombardment by the armed forces of a State against the territory of another State or the use of any weapons by a State against the territory of another State;(c) The blockade of the ports or coasts of a State by the armed forces of another State; [ this was permissible under customary law, but is now prohibited by the gen assembly](d) An attack by the armed forces of a State on the land, sea or air forces, or marine and air fleets of another State;(e) The use of armed forces of one State which are within the territory of another State with the agreement of the receiving State, in contravention of the conditions provided for in the agreement or any extension of their presence in such territory beyond the termination of the agreement; [Syria had its forces in Lebanon. They were originally invited, but once Lebanon asked them to leave they would not](g) The sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State of such gravity as to amount to the acts listed above, or its substantial involvement therein. Important for Nicaragua Case

o Article 4: The acts enumerated above are not exhaustive

Threat to Military Intervention

o When a foreign gov is invited y the govt to help put down an attempted coup or assist in restoring law and order, it does not violate 2(4).

o When foreign armies invited by a govt are using force to curtail political independence of the state, article 2(4) IS violated.

3. The Self-Defense Exception Art. 51 : “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 United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defense shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security”

What is “Inherent”?o US Position – The use of this word maintains the principles of self-defense contained in customary

international law (charter doesn’t give the right, its simply an inherent right that the charter does not negate)

o Response – the language limiting the use of self-defense “if an armed attack occurs” circumscribes the principle of self-defense and limits the right of to use force in self-defense until the UN acts

To whom does this right of self-defense belong?o The State that is attackedo Collective self-defense organizations like NATO and the Warsaw Pact

An attack on one nation functioned as an attack on all members of the organization After 9/11, collective self-defense was invoked by NATO (the only time) Latin American countries were the ones who initially wanted to include collective self-

defense in Article 51 What constitutes an “armed attack” for the purpose of Article 51?

o Case Concerning Military and Paramilitary Activities in and Against Nicaragua (ICJ 1986)Jurisdictional Case: the court used customary IL and the treaty of friendship b/n US and Nic to get jurisdiction (said Charter did not apply – but also said the principles in the charter are identical to customary law today! Facts: Nicaragua claims the U.S. violated Article 2(4) of the UN Charter by illegally using force. US doesn’t deny that it took these actions. Instead, the US tried to justify its actions under Article 51, claiming that it was helping its ally El Salvador who was attacked by Nicaragua. . Issue: When can an attack conducted by a non-state group rise to the level of “armed attack” triggering Article 51?RULE: Court sets out requirements for an attack conducted by a non-state group to “become” an “armed attack,” triggering Article 51: doesn’t cite authority for this/ simply makes this up!

1. Attacked state declare itself a victim of aggression 2. Attacked state asked for assistance

Held: ICJ ruled that Nicaragua violated 2(4) in supplying arms BUT that this act itself did not constitute armed attack so as to trigger Article 51 no right to collective self defense of the U.S. since it didn’t constitute an armed attack

Art. 51 doesn’t distinguish b/n individual and collective self defense Court also criticizes that the US’ did not fulfill the reporting requirement in art. 51 that

requires notification to the Sec Council of what it was doing BUT it held in the jurisdictional case that the Charter was not implicated, only customary IL was! So, it appears the court is applying the Charter in the Merits case

The US breached the second sentence of Art 51 – but does this negate the right to self defense? Probably not

Anticipatory Self-Defense and “Preemption” - Does self-defense require an armed attack or is it

permissible in anticipation of an attack?o The language says “if an armed attacked occurs”

Counter: recognize its an inherent right; we shouldn’t have to wait until a nuclear weapon hits us

Ex: Israel destroyed Iraq’s nuclear reactor in 1991. They were officially in a state of war. (UN condemned israel, and every country in the world took the position that it was illegal)

o Problem with Art 51: drafted after WWII – “until an armed attack occurs” is not so relevant in today’s world, where we cant wait for an armed attack

However, a state might think its threatened, and then act, but if they hadn’t acted there might not have been an armed attack

