Foundations of International Law: History, Nature, Sources, Answers

Nature and History of International Law

Sovereignty Commonly noted as an implicit, axiomatic characteristic of statehood o Challenged as outdated and exaggerated o International law is concerned with reconciling concepts of IL and sovereignty Corfu Channel case (United Kingdom v. Albania): Judge Alvarez o !he sovereignty of "tates has now #ecome an institution$ an international social function of a psychological character$ which ahs to #e exercised in accordance with the new international law% &lo#alization: whittling away sovereignty and giving a reason to #e willing to let their sovereignty slip away 'en(en$ International Law: Politics and Values o Catchword$ served terri#le national mythologies$ su#stitute for thin(ing o )ot su#*ect to any other authority o +ic( elements to (eep (independence$ e,uality$ autonomy$ personhood-$ territorial authority$ integrity and inviola#ility$ impermea#ility$ and privacy Allot$ .unomia: New Order for a New World o International law has #een the primitive law of an unsocial international society%o Isolationist nations have #een unwilling to contri#ute to #uilding an international society #ecause they want to (eep all their rights/ rights have to #e given up to get a social society "omeone wants to speed$ no law against it$ unsocial% &ive up the right to speed to get the greater good for everyone$ social society% 0ofi Annan/ addressing 1)&A: "tate is now widely understood to #e a servant of its people !he hanging Structure of International Law 2ultinational corporations )&3s International 3rganizations Individuals Is it really law! .nforcea#ility issues o Consent: Law isn4t to ma(e states do what they don4t want to do/ comes from customs or from treaties to which a state has agreed Compliance5enforcement o ompliance factors .fficiency )ational interest 6egime norms o "nforcement options "anctions "oft: mo#ilization of shame Coercive: countermeasures and economic sanctions pu#lic opinion voluntary compliance li(e most laws$ international rules are rarely enforced$ #ut usually o#eyed national courts forci#le compulsion primarily used against use of force/ self7defense centralized enforcement (primary sources is Ch 8II of 1) Charter) centralized organs ad hoc international criminal tri#unals

History of International Law Ancient !imes o "umeria: first treaty$ agreement #etween nations sworn on the gods o &ree( city7states had treaties with each other$ considered everyone else #ar#arians (envoys$ #oundaries$ water rights$ athletes at the 3lympic games$ ar#itration)/ natural law o 6omans: how to deal with non76omans within the empire$ us gentile 2iddle Ages o Lex 2ercatoria: law that developed a#out :;; years ago as .urope opened to the .ast$ rules of sale$ credit$ etc% +eace of <estphalia (9=>:): created nation7state with separate territories and agreement to stop invading o 1shered into era of international law o .arly scholars &entili #rotius fathers IL #y #eing neutral to religion relies on natural law reasoning two principles o restitution must #e made for a harm done #y one party to another o promises given$ through signature to treaties or otherwise$ muse #e (ept (pacta sunt servanda) 2odern .ra o 6ise of $ositivism 6eliance on the practice of states and the conduct of international relations as evidenced #y customs or treaties 8attel in the 9:th Century All effective international law is derived from the will of nations$ presumed consent expressing itself in treaties or customs o .mergence of I3s League of )ations International La#our 3rganization o $ost%&&II 'rends .mergence of I3s for a cooperative purpose 1) and its agencies "tates representing non7<estern civilizations as mem#ers of the family of nations compati#ility of cultural values and institutions growing gap #etween economically developed and less developed !hird <orld has not succeeded in o#taining sig steps to new econ order o $ost% old &ar !rends C< hampered the growth of int4l law and frustrated int4l institutions nota#ly hampered 1)"C and ICJ law of collective security and auth of 1)C" extended human rights regional economic arrangements 3rg for "ecurity and Cooperation in .ur )orth Atlantic !reaty 3rganization

