International Law – Outline

Nature of International Law ................................................................... 1 States and Individuals as Subjects of International Law......................................................1

McCann v. United Kingdom...............................................................................................................................................1

Filartiga v. Pena-Irala: Customary Law...............................................................................................................................2

Sources of International Law .................................................................. 3 Treaties.............................................................................................................................. 3

Statute of the ICJ, Article 38: Four Areas to Find International Law..................................................................................3

Vienna Convention............................................................................................................................................................4

Name and Form of Treaty...................................................................................................4

Components..............................................................................................................................................................4

Classification: Number of Parties..............................................................................................................................4

Treaty-Making Power: Capacity................................................................................................................................5

Treaty Process.................................................................................................................... 5

Negotiations and Adoption.......................................................................................................................................5

Forms of Conclusion..................................................................................................................................................6

Entering into Force....................................................................................................................................................7

Treaty Samples..........................................................................................................................................................7

Treaty Between the Jews and Romans..............................................................................................................................7

The Peace of Westphalia - 1648........................................................................................................................................7

Treaty of Paris - 1783.........................................................................................................................................................7

The Cession of Alaska........................................................................................................................................................8

The Kellogg-Briand Pact.....................................................................................................................................................8

Hull-Lothian Agreement....................................................................................................................................................8

Reservations.......................................................................................................................8The Reservations to the Genocide Convention Case.........................................................................................................9

Acceptance and Objections to Reservations...........................................................................................................10

Legal Effects of Accepting or Objecting to Reservations..........................................................................................10

Limits of countermeasures......................................................................................................................................11

The Belilios Case (European Court of Human Rights)......................................................................................................11

Interpretation...................................................................................................................12

Amendments and Modifications.............................................................................................................................12

Eastern Airlines v. Floyd...................................................................................................................................................13

Vienna Convention on Interpretation: §30 and §31........................................................................................................14

Observance of Treaties.....................................................................................................14

Invalidation of Treaties............................................................................................................................................14

Separate Invalidation of Provisions.........................................................................................................................15

Termination or Suspension:....................................................................................................................................15

Grounds for Termination or Withdrawal.................................................................................................................16

Case Concerning the Gabcikovo-Nagymaros Project.......................................................................................................16

Termination Due to Breach.....................................................................................................................................17

Subsequent Events – Termination...........................................................................................................................17

Effect of State Succession on International Treaties...............................................................................................18

General Principles of Law: Unwritten Treaties..................................................................19The Eastern Greenland Case............................................................................................................................................19

How do Treaties relate to general principles of law?..............................................................................................19

Customary Norms – Norms Formation ................................................. 20 Establishment of an International Custom........................................................................21

Qualitative Factors: Past state practice and duration of state practice..................................................................21

Lotus Case:...................................................................................................................................................................... 22

Resolutions and Recommendations of International Organizations.......................................................................22

The Paquete Habana.......................................................................................................................................................23

The Asylum Case..............................................................................................................................................................23

The Lotus Case.................................................................................................................................................................24

Non-Legally Binding Norms.....................................................................................................................................24

Texaco/Libya Arbitration.................................................................................................................................................25

UN General Assembly: Policy Issues in Texaco/Libya..............................................................................................26

General Principles of International Law ............................................... 27 The AM & S Case.............................................................................................................................................................28

**Exam Tips for Sources of International Law**..............................................................................................29

International Law and Municipal Law .................................................. 30 Treaties and the U.S. Constitution.................................................................................... 30

Self-Executing Treaties..................................................................................................... 30Foster & Elam v. Neilson: Self-Executing Treaties...........................................................................................................31

Treaties and Conflicting State Law: The Supremacy Clause................................................31Asakura v. City of Seattle.................................................................................................................................................31

Sei Fuji v. California.........................................................................................................................................................32

Treaties and Conflicting Federal Statutes..........................................................................32

Constitutional Limitations.................................................................................................33Missouri v. Holland..........................................................................................................................................................33

Whitney v. Robertson......................................................................................................................................................33

Foreign Relations and Law of the US.................................................................................34United States v. Belmont.................................................................................................................................................34

Executive Powers....................................................................................................................................................34

United States v. Curtiss-Wright: Executive Agreements and Constitution.......................................................................35

Dames & Moore v. Regan................................................................................................................................................35

Customary International Law in Municipal Law.................................................................36

Alien Tort Statute:...................................................................................................................................................36

United States v. Alvarez-Machain: Extradition (1992).....................................................................................................36

Sosa v. Alvarez-Machain (2004).......................................................................................................................................37

Flexible framework for determining which torts constitute causes of action under the ATS..................................37

International Law as Persuasive Authority in US Courts..........................................................................................38

Roper v. Simmons............................................................................................................................................................38

**Exam Tips for International and Municipal Law**........................................................................................39

International Arbitration ...................................................................... 40 Arbitration Policy Arguments..................................................................................................................................40

Types of International Arbitral Clauses.............................................................................40

Rules and Institutions of Arbitration.................................................................................41

Arbitration Awards...........................................................................................................41The Rainbow Warrior Case (New Zealand v. France, Arbitration 1990)...........................................................................41

The International Court of Justice ........................................................ 43 ICJ Jurisdiction.................................................................................................................. 43

Optional Clause.......................................................................................................................................................44

Minquiers and Ecrehos Case (France and the UK at the ICJ 1953)...................................................................................44

The Diplomatic and Consular Staff Case (US v. Iran; ICJ 1980).........................................................................................44

Compulsory Jurisdiction: Art 36(2)....................................................................................45

ICJ Chambers...........................................................................................................................................................45

The Elsi Case (United States v. Italy ICJ 1989)..................................................................................................................46

** Exam Tips for Arbitration and the ICJ**.......................................................................................................46

Law of the Sea ..................................................................................... 47 High Seas.......................................................................................................................... 47

Nationality of Vessels....................................................................................................... 47

Rights and Obligations of Vessels and States..........................................................................................................47

Limitations on Flags.................................................................................................................................................48

Duties of the Flag State...........................................................................................................................................48

M/V Saiga Case (Grenadines v. St. Vincent).....................................................................................................................48

Continental Shelf; Fishery Zones.......................................................................................49

Rights and Duties of Coastal State over Continental Shelf......................................................................................50

Truman Proclamation (1945)...........................................................................................................................................50

Exclusive Economic Zones.................................................................................................50

Exclusive Economic Zone Rights..............................................................................................................................51

UK v. Iceland – Fisheries Jurisdiction Case (1974)............................................................................................................51

Rights and Obligations from 1982 UN Convention on Law of the Sea.....................................................................51

Freedom of Fishing and Conservation Measures:............................................................................................................51

EEZ Dispute Resolution in the LOSC.........................................................................................................................52

Territorial Seas and Straits................................................................................................52

Right of Innocent Passage in Straits........................................................................................................................52

Rights/Duties of Coastal States in Straits.................................................................................................................53

Exercising Criminal Jurisdiction in Straits.................................................................................................................53

Right of Transit Passage and Straits.........................................................................................................................54

**Exam Tips for the Law of the Sea**..............................................................................................................54

Law of War .......................................................................................... 55 Jus in Bello: Rules Concerning the Conduct of Hostilities...................................................55

Customary Law and International Treaties for War................................................................................................55

Geneva Convention and Hague: Protections.....................................................................56

Protections Extended to Combatants:.....................................................................................................................56

Protections for Wounded, Sick and Shipwrecked Combatants...............................................................................56

Prisoners of War......................................................................................................................................................56

Protections of Civilians............................................................................................................................................56

Hamdi v. Rumsfeld...........................................................................................................................................................57

Protections for Property..........................................................................................................................................57

Enforcement and Sanctions.....................................................................................................................................57

UN Charter....................................................................................................................... 58

Right to Self Defense and Terrorism........................................................................................................................58

UN Art. 2(4) and Use of Force.................................................................................................................................58

Policy in UN Ban on Use of Force............................................................................................................................58

Nicaragua Case (ICJ, 1986)...............................................................................................................................................59

Article 51: Self-Defense and Use of Force Authorized by the UN Charter...........................61

Scope of Article 51:.................................................................................................................................................61

Necessity and Proportionality Requirements for Self-Defense...............................................................................61

Collective Use of Force – Iraq 1990...................................................................................62Security Council Resolution 678 (1990):..........................................................................................................................62

Security Council Resolution 687 (1991):..........................................................................................................................62

Collective Use of Force – Iraq 2003...................................................................................63

Preemptive Self-Defense:........................................................................................................................................63

Resolution 1441:..............................................................................................................................................................63

US Justification of Invasion......................................................................................................................................63

**Exam Tips for the Law of War**...................................................................................................................64

Nature of International Law

Importance of International Law:

Defines the existence of nations Provides framework for diplomatic relations Governs international agreements Sets forth rules for operations of international commerce

Keys Terms:

Treaties Customary International Law Role of National Courts in Applying International Law Public International Arbitration and International Court of Justice (ICJ)

Hugo Grotius

Requirement of restitution for harm done by one party to another Pacta sunt servanda: the obligation of a state to honor its promises The principle of freedom of the seas

Nature of Treaties: Binding Effect

International Contract: Sovereign state may exercise its sovereignty not only by making domestic law but also by making international law

International Statute: Generally applicable set of rule; multilateral treaties, but do not bind non-parties

States and Individuals as Subjects of International Law

States: UK was subject to the jurisdiction, and submitted dispute itself to court, of the ECHR because it had signed and ratified an international convention formally and explicitly accepting the jurisdiction of the Court (McCann)

Claim of Rights of Paraguayan citizens against an official of their government (Filartiga) and individuals’ international human rights claim against the UK government (McCann)

McCann v. United Kingdom

1. Facts: 3 known Irish terrorists were in Spain. UK authorities were alerted to their presence, and they were killed during a confrontation. The estates of the deceased brought an inquest against soldiers and government, believing it was a wrongful killing, to the European Court of Human Rights.

2. Analysis: UK Court only requires a killing to be justified, but Court looks at Article 2 para. 2 of the European Human Rights Convention (treaty of EU), which requires that deadly force be absolutely necessary for it to be lawful. Although the soldiers were justified, the court must use the int’l law, and says the killing was not absolutely necessary (there was negligence and incompetence in the operation).

1

3. Damages: Although UK very powerful, they still had to pay the terrorists’ families compensation, - they still have to abide by the int’l tribunal.

4. Notes: European Convention of Human Rights – product of post-WWII politics, in wake of Nazi atrocities. Countries get together to enforce human rights. This is a court of last resort, meaning you must exhaust domestic remedies first before coming here.

Filartiga v. Pena-Irala: Customary Law

1. Facts: A Paraguayan boy was tortured to death by Pena. It appeared local remedies were exhausted. The boy’s sister was in the US on a visa and Pena then moved to the US. The boy’s sister brought charges against Pena in the US under 28 USC §1350—Federal courts have jurisdiction over “all causes where an alien sues for a tort committed in violation of the law of nations.”

2. Key: Non-US nationals may sue people in US Courts for tort violations prohibited by Treaties (UN Convention on Torture) and Customary Law

3. Holding 1: Pena’s conduct violated the law of nations b/c freedom from torture is now a part of international customary law.

a. The court looked at scholarly writings, intl. agreements and orgs, laws from different nations and the US stance on torture according to the State dept.

b. The monetary relief awarded could never be enforced. 4. BUT: 90% of countries practice torture so how can it be state practice??

a. There is a general recognition that torture is wrong, but still not state practice.b. Fundamental and customary norms supersede express laws.

2

Sources of International Law

Treaties

Defined (VC 2): An international agreement between States in written form and governed by intl. law, whether in single instrument or in two or more related ones and whatever it may be called

General Law: Binding treaty need not always be written (very rare) Binding: Treaty need not state intent to be bound by international law

o If two states create document that looks non-binding in nature – then it will not be governed by either international or national law (e.g. use of words SHOULD or WILL – and not SHALL or ENTER INTO EFFECT – signals intent)

Statute of the ICJ, Article 38: Four Areas to Find International Law

The first three in Article 38 are the primary sources for the ICJ. Treaties are probably top in the hierarchy.

(1) International Conventions(2) International Custom: Hard to Apply with Art. 38(3) General Principles of Law recognized by civilized nations There are certain concepts shared by countries—e.g., appellate procedure, no person should be a

judge in their own case. (These are things that pervade almost every system). “Civilized nations” now means all countries w/ developed legal systems.

(4) Judicial decisions and the teachings of the most highly qualified scholars internationally Subject to Art 59, no true stare decisis power – but not true in actuality.

o Judicial/teachings—ICJ is talking about national ones - o When there is a conflict—this is when fundamental notions/norms come into play (although

ICJ doesn’t specifically recognize these)o Filartiga —the Judge narrowly defined this—looking only at lawyers from American law

schools. If agreed upon by the parties, ex aequo et bono (by what is equal and good)

o This has never happened in practice.o This means fairness/justice.

Other sources not listed in Article 38 of the ICJ (see n. 1, p. 21):o (1) Natural lawo (2) Equityo (3) Jus cogenso (4) The resolutions of international organizations.

There are ways of getting around Article 38—for example: A declaration issued at a major conference could be considered law by international custom due to state practice.

o Article 38 is supposedly only for the ICJ, but people seem to follow this even in countries who aren’t bound by the ICJ.

3

Vienna Convention

Primary Source for the Law of treaties US: As of 2008, still not ratified it but State Dept does recognize it as the authoritative guide to

current treaty law and practice Application: Only to those conventions that meet the requirements for a treaty Requirements:

o Between stateso In Writingo Governed by International Law

Name and Form of Treaty

Components

1. Title: Description of type of treaty and subject matter often with names of parties2. Preamble: Reasons for the treaty, name of the negotiating representatives and authority with

which the representative is cloaked 3. Main Body: Rights and obligations of the parties

a. Subject Matter: Cannot conflict with (1) natural law (jus cogens) or (2) UN Charter Restrictions

4. Final Part: Provisions setting forth guidelines for entry into force, termination, revisions, accessions, reservation, publication and languages in which text is written

a. Language: No universal rule on what or what number should be used – generally selected by parties in it – when published in more than 1 language, the treaty should clarify which text is the authentic version

Classification: Number of Parties

Bilateral Treaties: Between two parties

Most common and similar to contracts which exchange rights and obligations Wide Variety: Range from detailed agreements for a fixed period of time to agreements stating

general norms or intentions to form alliances

Multilateral Treaties: Restricted and General

Restricted: Agreements involving close cooperation among a limited number of states for specific purposes (e.g. construction of cross-national dam); often require the adoption and consent of all states to place into force

General: Open to all states or to at least all states with a large geographic region (Europe or S.E. Asia); more legislative than restricted (less like contracts) – ordinarily do not require adopted by all the states for force

4

Classification: Other Forms

1. Geographic factors: General v. Regional - problems arise when geographic region is not clearly defined if all states in that region are allowed in

2. Possibility of Accession: a. Closed treaty: has no provisions for later parties to joinb. Open treaty: Provides a right of accessions to parties not involved in the original

drafting and conclusionc. Semi-Open Treaty: Allows accession but only after consultation with the original

contracting parties d. UN Commission: Accession is possible only if the treaty expressly provides for accession

or if the original parties subsequently decide to permit accession (traditional)

Treaty-Making Power: Capacity

Party and Representative must both have proper power to negotiate and conclude and international agreement

State Capacity: All nations are presumed to have capacityo States of the US must receive approval from Congress before entering any agreement or

pact with foreign states – not all nations need this (Germany and Switzerland) Individual Capacity and Plenipotentiaries: Issued in a document entitled a full powers documents

naming people who are authorized to negotiate and conclude a treaty on behalf of the stateo Practice of State: Exception of full powers – Art. 7 of VC – allows states to dispense with full

powers if the practice of the state involved demonstrates its intention to consider its representative as duly designated and authorized

o Heads of State: Unnecessary for Heads of State, Heads of Government, Ministers of Foreign Affairs and Heads of Diplomatic Missions Representatives accredited by states to international conventions or organizations are

exempt but only for that particular area Binding Effect: State is bound unless it is clearly evident that its representative was acting beyond

his or her authority Subsequent Confirmation: When authority is lacking, treaty is without legal effects unless state

subsequently confirms it – VC Art. 8

Treaty Process

Negotiations and Adoption

1. Bilateral Negotiations: Begins in foreign ministry with one party and then followed with exchanges of notes and discussions through diplomatic channels

a. Texts prepared by legal advisors and are basis for further negotiationsb. Goal – create a draft that is acceptable to both parties

2. Restricted Multilateral Negotiations: Same as bilateral

5

3. General Multilateral Negotiations: Usually through diplomatic conferences where delegations act on behalf of states

a. Begins – draft and proposals and working papersb. Like a legislature – designation of drafting committees, amendments and recording