Difficult question – o Do alarming military preparations by a neighboring state justify a resort to the Sec Council, but not

use of anticipatory force? Interceptive self-defense: takes place after the other side has committed itself to an armed

attack in an ostensibly irrevocable wayo Preemptive Use of Force /Defense (Bush Doctrine): announced by Bush in 2002 in response to

9/11 attackso 4 Criteria for Evaluation of Preemptive or Preventive Self-Defense Claims:

Lethality (the likely loss of life from the threat) Likelihood ( probability that the threat will occur) Legitimacy (necessity, proportionality, and deliberativeness) Legality (whether the threat is produced by legal or illegal actions, and whether the

proposed remedy is more or less legal)

Self-Defense Against Non State Actorso NATO Article 5 of the North Atlantic Treaty: if there’s an armed attack on one more of the

parties, it shall be considered an attack against them all. It can be argued that Art 5 is invalid based on the Nicaragua decision b/c Nicaragua holds

that an attacked state is required to declare itself a victim and request assistance of aggression

o In the ICJ advisory opinion on Legal Consequences of the Construction a Wall in Occupied Palestinian Territories, -- re-interprets Article 51 to say that there is an inherent right to self-defense in the case of an armed attack by one state against another state. (court is additionally trying to narrow 51)

The court held that Israel’s actions could not be covered by Art 51 since the attacks against Israel did not come from a state. (p 1191)

4. Intervention in Internal Conflicts Pre-Charter: In a civil war, the gov’t but not the rebels may receive help until the rebels have been granted

belligerent statuso Belligerent status = gray area/hard to determine. States construe the threshold differently as a

defense to help whichever side of the conflict they want Charter: does not mention revolution or civil war – Art 7 of GA Res on Aggression has been interpreted to

say if a grp is fighting for self-determination against colonialism, helping that group IS permissible, even though it might not have been under customary law

This article though, is contradicted by Article 5 of GA Res on Aggression so some ppl took view that ALL use is of force is prohibited

*Look at p. 1199: Note 1 – Nicaragua Case considers the assistance of rebels in a state to be an intervention by the one state in the internal affairs of the other (intervention as a violation of IL)

D. Humanitarian intervention: use of force by one state to protect persons within another state from massive

atrocities like genocide Requirement for Humanitarian Intervention under Customary IL: A state can intervene if

1. There is a threat of imminent danger of serious injury/death to a certain group2. The gov’t of the country where it is happening is unwilling/unable to protect the grp at risk3. The entry must to be limited to that purpose4. Once the purpose is accomplished, the intervening state must leave

Under the UN Charter, is humanitarian intervention permissible? 3 Positions:o NO, charter prohibits it completely:

Plain language of 2(4) prohibits it violating the territorial integrity of another state. 2(4) also says “or in any other manner inconsistent with the purposes of the UN.” If you provide too broad of a right of humanitarian intervention it can be used as a pretext

for use of force (abused – country will use it as a way to get in, but not leave).o YES, it’s permissible as it was under traditional law b/c of the policy reasons:

purpose of the charter strong claim to allowing an exception to use of armed force to protect

When human rights are being violated in an extreme way, it’s consistent with the charter to intervene.

It’s not a use of force against the territorial integrity or political independence of the country. It is not against the government, it is confined, and they will leave right after.

o Yes, its justified under self-defense: Some commentators say that HI can be subsumed under Art 51

After Belgium left the Congo, there was a situation where whites in Congo were in danger of being attacked. Some commentators said it was ok for Belgium to do it for Belgian nationals under SD, but they couldn’t rescue the nationals of other countries b/c that’s not SD. absurd result.

o Majority commentators: NOT PERMISSIBLE UNDER UN CHARTER, UNTIL RECENTLY R2P Kosovo Intervention - Multinational military intervention mounted by NATO against Serbia for their

attempt to annihilate the Albanian population from Kosovo. o Kofi Anan: demonstrates that if you don’t permit intervention a million ppl could die, but if you do

permit it, they could use it to mask ulterior motives and you are also undermining sovereignty o Independent Int’l Commission on Kosovo: the NATO campaign was illegal, yet legitimateo Canada Commission Position - Responsibility to Protect obligations on all states:

To prevent manmade catastrophes from arising, to react when they do, and to rebuild after any intrusive intervention intervention is legal, and each individual state has its own r2p crimes

R2P criteria to resort to military force:1. Seriousness of the harm: does the threatened harm involve genocide or other large

scale killing?2. Proper purpose: is it clear that the primary purpose of the proposed military action is

to avert such a threat?3. Last resort: have all nonmilitary options been explored and found unavailing?4. Proportional means: are the scale, duration, and intensity of proposed military action

the min necessary for the protective purpose?5. Balance of consequences: is there a reasonable prospect of success, with the

consequences of inaction likely to be worse than undertaking military action?o 2005 World Summit Outcome: adopted r2p meeting of states , not legally binding document,

but demonstrates the majority of states’ view on this Each individual State has the responsibility to protect its [own] populations from

genocide, war crimes, ethnic cleansing and crimes against humanity. This responsibility entails the prevention of such crimes…The int’l community should encourage and help States to exercise this responsibility and support the UN in establishing an early warning capability.

The international community, through the UN, also has the responsibility to use appropriate diplomatic, humanitarian and other peaceful means, in accordance with Chapters VI and VIII of the Charter, to help protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity. Prepared to take collective action, in a timely and decisive manner, through the Security Council, on a case-by-case basis, should peaceful means be inadequate and national authorities manifestly fail to protect their populations .

Only diff between humanitarian intervention and r2p is some commentators say that without sec council resolution, r2p should be done collectively by states

E. Intervention in Support of Democratic Governance or Self-Determination Reisman: intervention in support of democracy/ self-determination is permissible in certain circs –

emphasizes the broader policy considerations, rather than the language of 2(4) Schachter: disagrees with Reisman Henkin: strongly opposed to intervention to support a particular form of government Reagan Doctrine: (1985) we owe help to freedom movements around the world. i.e. asserted the right of

the US (or any other state) to intervene by force to defend, maintain, restore, or impose democratic governments.

o Halber: We probably would NOT use force to impose democracy on a country Brezhnev Doctrine: asserted the right of socialist states to intervene in another socialist state when

socialism there was threatened. (hungary and Czech examples) Dicta in ICJ: use of force not permissible – cant do it to defend a particular system

F. Use of Force by the UN:Ch. VII of the Charter– provides for the use of Force by the UN

Art 39: The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendation, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security”

o The recommendations (resolutions) are BINDING Art. 41: power for Security Council to use non-force measures to give effect to its decisions, and may call

upon the Members to apply such measures. These measures include complete or partial interruption of economic relations, and of rail, sea, air, other communications, and severance of diplomatic relations.

o This has been used against sudan, iran not all being honored. Art. 42: if the Security Council determines that Art. 41(non-force) measures would be inadequate or have

proved to be inadequate, it may use any type of force – including military force (take action by land, sea, and air forces as may be necessary to maintain or restore international peace of security )

o can use any type of force, including, demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations.

o 5 Permanent members of Sec Council - China, France, Russia, the United Kingdom, and the United States - and the states they choose to protect - are protected by use of force under this article, b.c they have veto power. This was an unforeseen consequence.

Art. 43(1): Security council can have its own armed forces All Members of the United Nations, in order to contribute to the maintenance of international peace and security, undertake to make available to the Security Council, on its call and in accordance with a special agreement or agreements, armed forces, assistance, and facilities

o Intended structure for the UN = prohibits force by one state against another (except 51), and then all use of force would be controlled by security council

o The UN forces never came into existence b/c of the cold war. Soviet union and US disagreed. US said if there was ever an agreement to create the sec council force, it needed to be done

w. advice and consent of the senate (so no exec agreements allowed)

2 major actions in which Sec Council has authorized the use of force:

Korean War (1950) – North Korea invaded S. Korea, and Sec Council determined it was a breach of the peace and declares a resolution recommending states to assist S. Korea.