Introduction to Sources of IL
Four traditional sources of international law (International !ourt of "ustice #tatute Article @:): International conventions International custom &eneral principles of law Judicial decisions5scholars If this were positivist$ the following might #e added to the list: )atural law 2oral philosophy .thics $ositivism and (oluntarism: hallmar(s of international law +ositivism: emphasizes the o#ligatory nature of legal norms and the fixed authoritative character of the formal sources 8oluntarism o classic doctrine of state sovereignty applied to the formation of international law o int4l legal rules emanate exclusively from the free will of states as expressed in conventions or #y usages generally accepted as law

ustomary IL as a Source
) elements: &eneral practice (material element) Acceptance of that practice as law (psychological element$ o$inio uris) !en Aifficult *uestions &hat constitutes state practiceB o <ords v% action: ideally$ we4ll have #oth o Argument for words: want to change the norm/ if insist on action$ then might #e desta#ilizing effects o 3missions: if a state wants to act$ #ut cannot$ does their inaction countB o .vidence: diplomatic communications$ historical information of some (ind$ legislative acts$ royal decrees$ *udicial decisions How much practice is re,uiredB o Aggregate num#ers o 6epresentation worldwide o +erhaps downgrade some states4 opinions and upgrade others Aigests of international law are all produced #y the ma*or countries 'ow much consistency is re,uiredB o Allow for some inconsistency/ need to allow some states to deviate (if accidentally$ then actually a reaffirmation of the rule) in order to get the laws done at all Are dissenting and non%participating "tates #ound #y customB o <atch out for persistent o#*ectors o Loo( for other factors (li(e land7loc(ed countries when tal(ing a#out a maritime rule) o Jus cogens: fundamental$ peremptory norms that are so important that no states can opt out of them% 8CL! Article C@: norms accepted and recognized #y the international community of states as a whole as a norm from which no derogation is permitted and which can #e modified only #y a su#se,uent norm of general international law having the same character% Drings up positivist concerns: if ? states are trying to do something and are #eing told they can4t do it$ sounds li(e natural law Ao regional and special customs involve different re,uirementsB o Can have a customary norm of international law #etween ? or @ states$ if it only applies to them <hat evidence is re,uired for opinio jurisB

+ro#lem with law changing: if we have x as a norm at !9$ and in the future$ at !? the norm #ecomes y$ they can4t possi#ly #e thin(ing they are doing y #ecause they are compelled #y the norm 2ay treaties +e invo,ed as evidence of customary international lawB o +erhaps if many$ many states are parties to the treaty$ and say C; aren4t$ and aren4t o#*ecting$ and are perhaps in practice following the norm$ a treaty may #e the norm o Language of treaties: li(e &eneva Convention Article 9: the parties confirm- genocide is a crime/ perhaps it already was a crime/ here$ the language$ the num#er of states in the treaty$ and the fact that there are no persistent o#*ectors$ and it may #e a norm o Dut parties have *oined and parties have not *oined$ so why should the parties who have not *oined #e #oundB Isn4t that practice of not *oining$ assuming a nation could *oin$ a statementB +erhaps they are opting out or o#*ecting to the terms of the treatyB Can acts of I-s create customary international lawB o If it4s not relatively uniform$ then might #e reluctant to say it4s law% <hat is the vote countB <hat is the language of the resolutionB o If it4s a voluntarist system$ and opting in and out counts$ then using I3s as law is ,uestiona#le% ustom .emonstrated %&e Pa'uete (abana$ "upreme Court of the 1nited "tates$ 9E;; o 1" in war against "pain$ #loc(ade of Cu#a$ seized fishing vessels$ vessels argued that it is customary to let people fish in time of war o <hy did the court say that it was customB (ariety of sources )ational law .xecutive decrees Acts of military commanders Judgments of national tri#unals Dilateral treaties "cholars o International law is part of our law$ and must #e ascertained and administered #y the courts of *ustice of appropriate *urisdiction as often as ,uestions of right depending upon it are duly presented for their determination% %&e !ase of t&e #.#. Lotus (France v% !ur(ey)$ +ermanent Court of International Justice (9E?G) o "eems that the French on7watch allowed collision% Aamaged the !ur(ish vessel and in*ured !ur(s$ then pulls into !ur(ish port$ !ur(s #egin criminal proceedings against Aemons$ and France and !ur(ey agree to go to the ICJ o Court decides a prohi+ition has to +e shown in int/l law #efore !ur(ey4s actions will #e declared unlawful% 0urden is on the plaintiff 8ery positivist H states can do what they want$ as long as there is no prohi#ition o France4s arguments: Int4l law does not allow a state to ta(e proceedings with regard to offences committed #y foreigners a#road #y reason of the nationality of the victim Court says: don4t need to face the issue$ #ecause the effect happened on a !ur(ish vessel% +oint to the decisions of the courts of many countries Int4l law recognizes the exclusive *urisdiction of the flag state Court says: true that only France had *urisdiction on its own vessel$ effect on !ur(ish !reaties where that might #e a pro#lem$ #ut they4re treaties$ and !ur(ey is not a party .specially applica#le in a collision case Court says: some (ind of practice$ #ut not accompanied #y opinio *uris% Decause customary int4l law is indeterminate$ it opens up doors for courts to go the way they want to go #y finding opinio *uris or not% <orry a#out *udges #eing su#*ective% o = *udges dissented from opinion o