(legislative history)c. Work towards a Final Act: Not usually intended to bring treaty into force

4. Adoption: Formal act of signifying that the form and content of the treaty have been agreed upon – negotiations are done, disputes resolved and wording is complete

Forms of Conclusion

1. Binding: Party is not bound until it has consented to be bounda. Forms of Consent: Signature, Exchange of Instruments, Acceptance, Approval,

Ratification or any other agreed means b. Common: Accession or ratification

2. Signature: Signing may signify the state’s definitive consent to be bound (VC 12)a. Will be consent when: signal of definitive consent stated by Treaty is signature;

otherwise established that signature is consent or the intent of the signature is consent to be bound

3. Ratification After Signature: When two-step process exists, a state’s signature simply means they are committed to pursue whatever measures are necessary to ratify the treaty (no obligation to ratify it, though, it internal approval isn’t secured)

a. Ratification is a check on the treaty-making powers of the executive branch of government by passing the treaty through parliamentary or legislative branches

b. VC does not require and many informal international agreements bind parties on signature alone

c. US: President must obtain the advice and consent of the Senate to ratify a Treaty by a 2/3 vote of approval

4. Obligations of a Signatory Party Yet to Ratify: Even without ratification – the party still may not defeat the OBJECT AND PURPOSE of the treaty UNTIL:

a. Clear Expression of Intent to No Longer be a Partyb. Reasonable Waiting Period for Entry into Force: Cannot defeat object and purpose as

long as the entry into force is not unduly delayed 5. Accession: Process by which a state that was not a signatory of the treaty may become a party

to the treaty and be bound by its terms – no different treatment after accession a. EXAMPLE: This treaty may be ratified by all signatories – any other state wished to

become a party may do so by depositing an instrument of accession 6. Depository: Intl. Org. or State designated to be the location where the state submits its

instrument of ratification a. Often UN Secretary General

7. Acceptance: An expression of consent to be bound either without a signature or after a non-binding prior signature

6

a. Not really actual method of consent – just a term seen in provisions (context)b. EXAMPLE: A signature to acceptance is the equivalent of a signature subject to

ratification but a treaty that is “open to acceptance” is one that is open to accession

Entering into Force

1. Defined: Only once a treaty enters into force does it bind states who have ratified ita. Actual implementation of the treaty’s terms governed by VC Art. 24 – occurs when

specific requirements laid out in the treaty have been met2. Bilateral Force: Contracting states indicate their intention to be bound to the treaty from a

specified date – effective on date3. Multilateral Force: General treaties usually have provision that a specified number of states

must ratify or accept treaty before it is in force between those statesa. May provide that all states must ratify before entering into force

4. Article 25 of VC: Treaty may be implemented before formal requirements for entry into force are met – all of it or segments – provisional application may be terminated when party informs other states of its intent not to become a party

Treaty Samples

Treaty Between the Jews and Romans

Romans were a state but the Jews were not. This is not like the modern era. Jews: Promised to aide Rome if war is declared against it and promised not to give food/aid to

Rome’s enemies. Romans: same promise in reverse.

The Peace of Westphalia - 1648

Between the Holy Roman Empire and Sweden—ending the Thirty Years War. Treaty to re-establish peace and amity between the parties. Equality among Catholics/Protestants. Establish boundaries. This marked the beginning of modern international law. A treaty can also regulate behavior within the states. (from my notes)

Treaty of Paris - 1783

Ended the Revolutionary War. GB: Recognize the US and relinquish all claims US: must give restitution to UK subjects. Strikes bargain w/ respect to boundaries. One of the most important the US has entered into.

7

The Cession of Alaska

Contract function being served here between US and Russia. Money in exchange for land—a bargain.

The Kellogg-Briand Pact

Treaty of Versailles after WWI Renunciation of war as a policy. India and Canada signed as colonies. Treaty failed b/c Treaty of Versailles was set up in a way as to enable Hitler to do what he did

and take advantage of the provisions. UN CHARTER:

o More successful—no global wars since.o League Nations—they learned from it—put in a mechanism for sanctions in the UN Charter

and the US participates now.(2) Cordell Hull Memoirs

Hull-Lothian Agreement

US Sec of State and the UK broker a deal to trade ships for army bases, but made it look like it wasn’t a quid pro quo.

They could not break intl. law (the US was at peace w/ the UK’s enemies and thus, could not sell it warships).

They argued that belligerents were estopped from raising questions about their possible breaking of the Hague Convention.

This isn’t a treaty b/c the exec branch can’t make a treaty by itself. Was the US bound since this wasn’t sent to the Senate? Yes even if the agreement is illegal

under US law. If you view the world in a dualist point of view. See Article 46 of the Vienna Convention (p. 882).

How to know the difference in an executive agreement and a treaty:o Treaty—requires implementation in American law.o This was an exec agreement. (Presidential power is plenary)o Exec agreements can be secret if they involve national security—Just have to inform the

intelligence committees on in both houses of the leg.

Reservations

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

2. Three Permissible Reservations: Art. 19 of VC permitsa. (1) treaty prohibits reservations expressly or impliedly b. (2) treaty provides for only some reservations not including the type in questionc. (3) they are simply incompatible with the OBJECT AND PURPOSE of the treaty

3. Object and Purpose: Genocide Convention Example

8

a. Incompatible: reservation saying it wished to exclude from definition of genocide the mass killing of a particular group

b. Compatible: reservation stating it didn’t accept disputes arising under Convention could be adjudicated by the ICJ would be OK since object and purpose is not to ensure the Court’s jurisdiction

4. Purpose: To get as wide of participation as possible – encourage participation by allowing state to be a party without every provision

a. Two Options: (1) adopt a treaty allowing no reservations with few parties and superficiality OR (2) adopt a substantive treaty allowing reservations and allowing many states to join and make necessary changes

The Reservations to the Genocide Convention Case

(1) UN general assembly adopted this resolution in regards to disputes of the reservations to the Genocide Convention Basic principles of treaties:

o (1) A state cannot be bound to a treaty without its consent.o (2) Once agreement is made, the parties to it cannot change it, or make other agreements

that go against it.o (3) A reservation is a modification of terms the participating state has include with their

acceptance of a treaty.o Whether or not to allow reservations?

o Reservations can't contravene the general purpose of the treaty, especially in regards to human rights treaties

o We want as many states as possible to sign on, and if there were no reservations allowed, a lot of states wouldn’t sign on. And on the other side, we don’t want to sacrifice important aspects b/c we want more states to join.

So if minor issues (like jurisdiction) then allow it, to get more states But if too many minor reservations, it can change the purpose of the treaty

o Dissent: No flexibility. "It would be better to lose a state which insists in face of objections on a modification of the terms of the Convention, then to permit it to become a party against the wish of a state(s) which have irrevocably and unconditionally accepted all the obligations of the Convention."

(2) While some treaties still expressly forbid any reservations (Ex: he Law of the Sea Convention), they are now generally permitted to the extent that they are not inconsistent with the goals and purposes of the treaty. Some reservations are permissible, but would be objectionable to the other signatory states. They are only binding on the other parties if the other parties accept the reservation.

o Common practice is that you have to object to the reservation, otherwise you accepto Often, the practice of objections, etc., are stipulated in the treaty (the procedural

mechanisms) Reservations have the effect of turning one agreement into many different agreements

Suppose there is a treaty signed by countries A, B, C, and D. A makes a reservation on one part of it, say Article III.

B is okay with it. Fine, there is a treaty between A & B, including the reservation

9

C opposes the reservation. There is no agreement between A & C as to Article III. There’s only a partial agreement.

D says the reservation is intolerable, and that A is not a party as far as D is concerned. There is no agreement at all between A & D.

Between B, C, and D, there is an agreement.o B/c of the mess this creates, the trend has been to forbid reservations in multilateral

agreements (like for torture or genocide). Vienna Convention on reservations - Section 2: Reservations - Art 19-21

Acceptance and Objections to Reservations

1. Defined: Not applicable to bilateral treaties2. Expressly Permitted: Does not need acceptance unless the treaty provides – other parties have

already indicated their accepted by drafting it with it in there3. Object and Purpose Requires Consent: When it seems from the limited number of negotiating

States and the object and purpose of a treaty that the application of the treaty in its entirety between all parties is an essential condition of the consent of each one to be bound by the treaty – a reservation requires accept by all the parties

a. Otherwise – no need for unanimous consent4. Reservation Neither Permitted nor Prohibited: Each state is free to decide whether to reject or

accept the reservation on an individual basis

Legal Effects of Accepting or Objecting to Reservations

1. Acceptance: Treaty will enter into force between accepting and reserving state – apply as modified to both states

a. Effect: Only between the reserving state and the accepting state and is of no matter to other parties not yet decided

2. Interpretation: no true authoritative body to go to for complex issues 3. Practice: Compatibility of a proposed reservation is reviewed by the non-reserving parties to a

treaty 4. Objection: Two Outcomes:

a. (1) Objecting state still a party – still willing to enter treaty – treaty is in force between objecting and accepting state, but the provisions to which the reservation relates do not apply between the two states to the extent of the reservation (willingness to preserve treaty is presumed in absence of an express objection otherwise)

b. (2) Objecting state refuses to be a party – reserving state and objecting state are not parties to the treaty in relation to each other (can still be relating to other states)

5. Limitations to Reservations: Narrowly construed – do not apply to other provisions by way of implication

6. Declarations and Understandings: Not legal binding effect but suggest how a state in its diplomacy is likely to interpret articles or words of the treaty

10

Limits of countermeasures

- Article 49: An injured state may only take countermeasures against a State which is responsible for an internationally wrongful act in order to induce that State to comply with its obligations under Part Two.

- Article 50: List of things you cannot do by countermeasure – no threat of force, no invasion, no human rights violations, etc.

o Do something that isn’t definitive – something that you can retreat from - Article 51: Countermeasures must be proportionate the violation that you have experienced- Article 52: Before you take countermeasures, you must ask the other state to apply and so on

The Belilios Case (European Court of Human Rights)

UN HC Committee: had not been empowered expressly to issue decisions binding on parties – nevertheless it said it was empowered to opine on the status and legal effect of a parties’ reservation to the treaty

Facts: Swiss woman punished for demonstrating. The municipal police board imposed a fine on her in her absence. The board responded to her claims of illegitimacy of the board by saying that their jurisdiction could not be challenged. The woman appealed and was unsuccessful w/ the federal court b/c the court said the European Convention on Human Rights was subject to the interpretive declaration Switzerland added—Swiss “consider that the guarantee of a fair trial is intended solely to ensure ultimate control by the judiciary over the acts and decisions of the public authorities.”

Holding 1: The interpretive declaration added to the treaty is really a reservation. Holding 2: The reservation is invalid.

o The reservation basically meant that the right to a fair trial was limited as long as there was judicial review of the law.

o The reservation was too general. Holding 3: Switzerland violated Article 6(1) of the Convention (“right to a fair trial”)

o The police board wasn’t enough b/c there is no tribunal—not really adjudicated in the traditional sense.

o The Convention doesn’t define “fair trial,” but custom/practice w/in the region (norms) show that Article 6 requires and “independent and impartial.”

The court in this case rejects a fundamental rule of international law: silence (if other countries don’t object to a reservation to begin with, it should be valid). It is likely the court concerned here w/ human rights.

Why do countries make reservations and remain parties to a treaty?o It just makes the treaty more dormant for the country.o Court’s approach here was about universality.

11

Interpretation

1. VC 31-32: Three rulesa. (1) Treaty shall be interpreted in good faith in accordance with the ordinary meaning to

be given to the terms of the treaty in their context and in the light of its object and purpose

b. (2) The context of the terms of a treaty includes not just the entire text but also any agreement relating to the it made by all the parties in connection with concluding the treaty

c. (3) Take into account any subsequent agreement reached by the parties about interpretation, any subsequent practice of the parties and any relevant rules of intl. law applicable to the relations between the parties

d. After: Consult preparatory work (legislative history) if ambiguous or obscure or leads to an absurd or unreasonable result

2. Textual Approach: Looks only to the text of the treaty and the plain and natural meanings of the words

a. Do not try to get intent of the partiesb. Four-Corners presumption that document contains all that parties wanted

3. Limited Contextual Approach: VC Art. 31 and 32 – text is the starting point for interpretation a. Not necessarily limited to the four-corners of the documents thoughb. Intent may be ascertained from subsequent agreements regarding interpretation of the

treaty, subsequent actions or practices of the parties that reflect the parties understanding and other relevant rules of international law

c. Can look to subsequent practice in the application of the treaty as a factor to be taken into account but only if it establishes the agreement of the parties regarding its interpretation

4. Policy-Oriented: Intent is defined as the genuine shared expectations of the parties and may be gleaned from the treaty text and all pre- and post-treaty communications

a. No one source predominates over another b. Intent is considered in the broad framework of giving effect to the goal of a public order

of human dignity

Amendments and Modifications

1. Amendments: A treaty may be amended by agreement between the parties – Art. 39a. Method often specific in original treaty – take on the character of treaties and governed

by law on treaties 2. Amendments in VC 40: Amendments later a treaty and need notification of all parties of the

proposal to amend; all have the right to participate in the decision to amendment and subsequent negotiations and conclusions

12

a. Unless contrary intention expressed – party that doesn’t consent to be bound by an amendment continues its obligations under the original treaty with respect to those parties not joining the amended version

b. If not all original contracting parties become party to amendment – results in split application of the treaty – version applies to one both are parties to

3. Modification in VC 41: Different from amendments because these are made by a limited number of parties and permitted ONLY when:

a. Allowed by original treaty ORb. Not prohibited and does not affect enjoyment by the other parties of their rights under

the treaty or the not performance of their obligations and does not relate to a provision, from which changing would be incompatible with the effective execution of the OBJECT and PURPOSE of the treaty as a whole

4. Actual Practice: Customary law may allow for actual practice but not the VC

Eastern Airlines v. Floyd

Facts: Case where an airplane lost oil pressure but landed safely. Passengers claiming mental distress sue the airline. Issue is what kind of injury is protected under the Warsaw Convention.o Interpreting the Warsaw Convention (1929)

Intertemporal doctrine—if you interpret a law in 1929, but must take into account today’s view.

Treaty interpretation:o Text itself; Dictionary; Subsequent behavior (Art. 31)o Context (Vienna Convention talks about this):

What did individual countries consider the term’s meaning. Something adopted (understanding different from today) Do you take the intertemporal problem into account?

Broader sources here than in Filartiga: o Court looked a broad number of countries (but confined to European ones)o State practice hasn’t included mental suffering.o Where Israel said such was covered, Israel ct played role of interpreter:

Policy reasons justifying this in 1929 that do not exist today. So no policy reason for limiting now. Very different case—a hijacking

Municipal Courts: Why differences in interpretations?o Different courts use different interpretation methods.o A ct might find that a treaty provision implicitly refers to its own municipal law.o A municipal court might not view the treaty as controlling, in light of competing rules of

domestic law (France)o Accommodating change in international law and treaties

13

Vienna Convention on Interpretation: § 30 and 31

1. Article 31: There shall be taken into account, together with the context:(a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions;(b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation; (c) any relevant rules of international law applicable in the relations between the parties.

2. Article 32: Supplementary means of interpretation a. Recourse may be had to supplementary means of interpretation, including the

preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31: (a) leaves the meaning ambiguous or obscure; or (b) leads to a result which is manifestly absurd or unreasonable.