a. SC Action: determined breach of peacei. SC Resolution 82: demanded withdrawal of NK from S.K - NK didn’t do it

ii. SC Resolution 83: collective action – 2 days after Res82iii. SC Resolution 84: unified command authorized to use UN Flag – 10 days later

b. **Soviet Union was absent from the Sec Council votei. Art 27: Decisions of the Security Council on procedural matters shall be made by an

affirmative vote of nine members.- seems to require concurring vote (from practice) Soviet Union thought absence = veto, but the charter says abstention does NOT

equal vetoii. Soviets later came back in on August 1st and blocked any further resolutions by the Sec

Council c. General Assembly, in response to impasse, adopted “Uniting for Peace” Resolution

i. Give GA power to act if SC doesn’t act. Make recommendations (p. 1229) GA did not have this authority, but it interpreted this right. This shifted a lot of authority from the Sec Council to the GA

Persian Gulf War; Iraq (1990-91) - Iraq invaded Kuwait in 1990. Sec Council condemned the invasion and demanded Iraq withdraw its forces.

a. Security Council Action :i. 660: Aug 2, 1990 - condemned invasion and demanded withdrawal

Chayes’ argument (p. 1231-32) - Right to self defense stops immediately. Schachter (1232) - Right to self defense doesn’t stop immediately, but the Sec

Council can require it to stop. Intent of Council is necessary to decide whether self-defense should be suspended

ii. 661: economic and military sanctions against Iraqiii. 665: blockadeiv. 666: ensured food shipmentsv. 678 (p.1230): authorizes Member States to “use all necessary means to uphold and

implement resolutions” pertaining to Iraq-Kuwait conflict (use of force) Requests states to provide support for actions taken as a necessary mean (2)

vi. Iraq doesn’t leave – US, UK, France, NATO countries all form a military “coalition of the willing”->

action by a grp of states acting pursuant to art 42 of the charter Also collective self-defense under article 51

vii. 687 (p. 1233): Coalition drives Iraq out of Kuwait – ceasefire. Ceasefire requires Iraq to destroy its nuclear, chemical, biological weapon stocks

and must agree not to develop any new ones. Must agree to inspections Iraq did not comply w/ the conditions – there was never a peace treaty

viii. 1441 (p. 1238): 2002 Binding resolution - declared Iraq was in violation of their obligations by not allowing the UN arms inspectors in. It constituted a material breach and posed a threat to int’l peace and security. set up more inspections, must comply and issue complete declaration of its ambitions

March 20, 2003 – US and other states attack Iraq again. Is there authorization for this invasion?

a. No – needed a separate sec. council resolution to authorize force b. Yes - Authorized force because of breach of 1441

i. Never a complete cessation of US forces in Iraqb. At the US Level – under the Const, did the President require authorization by Congress to use force?

i. Never declared a state of warii. Congress authorized both invasions

UN Peacekeeping Operations and “Coalitions of Willing States” Peacekeeping forces - efforts to prevent hostilities from erupting or resuming. See chart on 1245- whats the justification for peacekeeping forces? There are various UN peacekeeping forces, sometimes they are there w. consent, and sometimes by

resolution. In many cases, they have proven ineffective. Arab-Israeli Conflict

o 1919 – league of nations gave UK mandate over Palestineo 1921 – UK established trans-Jordano 1947 - Britain tells League to take back mandate - - G.A. adopts the partition plan, where it

recommends the division of the territory into 2 states (1 jewish, 1 arab) Jewish community accepted it, and arab states did not

o Israel declaration on independence in 1948o 1949 – armistice agreemento 1956 – Nasser (head of Egypt) decided to take various action against Israel.

First time UN forces come into the area – GA made a resolution -established UN emergency force stationed in Egypt’s territory w/ their consent

GA was supposed to make sure that Egypt didn’t invade Israel againo 1967 – Nasser kicked out UN forces b/c he wanted to invade Israel. Sec General on his own

withdrew the forces b/c Egypt withdrew his consent. (completely ineffective forces) Israel launched a major invasion of Arab territory based on attacks by its Arab neighbors.

o 1974 – israel war w. Syria – UN stationed forces again