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Lotus rule: when there is a collision on the high seas$ it is o(ay for a state whose vessel5national was harmed to prosecute those who did the harming% 'as +een laid to rest +y the L-S Article 12345% "ays the country of the flag state and the country of the nationality of the perpetrator% Legalit) of t&e %&reat or Use of Nuclear Wea$ons *Advisor) O$inion+ $ International Court of Justice (9EE=) o Is the use of or threat to use nuclear weapons unlawfulB o )o treaties prohi#iting nuclear weapons% o Court uses the Lotus threshold and tries to find something to prohi#it the use5threat Court ends up saying Lotus is important$ #ut here don4t have to address the #urden of proof issue$ #ecause the states opposing nuclear weapons accept that they are #ound #y international law o )on7use arguments Aeterrence policy as practice: have used them as a threat )on7use shows (nowledge that they are wrong$ and they shouldn4t #e used o Loo(ed at the series of resolutions #y the 1)$ as well% o Court is not finding uniform$ consistent practice$ and there are a significant num#er of states resisting such a norm% o !here are certain principles in international humanitarian law that collectively do preclude the use of nuclear weapons% !hus$ methods and means of warfare$ which would preclude any distinction #etween civilian and military targets$ or which would result in unnecessary suffering to com#atants$ are prohi#ited%o Aecision the court reaches: 6elies on opinio 7uris: didn4t use them #ecause of a #elief that they were compelled #y international law% G to G: as a general matter$ you cannot use these weapons% If the survival of the state is in issue$ however$ the Court is not sure what the law is% Nort& #ea !ontinental #&elf !ases (Federal 6epu#lic of &ermany v% Aenmar(/ Federal 6epu#lic of &ermany v% )etherlands)/ ICJ 9E=E o 3il and gas in the )orth "ea/ (nown in the C;s that it could #e a tremendous source of resources o .,uidistance method: ? states ad*acent to each other$ draw a line where each point on that line is e,uidistant from #oth coasts +ro#lem with a concave coast$ li(e the one at issue here$ is that the e,uidistant line cuts off the continental shelf of the interior state/ would seriously decrease &ermany4s property o A I ) point to continental shelf treaty Article =7?$ which says that the #oundary of the continental shelf$ #etween two ad*acent states$ should #e decided #y agreement or principle of e,uidistance as a last resort Cannot say &ermany is #ound #y treaty$ #ecause not a party Argument is that this treaty has generated a norm of customary int4l law% !reaty ac(nowledges special circumstances/- treaty suggests itself that it is not the final authority$ that e,uidistance isn4t always to #e used o &hy the treaty does not create IL: 6atifications and accessions not sufficient to ma(e it a custom has only #een C years no precedents $ersistent -+7ector 6ule can4t #e persistent o#*ector/ can4t get a treaty out of a us cogens norm 6est @d J 9;?: in principle a dissenting state which indicates its dissent from a practice while the law is still in a state of development is not #ound #y that rule of law even after it matures A particularly affected state4s dissent may carry more weight o