Observance of Treaties

1. Good Faith: required regardless of any conflicting domestic law – does not excuse a party from its obligations UNLESS

a. Pacta sunt survanda: Obligation of parties to observe the provisions in good faithb. State’s consent to be bound by the treaty was expressed in violation of the state’s

domestic law and violation was manifest and concerned an internal law of fundamental importance (VC 46)

2. Territorial Scope: Applies to all territory of each party – land, neighboring waters and air spacea. May be limited by treaty or reservation but can be invalid if limitation is incompatible

with the objective and purpose of the treaty3. Fulfillment of Treaties: Methods of Oversight

a. Available Remedies: Submission of dispute to ICJ, Diplomatic negotiations and arbitration

b. Treaty often designates manner for dispute resolution c. VC 65-66 does not address what manner

Invalidation of Treaties

Grounds: Error, Fraudulent Conduct, Corruption, Coercion, Conflict with Peremptory Norms and conflict with domestic Law

1. Fraud: Does not void the treaty – but is grounds for invalidating a party’s consent to be bound – not innocent misrepresentation and error (VC 49)

2. Corruption: Exercise of substantial and inappropriate influence on the representative concluding a treaty for his state – must come from one of the other negotiating states – not within own state (VC 5))

3. Coercion of Individual: Beyond influence and is acts or threats used against representative in order to get consent to be bound – without legal effect (VC 51)

14

4. Coercion of State: A treaty concluded with a threat of use of force in violation of the UN Charter is void – including economic or political pressure, too

5. Conflict with a peremptory norm ( Jus Cogens ): Application is complicated because there is much controversy about Jus Cogens – difficult to identify which general rules qualify as Jus Cogens and it is evolving

a. Genocide, slavery and use of armed or physical force against the territorial integrity or political independence of any state are unenforceable as against Jus Cogens

6. Conflict with Domestic Law: Potential conflicts (VC 46)

Separate Invalidation of Provisions

1. Defined: Grounds for invalidation generally affect whole treaty but sometimes only parts may be invalidated

a. Fraud and Corruption: Only the victim state may decide whether the whole or parts of the treaty are invalidated

b. Coercion and Conflict with Jus Cogens: entire treaty is void always 2. Art. 44: Separation is ok when:

a. Separation specified in treaty: treaty permits then it is okb. Treaty provisions are not essential: if the objectionable clauses are separable from the

remainder of the treaty with regard to their application and not an essential basis of the consent and continued performance of the remainder of the treaty would not be unjust

Termination or Suspension: Withdrawal, Provisional Suspension of Multilateral Treaties between Some, Unilateral Abrogation, Duration or Realization of Purpose

1. Termination of or Withdrawal From: May fix own duration, state date or event, conditionally trigger, or set forth the right to denounce or withdraw from the treaty

a. Art. 54: terminate treaty in accordance with terms or by consent of all the partiesb. USA: no need for Senate’s consent to termination – President can do on his own

2. Provisional Suspension of Multilateral Treaties: Permitted whena. Provided for in treatyb. Treaty doesn’t prohibit and it is neither prejudicial to the rights of other parties nor

incompatible with the object and purpose of the treaty (VC 58)3. Unilateral Abrogation/Withdrawal: Many disputes especially when neglects to address subject

a. Intent of Parties and Nature of Treaty: Without clauses to allow it, unilateral abrogation or withdrawal is prohibited

i. Practically - Nature of treaty determines whether it will be allowed b. VC 56 – Abrogating party must give 12 months in advance of its intent to withdraw from

treaty – treaty not subject to denunciation or withdrawal unless parties intended such a right or it can be implied from the nature of the treaty

c. Provisions: Can be revoked in accordance with their own provisions if they allow unilateral abrogation – may either permit under fixed conditions or may stipulate that it is only valid with consent of all other parties

15

4. Termination by Reason of Duration or Realization of Purpose: If parties agree, it ceases to be valid – may extend it

Grounds for Termination or Withdrawal

Impossibility of Performance:

VC 61 recognizes impossibility but generally not used because Fundamental Change of Circumstances doctrine is used

Fundamental Change in Circumstances (Rebus sic stantibus)

1. Defined: Rarely found applicable but used for long-term obligationsa. May not be invoked when the treaty has boundary or the change is the result of a

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

2. Application: Only when all conditions are met:a. Fundamental Change: Must be material change b. Unforeseen: Cannot have been possible foreseen by partiesc. Essential Basis: Circumstances at the time of entering the agreement must have been

an essential basis of the treaty d. Radical Alteration: Change must radically alter the performance of obligations yet to be

carried about under the treaty

Case Concerning the Gabcikovo-Nagymaros Project

Summary: Intl. Court rejected the argument that a treaty concluded during the Cold War between two communist governments for the building of a hydroelectric project on the Danube River had been radically transformed by the fall of communism in Eastern Europe, the rise of environmentalism and the diminishing economic viability of the venture

Facts: Treaty for damning/diversion of the Danube between Hungary and Czech.o Hungary’s reasons for renouncing treaty:

Necessity Doctrine—claims new environmental troubles and the fall of the Soviet Bloc.

Fundamental Changes. Court rejected Hungary’s arguments: Political changes not so closely linked to

treaty object as to render it radically altered. Holding: Termination or withdrawal from a treaty is allowed if there has been a fundamental

change of circumstances (rebus sic stantibus) that was unforeseen by the parties at the time of the treaty’s conclusion on assumptions that were the essential basis to consent

Rule: Can’t invoke impossibility where the impossible is created by the non-performing parties. VC Art. 61.

o Unforeseen: Fundamental Changes must have been unforeseen when the treaty was promulgated.

Vienna Convention addresses when it is ok to breach a treaty. Czech also didn’t perform b/c it put into place a third plan for the region when Hungry didn’t

perform.

16

Hungary’s notification of terminating the treaty was not valid in terminating. Slovakia was party to the treaty as a successor state of Czech. Hungary and Slovakia must negotiate in good faith to achieve treaty objectives. Unless agreed on another way, Hungry must compensate Slovakia. Slovakia shall compensate

Hungary. Res Sic Stantibus (Doctrine of Fundamental Change—Vienna Convention article 6). How are treaties legally terminated?

o Some have a clause.o Some have objectives, which, once completed, terminate the treaty.o Other treaties are renegotiated or mutually abandoned (Anti-Ballistic Missile Treaty, e.g.)

Rebus sic stantibus vs. pacta sunt servanda. o Key is the fundamental assumption concept on. No one has ever satisfied this test. o Treaties must be stable, but need to be written to accommodate change.

Termination Due to Breach

1. Defined: Different from multilateral and bilateral treaties; Treaty may end with time, condition or material breach

a. Material Breach: termination or suspension may occur when another party has committed a material breach (repudiation that is not permitted or a violation of a provision essential to the object and purpose of a treaty)

b. Only the party affected by the material breach (or if affects all radically) may terminate or suspend the treaty

2. Not automatic: Breach does not invalidate the treaty, it must be invoked by the victim party as grounds

3. Bilateral: a material breach by one party entitles the other party to end or suspend operation in whole or in part – must invoke

4. Multilateral: Following parties may terminate due to material breacha. Parties not in breach – unanimous agreement the parties not in breach may terminate

or suspend whole or party of treaty – either between aggrieved and breaching or among all parties

b. Parties specially affected: may alone unilaterally suspend the treaty in whole or in part between itself and breaching party

c. Radical Change in Position: Any party may unilaterally revoke it if breach radically and materially changes the position of every party in the treaty

Subsequent Events – Termination

Treaty Subsequently Made Is Inconsistent Between Parties (VC 59): Terminated if all parties conclude a later agreement on same subject matter

1. Must either be implied that later one will govern OR2. Later treaty must be incompatible that they both cannot be performed at the same time

a. Earlier one may be just suspended if there is an implication drawn from either that suspended was intended

17

War between Contracting Parties:

1. Nature of treaties dictates the effect of war on the operation – Four Factors to consider:b. Express Termination: Has treaty been expressly terminated:c. Incompatibility with War: Is execution simply incompatible with the state of war? If

not, remain unless expressly terminated – peace treaties dissolved d. Intent to Govern War: Is the treaty in fact intended to govern the war (like Hague

Convention), or to prevent war, or govern boundaries?e. Suspension During War: Is the treaty the type that may be suspended during the

conflict? Law-making treaties and certain general multilateral treaties may simply be suspended – remain in force because serve the interests of the entire international community

2. VC 73 - Shall not prejudge any question that may arise from war a. Other Opinion Above – Outbreak of war does not mandatorily terminate or suspend the

operation of treaties in force between the parties fighting

Effect of State Succession on International Treaties

1. Defined: Shift of responsibility over a territory from one state to another – not just change in governmental regime; alters legal identity of the state and obligations in treaties

2. Succession Occurs: With secession of states, annexation, merger and consolidation, and decolonization

3. Consequences: legal consequences concerning the transfer of rights and obligations from the predecessor state or secession from a former state

4. Vienna Convention on the Succession of States in Respect to Treaties: a. Transfer of territory resulting from moving boundaries (moving treaty – frontiers rule):

Agreements of state to which territory once belonged are no longer applicable – agreements of state which the territory now belongs apply

b. Absorption of an Entire State: Agreements of the absorbed state cease and are replaced by the agreements of the absorbing state

c. Newly Formed States (former colonies or separated states): New state doesn’t automatically become party in agreements of predecessor state – not precluded from accepting the agreement (express or implied) and may become through agreement or acquiescence of the other parties

d. Territorial and Boundary Agreements: Unaffected by succession of states i. Defined: treaty that either grants another state a right to use territory or places

restrictions on the use of its territory (international transit, waterways, etc.)5. Newly Independent States (VC 17 and 24): Differences between new states (former colonies)

and states created by disintegration or secessiona. Clean Slate Doctrine: Newly independent state begins its existence free of obligations

of predecessor state – exception for territorial treaties, maintained b. Right of Option: New state has the right of option to be a party to general multilateral

treaties – may choose to become party independent of the consent of other parties

18

i. Does not extend to restrict multilateral treaties or bilateral treaties 6. States Created by Disintegration or Secession (VC 34): Succeeds automatically to most of the

former state’s treaties

General Principles of Law: Unwritten Treaties

The Eastern Greenland Case

Vienna Convention says treaties must be in writing but oral treaties before VC are still valid Facts: Dispute about who has possession of lands in Greenland between Norway & Denmark.

Norwegian Minister orally said that Norway wouldn’t make any difficulties in the settlement of this question, when Denmark asked if they would object to Denmark extending their interests to Greenland.

o Vienna Convention asks treaty to be in writing, but this is before that. This is an oral agreement.

o Court says statement meant that Norway would refrain from contesting Danish sovereignty over Greenland, so therefore, this meant they would restrain from occupying it (although this doesn’t mean that Norway recognized Danish Sovereignty).

o Court looked at surrounding circumstances to determine the intent (the attitude o the parties in the exchange) – shows intent to be bound – this is the nature of the consent.

General Principles – Oral treaties may be enforceable rarely but from evidentiary perspective may be hard.

o Even if not enforceable treaty, can use estoppel here (good faith). Int. v. Natl. Laws: According to international law, it is irrelevant whether domestic law has been

violated or whether a country is bound by domestic law. The party is still bound by intl. law. Ct does say that there was a legal obligation between the countries and that good faith was enough

to create a norm. The ct says that Norway is estopped based on Ihlen’s statement—even if the statement doesn’t constitute a treaty.

How do treaties relate general principles of law?o Treaty provisions need to be interpreted and, if treaty interpretations are not to be pure

discretion, some guidance from other forms of law is called for.o Treaties never bind all states, and there need to be some rules of more general application.

How do Treaties relate to general principles of law?

Treaty provisions need to be interpreted and if they are not to be pure discretion, some guidance from other forms of law is called for

Treaties never bind all states and there need to be some rules of more general application Customary International Law

Customary Norms – Norms Formation

1. Two Requirements for Customary Norm: a. (1) Relatively uniform and consistent state practice regarding a certain matter exists

19

b. (2) There is belief among states that this practice is legally compelled 2. Defined: Done as a general practice, not because it is expedient or convenient, but because it is

considered law, out of a sense of legal obligation a. Along with treaty law – customary international law is one of the two principal sources

of international law 3. Controversial: Lack of sufficient consistency in state practices; ascertained by subjective analysis

of whether states engaged in a certain practice are acting out of a sense of legal obligation 4. Persistent Objection: If you are a persistent objector, you are not bound to that customary law

a. Natural law rights – super norms like human rights (genocide); even if you are a persistent objector, you are still bound

b. Fisheries Jurisdiction: UK tries to argue that there is a customary rule of intl. law saying a baseline can be drawn 10 miles or less off the coast

i. Held: Rule of law had no crystallized and in any event, the ten-mile rule would appear to inapplicable as against Norway, because she has always opposed any attempt to apply it to the Norwegian coast

5. Two Approaches to Customary Intl. Law a. Objectivist/Sociological Approach: Customary law is universal and therefore binding on

every state in the worldb. Participatory/Voluntarist Approach: Customary law only applies to those states that

have participated in the custom and newly independent states have the right not to be bound by a previously establish practice as customary law

6. Relationship with Treaties: Treaties may be either given equal weight with custom, prevail over custom, be proof of custom or codify custom

a. Equal Weight: Not always at the topb. Treaty as Evidence of Custom: Provisions may be so widely adopted that they are

accepted as custom – or codifying:i. Multilateral: some so widely accepted they may become binding on non-party

states, if the practice is uniform and widely recognized as a legal obligation (North Shelf Continental Shelf)

ii. Codification: Treaties of seas in 1958 and 1982 and Vienna Convention on the Law of Treaties – differentiate between provisions that merely reiterate custom from those that expand upon custom or represent progressive development in the law

Establishment of an International Custom

1. Qualitative and quantitative elements to customary law2. Principle: acts are permitted unless expressly forbidden; 3. Prohibitions as well as affirmative practices must be proven by the state relying upon them

20

4. Application: Predominant view is that it is universally applied but there are two possible exceptions to application:

a. (1) Clear and consistent objectionb. (2) Historic Departure – and other state’s acceptance of that deviation also shows an

exception 5. Minor Uncertainties: UK v. Norway Fisheries – there must be constant and sufficiently long

practice and also there need not be much important placed on the few uncertainties or contradictions, real or apparent

6. No Requirement of Absolute Uniformity: Nicaragua – absolutely rigorous conformity with the rule was not requires and instances of state conduct inconsistent with a given rule should generally be treated as breaches of that rule, not as indications of the recognition of a new rule

7. Regional Rules: Asylum Case - Rules of customary intl. law are often global in national but may be regional; ICJ accepted that a customary rule of intl. law special to the states of Latin America regarding the right of a state to issue a unilateral and definitive grant of political asylum may exist

a. Colombia did not prove the existence of such a regional customary rule, though

Qualitative Factors: Past state practice and duration of state practice

1. State Practice: States implicitly consent to creation and application of legal rules in their practice of international relations; Ascertain practice from – treaties, executive agreements, legislation, regulations, court decisions, speeches and testimony before national and international bodies

2. Duration: Practice must have been followed for an appreciable period of time; what began as a limited practice may broader to become customary

b. Paquete Habana and Long-Term Practice: Important consideration was whether vessels are recognized as exempt from capture as prizes for war

c. North Sea Continental Shelf and Short-Term: Passage of only a short period of time is not necessarily a bar to a formation of a new customary law if it is extensive and virtually uniform

8. Consistency: Most important – more than duration – minor and infrequent inconsistencies do not necessarily negate a custom

9. Number and Makeup of States Following Practice: Must be followed by a significant number of states representing diverse geographic, economic and social characteristics

10. Use of Regional Custom: May also be limited to a particular region and therefore not a practice in a wide variety of states – must show its existence by showing both qualitative and quantitative factors (Asylum)

11. Local Customary Rights: May develop from constant and continual practice between two nations but differ and are independent of general international customary law

Qualitative Factor – Opinio Juris

1. Legal obligation compelling states to follow a certain practice

21

2. Difficult to Ascertain: States rarely acknowledge that they are acting under a legal duty rather than a matter of choice, comity or convenience

3. Example (Flag for Head of State as Courtesy): Fly flag during head of state visit is out of courtesy or habit – no state regards as legally obligated to do it – simply courtesy

a. If state failed to fly a flag – it would be a gaffe and insult but not a violation of customary intl. law

4. North Sea Continental Shelf: ICJ – states concerned must therefore feel they are conforming to what amounts to a legal duty

a. Frequency, or even habitual character of the acts is not enough – still may be motivated by something other than a legal duty

5. Lotus Case: French flag ship hit Turkish flag ship and criminal proceedings were brought in Turkey against French captain

a. ICJ: there was no rule of international law at the time limiting criminal proceedings in a crash on the high seas to the exclusive jurisdiction of the state whose flag is flown on the offending ship

b. States in Turkey’s position often abstained from asserting criminal jurisdiction – no evidence that these were based on legal obligation

Qualitative Factor – Jus Cogens

1. VC Defined (Nicaragua): A norm accepted and recognized by the intl. community as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general intl. law having the same character

2. Laws, arising from universal morality, so fundamental to states relations that a state cannot through treaty or otherwise, deviate from the law

3. Intl. Criminal Tribunal for Yugoslavia: a prohibition against state-sponsored torture has evolved into a peremptory norm or jus cogens – a norm that enjoys a higher rank in the intl. hierarchy than treaty law and even ordinary customary rule

a. Other examples: Slavery, genocide and forced disappearances

Resolutions and Recommendations of International Organizations

1. General Assembly Resolutions are not form of international legislation and are not legally binding and UN Charter calls the resolutions “recommendations”

a. UN Security Council is binding thoughb. Resolutions are frequently used as evidence of customary international law

2. Useful: votes of world body may show a consensus or lack of on a particular issue a. Majority vote is more compelling of custom when it is in a wide array of developed and

developing nations 3. Controversial : because states vote in GA without expecting that they must act or have acted in

accordance with their vote 4. Filartiga v. Pena-Irala: UN Declaration of Human Rights now has been recognized as expressing

customary international law because it created an expectation of adherence and that expectation was gradually justified by state practice

22

The Paquete Habana

1. Issue: Whether coastal fishing vessels of an enemy state could be taken by US as prizes of war2. Facts: No treaties on matter that bound US but court regards customary intl. law as part of US

law, and analyzes state practice from 1400s to 1800s.a. Nothing that showed they had anything to do with war. International custom/tradition

that exempted fishing vessels from being captured as prizes of war, dating back to Henry VI.

3. First question: Whether or not there is CIL? When does custom ripen to law?a. Two factors to ascertain a particular practice has ripened into CIL

i. The objective requirement - Practice of states (States must be acting a certain way to be custom)

ii. The subjective requirement - opinion juris (reason/psychology) (States are acting a particular way because they feel compelled by law)

4. Evidence to find these factorsa. Objectively: (1) Scholarship; (2) Treaties of other nations (bilateral treaties) (3) Court

also noted the lack of competing principles (4) Proclamations - the members of the country are proclaiming the practice

b. Subjectively: by acting in a certain way (abiding by treaty), they are acting this way because they are compelled by law

5. Court said that int’l law is part of our law, and when there is no treaty or other governing force, we must look at the customs and usages of civilized nations. Court also noted that it was the "general policy of the government to conduct the war in accordance with the principles of int’l law." By looking at the sources of the evidence, court finds sufficient to enforce the custom

6. Held: By an ancient usage among civilized nations, beginning centuries ago, and gradually ripening into a rule of intl. law, coastal fishing vessels, pursuing their vocation of catching fish, have been recognized as exempt, along with cargo and crew, from capture as a prize of war

The Asylum Case

1. Facts: Failed military rebellion leader in Peru sought political asylum in Columbia, but Peru refused to allow him to leave. Dispute goes to ICJ, and since there’s no treaty concerning this, ICJ looks at CIL.

2. Not enough evidence to establish CILa. One of the treaties raised, Peru didn’t sign ontob. Another signed on to by a limited number of statesc. Peru has not acted in a way that showed they practiced this customd. No evidence of consent to the custom

3. The persistent objector - If Peru objects persistently, even if custom is very common, they still wouldn’t be bound (unless it was a natural right)

a. You have to be a vocal objector; silence = consent; consent is implied unless you object4. To invoke CIL, you have to prove it has been used fairly often, and adopted by many states. Also,

you cannot bind a state to a treaty to which it did not ratify (consent to).

The Lotus Case

23

1. Facts: Collision between French (Lotus) & Turkish vessels, and some Turkish nationals die. 2 French nationals arrested by Turkish police for criminal prosecution of manslaughter, w/o notifying French consul, then sentenced & imprisoned. French government protested, saying Turkey had no jurisdiction, and goes to ICJ (b/c parties agreed to go - consent).

2. Only obligation Turkey has is to not overstep the limits if int’l law. France has burden to prove there’s CIL rule against Turkey’s jurisdiction.

3. France has 3 arguments:a. (1) A state can’t exercise jurisdiction just b/c victim is a national of that state (passive

personality – some states recognize it as basis for jurisdiction while others don’t)i. ICJ says doesn’t apply here b/c incident took place on Turkish vessel, so there is

a territoriality claim.b. (2) Since the collision occurred on the high seas, France claimed that only the state

whose flag the vessel flew had exclusive jurisdiction over the matter.i. Offense took place on Turkish vessel flying Turkish flag.

c. (3) A state can’t extend jurisdiction beyond its borders.i. French did it all the time & had always done so.

4. France failed to establish a violation of CIL. Turkey did not overstep limits of int’l law & has jurisdiction.

5. Legal positivism – int’l laws come from states’ consent. Contrast with natural law theories, where even though law isn't written down explicitly, they should still be followed.

a. States can create laws through actions or customs, but still made through actions. Doesn’t just arise from purely moral reasons like natural law.

Non-Legally Binding Norms

1. Defined: Significance of UN resolutions and other similar intl. law orgs. As a source of law varies tremendously with circumstances

2. UN General Assembly: Most are recommendations not resolutions and are non-binding on members

a. Despite Legally-Binding Effect they have a Strong Influence on Development of International Law and can be evidence of custom

3. Role of resolutions: Subject of much controversy because UN Gen. Ass. Was not intended to be legislative

4. Factors influencing impact of GA resolutions:a. (1) Declaratory Resolutions: Unanimously approved and supported by state practice is

generally held as evidence of customary law evidence or evidence of opinion jurisb. (2) State Practice of Proof of Impact: Widespread adoption of a reso9lution does not

necessarily make it instant custom – even if unanimously approved or majority approved, a rule will not be customary law unless the states intended for the resolution to express a rule of law or the states support the resolution by subsequent practice in accordance with the resolution

c. (3) Diverse Majority Approval as Proof of Impact: May be evidence of custom if accepted by a majority of member states (not unanimous) if there are diversely represented politically, geographically and economically interests

24

d. (4) Effects on Dissenting States: Depends on general rules as to when custom is binding upon a dissenting state or newly independent state – ICJ Advisory Opinion for Western Sahara GA’s declarations were interpretations by the member states of the UN Charter customary intl. law and concluded that the right of self-determination for non-self-governing territories had become a norm of customary intl. law

Texaco/Libya Arbitration

Diverse Majority Approval as Proof of Impact: UN Gen. Assem. Resolutions may be evidence of accustom if accepted by a majority of member states (rather than unanimously), the composition of which represents a variety of political, geographic and economic interests

If there are disputes, they shall be settled by arbitrators. Rules that are to be applied come from international settings. This is an ex parte proceeding because Libya would not participate. The arbitrator normally would take the complaint allegations as true. However, in international

cases (as here) the court went through a full fact finding procedure to determine the outcome.

Issue: Can the legal value of UN resolutions be determined under the circumstances under which they were adopted and by analysis of the principles they state?

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

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

3) The Role of UN General Assembly Resolutions in Making Customary International Law:a) The Libyan argument rested on the foundations of the 1973 and 1974 UN General assembly

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

b) 1974 resolution did not reflect the kind of consensus of the 1962 UN resolution. The consequence is that the 1962 resolution still was the rule of law.

4) Evaluating General Assembly Resolutions: In looking to the votes of states on General Assembly resolutions, should the votes of some states be given proportionality greater weight.

5) The Efficacy of the Arbitral Award: Libya agreed to pay Texaco $76MM, The New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards provides for the recognition and enforcement of many foreign arbitral awards., and is used in commercial cases.

6) Holding: The first resolution reflected the state of customary international law existing in this field and the subsequent resolutions did not

UN General Assembly: Policy Issues in Texaco/Libya

1. Should we give GA resolutions weight when they are not meant to be binding?a. Soft-law: non-binding law - If we have a lot of soft-law, it might ripen to hard law

2. What if there was consensus for 2nd and 3rd resolution? Would that be enough evidence of CIL?

25

a. Maybe if US was persistent objector, can’t use it as CILb. Look at state practice - the resolutions are aspirations, but maybe hasn’t manifested in

practice yet. So, if not yet practicing yet, then there are no grounds to establish CIL (the objective requirement where a custom becomes CIL)

c. There may be a provision in the K to accommodate for a new int'l law, so we would look there first, if any exists

26

General Principles of International Law

1. Defined: A general principle of law recognized by civilized nations is one so fundamental that it is a basic tenet is virtually every major legal system

2. Derived from four sources:a. (1) Domestic laws of states worldwide b. (2) specific nature of the intl. community (pact sunt survanda)c. (3) intrinsic to the idea of law (res judicata or lex posterior derogate priori – later law

rules)d. (4) arise from notions of natural law or natural justice (humanity through rational

reasoning)e. Examples: Liability for damages, unjust enrichment, rite of passage, res judicata,

humanitarian rights, prohibition against being own judge and good faith 3. Different from Treaties or Customary Law: Derived from domestic law and are not principles

originating from international relations or obligations 4. Limited Application: Primarily used to fill gaps left by treaties and customary law – utilized until

custom is established or treaties are developed 5. Decreasing Importance: Many of the norms once recognized are now incorporated in treaties or

are recognized as customary international law 6. Application of General Principles for Procedural Matters: continue to be applied in procedural

areas and problems of international judicial administration a. Example: Res Judicata, laches and impartial judge rules

7. Distinction Between Customary Law and General Principles: The 2 principles overlap, we're looking or patterns in both

a. General principles - principles of legal reasoning that cut across many legal topics: Estoppel; Equity; Good faith; Procedural rules like privileges in the discovery process

b. Customary Int’l Law: We have the subjective view (psychological - opinion juris), which doesn’t exist in determining general principles

i. CIL is more specific (narrower in scope), while general principles are more broad, and discuss legal issues

c. Why recognize general principles of international law? i. Int'l law is still developing, so we need the gap fillers

ii. There is implied consent - b/c they are so widespread, so they should be implicitly regarded as the background conditions of a treaty

d. Difference in Evidence for each:i. CIL - looks to assembly resolutions, and agreements, treaties, proclamations

ii. General Principles look at patterns in the individual municipal systems (Not disputed as much as CIL)

8. Vienna Convention : Article 53: A treaty is void if at the time of its conclusion, it conflicts with a preemptory norm of general international law

9. Vienna Convention : Article 64: If a new preemptory norm of general international law emerges, any existing treaty which is in conflict with that norm becomes void and terminates

27

The AM & S Case

1. Issue: How can the court approach the issue of the supposed attorney-client privilege when there is no treaty provision that applies? - What to do when there is a gap in int'l law?

2. Facts: This case was dealing with an antitrust offense. Applicant asked to produce docs, and some were not, on the basis that they are entitled to legal confidentiality, where these rights are protected by an attorney-client privilege.

3. European Court of Justice – Supreme Court of EUa. No treaty provision on this subject, so court looks at general principles of int’l law.

4. First step: Look at other countries: how do they handle this?a. There is a preponderance of countries using the confidentiality privilegeb. At the very least, we must recognize this principle among the EU states, to extend this

privilege to non-in-house counsel representing defense cases.5. Reasoning: To be able to come up with a general principle of law, they looked at how member

countries (ECJ – EU) dealt with this, and agreed that there was an attorney-client privilege. However, they did not extend this to nations not members of the European community (now EU).

28

**Exam Tips for Sources of International Law**

Binding: Is the particular concept of international law binding or a non-binding source of international law?

Treaties

First Question (Parties): Is the state a party to the treaty? Second Question (Reservations): Is there a reservation pertaining to this part of the treaty? If so,

is the reservation valid under international because it is not a permissible reservation allowable under the treaty?

Third Question (Binding/Domestic Approval): Is the state bound to a treaty under intl. law before it has accepted the treaty under its own internal processes because article 18 of the Vienna Convention says that a state that has indicated its preliminary acceptance of a treaty in certain ways cannot do anything to defeat the object and purpose of the treaty until it has clearly indicated its refusal to become a party to it?

Fourth Question (Acceptance/Objections to Reservations: How have the other states dealt with the proposed reservations to the treaty and what are the ramifications?

Customary Law

First Question (Wide Acceptance): If a party did not become a party to a treaty, is the state still bound by a rule contained in the treaty if that provision has become so widely accepted by states as to meet the requirements for becoming a norm of customary intl. law or general principle?

Second Question (Persistent Objector): If the state is not a party, has that state been a consistent and vocal objector of that rule so they aren’t bound?

Third Question (Factors): Are the two elements necessary to demonstrate a binding customary law present: (1) consistent state practice and (2) opinio juris (states conforming to the practice because they think international law requires it)?

General Principles of Law and Jus Cogens

First Question (Common to Domestic Systems): Is this a principle of law that originates in the basic rules of jurisprudence common to most domestic legal systems (e.g. res judicata, right to a fair trial, etc.) that has evolved into custom and often widely accepted provisions?

Second Question (Jus Cogens): Is this rule so widely accepted that states cannot deviate from the norm even by agreement in a treaty (slavery)?

29

International Law and Municipal Law

Defined: Decisions about whether international legal rules are available as domestic rules of decision (about the incorporation of international law) are made by municipal legal systems/

1. Dualism: International and municipal law are entirely separate legal systems (Most dominant approach)

a. Incorporation in Domestic Legal Order: State’s constitution and domestic legal doctrines determine the effect of international laws within the domestic legal system – Constitution also imposed limitations

b. Incorporation on International Legal Order: Usually, state cannot impose municipal laws on international legal system – conflict doesn’t excuse a state from international legal obligations; When question of municipal law comes in international law – international court tries to interpret the municipal law in conformity with the interpretations of the municipal courts

2. Monism: Municipal and international law belong to a single universal order – diminished role of the state as a legal personality makes international law more dominant over municipal law

Treaties and the U.S. Constitution

1. Treaty law is the most pertinent and commonly applied international law in domestic legal practice.

2. Two Forms of International Agreement: (1) treaties and (2) executive agreements a. Executive Agreements (Statutory Agreements): Made by President pursuant to

statutes passed by a majority of House and Senate (controversial when acts with Congress)

3. U.S. Constitutional Provisions: a. Art. II: President has authority to make treaties with Advice and Consent of Senate (2/3

of senators must concur to accept treaty)b. Judicial Power Over Treaties: Judicial power of US extends to cases arising in treatiesc. Supremacy Clause: Treaties, along with Constitution and federal laws, are the Supreme

Law of the Land and prevail. d. Limitations on State Powers: Individual states can’t enter into treaties with foreign

states

Self-Executing Treaties

1. Defined: Treaties that may be applied directly in US Courts without the need for implementing legislation by Congress

2. Self-executing or Not? Question depends on the intent of the government and is an issue for the courts to decide when the treaty is invoked as law (Foster & Elam)

30

3. Origin: Foster & Elam v. Neilson – SC makes a distinction between treaties directly applicable by the Courts as US Law (self-executing) and treaties aimed at the legislature and requiring implementation before taking effect in municipal law

4. Constitutional Restraints on Self-Executing Character: Cannot be self-executing if subject matter lies within exclusive law-making power of Congress (international crimes - genocide, hijacking) or the raising of revenue require Congressional Action before taking effect as domestic law

a. Treaties of the US are not executing usually and do not give rights to private causes of action for alleged violations

b. Medellin: ICJ Statute, UN Charter and VC, nor the ICJ decision in Avena were directly enforceable as federal law in state courts

5. Non-Self-Executing Treaties: If a treaty instructed the legislature implement enacting legislation it does not self-execute – then it is the implementing legislation that is given effect as US law, not the treaty itself

Foster & Elam v. Neilson: Self-Executing Treaties

1. Facts: Treaty between U.S. & Spain alleged to give the King of Spain power to grant title to land even after U.S. took control. Language says that such a grant “shall be ratified and confirmed.” Pl says therefore, the land in dispute in LA is his. [now called self-executing treaties] - A treaty operates of itself without the aid of any legislation, state or national; and it will be applied and given authoritative effect by the courts.

2. This is not a self-executing treaty b/c the text of the treaty specifically mentions the ratification process. Therefore, Pl can’t rely on it until it’s ratified and implemented by Congress.

3. Dualist system of law a. In the int’l realm of law - where US has made an agreement with Spainb. May be brought in int’l court if treaty provisions say this, and state consentedc. On the other hand, in the domestic realm - domestically, the treaty doesn’t become law

until it is ratified and implemented domestically

Treaties and Conflicting State Law: The Supremacy Clause

1. Defined: Self-executing treaties and legislatively implemented treaties have power of enforceable federal law and are the Law of the Land prevailing over State Law in conflict

2. Benefit: Congressional/Executive agreements and Executive Agreements are treaties that are the law of the law

3. Non-Self-Executing: A treaty without legislative implementation does not prevail over conflicting state laws (Sei Fujii v. California)

Asakura v. City of Seattle

1. Key: A treaty trumps state law because of Art. II Supremacy Clause 2. Facts: Asakura, Japanese, working as a pawnbroker. City passes an ordinance that requires

pawnbrokers to have a license, & that to get the license, you must be U.S. citizen. This violated a treaty between Japan & U.S. that said Japanese citizens could run businesses in the US, or anything else necessary for trade upon the same terms as native citizens, and that they shall receive protection.

31

3. Held: Treaty trumps state law because of US constitution Art. VI (2), supremacy clause, which says that treaties made by U.S. “shall be the supreme law of the land.”

a. Only if treaty is self-executing.4. Test: the treaty has effect without congress needing to pass legislation, because it only asks that

we refrain from discriminating. It doesn’t require for congress to take any additional steps to affirm it. Therefore, treaty executes itself.