Law of 'reaties
!reaties as a sources of IL o 8ienna Convention on the Law of !reaties 1" is not a party/ Congress hasn4t gone to the mat on this one 1" said that they thought this treaty already codified existing int4l law$ it ta(es the wind out of the need for 1" ratification/ as a general rule, we/re already +ound ICJ has repeatedly held 8CL! to codify existing CIL ,is&eries "urisdiction !ase (1nited 0ingdom v% Iceland/ re: Article =?) -abci.ovo/Nag)maros 0am !ase ('ungary5"lova(ia/ re: =;7=?) +rinciples of interpretation (Articles @97@@) have guided many international tri#unals o &hat exactly is a treatyB (Articles 97C) Convention$ treaty$ #lah #lah #lah% Content matters$ not the title% 8CL!: an international agreement concluded between states in written form and governed #y international law$ whether em#odied in a single instrument or in two or more related instruments and whatever its particular designation% All military sales are done with foreign military sales 0s$ and 1" 0 law applies Cannot have a treaty #etween a company and a state$ must be state to state or IO o $olitically%+inding versus legally%+inding agreement &: stuff: political Loo( at +rocess o If it4s something voted on and then they all go home and it4s *ust a declaration$pro#a#ly political "u#stance o If it re,uires some further actions "ometimes hard to distinguish/ want a certain amount of definitiveness #etting into a 'reaty o Formation (Articles =79:) 6est @d J @99 Capacity and Authority to Conclude International Agreements (9) every state has capacity to conclude international agreements (8CL! Art =) (?) a person is authori8ed to represent a state for purposes of concluding an international agreement if (a) he produces full powers Kformal documentgiving an individual power to represent to do the treatyL or (#) such authority clearly appears from the circumstances (8CL! Art G(9)) (@) a state may not invo,e a violation of its internal law to vitiate its consent to #e #ound unless the violation was manifest and concerned a rule of fundamental importance (8CL! Art >=) Can a su+state unit get into a treaty with another su#state unitB International law would allow any given state to authorize its su#state units to enter into these agreements 9S law does allow states to engage in compacts with foreign states so long as Congress approves <hat if )orth Aa(ota tried to give Alas(a to CanadaB o Art >G: v% internal law doesn4t matter unless that violation was manifest and concerned a rule of its internal law of fundamental importance

2ultilateral treaty process

)egotiation

Adoption

!ranslation5 authentification

"ignature period

Aeposit of ratification5 accession

.ntry into force after agreed upon num#er achieved

Accession: want to *oin the treaty$ #ut didn4t sign it% Just means that you didn4t sign it during the signatory period% From the time when you sign the treaty until it ta,es force$ you are not #ound #y the treaty% 8CL! article 9:: 3#ligation not to defeat the o+7ect and purpose of a treaty prior to its entry into force 3ften unclear what acts would violate the purpose o "AL! II: tal(s finished in 9EGE$ 1" and 1""6 didn4t ratify it$ and often accused each other of violating the terms of the ungratified treaty o 9E:=: +resident ordered elimination of ? su#s in order to (eep within the terms of the ungratified treaty 6eservations (Articles 9E7?C) a unilateral statement$ however phrased or named$ made #y a state$ when signing$ ratifying$ accepting$ approving or acceding to a treaty$ where#y it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that state- 8CL! Article ?(9)(d) .x: 1" reservation to ICC+6 that article ?; does not authorize or re,uire legislation or other actionM that would restrict the right of free speech and association protected #y the ConstM 'raditional: every other state would have to agree to the reservation #efore the state could #e let in Dy the 9E>: genocide convention: many states$ many reservations$ stripping away articles 36 states could *ust choose not to enter 1eservations to t&e !onvention on Genocide$ 9EC9 If against the purpose$ not allowed If against some insignificant thing$ allowed :iddle ground approach L-S : )o reservations <hen *oining an I-$ there4s usually an organ which has to approve your reservations #efore you are admitted 6eservations and Human 6ights 'reaties 'uman 6ights Committee &eneral Comment )o% ?> on Issues relating to 6eservations 2ade to the ICC+6 o Certain reservations are against the spirit of the ICC+6 o Nou are still admitted to the ICC+6 and are o#ligated #y it$ #ut your reservations are not