Sei Fuji v. California

1. Key: A treaty does not automatically supersede local laws which are inconsistent with it unless the treaty provisions are self-executing

2. Facts: CA state law barring certain aliens from owning land was upheld against conflicting provisions of the UN Charter

3. Fuji, Japanese, bought land that escheated to the state of CA (CA alien land law aimed at preventing ownership of land by Asian nationals). Fuji says CA alien land law is trumped by the UN Charter (treaty).

4. Held: Provisions of the UN Charter were not intended to become rules of law for the courts of this country upon ratification of the charter (intent)

a. A treaty does not automatically supersede local laws which are inconsistent with it unless the treaty provisions are self-executing.

5. Test: In determining whether a treaty is self-executing, courts look at:a. The intent of the signatory parties as manifested by the language of the instrumentb. If instrument is uncertain, look at circumstances surrounding its execution.

i. UN Charter not self-executing - it is merely aspirations, forward-looking in nature. Therefore, it doesn’t trump CA alien land law.

6. However, the CA alien land law was found invalid b/c it violated the 14th amendment.

Treaties and Conflicting Federal Statutes

1. Defined: Self-executing and legislatively executed treaties prevail over state law but not necessarily prevail over federal statutory law; virtually equivalent in status

2. Avoid Conflicts: When both address the same issue – Courts try to interpret terms of each in a non-conflicting manner

3. Last-In-Time Rule: If reconciliation is not possible, a later treaty may supersede an earlier federal law or an earlier legislative action may supersede a treaty depending on who came first

a. Only applies to Art. II treaties – with Advice and Consent of Senate b. Executive Agreement does not prevail over previously enacted federal statutesc. Only applies under US law – under international legal – conflict between treaty and

domestic law does not excuse US from international legal duties

32

Constitutional Limitations

1. Defined: There are some substantive restraints placed on treaties but it is unclear what constraints the Constitution places on treaty-making power

2. Rule: A treaty cannot violate the Constitution3. Treaty Better Suited to Task: If a treaty would be better than state legislation, then Congress

may have the power to enact one (migratory birds and Missouri v. Holland)4. Constitutional Supremacy: Court has regularly and uniformly recognized the supremacy of the

Constitution over a treaty a. Reid v. Covert: At the time of Mrs. Covert's alleged offense, an executive agreement was

in effect between the United States and United Kingdom which permitted United States' military courts to exercise exclusive jurisdiction over offenses committed in Great Britain by American servicemen or their dependents.

b. Strikes down an executive agreement authorizing military trials (without full protections of the Bill of Rights) of dependents of armed forces personnel

Missouri v. Holland

1. Facts: This case is regarding the ability to enforce the Migratory Bird Treaty, which protects certain species of endangered birds. The State of Missouri brought the suit to prevent its enforcement b/c it would be in violation of the 10th Amendment which says, "The powers not delegated to the US by the Constitution, nor prohibited by it to the states, are reserved to the states."

2. Held: A treaty cannot violate the Constitution (We imply that constitution is highest law in the land)

a. Missouri says birds are in state’s possession, so they have a right to regulate them. SC previously said the state has exclusive domain over the birds. So, 10th amendment kicks in

3. Held: The scope of legislative powers granted to Congress did not govern the scope of the treaty power

4. But, what’s changed now is that there is a treaty, and the treaty trumps. How?a. Birds are transitory, so no one state has possession as state claims.b. There is a national interest in protection of the birds, and it is not sufficient to rely on

the states – the U.S. has to come in.5. Rule: Supremacy Clause gives power for treaties to trump state laws and Executive branch has

authority under Constitution to execute treaties (Art 2, Sec 2)a. Critique – If fed wants to trump state law, all they have to do is create a treaty. But not

that easy.b. Executive branch doesn’t have unlimited power to enter into treaties. Only when it does

have the power to enact treaties, then the treaty will trump state law.

Whitney v. Robertson

1. Last-In Rule: In the case of a conflict between a federal statute and a treaty, the one last-in-date will control

33

2. Facts: Treaty between US and San Domingo provided that San Domingo gets most favored nation treatment to imports. Most favored was treaty between US & Hawaii, where certain goods exempts from duty-collection. Merchants made to pay duty on the goods, and the collector at the port argued he treated the goods as dutiable under the acts of Congress.

3. Held: Both self-executing treaties and acts of Congress are considered supreme laws of the land, and both should have effect. When they conflict with each other, "the one last in date will control the other."

a. Since the acts of Congress were dated last, they control. b. If the country with which the treaty is made is dissatisfied with the action of the US

legislative dept, then they may present a complaint to the executive head of the govt.4. Dualism – domestic vs. international obligations

a. Domestically, we care about checks and balances, that treaty no longer has any effectb. But in international realm, this is a problem, b/c we are not honoring the treaty with

Dominican Republic. Breaching treaty - can be taken to ICJ, etc.

Foreign Relations and Law of the US

Defined: US domestic law doesn’t directly impose itself on international legal system - it plays major role by allocating power among the three branches of government

Reasons for Federal Dominance: o (1) Foreign affairs power is a necessary attribute of sovereignty itself and embedded in the

national governmento (2) US Constitutional history makes clear that intl. matters were to be dealt with under

federal lawo (3) All the important foreign affairs powers are explicitly denied to the states by the US

Constitution

United States v. Belmont

1. Key: Power over foreign affairs is exclusive to the federal government (especially the executive branch)

2. Facts: Russian corp. deposited money with NY bank. Soviet nationalized corp. assets, and then wanted that money from the bank, but banker refused (illegitimate confiscation against NY public policy).

a. Executive agreement between US and Soviet, where Soviet will not enforce any claims against US nationals, and US will handle issues. Banker says it would be contrary to NY public policy to enforce.

3. Held: Fed law trumps state law; the government has exclusive power over foreign affairs.a. Here it was an executive agreement (President only). Court is interpreting “treaties” in

the supremacy clause to include executive agreements.b. This is diff from other cases, which had to do with Art II treaties (w/ congressional advice

& consent).

Executive Powers

1. Art. II grants President authority to make treaties

34

2. International Agreements: President cannot make binding international agreements without congressional participation (non-Art. II treaties)

a. Broad view of inherent powers of President to make international agreementsb. Dames: Executive was able to effectuate the settlement agreement between US and

Iran concerning US hostages seized from American Embassy legally3. Recognition of Governments: Constitutional authorization to receive ambassadors is the

exclusive power to recognize foreign governments (only executive branch can say if they recognize the authority of a nation)

a. Executive branches uses as a tool but current practice is to recognize any government in effective control of a state

4. Other Authority: Any other presidential authority in international affairs must be premised on the inherent authority in Art. II

5. Youngstown: a. (1) Pres & Congress in agreement - If yes, then strong presumption that Pres’ actions

are constitutionalb. (2) Congress is silent - muddy. Court may look at practice.c. (3) Disagreement - Pres may have overstepped his authority; Pres has burden to prove

otherwise

United States v. Curtiss-Wright: Executive Agreements and Constitution

1. Key: Executive Agreements and the Constitution2. Facts: Curtiss conspired to sell arms of war to Bolivia (involved in Chaco War), in violation of the

Joint Resolution of Congress that gave President broad authority in prohibiting this. Curtiss argued that it’s unconstitutional b/c Congress has power to regulate commerce, and they can’t delegate that power to the Pres in such broad discretion

3. Issue: Did the Joint Resolution passed by Congress grant too much authority (and legislative power) to the President, in violation of the non-delegation doctrine?

4. Held: Constitution implicitly grants broad power to President and Executive Branch to conduct foreign affairs.

a. Executive has power to conduct foreign affairs in a way that Congress can’t.5. Non-delegation doctrine (stems from separation of powers) – it doesn’t apply here b/c this is a

matter of foreign affairs6. Public Policy – we need on unified voice for foreign affairs, so better for executive to do that,

rather than senate, which represent the states. Also custom in our country for Pres to do this.

Dames & Moore v. Regan

1. Facts: Terrorist activities in Iran against U.S. embassy & citizens held hostage. Dames later files suit against Iranian government, corps, & banks for a business contract breach, and gets a judgment. American hostages released pursuant to an agreement w/ Iran that nullified rights to Iranian assets & suspended all claims, preventing enforcement of Dames’ judgment, and he tries to prevent it, saying Pres doesn’t have this authority.

2. The Youngstown case limited the power of the President to seize private property in the absence of either specifically enumerated authority under Art II of the Constitution or statutory authority conferred on him by Congress. 3 prong test to determine if Pres’ actions constitutional:

35

a. (1) Pres & Congress in agreement - If yes, then strong presumption that Pres’ actions are constitutional

b. (2) Congress is silent - muddy. Court may look at practice.c. (3) Disagreement - Pres may have overstepped his authority; Pres has burden to prove

otherwise6. Held: Court held that the executive agreement was valid

a. The IEEPA (Int’l Emergency Economic Powers Act) authorized the President to nullify rights to Iranian assets & to transfer Iranian assets.

b. Falls under Youngstown’s 1st category – Pres & Congress in agreement - Therefore, there’s a heavy presumption that the exec agreement is valid.

7. IEEPA does not speak about issue of termination of litigation/arbitration Congress is silent here (2nd category)

a. Looks at practice - has Congress been a persistent objector?b. No. President has done this in the past and Congress has acquiesced (agree to

something passively). Implicit consent here.

Customary International Law in Municipal Law

1. Defined: International law from outside treaties is special common law and where there is no treaty and no controlling executive legislative act of judicial decision, resort must be had to the customs and usages of civilized nations (Paquete)

2. Incorporation into Domestic Law: US considers customary rules to be automatically incorporated into the domestic legal order and thus directly applicable in domestic courts (Sosa v. Alvarez)

3. Supremacy Clause: Customary law receives benefits of Supremacy Clause and is considered to be like federal law; attempt to interpret in order to not conflict with federal laws

4. International common law: Group together with other non-treaty sources of international law to form international common law

a. Consult – general principles, scholarly works and judicial opinions to establish a rule of customary international law

Alien Tort Statute: To succeed on an ATS claim there must be three key elements

1. Claim must be filed by an alien2. The claim must be for a tort3. Action in controversy must have violated either a US treaty or a specific, universal, and

obligatory norm of international law – such as genocide, torture, state-action killings, slavery

United States v. Alvarez-Machain: Extradition (1992)

1. Facts: Machain (Mexican) was allegedly involved in murder of U.S. DEA agent by prolonging his life so others could torture him. After Mexico denied U.S. extradition, they kidnapped him from Mexico to Texas for trial. Machain says kidnapping violates the Extradition Treaty between U.S. & Mexico.

a. Treaty silent on parties’ obligations to refrain from abducting people or consequences of it. All treaty says is that neither party is bound to deliver upon the other its own nationals – at each country’s discretion.

b. Machain says this is in violation of CIL (U.S. says kidnapping was legal in intl. law)

36

2. Held: Court ignores CIL. Says abduction may be shocking & violate CIL, but we have to go by the treaty.

3. What does this case say about relevance of CIL?a. Debate on whether CIL should be incorporated into domestic law, and effect of treaties.b. Maybe use CIL as a gap-filler here, where the treaty was silent on this issue.

Sosa v. Alvarez-Machain (2004)

1. Overview: Court refused to look at CIL; looked at treaty only. 2. Court takes CIL into consideration b/c Alien Tort Statute says to do this.

a. ATS: "the courts shall gave original 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 US."

b. Court looks at legislative history, and it’s pretty clear drafters intended it to have immediate substantive effect, not just procedural. But it will only be applied substantively to a limited, narrow set of claims.

3. Issue: Does the Alien Tort Statute permit private individuals to bring suit against foreign citizens for crimes committed in other countries in violation of the law of nations or treaties of the United States? May an individual bring suit under the Federal Tort Claims Act for a false arrest that was planned in the United States but carried out in a foreign country?

4. Held: ATS is solely a jurisdictional statute and does not create a cause of action by itself - yet causes of action need not be found in US Statutes – they may be found in treaties or customary international (Filartiga v. Pena-Irala)

a. On the Alien Tort Statute claim, the Court unanimously ruled that the ATS did not create a separate ground of suit for violations of the law of nations. Instead, it was intended only to give court’s jurisdiction over traditional law of nations cases - those involving ambassadors, for example, or piracy.

b. Because Alvarez-Machain's claim did not fall into one of these traditional categories, it was not permitted by the ATS. On the FTCA claim, the Court ruled that the arrest had taken place outside the United States and therefore was exempted from the Act. It rejected Alvarez-Machain's argument that the exemption should not apply because the arrest had been planned in the United States.

5. So what violations of CIL should be covered by ATS?a. ATS not limited to only piracy, torture, etc., but they will open the door to new claims

very narrowly.6. TEST: We think courts should require any claim based on the present-day law of nations rest on

a norm of international character accepted by the civilized world and defined with specificity comparable to the features of the 18th century.

a. Alvarez fails third element: π had failed to establish that there existed in either a treaty binding on the US or customary international law a prohibition against arbitrary arrest, as contrasted with a prohibition on prolonged arbitrary detention

b. Alvarez's abduction doesn’t satisfy this test there has to be specificity; abduction doesn’t have that specificity. Court looks at treatises, what other countries are doing, etc. Want to see if norm is specific enough. It's not.

37

Flexible framework for determining which torts constitute causes of action under the ATS.

Four key principles underpin the framework: universality, obligatory nature, specificity, and prudential considerations.

UNIVERSALITY . A cause of action must be universally recognized by the law of nations as a prohibited norm in order to be actionable. Given the shift in American jurisprudence away from natural law, the law of nations (from the U.S. standpoint) now consists of: mutual obligations that nations have traditionally observed in conduct with one another; "arbitrary law of nations," or norms that nations have voluntarily agreed to either explicitly (e.g., via treaties) or implicitly (e.g., via customary practice); and jus cogens.

OBLIGATORY NATURE . The prohibitive norm must be binding or obligatory, not merely hortatory, in order to be actionable.

SPECIFICITY . Sosa requires specificity similar to the 18th century common-law causes that were actionable under the ATS at the time of its passage... causes such as piracy, torts against foreign ambassadors, and violations of safe passage. The Court points to United States v. Smith as a model of the kind of specificity with which piracy was defined. The specificity in Smith covers the typical elements of a criminal cause of action, such as actus reus, mens rea, harm, causation, remedy, and defenses. This implies that the law of nations must provide courts with a detailed rule of decision in order for the cause of action to be justiciable.

PRUDENTIAL CONSIDERATIONS . A cause of action can be nonjusticiable even though it meets the criteria discussed above IF prudential factors weigh in favor of nonjustificability... factors such as: public policy, separation of powers, political questions, reticence of domestic courts to command foreign relations, and judicial restraint in legislating new common law.

International Law as Persuasive Authority in US Courts

1. Defined: US courts have referred to intl. and foreign law when interpreting provisions of the US Constitution at times

2. Look to International Law Appropriate: a. When there’s a gap in our domestic lawb. Text/purpose of the provision (the reasoning behind it)Tc. To assess assumptions

3. How should U.S. use int’l law as persuasive authority?a. As persuasive authority (not binding)b. Look at the reasoning/logic behind it. If reasoning is persuasive, it's a stronger argument

to use int'l law c. Consensus among UK & other Peers – makes sense to use this, b/c law is similar.

i. Also look at states that are culturally different (an overlapping consensus makes it more persuasive)

Roper v. Simmons

1. Facts: Simmons committed murder when he was 17, found guilty. Majority decides juvenile death penalty is unconstitutional.

2. How does the court determine whether a punishment is cruel or unusual?

38

a. Evolving standards of decency: We’re now recognizing the comparative immaturity and irresponsibility of adolescents (we don’t allow them to vote, etc.). More vulnerable to outside pressure, and have less control.

b. To determine this, look at pattern among Nat'l jurisdictions: Nat’l consensus – trend that U.S. states are abolishing it

c. Also looked to theories of punishment, including principle of proportionality3. What role did int'l law play here?

a. UN Convention of the Rights of the Child (US has not ratified) but all other countries aside from Somalia have

b. Only country that still executes juveniles. What role does this play in the opinion?c. Looking abroad confirms court's conclusion on what is decent and what is not.d. Look at UK - shared history & law derived from theirs, so particularly persuasivee. Majority opinion looks at broad patterns, cites treaties.

4. Should we cite int'l courts? a. Other nations cite Supreme Court, so a policy argument made that we should in return.

5. Dissent (Scalia): Saying it’s ok to cite int’l law, but the manner in which court is citing the persuasive authority is problematic. He questioned the relevance of foreign law, as well as accusing court of only invoking the laws that are in support of what they believe. Also says we don’t have a consistent pattern of when to look abroad. If we did we would have to overturn American law that’s diff from the rest of the world.

6. Cruel & unusual - Is it specific to our country or is it something common to humanity more broadly. Some issues are uniquely American. Can we actually answer this question of uniquely American norms, by looking at int'l patterns?

**Exam Tips for International and Municipal Law**

First Question (Conflict): Are international law and the state’s own domestic law equal sources of law or does one take precedence in the event of a conflict?

o Follow-up: Is the international law in question of the type (custom/non-self-executing treaties) that is less forceful and may be submissive to federal legislation?

Second Question (Execution): When judging the language of the treaty and taking into consideration a general presumption against self-execution (Medellin v. Texas), is the treaty self-executing or not self-executing?

o If Self-Executing, the treaty is on equal footing with federal legislation and the last-in-time rule determines which rules.

Third Question (State Laws): Is there a conflict with state law that needs to be trumped? Fourth Question (Constitution): Does the treaty violate the Bill of Rights? Fifth Question (Customary Law): Is customary international law part of US law without direct

legislative incorporation or is it not binding? (Alien Tort Statute)

39

International Arbitration

1. Defined: A method of dispute resolution resulting in a legally binding settlement reached on the basis of law by a group of judges appointed by the parties

2. Consent to Arbitrate and the Compromis: No requirement to arbitrate unless consented to before the dispute arises

a. A single instrument may express consent and provide details of process; or in document compromise d’arbitrage outlining the process and penal, rules, issues, and binding nature

3. Composition of Panel: Usually has tripartite structure (established on ad hoc or as a continuing institution); each party selects one member and third member is selected by joint decision

4. Location: Try to find a neutral country – some countries’ laws provide that their courts have jurisdiction over arbitration proceedings so choice of location is important

5. ICJ Role in Arbitration: Art. 36 says that Court has jurisdiction in all cases which the parties refer to it

a. A compromise may confer jurisdiction of a particular legal question on the ICJ and indicate the rules of law to be applied by the court

b. Differs from other arbitration tribunals in that its membership is pre-established

Arbitration Policy Arguments

1. Advantages: a. (1) More conclusive - bindingb. (2) Parties retain greater control because appoint the arbitrators c. (3) Parties may designate procedures and the laws to be applied (less cumbersome)d. (4) Less formal and less contentious e. (5) Can be confidential

2. Disadvantages: a. (1) Procedures may be cumbersome and time-consumingb. (2) Arbitration panels don’t have the authority of courts to conduct

discovery/subpoenasc. (3) Costs – parties pay for entire cost themselves (may be efficient, though)

Types of International Arbitral Clauses

1. Clause inserted in treaty: May be put in treaty to deal with a substantive issue for method of dispute resolution – common in civil aviation and commercial treaties

2. Treaty itself establishes settlement method: Treaty may exist solely to establish a method of resolving disputes – Hague Convention for the Pacific Settlement of International Disputes and the General Act for the Pac. Settlement of Intl. Disputes

3. After-the Fact Arbitral Agreements : May be concluded after the dispute arose – when parties are not successful with other forms of settlement methods (US Claims Tribunal)

40

Rules and Institutions of Arbitration

1. Defined: May choose between established sets of rules or develop own ad hoc rules 2. Applicable Law: The compromise usually sets forth the governing rules to be applied by the

panel and those rules stipulate choice of lawa. Panels look to ICJ and other permanent courts as well as other contemporary arbitral

decisions for evidence of international law3. International Centre for the Settlement of Investment Disputes (ICSID): Affiliated with World

Bank – deals with investment disputes (US Signed)4. Conciliation and Arbitration of the International Chamber of Commerce (ICC): Both ICC and

Court of Arbitration are widely used in trade5. UN Commission on International Trade Law Arbitration (UNCITRAL): Governs the Iran-US Claims

Tribunal 6. American Arbitration Association (AAA): Promotes both domestic and international arbitration

in many fields

Arbitration Awards

1. Defined: General rule of binding effect and not subject to appeal; parties may permit review by the ICJ if they want

2. UN Convention on the Recognition and Enforcement of Foreign Arbitral Awards: Protects froma. (1) Panel exceeds powers; (2) contrary to public policy; (3) incapable of settle; (4) not

given proper notice to present case; (5) manifest disregard of the law; (6) corruption; (7) failure to state the reasons for award; (8) procedural error; (9) nullity

The Rainbow Warrior Case (New Zealand v. France, Arbitration 1990)

Facts: French special agents sink Greenpeace vessel in New Zealand. Fr and NZ went to mediation. Agents supposed to stay on island for three years. They didn’t.

Good thing about arbitration is that you can choose the issues. Fr breached the arbitration agreement by taking people out of Hao and not returning them. France’s force majeure argument: ct says no necessity here b/c no absolute and material

impossibility. The arbitration agreement governed by:

o Vienna Conventiono Customary law of treaties.

Sources of Law: Drafts of Intl Law Commission (representing 54 countries). Intl tribunal shave used these as law like w/ Restatements in the US.

Decision of the arbitration tribunal was based on:o Treaty between Fr and NZo Customary intl. law reference to this but w/o stating what principle is (so leave tribunal w/

option of defining these principles). Public arbitration remedies:

o Satisfaction

41

o Set up fund (here)o Efficacy of these remedies here?

Fr has continued nuclear testing in this area of the world. Question of compromissory clauses in treaties—allowing for arbiters to hear disputes. US v. France

—air landings in Fr and US—Fr due to oil crisis wanted to use smaller overseas planes so US banned Air France flights to LA. Principle: Even while arbitrations are going on, US had the right to act in a unilateral method to preserve its rights.

42

The International Court of Justice

1. Defined: Successor to the Permanent Court of Intl. Justice and principal judicial organ of the UN; all members of the UN are automatically parties to the ICJ statute (annexed in UN Charter) and under certain circumstances parties not members of UN may appear before Court

2. Jurisdiction Needs Consent : Being a party to statute doesn’t mean state has submitted to ICJ jurisdiction

3. Structure and Composition: Art. 3 a. Composed of 15 judges elected by UN Sec. Council and GA – serve for 9-years but can be

reelectedb. UNSC members have judge on court – no more than 1 national judge can sit on court; if

state appearing doesn’t have judge on court, it may appoint one from home state

ICJ Jurisdiction

1. Key: States cannot be sued before the ICJ without their consent a. Membership Doesn’t Equal Automatic Consent: separate consent is required one way

or another 2. Consent: Art. 36 – three ways to consent:

a. (1) refer an existing dispute on an ad hoc basisb. (2) treaty may provide for ICJ settlementc. (3) Art. 36(2) may have jurisdiction under optional clause

3. Contentious and Advisory Jurisdiction: Art. 38, May only hear State cases governed by international law and has two types of jurisdiction (Compulsory and compromissory clause)

a. Contentious Jurisdiction: based on either express or implied consent of parties and only states party to ICJ statute may be parties; decisions are binding

b. Advisory Jurisdiction: May issue non-binding advisory opinions at the request of parties authorized by UN Charter

4. Reservations to Jurisdiction: Often mad, most common is where there are already other methods of settlement agreed upon;

a. Reservations within domestic jurisdiction; reservations for multilateral treaties; high seas issues

5. Effect and Enforcement of Judgments: Art. 94 of UN Charter and Art. 59 call for binding judgments

a. UN SC in Art. 94 is allowed to make recommendations or decide upon measures to be taken to give effect to the judgment; subject to veto power

6. Advisory Jurisdiction: Art. 65 of ICJ allows court to advise on any legal question a. UN Art. 96 – GA or SC can request advisory opinions, so can other UN organs (ILO, WHO,

IBRD, IMF and IAEA)b. Legal Effect: non-binding, very influential in the development of intl. law; Some provide

that disputes arising from the agreement will be submitted to the ICJ for an advisory

43

opinion that will be accepted as decisive by the parties – (Convention on the Privileges and Immunities of the UN)

Optional Clause

1. Parties present to statute may declare they recognize compulsory ipso facto and without special agreement, in relation to any other state accepting obligation, the jurisdiction of the court in all legal disputes concerning:

a. (1) Treaty interpretation; b. (2) question of international law; c. (3) existence of fact constituting breach of international duty; d. (4) nature or extent of reparation to be made for breach of duty

2. Only 68 states had made declarations under Art. 26; 56 were still in force; US withdrew acceptance in response to Nicaragua v. US in 1986 but remains a party to conferring jurisdiction treaties

Minquiers and Ecrehos Case (France and the UK at the ICJ 1953)

Issue: Does the UK or FR have sovereignty? Ct looks at how to establish title:

o Showing of control.o Proximity to a countryo Physical possession.

The evidence here is amorphous. Ct decided it the way it did probably b/c of the framing of the issue. Ct looked to historical factors and looked at the different/control possession showings the UK had been doing.

When you add all this together, ct somehow means the UK has it. There were four choices in this case: UK had sovereignty; Fr had sovereignty; Res nullius;

Condominium (both Fr and UK).o Might have been better to send to arbitration since issues weren’t so clear.

Some have suggested this case went to ct due to (1) fishing and (2) oil/gas—worry of exploitation. When you have a sensitive issue—better to go to the prestige of the ICJ.

o Ct says self-determination isn’t possible—except for former colonies. Problem w/ starting w/ history—b/c always someone declares that they were there first. (Yet ct

started w/ history here!) This case is more historical—no real legal issues here.

The Diplomatic and Consular Staff Case (US v. Iran; ICJ 1980)

1) Jurisdiction under Friendship treaty between Iran & U.S., Vienna Convention of 1961 on Diplomatic Relations & 1963 on Consular Relations.a) Iran never showed – default. Iran felt it was an ongoing 25 yr. history that the ICJ should look at.

ICJ rejected this in that it was only asked to rule on present issue. Even though default, ICJ still had to issue a judgment.

b) Why go to ICJ - for public support, support on recommended interim measure of protection.c) Diplomats - must be reciprocity in that their own state and the state they are visiting must

recognize diplomatic status.

44

Facts: Iran violated intl. law (treaties and customary law) b/c it wouldn’t return the hostages from the Embassy unless the US sent the Shah back to Iran.

o State succession—treaty of amity entered into in 55 by the Shah. o No question that Iran was bound by the treaty of amity—Khomeni is not a “new state.”

Bringing this case may not have been wise. Ct concedes that initial decision to attack was not state sanctioned (until later). ICJ as Public Forum: Case taken to ICJ to make a political point. Ct accepts jurisdiction even though

both the ct and the US know Iran will not appear or abide by any decision. N. 4, p. 286: The proper role of the court—should it turn away when it is being used? Is this a negative effect on the ICJ’s rep?

How does a ct operate effectively when state’s won’t cooperate?o Ct makes note that US military incursion (helicopters sent by Carter to free hostages) was

inappropriate and undermined justice. Another possible purpose of the ICJ: develop intl. law—maybe ok then.

Compulsory Jurisdiction: Art 36(2)

Defined: Article 36(2) allows states to make declarations accepting the Court's jurisdiction as compulsory ("optional clause declarations").

o Not all countries accept the compulsory jurisdiction of the International Court of Justice, ICJ.

o Example, Australia accepts compulsory ICJ jurisdiction "with reservations" whereas Brazil has not accepted compulsory ICJ jurisdiction; US had allowed it but had excepted interpretation of treaty; after Nicaragua case, US withdrew its compulsory jurisdiction. Problem: once you do this, you lose control over the matter.

Malawi —self judging exception to this. You have to wonder whether ct giving up an important part of its responsibility (e.g. violations of human rights).

o Some states attach conditions to Art. 36(2) declaration – concerns with reciprocity have led Court to allow a respondent state to invoke the reservations attached to an applicant state’s declaration to deprive the Court of jurisdiction even if the respondent state’s own Art. 36(2) declaration would otherwise subject it to jurisdiction

o Reservations: Court allowed Norway to rely on a self-judging domestic reservation attached to France’s then-in effect Art. 36(2) declaration

Article 2(7) of the UN Charter —this only prevents the UN—not other states.

ICJ Chambers

1. Defined: Articles 26-29 of the statute allow to form smaller chambers (usually 3 or 5 judges) to hear cases.

2. Two types of chambers Article 26 : (1) chambers for special categories of cases and (2) the formation of ad hoc chambers to hear particular disputes

3. Currently : Joined with many other Courts for arbitration 4. Policy:

a. Disadvantage: Judgments of chambers may have less authority than full Court judgments, or may diminish the proper interpretation of universal international law informed by a variety of cultural and legal perspectives.

45

b. Advantage: the use of chambers might encourage greater recourse to the Court and thus enhance international dispute resolution; party control

The Elsi Case (United States v. Italy ICJ 1989)

Facts: Italy seizes the plant (belonging to the US) claiming debts, and labor disputes. Palermo mayor wanted to protect his citizens.

o US invokes compromissory clause contained in a 1948 bilateral treaty of Friendship that provided for ICJ jurisdiction over disputes arising under the treaty

o US says Italy violated FCN (Friendship, Commerce, and Navigation) treaty (1948-now called the FCE treaty) by not letting the US organize, control, manage its corporation.

Held: Ct says no violation b/c it was really on its way to bankruptcy—hard to show appreciable damage.

Chamber case: US and Italy wanted Western Judges that would be more familiar w/ the issues (bankruptcy, labor, etc.)

o Court took this case even though it really involved private parties—the countries went to court on behalf of private parties (an espousal case).

Cynical attitude: The US had just decided not to go in the Nicaragua Case and had just withdrawn compulsory jurisdiction. So why bring this case? It is a fairly minor case not really a lot of $--US didn’t take the Amerada Hess to the ct and it was more important!

o Jurisdiction is governed by statute (must show exhaustion of local remedies and denial of justice.) (Nottebohm and Barcelona involve the same concept)

o Possibly US took case to help insure better intl. climate for US investments. Dissent (US judge)—very rare that a judge votes against his own country. Other venues available for Raytheon:

o Municipal court; Arbitration; Regional Court if one exists (w/ quasi-public issues like AM&S) Should private parties be able to bring cases?

o Could have a halfway system where a municipal ct refers for an advisory opinion if it thinks it is a more intl. issue. It is very expensive to litigate at the ICJ (but this type of system works well in Europe).

** Exam Tips for Arbitration and the ICJ**

First Question (Limitations): What are the limitations of a decision by the ICJ that is binding on its member states? (Security Council is only body that may enforce and decisions are subject to veto)

Second Question (Jurisdiction): How does the ICJ have jurisdiction over a dispute? If US, since they no longer accept compulsory jurisdiction, is there jurisdiction in accordance with a multilateral treaty or is it a case-by-case acceptance?

Third Question (Municipal Law and ICJ): What are the ramifications on state and federal law of a decision, since ICJ decisions are not directly enforceable as federal law in states courts and the relevant provisions of the UN Charter, ICJ Statute nor the Optional Protocol to the Vienna Convention on Consular Relations are considered self-executing? (Medellin v. Texas)

46

Law of the Sea

1. History: Until 1950s, law of sea was custom based – then 1958 UN makes four treaties; Convention on the Territorial Sea and Contiguous Zone, Convention on the High Seas, Convention on Fishing and Conservation of the Living Resources of the High Seas and Convention of the Continental Shelf

2. UN Law of the Sea Convention (1982): breadth of territorial sea, exclusive economic zones, deep seabed regulation (controversial) and preservation of marine environment

High Seas

Defined: All parts of the sea that are not included in the EEZ, territorial sea or in the internal waters of a state or in the archipelagic waters of an archipelagic State

Open to All States: Navigation, overflight, fishing, laying and maintenance of sub cables and pipelines, research and artificial installation construction

Due Regard: State must give due regard in exercising these high sea rights Peaceful Purposes: High seas are reserved for peaceful purposes

Nationality of Vessels

Three basic principles fundamental to the law of the sea:1. A ship of any state can navigate oceans freely2. The state of the ship’s nationality has exclusive jurisdiction over the ship on the high seas3. No other state can exercise jurisdiction over that ship absent affirmative rule authorizing

concurrent jurisdiction

Rights and Obligations of Vessels and States

1. Flags: Nationality of a ship is one whose flag it is authorized to fly – “flag state” or “state of registration/documentation” – can only fly one flag

a. Without flag: Ship without a flag may be prevented from engaging in intl. trade or commerce or navigation on the high seas of any kind; does not benefit from any treaties that confer rights on ships when entering foreign ports

2. Right of States to Confer Nationality On Ship: State must usually register the ship, authorize it to fly the flag and issue documents showing the nationality

a. US General Principle: each state under intl. law may determine the conditions for itself on which it will grant flags and nationality

3. Dispute Resolution: Part XV of the LOS had obligatory reference of certain disputes to a third-party tribunal if negotiated settlements failed – parties may choose from International Tribunal for the Law of the Sea (ITLOS) – decided Saiga

4. Documentation and Registration: a. State who authorized flag must: (1) Maintain a register of ships with name and

description and (2) Issue documents to the registered ships showing authorization

47

b. Change flag - during voyage or at port of call only when there is a real change in registry (LOS 92)

c. Fraud - if fraudulent registration – vessel may be liable to seizure and forfeiture by flag state

Limitations on Flags

1. One Flag Rule – No state may grant nationality to a ship already authorized by another state – except if necessary to transfer the ship from one state’s registry to another (HSC and LOS 6)

2. Genuine Link Necessary: State must have genuine link to a ship in order to give flag (HSC 5, LOS 91); premised on belief that state can carry out duties to exercise effective control over ships only if the link exists

a. Link may be based on: (1) ownership by nationals; (2) national officers; (3) national crew; (4) national build

b. Flags of Convenience: Link requirement was response to open registries – ship owners transferred their ships to countries like Panama who wanted money and offered little regulation

c. Procedure when genuine link questioned: State which has clear grounds to believe that proper jurisdiction and control with respect to a ship has not been exercised may report the facts to the flag State – who has obligation to investigate the matter (LOS 94)

Duties of the Flag State

1. Effectively exercise jurisdiction and control in administrative, technical and social matters over ships flying its flag (UN HSC Art. 94) and:

a. (1) Maintain a register of shipsb. (2) Govern the internal affairs of the shipsc. (3) Ensure the safety at sea in regards to construction, equipment and seaworthiness;

labor, etc.d. (4) Ensure ship has been surveyed e. (5) Ensure each is manned by qualified masterf. (6) Ensure master, officers and crew are conversant with international regulations in

regards to safety and prevention of collisions at sea

M/V Saiga Case (Grenadines v. St. Vincent)

What is the connection between a vessel and a state? Held: Cannot include non-monetary conditions in the bonds release of a captured vessel

o Sometimes tribunals will award differing levels of interest in the same claim for different types of losses

What protection is there for the vessel if the master of the vessel thinks it is inappropriate?o Who gets to raise a question of rights on behalf of the vessel – if they think that they are

being screwed over by the country that is flying their flag?