)othing in the language of the treaty to let the Committee opine on the legitimacy of reservations .ven if they had that power$ the result of that should #e the whole ratification is invalid o .ach state party is entitled to appraise the validity of the reservation If a party o#*ects to the reservation$ it can consider that the reserving state is not a party to the Convention o 1nli(e most treaties$ :CO of which have no reservations at all and whose reservations deal with non7su#stantive issues (dispute settlement$ nonrecognition of other parties$ compati#ility with domestic laws)$ human rights treaties often have reservations of a highly su+stantive nature 3ngoing issue: power struggle #etween the human rights committees and powerful states who don4t want to have to listen to the committees 6eservations and )on76estricted :ultilateral !reaties +ermissi#ility is essentially an issue of treaty interpretation o +arties may not accept an impermissi#le reservation 3pposa#ility: is a matter for a policy decision and not su#*ect to the criteria governing permissi#ility and is not su#*ect to *udicial review "ntry into force: usually o this treaty shall come into force upon the expiration of ninety days from the date of exchange of ratificationso this treaty shall come into force upon the receipt #y the depositary of instruments of ratification of PP statesLiving under the 'reaty o "ome Dasic 6ules (Articles ?=7@;) $acta sunt servanda and good faith (Article ?=) Internal law and treaty o#servance (article ?G) International law doesn4t care H you agreed to do Q$ no matter if your own national law changes and says you have to do N )on7retroactivity and the intertemporal pro#lem (Article ?:) !reaty can have a provision which says it applies retroactively$ #ut without such a provision$ it is not Interpretation cannot remain unaffected #y the su#se,uent development of law If a rule relates to a series of events$ it comes into force even if only one of these events occurs after its entry into force/ if a rule relates to a situation$ it is #inding even though the situation existed #efore the entry into force 'erritorial application (Article ?E) all land$ and appurtenant territorial waters and air space which constitute territory Application of successive treaties relating to the same su+7ect matter (Article @;): a pro#lem of priorities If a treaty says that it is su#*ect to$ or is not to #e considered as incompati#le with$ another treaty$ that other treaty will prevail As #etween parties to a treaty who #ecome parties to a later$ inconsistent treaty$ the earlier treaty will apply only where its provisions are not incompati#le with the later treaty As #etween a party to #oth treaties and a party to only one of them$ the treaty to which #oth are parties will govern the mutual rights and o#ligations of the states concerned o 6ules of Interpretation (Articles @97@@) "esse Lewis *%&e 0avid !. Adams+ !laim (1nited "tates v% &reat Dritain)/ Ar#itration$ 9E9; Issue: 1"510 treaty% Dilateral instrument relating to fishing rights in Canadian waters% Facts:

1" fisherman went to go #uy #aits$ #ut you4re only allowed to go for wood$ water$ shelter$ and damages and no other purpose whatsoevero Canadian court seized the vessel$ 1" tried to recover damages Canada says our interpretation governs$ our court has loo(ed closely$ and what we decide is what matters%o Claims ar#iter says a unilateral inter$retation b) one $art) of t&e treat) doesn2t end t&e matter as far as international law% o It may end matters for a domestic court$ #ut in an int4l court$ the salient point is .very treaty has more than one party% )o single party is the definitive interpreter of the treaty% Agreed upon interpretation usually called authentic- as opposed to a unilateral- interpretation I- constitutions: inevita#le that each organ will interpret such parts of the Charter as are applica#le to its particular functions Article @9 +aragraph 9: in good faithM ordinary meaningM termsM contextM o#*ect and purpose% +aragraph ?: context: text$ pream#le$ annexes$ any other agreement related and concluded at the same time$ any instrument made #y a party and accepted #y the other parties o#*ect and purposeo "chool of thought #efore the 8CL! that thought language was the central part of your analysis o 8CL! o$ens t&e door to intent Article @? Supplementary means of interpretation +reparatory wor( (statements made$ drafts) Aistinguish that from documents that relate to any given state4s ratification of a treaty <hy does a domestic court4s interpretation matterB +erhaps a party4s interpretation could #e used for estoppel purposes in later litigation5ar#itration +ractice under the treaty and issues of ac,uiescence o $rinciple of :aximum "ffectiveness 1sed #y ICJ 3ther things #eing e,ual$ texts are presumed to have #een intended to have a definite force and effect$ and should #e interpretated so as to have such force and effect rather than so as not to have it$ and so has to have the fullest value and effect consistent with their wording (so long as the meaning #e not strained) and with other parts of the text #etting -ut of a 'reaty o Invalidity (Articles >?7C@) Article >?: validity of a treaty may #e impeached onl) t&roug& t&e a$$lication of t&e V!L% Article >@: a state which is no longer #ound #ecause of invalidity5termination doesn4t escape an o#ligation to which it is su#*ect under international law independently of the treaty Article >>: severa+ility In cases of fraud and corru$tion only the victim state may invo(e invalidity$ and then it has the option of invalidating the whole treaty or only the clauses to which the fraud or corruption relate in cases where the treaty is a#solutely void ( coercion3 us cogens) there is no severa#ility/ the treaty is entirely null and void Article >C: a state is prohi#ited from claiming invalidity if after #ecoming aware of the facts it has agreed that the treat remains in force or #y reason of its conduct must #e considered to have ac'uiesced Ultra Vires %reaties: Article >=: internal law regarding competence to conclude treaties unless that violation was manifest and concerned a rule of its internal law of fundamental purposeo

2anifest: o#*ectively evident to any state conducting itself in the matter in accordance with normal practice and in good faith If our pres gave Alas(a to Canada$ they should (now he can4t do that without the advice and consent of the "enate 6eluctance of tri#unals to loo( #ehind the ostensi#le authority of a foreign minister to commit his state evidenced in 4astern -reenland !ase of 9E@@ o )orway was #ound #y an oral statement saying no pro#lems Article >:: "rror Infre,uent/ usually regard maps and errors in mapping It affects consent only if it was an error as to a matter which formed an essential #asis of the consent given to the treaty )ot void$ #ut voida#le Can4t void if the mista(en party #rought the error upon itself Aistinguish errors in wording v% errors in the treaty (text doesn4t affect the validity of the consent and falls under Article G>) Article >E: Fraud Aiff from error: destroys the whole #asis of mutual confidence #etween the parties .x: false statements$ misrepresentations or other deceitful proceedings #y which a state is induced to give consent it otherwise wouldn4t have given Article C;: orruption only acts calculated to exercise a substantial influence on the disposition of the re$resentative to conclude the treaty may #e invo(ed as invalidating the expression of consent which has purported to have given oercion Article C9/ of re$resentative: o Consent has no legal effect o Includes a threat to ruin the career #y exposing a private indiscretion in addition to threats to in*ure his family Article C?: Coercion of a state o Illegal threat or use of force invalidity of treaty o Controversial: 9E state amendment saying political and economic pressure- is coercion "cope of the provision is over#road if include all pressure o 8oid$ not voida#le 0y 'erms; onsent (Article C>) +ossi#le to include a provision saying any state may terminate this treaty upon = months notice% )ature of treaties may mean that it4s implicitly termina#le !reaties of alliance: can terminate !erritorial Aenunciation5withdrawal ma) be revo.ed #efore the end of the period when it would ta(e effect (Article =:) Aenunciation5<ithdrawal from treaty which contains no provision regarding termination +ermits where such a right may #e implied #y the nature of the treaty Loo( at intent and nature of the treaty 0reach (Article =;) 2aterial #reach gives rise to a right in the other party to a#rogate the treaty or to suspend the performance of its own o#ligations under the treaty If the treaty is multilateral 2ay *ointly react to the #reach #y suspending or terminating the #reach$ and may totally suspend5terminate or only in relation to the #reaching party