48

o Connection between flag-states and other nations – if another nation gives a vessel a problem, the vessel may go to this flag state and ask for protection – they will then deal with the other state

Can the flag-state of the vessel with a problem represent the vessel in an international tribunal?o Opt-in jurisdiction for high seas courts o Flags of convenience – shopping around for best and most helpful registrations

Wide degree of discretion as to how states deal with issues o Guinea should write a letter to other country and say that they should investigate because

they did not handle their vessel properly o Flag state decides what is appropriate

Treaty interpretation to reach conclusion?o History of treaties in 1958 – to an extent the 1982 convention is a connection of those

treaties verbatim o Tribunal says that international law convention proposed the concept of a “genuine link”o Genuine link – becomes a requirement for purposes of recognition of the origin of the

vessel by the other states Even if there is no genuine link – it does not mean that other states can challenge the nationality of

a vessel Nations do have an obligation as flag-states for seaworthiness, etc. – but the problem is that there

is no real pertinent enforcement mechanism Flags of convenience states have caused other states to loosen their requirements so they could

get more money

Continental Shelf; Fishery Zones

1. LOSC Definition: Comprises the seabed and subsoil of the submarine areas that extend beyond the territorial sea throughout the natural prolongation of the land territory to the continental margin’s outer edge; If it falls short of 200 nautical miles from the baselines – the legal continental shelf includes the seabed out to a distance of 200 NM from the baselines

2. Always Claim at least 200 Miles: State may always claim as its continental shelf the area extending out to 200 nautical miles from its baselines regardless of the geology

a. Cannot exceed 350 nautical miles from baselines b. Or 100 nautical miles beyond the 2,500 meter isobaths

3. Continental Shelf: Begins at the shore and ends where the continental slope to the deep seabed begins

4. Rights of Continental Shelves: Principle of sovereign rights of exploration and exploitation for coastal states over the natural resources of their continental shelves; rights do not affect the freedoms of the high seas in the waters above the continent shelf (LOS 77)

a. Rights do not affect legal status above the shelf on waters or airspace (LOS 78)5. Truman Proclamation of 1945: US claims control over the natural resources of the seabed and

subsoil on the continental shelf surroundings its territory – recognizing the freedoms of the high seas in the seas above the shelf; other states do the same

49

6. LOS Convention: Two alternatives – (1) geological definition running to edge of continental margin and (2) coastal state may claim a shelf 200 nautical miles from baseline – if longer outer limit of self may not > 350 nm from baseline or 100 nm from point at which the depth reaches 2,500 m.

Rights and Duties of Coastal State over Continental Shelf

1. Defined: Coast state has limited obligations in managing the CS and extensive rights in the resources of the CS (Art. 77 LOS)

2. Extent of Obligations: Exclusive sovereignty of the CS for purpose of exploring and exploiting natural resources (not shipwrecks and unnatural resources)

a. Do not extent to airspace or waters above – so state may not unjustifiably interfere with high seas freedoms of navigation, overflight, fishing, laying subs and science research

3. Duties to Make Payments or Contributions for exploration of non-living resources in areas past 200 NM: When a state exploits non-living resources on CS beyond 200-nm limit it must pay a fee to the deep-seabed mining authority established under the LOS Convention (LOS 82)

Truman Proclamation (1945)

US and Truman: Regards the natural resources of the subsoil and sea-bed of the continental shelf beneath the high seas but contiguous to the coasts of the US as appertaining to the US, subject to its jurisdiction and control

ICJ in 1969: Rights of the coastal state with continental shelf constitutes a natural prolongation of its land territory into and under the sea and exist automatically by virtue of its sovereignty over the land – and as an extension of it in an exercise of sovereign rights for the purpose of exploring the seabed and exploiting its natural resources

Exclusive Economic Zones

1. Defined LOSC Art. 56(1)(a): EEZs give states exclusive economic rights in expanded zones contiguous to their coasts; sovereign rights for the purposes of exploring and exploiting, conserving and managing both the living and non-living natural resources of the sea-bed, subsoil, and super-adjacent waters (fishing)

2. Customary International Law: Since Reagan Proclamation in 1983 3. Early Coast Management: 1958 Convention granted coastal states special rights to conserve,

manage and exploit fisheries in areas contiguous with their coasts without specifying any zone within which rights may apply

4. 200-Mile Exclusive Economic Zone (EEZ): 1982 LOS – all living and nonliving resources within the 200-mile EEZ may be exploited and explored exclusively. May exercise limited jurisdiction in establishing and using fake islands, installations and structures in the EEZ (LOS 55-75)

a. Other than exclusive right to exploit resources – zones treated like normal high seas (navigate and lay submarine cables and pipelines within all EEZ and fly planes)

50

5. All Land Territory Can Generate it: Including islands, even small ones, can provide basis for claims to a continental shelf and EEZ covering hundreds of square kilometers which explains why states sometimes argue intensely over sovereignty of very small islands

a. Rocks which cannot sustain human habitation or economic life of their own have no EEZ or continental shelf

6. Fishing Issues: If all states established 200 mile EEZs, they would cover only 1/3 of the sea a. In that 1/3 area of EEZs over 90% of the fish stock presently exploitable would reside

Exclusive Economic Zone Rights

1. Duties and Obligations: All states must give due regard to the rights and duties of the coastal state and obey lawful regulations of the coastal state and coastal state must give due regard to other states rights in EEZ

2. Vessels of Other Nations: Same navigational freedoms of high seas, and laying pipes and sub pipes, but are subject to the coastal states’ regulations regarding pollution control

UK v. Iceland – Fisheries Jurisdiction Case (1974)

ICJ: recognized that a coastal state has preferential rights to exploit fisheries around coasts Must consider the rights of those states that have traditionally fish in the same waters; both parties

must negotiation in good faith to find an equitable solution to their differences

Rights and Obligations from 1982 UN Convention on Law of the Sea

1. Species extending beyond a single EEZ: Coastal states must cooperate to enact conservation and management measures for the same stock for species that occur within the EEZs of more than one coastal state or “straddling stocks” – obligation also applies when the species stock is an EEZ adjacent to an area of high seas frequented by foreign fisherman (LOS 63)

2. Freedom of Fishing and Conservation Measures: All states have the right to fish the high seas subject to (1) treaty obligations, (2) rights and duties as well as interests of coast states in Art. 63 and Art. 116

a. This right is limited by: treaties and by the rights of coastal states to regulate their continental shelves;

b. Art. 118: States must cooperate in the conservation and management of the resources; establish regional and subregional fishing organizations to meet ends

c. Art. 119 : When determining conservation measures and catch limits, state must: (1) best scientific measures available to maintain or restore populations; (2) take into account all the species not just the one maintaining or restoring; contribute and detail statistic conservation and fishing data; ensure conservation measures and implementation do not discrimination against the fishermen of any state

51

EEZ Dispute Resolution in the LOSC

1. Defined: Conflicts are resolved on the basis of equity in the light of all relevant circumstances, taking into account the respective important of the interests involved to the parties as well as to the international community as a whole

a. If not possible – either party may request that the other party agree to use the LOSC conciliation procedure

2. LOSC Conciliation: Each chooses 2 conciliators (1 national) from list and four select a fifth to make non-binding recommendations

3. In EEZ: Most disputes concerning the exercise by a coastal state of its sovereign rights of jurisdiction within the EEZ are not subject to LOSC compulsory dispute settlement

4. Generally Disputes under LOSC have Four Forum: a. (1) International Tribunal for the Law of the Sea (ITLOS) b. (2) ICJc. (2) General Tribunal established pursuant to LOSC Annex VIId. (2) An arbitral tribunal composed of specialists established under LOSC Annex VII

Territorial Seas and Straits

1. Defined: A coastal state has full sovereignty over its territorial sea subject primarily to a right of innocent passage into other states

2. Breadth: LOS says every state has the right to a 12-mile contiguous zone measured from the baseline

3. US: adheres to 3-mile territorial sea for domestic law purposes but a 12-mile zone for international law purposes

4. Municipal Law and Law of Sea: Municipal courts may apply customary law, law of the sea treaties, municipal statutes embodying intl. treaties or custom – traditionally been a force in developing and articulating a uniform maritime law

Right of Innocent Passage in Straits

1. Defined: Rights to pass through is an exception to the sovereignty of a state over its territorial seas (LOS 17)

2. Passage: Navigation through the territorial sea for the purpose of either traveling without entering internal waters or going to and from internal waters – must be continuous but there may be anchoring in distress or necessity

3. Innocent: Must not be prejudicial to the peace, good order or security of the coastal state – the following are not peaceful:

a. (1) threat of use of force; (2) weapon practice; (3) collecting sensitive info; (4) aircraft activity; (5) propaganda; (6) any sensitive activity; (7) loading or unloading goods in violation of state laws; (8) pollution; (9); fishing; (10) research; (11) interfering with communications (LOS 19)

4. Submarines: LOS 20

52

a. Subs must come to surface and show their flag

Rights/Duties of Coastal States in Straits

1. Rights: a. Verification: Unilateral right to verify the innocent character (LOS 25)b. Temporary Suspension: Essential to state’s protection (LOS 25)c. Regulation: May adopt regulations for – (1) safety; (2) protection of navigational aids;

(3) protection of cables; (4) conversation of living resources; (5) preservation of the environment of state; (6) research; (7) enforcement of fishing customs (LOS 21 and 22)

5. Duties of Coastal States: LOS 24a. Cannot hamper innocent passage and cannot: (1) impose regulations on foreign ships

which have the practical effect of denying or impairing the right of innocent passage and (2) discrimination in form or fact against ships of any state or any cargos

b. Appropriate Notice of Danger: State must given appropriate publicity to any danger to navigation they have knowledge of within its territorial seas

Exercising Criminal Jurisdiction in Straits

1. A coastal state may exercise criminal jurisdiction on board a foreign ship passing through to arrest or investigate only when:

c. (1) consequence of crime extend to coastal stated. (2) crime is of a kind to disturb the peace of the country or good order of seae. (3) assistance of the local authorities has been requested by master of shipf. (4) such measures are necessary to stop illegal drug trafficking g. Coastal state may not board a ship in connection with any crime before ship enters

territorial sea if it is only passing through without entering internal waters 2. Jurisdictional Limits: Coast state may not exercise civil jurisdiction over foreign ships despite the

ability to detail a ship for violations of laws under Art. 73 of the C. of the Seas, ITLOS states that excessive force and endangerment of human life in the capture of a ship may result in a violation of the right of the flag state of the captured ship

a. ITLOS: Rejects the inclusion of non-monetary conditions in the bond release of a captured vessel

3. Warships: no requirement for prior notification or authorization for innocent passage of a warship through a territorial sea

a. US: no prior notification needed; b. If a warship does not comply with the laws of the coastal state and disregards any

request for compliance may be required to leave the territorial sea immediately

53

Right of Transit Passage and Straits

1. Defined: Navigation or over-flight for the purpose of continuous and expeditious transit 2. Straits: Waters used for international navigation between one part of the high seas and another

part of the high seas or the territorial sea of a foreign state (1958 Terr. Sea Conv.)a. Subject to right of transit passage

3. LOS 38: Grants right between two areas on the high seas on two EEZs; does not exist where strait is broad enough to allow navigation through a high seas route in its middle

4. Different from Innocent Passage: a. Extends to aircraft and submarinesb. Fields in which a state bordering a straight may regulate transit passage more limited

than innocent passagec. State may regulate for pollution control, fishing and enact customs, fiscal, immigration

and sanitary regulations (that do not discrimination or impair transit passage)

**Exam Tips for the Law of the Sea**

First Question (LOSC Convention and US Failure to Ratify): What ramifications does the failure of the US to ratify the LOSC Convention (justified by the exploitation of the resources of the seabed) have on the law of the sea?

1. Advantages to Ratification: a. (1) Extended claims within the coastal zonesb. (2) National Security- more security from expanded passage rights for military vessels

and aircraft c. (3) Peaceful Dispute Resolution: Influence in the organs of the LOS Convention system

in which the US cannot now participate. d. (4) Environment: sets a legally binding international standard which aims to protect the

marine wildlife and environment2. Disadvantages:

a. (1) Lose sovereignty by submitting to ISA (Intl. Seabed Assoc.) in dispute resolutionb. (2) Economics: Licenses and taxation issuesc. (3) Environment: Intl. Organs will have more control over US environmental policy

3. Key: USA follows most of the provisions anyway so ratification would not really change much at all in actuality

54

Law of War

Jus in Bello: Rules Concerning the Conduct of Hostilities

1. ICJ and Basic Principals of International Humanitarian Law: a. (1) Aimed at the protection of civilian population and objects and makes distinction

between combatants and noncombatants; do not make civilians the object of attack or use weapons incapable of distinguishing between civilians and military targets

b. (2) Prohibited to cause unnecessary suffering to combatants and cannot use weapons causing them such harm or uselessly aggravating their suffering

2. War/Armed Conflict Defined: Any armed conflict beyond isolated and sporadic acts of violence between the armed forces of states

3. Formal or Informal Declaration: Geneva Convention Art. 2 – decreasing importance; GC applies to all armed conflict, not just that is declared expressly

4. Prohibitions Against Intl. Armed Conflict: 19th Century – right to wage wara. Kellogg-Briand Pact of 1928: Renounced war as an instrument of national policy and

agreed that disputed were to be settled by non violent means b. UN Charter Art. 2: Requirement to settle dispute by peaceful means

Customary Law and International Treaties for War

1. Customary Law: principles for thousands of years – foundation of the landmark treaties of 20th Century (Grotius and de Vattel)

2. Treaties: Regulate Conduct of Wara. Hague Conventions and Declarations of 1907: Law and Customs of War on Land (HC IV)b. Nuremberg Charter of 1945: Inter-allies agreement for prosecution and punishment of

Nazi leadersc. Geneva Convention of 1949:

i. (1) Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field

ii. (2) Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea

iii. (3) Convention Relative to the Treatment of Prisoners of Wariv. (4) Convention Relative to the Protection of Civilian Persons in Time of War

d. Protocols Additional of 1977: i. Protection of Victims of International Armed Conflicts

ii. Protection of Victims of Non-International Armed Conflicts

55

Geneva Convention and Hague: Protections

Protections Extended to Combatants:

1. Hague IV 1907 – Combatant – any individual legally entitled to take part in hostilities 2. Subject to attack at any time; minimal protections 3. Limitations on weapons and tactics

Protections for Wounded, Sick and Shipwrecked Combatants

1. If surrendered, accorded considerable protection and cannot be subjected to more attacks (HC IV)

2. Medical Care: Person who is injured or sick cannot be attacked and also must be provided with medical care

Prisoners of War

Lawfully falls into enemy hands1. Protections extended whether or not the detaining power recognizes the authority of the

organization or group they represent 2. Humane: Provide for humane and decent treatment of POWs and forbids torture, biological

experimentation and other invasions of personal dignity3. Allowable: Can be used in labor force, if compensated, and tasks are not unreasonably

dangerous 4. Subject to Disciplinary Regulations of Captors: May be subject to trials and punishments 5. Repatriation: If suffered substantial mental or physical impairment or if they need medical

attention over one year6. Conclusion of War: All POWs must be released and repatriated without delay

Protections of Civilians

During active war and during time of enemy occupation of state1. Provides for creation of various protected zones in which hostilities may not be carried out 2. Occupying Power: May take security measures but not torture, murder, corporal punish or take

hostages3. Internment: Permitted but internees must be provided with treatment that roughly

corresponds to that of POWs 4. While Occupying Power Sets up Government: Right of the people under occupation are

delineated

56

Hamdi v. Rumsfeld

1. Keys: Decision reversing the dismissal of a habeas corpus petition brought on behalf of Yaser Esam Hamdi, a U.S. citizen being detained indefinitely as an "illegal enemy combatant". The Court recognized the power of the government to detain unlawful combatants, but ruled that detainees who are U.S. citizens must have the ability to challenge their detention before an impartial judge.

2. Held: Due process protections require the Defense Department to provide a US citizen captured in Afghanistan pursuant to military operations and detailed within the territory of the US an opportunity to challenge his classification as an enemy combatant before a neutral decision maker;

3. Geneva Convention in finding some due process rights to challenge status and detention for any alleged enemy combatant – a classification not other found within the express terms of the Geneva Convention

a. Plurality relied on the time-honored traditions of war, the Geneva Convention, and a long list of other international treaties, to hold that the government had authority under the Authorization for Use of Military Force enacted by Congress in 2001 shortly after the 9/11 terrorist attacks to hold any enemy combatants until the cessation of hostilities (not indefinitely).

b. The plurality held that such protective detention could be applied to both citizen and non-citizen enemy combatants. Of the four justices outside the plurality, Justices Ginsberg and Souter limited their opinions to their position that Section 4001(a) of Title 18 of the United States Code (the Non-Detention Act; enacted to prevent the sort of detention that occurred when the United States placed Japanese-American citizens in concentration camps during World War II) prevented the detention of U.S. citizens.

Protections for Property

1. The destruction or confiscation of enemy property is forbidden except for situations of military necessity

2. Looting is not permissible but enemy military equipment may be seized as war trophies3. Military Facilities: Subject to attack at any time4. Civilian Structures: Should not be attacked if undefended 5. Special Protections: For medical facilities and works of art or cultural property

Enforcement and Sanctions

1. Although international courts may be able to try people for violations of laws of war where municipal procedures aren’t available, most often violations are tried at State level.

2. US: incorporated into municipal law in US Military Manuals and carried out under the Uniform Code of Military Justice

3. Geneva Convention: once a violation is found, parties should end it ASAP

57

a. Criminal Prosecution: Provisions allow a state to subject any individual regardless of nationality to criminal prosecution for violations

b. Bound: Parties are bound to apply to its terms between themselves even if not all of the states involved in the war are contracting parties

c. States: Liable for breaches by its national for whom they are responsible 4. Nuremberg Principles: Individual criminal responsibility for certain crimes

a. Crimes against peace: planning, prepping, starting or waging war or aggression or war against international treaties

b. War Crimes: Violations of the customs and laws of warc. Crimes against Humanity: Murder, extermination, enslavement, deportation and other

inhumane acts committed against any civilian population before or during the war5. War Crimes Tribunals: Jurisdiction conferred by agreement of the parties – in 1993, UNSC

authorized the establishment of tribunals for Rwanda and Yugoslaviaa. There is an international criminal court with jurisdiction over war crimes and other

crimes under international law 6. EXAMPLE: International Criminal Tribunal for the Former Yugoslavia – 8 Serbs in military were

charged with rape of 14 Muslim women; details sex acts as charges of Crimes against Humanity and breaches of Geneva Convention and violations of the laws or customs of war

UN Charter

Right to Self Defense and Terrorism

1. Defined: 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 UN (Art. 2, § 4)

2. Customary International Law – bans both force and threat of force

UN Art. 2(4) and Use of Force

1. It is addressed to state action and not to non-state actors like Al Qaeda. a. Have to interpret it differently today—non-state actors ARE bound.

o This is a principle of customary of intl. law—this isn’t just based on the charter2. Use of force against the territorial integrity or political independence of any state—the

suggestion is that for this to be proper it must threaten the political independent or territorial integrity. Probably what they had in mind was to move this from individual decision making to making determinations of force the job of the United Nations.

3. Article 51: Talks of inherent right of individual or collective self-defense. This is a function of sovereignty. The powers are there b/c the US is a country.

Policy in UN Ban on Use of Force

1. Restrictive Reading: Plain meaning says that force cannot be used against the territorial integrity or political independence of any state

58

a. Allow force: to protect lives of its nationals, to promote democracy, further self-determination, to protect property

b. Critique: Last phrase indicating that any use of force not expressly allowed by the UN Charter is inconsistent with the Charter’s purpose to promote and maintain international peace and security

2. Expansive Reading: Interpret in light of context to provide more specific guarantees to small states; viewed in light of the presumption against self-held and use of force underlying UN Charter

a. Nicaragua v. US: Lends support – interpreted the meaning of the ban on the use of force to encompass indirect measures such as supplying an insurgent force in another country with weapons, training and intelligence although it excluded supplying financial assistance as negative

3. Henkin is very to the left and Reisman is just the opposite.4. Henkin:

a. Use of force in only very limited circumstances—one universally accepted, he says, is intervention for humanitarian reasons.

b. Very much concerned about nuclear weapons.c. ICJ accepts that there may be cases where in fact —nuclear weapons could be used in

“extreme circumstances of self-defense.” d. Thinks promote peace should be the paramount principle of intl. relations. e. He sees only a narrow area where force is allowed—collective/indivual self-defense.

Henkin would probably accept the Afghanistan situation as ok. f. Chapter 7 of the Charter—enforcement action—assuming this is arrived at in a proper

way—this would be ok (but in Iraq case this has been questioned).5. Reisman:

a. He is doesn’t like black letter idea of no use of force no matter what.b. He sees international law as a system of authorized coercion.c. When he talks about self-determination—be careful of who is inviting you in these

situations.d. Idi Amin Uganda situation——people took over after this murdered even more people.

Reisman thinks this was good thing—but not so sure! It killed the economy, e.g. e. He criticized the assumptions under a stiff reading of Articles of the UN Charter.

Nicaragua Case (ICJ, 1986)

Facts: US and Nicaragua—US gave arms to rebels and blew things up Issue: Court’s treatment of the different concepts of “armed attack” and “self-defense” is what is

important in this case. Very conservative and rule oriented approach—not a policy discussion. Armed Attack

o US reservation—excepted cases w/ multilateral treaty interpretations—court couldn’t look at the UN charter use of force issues, but could look on customary international law. Court came up w/ the same answer.

The resolutions show practice, but opinio juris here says the opposite? Three important parties: Nicaragua, US, and El Salvador. Ct says armed attack is:

o Armed attack isn’t sending logistical support (but these still may be problematic and you will be able only to do countermeasures)

59

o Armed attack is sending people to carry out acts of armed force. (This includes using planes as weapons, biological weapons)

o Ct concludes this definition is part of international law— Don’t be carried away by this opinion b/c ICJ not binding except to parties. This case should have gone to arbitration. Ct’s opinion is just one side of a debate.

Collective Self-Defense:o US argues that under customary and treaties it was entitled to come to the aid of El Salvador.o Court takes a narrow approach to this.

This was way after the fact of the actual attack on El Salvador. Overly technical point—UN says you must inform Security Council immediately; US didn’t

o Collective self-defense-under what circumstances does it operate? Armed attack (ct narrowly defines) Only the country affected has the right to initiate and must ask the others to come to its

assistance. (narrow approach) W/ El Salvador it was only a matter of time. Art 51 does not make it clear that the affected countries must go and ask for assistance.

P. 513— If the threat is against one country but is a threat to intl. peace, then other state’s

could come to the aid that country w/o doing all that other stuff. Was ct being too cautious? Is this correct? Barcelona Traction is another case or the Iran Case

(Diplomatic) o This is again a country trying to make a political point rather than to get the dispute settled.

Court takes a narrow approach to this saying no force legally except in self-defense. Ct says countermeasures would be legal.

Reisman may have a point in extreme situations. Court implying that custom has emerged on the basis of resolutions.

o When does the dichotomy between UN resolutions and what states actually do—then state practice cannot be the thing. You end up talking about customary law w/o state practice—and this is not necessarily appropriate.

o Must be a higher norm, more important norm —court is concerned w/ this question—has it attained jus cogens. Court doesn’t take a position on this. If it is, you don’t have to worry about state practice. Ct seems to say that it recognizes some people see this as important, but the ct doesn’t want to go that far.

Has the use of force attained the status of jus cogens or not? Maybe intl. law is moving in this direction or maybe not? Use of Force will never become normative on the basis of state practice b/c of the fact that states will always use it—it would have to become normative in another way—jus cogens.

If you have real issues—the ICJ may not be the best forum—maybe arbitration is better. Congo case in note—not all of these have been as dramatic as one—Congo hasn’t been resolved.

Congo ambassador to Belgium was arrested and charged w/ war crimes and Congo suing Belgium on this.

60

Article 51: Self-Defense and Use of Force Authorized by the UN Charter

Defined: Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a member of the UN, until the Security Council has taken measures necessary to maintain international and security.

Scope of Article 51:

1. Considerable debate; apparent requirement that an armed attack already has occurred2. Exclusivity: Whether an armed attack occurring provides the exclusive justification for self-

defense (broader will undermine purpose of peace) or whether states retain some customary right to self-defense that might be broader in scope (narrowly interpreted because exception to the restriction on the use of force)

3. Anticipatory Self-Defense: Uncertainty as to how imminent the attack must be or if you can before an attack.

4. Self-Defense Against Terrorism: Military action by US against Afghanistan in response was justified on the basis of self-defense and received widespread intl. support as a valid exercise of self-defense from previous terrorist attacks

a. Controversy – Asserted anticipatory self-defense may be lawful even when an armed attack is necessarily imminent (as previously required)

b. UN panel accepted a right to anticipatory self-self in 2004 but not sure how imminent5. Right to Collective Self-Defense: Other states are entitled to come to the defense of the

attacked state in self-defense if state is allowed in Art. 51 to use forcea. US helped by NATO in Afghanistan in 2001b. Debate over whether a state may exercise right without an explicit request for

assistance from the state attacked c. ICJ in Nicaragua: US was not entitled to help El Salvador, Honduras and Costa Rica

because they have not yet requested the help6. Duration of Right of Self-Defense: Clear that self-defense does not justify reprisals once the

threat has been terminated – must stop.a. Unclear if right ends as soon as SC takes actionb. Duration is important due to the indefiniteness of the war of terrorism – highlights

importance of necessity and proportionality requirements 7. Targets for which a state may assert self-defense: An attack triggering self-defense may be on

territory, armed forces or state vessels or aircrafta. Attacks on state’s nationals or property may justify counterattack only if protection of

nationals is recognized under international law

Necessity and Proportionality Requirements for Self-Defense

1. Necessity: Must be a necessity of self-defense, instant, overwhelming, leaving no choice of means and no moment of deliberation (necessity)

a. Test: Were there peaceful alternatives to self-defense like diplomatic efforts?b. No requirement to merely repel an attack with self-defense, can use to remove a

continuing a threat 2. Proportionality: Must be limited by that necessity and kept clearly within it

61

a. Assessed based on the result sought from the defensive action – not the forms, substance and strength of the action itself

b. No need to be a mirror image of the initial attack, nor restricted to a particular geographic zone

Collective Use of Force – Iraq 1990

1. Security Council Resolution 678 (1990): Acting under Chapter VII Iraq was given until 1/15/1991 to leave Kuwait or be subject to military action

a. Question: Was the military action taken against Ira an enforcement action or Security Council authorization of collective self-defense under Art. 51?

2. Enforcement Actions by the UN: Chapter VII of UN Charter authorized Security Council to act with respect to threats of peace, breaches of peace or acts of aggression (UN 39) – May take action in accordance with Art. 41 and 41 to maintain or restore intl. peace and security. All states bound by Sec. Coun. Decisions – subject to veto.

a. Art. 41 – Call on for peacekeeping; no armed forceb. Art. 42 – If no peaceful measures would work, UNSC can take action by air, sea or land

as necessary to restore peace c. UN Police Action in Lieu of War: Must be authorized by Art. 53 (regional war) or Art. 42

(global conflict)i. New alternative to system of old war

ii. UNSC Resolutions begin as recommendations but at some point if recommendation is not working, the UNSC requires its member states to take military action on behalf

d. UN not a Global Policeman: Ending war in Kuwait was allied military campaign directed by US and associated nations, the UNSC authorized military action it did not require it

i. Just because authorized by UN doesn’t mean it is was required for US and others to go in and take action

3. Security Council Resolution 687 (1991): Bold measures in SC res.a. SC imposed a settlement to boundary disputeb. Required all states to apply a force majeure defense to Iraqi claims in connection with

otherwise valid economic transactions not carried out due to sanctions c. Thought about Compensation Commission for Kuwait d. Some Humanitarian measures e. Termination: Sanctions imposed were to continue until a further decision is taken by

the SC.

62

Collective Use of Force – Iraq 2003

Implied authorization of force? UK and US formed a coalition with other nations and undertook disarmament of Iraq and ousting of Saddam Hussein

Preemptive Self-Defense: US and UK pointed to two SC Resolutions as basis for legality

1. Resolution 1441: passed in Nov. 2002 and gave Iraq a final opportunity to comply with its disarmament obligations imposed under Resolution 687, the cease-fire agreement from 1991

a. US was unable to get authorized use of force from SC but said Res. 1441 did not require a new resolution authorizing force and that it revived the authority to use force given in Resolution 687

b. Critiques say US relied on the resurrection of a 1-year-old resolution to make its case and that US and coalition did not have the authority to determine that Iraq was in material breach its obligations

2. UN Charter Provisions of Use of Force: Idea that they are not regarded as binding international law anymore and the Charter has gone same way as Kellogg-Briand

US Justification of Invasion

1. Many think that it could be justified under expansive view of the right of self-defense for continuing threat but US says it was authorized by the SC Resolution 678 to use all necessary means to uphold SC resolutions relating to Iraq and to restore international peace and security in the area

a. Breach by Iraq: US maintains that the fact of whether Iraq is in breach(of UNSC Res. 687) is the matter of objective fact which may therefore be assessed by individual member states

b. Res. 678: US justifies the invasion based on Resolution 678 and legal grounds US says that the Iraqi invasion was justified for their breach of Resolution 678 cease-fire

c. Resolution 687: Merely suspended the authorization to use force against Iraq, yet did not terminate such authorization

3. Lord Goldsmith (UK Attorney General) on Invasion: Use of force for self-defense is legal if there is an actual or imminent threat of an armed attack, the use force must be necessary (the only means to avert the attack) and the force must be proportionate to the attack

a. Broad Doctrine of Preemptive Force: This was argued for by the US but it is not the doctrine by which international law operates or recognizes

b. Humanitarian Catastrophe: Use of force to avert overwhelming humanitarian catastrophe has been merging as a further, and exception, basis for the use of force but there is no reason why this controversial doctrine would be an appropriate basis for action in present circumstances

63

**Exam Tips for the Law of War**

First Question (UN Authorization): Is this use of armed force justified under the article 51 (the only clear justification for the use of force) authorization of self-defense against an armed attack against a state? o Follow-up: If not definite, look to what constitutes an armed attack and how preventative the

use of force may be? Second Question (Customary Use of Force): If it is unclear whether Art. 51 applies, is it possible

that customary law (such as humanitarian intervention, preemptive self-defense and self-help) justifies the use of armed force? o Nicaragua: Generally, the authorization to use force must be found in the confines of the UN

Charter’s provisions. Third Question (Necessity and Proportionality): Did the state (1) resort to force without

demonstrating that peaceful means were exhausted or ineffective OR (2) use more force than was necessary to redress the threat? If so, that in itself is a violation of international law even if the use of force is otherwise justifiable.

Fourth Question (Foreign Detainees): What are the procedural rights of foreign nationals detained in Guantanamo Bay? What procedures are adequate substitutes for habeas corpus given Congress’s attempt to strip the courts of habeas jurisdiction over the detainees’ challenges to their detention? What procedures are required to determine their status and thus the legality of their detention under due process and the requirement of the Geneva Convention?

64