9;

If an individual party is reacting its right is limited to suspending the operation of the treaty in whole or in part as #etween itself and the defaulting state Advisor) O$inion on Namibia$ 9EG9 "A violated the o#*ect and purpose of the mandate$ and therefore it should #e #ro(en !his legal relationship is over For o#vious reasons$ consent of the wrongdoer is not re,uired for termination A$$eal 1elating to t&e "urisdiction of t&e I!AO !ouncil (India v% +a(istan)/ 9EG? +a(istan #reached$ India #reached in response If you say terminated$ have to see how the other party reacts and if they accept that +arty isn4t allowed to purport to terminate5suspend a treaty$ then declare that the treaty #eing now terminated or suspended $ its *urisdictional clauses were in conse,uence void$ and could not #e invo(ed for the purpose of contesting the validity of the termination5suspension !ase !oncerning t&e Air #ervices Agreement between ,rance and t&e United #tates / 9EG: 2ay still ta(e counter7measures$ notwithstanding an agreement to ar#itrate$ as long as they are proportional Impossi+ility (Article =9) results from the permanent disappearance or destruction of an o#*ect indispensa#le for the execution of the treaty% if temporary$ may only #e grounds for suspension not if the result of a #reachhanged ircumstances (Article =?) ,ive conditions w&ic& must be met !he change must have #een of a fundamental character !he change must have #een unforeseen (if the treaty contains provisions for certain contingencies$ e%g%$ economic hardships$ the condition is not unforeseen) !he circumstances which have changed must have #een an essential #asis of the consent to #e #ound #y the treaty !he effect of the change must #e to transform radically the extent of the o#ligations of the party invo(ing the change as a ground of termination !he o#ligations in ,uestion are still to #e performed under the treaty- (hence$ the article does not apply to treaties whose provisions have #een fully executed) !ase !oncerning t&e -abci.ovo/Nag)maros Pro ect ('ungary5"lova(ia)$ 9EEG 'ungary says politics$ economic$ environmental- changes Advisory says foreseea#le %&e ,is&eries "urisdiction !ase (1nited 0ingdom v% Iceland)/ 9EG@ Aggressive fishing industry$ want to push it from 9?7C; miles )o$ nothing has changed enough5effects aren4t

99

-ther Sources of IL
#eneral $rinciples of Law 6ecogni8ed +y Nations o Article @:(9)(c) o "chachter4s C categories !hese are not a part of Article @:% #c&ac&ter2s view% Princi$les of munici$al law 5recogni6ed b) civili6ed nations7 "ilesia (!&or6ow ,actor) Case) o 3ne of a series of cases which operated in the 9E?;s coming out of the !reaty of 8ersailles% +ost7<<I$ &ermany pushed out of "ilesia$ #ut there were still many ethnic &ermans there% o 8ersailles included protections for those minorities$ and there were #ilateral agreements #y which +oland agreed to protect the &ermans there% o +oland ta(es steps to expropriate a factory$ and this case ends up #efore the +ermanent Court of Int4l Justice% o Court says this is a violation of these post7<<I agreements% "upposed to protect the property$ failed to$ violated agreement% o )othing in the agreements naming conse,uences for violation% Court draws upon its authority under its statute to apply general principles of international law$ which says that ever) violation of an engagement involves an obligation to ma.e re$aration%o As of that time$ this concept had not #een authoritatively stated #y an international tri#unal% International Criminal !ri#unals (4rdemovic case) o .rdemovic was young ethnic Croat who was seized #y the Dosnian "er# army while they are inflicting atrocities against Dosnian 2uslims% Dosnian "er# army says with a gun to his head shoot those Dosnian 2uslims- and that they (new where his family was% .rdemovic shot them$ accepts wrongfulness of act$ #ut says he was under duress% o <ar crimes tri#unal analyzes criminal law systems worldwide and determines that duress may mitigate the sentence% "ome principles of municipal law are inappropriate for international o 1ig&t of Passage over Indian %erritor) case (India v% +ortugal) .asements are not in international law "overeignty issues: not the same thing as national property law $ositivist view: municipal laws must get state consent through custom or treaty in order to #ecome international law o "chachter suggests positivist is #est for !he individual Dusiness companies .nvironmental dangers "hared resources o !un(in$ "oviet scholar$ says need something in writing o 'en(in is a firm internationalist and says that there is international common law "chachter says use it to fill in ga$s- #etween treaty law% o "tates already #ought into regulation of some (ind relating to this% <hat we4re doing is helping fulfill their expectations% &eneral principles of law derived from t&e s$ecific nature of t&e international communit) Pacta sunt servanda em#odied in 8CL!$ so could say a treaty norm o Dut in the past states have (ept treaties #ecause they #elieve they are #ound #y law

9?

.ven if you can4t prove opinion *uris with practice$ could still say it is law among civilized nations #ecause of the very nature of what a legal community is all a#out )on7intervention !erritorial integrity "elf7defence Legal e,uality of states +rinciples intrinsic to the idea of law and #asic to all legal systems Later legal norms supersede earlier legal norms Pacta sunt servanda Nemo $lus uris transfere $otest 'uam i$se &abet ( no one can transfer more rights than he possesses-) "ometimes tri#unals say this without doing an analysis +rinciples valid through all .inds of societies in relationships of hierarchy and co7ordination Concept of e,uity o %&e 0iversion of Water from t&e 8euse ()etherlands v% Delgium)/ 9E@G Delgium is constructing canals$ )etherlands is saying it4s violating an agreement over the use of the water )etherlands is complaining a#out the nonperformance of duties from the agreement on the part of Delgium )etherlands already #uilt canals which are inconsistent with the treaty "eparate opinion #y 'udson: <here two parties have assumed an identical or reciprocal o#ligation$ one party which is engaged in a continuing non7 performance of that o#ligation should not #e permitted to ta(e advantage of a similar non7performance of that o#ligation #y the other party lean hands doctrine o %em$le of Prea& Vi&ear case/ 9E=? )orthern province of Cam#odia Court says there is a principle of estoppel that exists and sees it as a principle to operate as a matter of law$ generally )o nation7#y7nation analysis Could lin( the concept of ac,uiescence o Nort& #ea !ontinental #&elf case &ermany #etween )etherlands and Aenmar( in a concave coastline/ didn4t want e,uidistance method Court says there are e,uita#le reasons not to have to accept that/ one of the things to o#serve is when drawing delimitation$ loo( at whether it is proportionate o !orfu !&annel case$ 9E>E elementary considerations of humanity ever more exacting in peace than in war Al#ania and Corfu on either side% Al#ania is scared of a conflict with &reece and doesn4t want armed ships there% 10 was sea power$ sends ships through$ hit mines and some are damaged% !his case is cited all the time in international environmental law +rinciples of *ustice founded on 5t&e ver) nature of man as a rational and social being7 <udicial .ecisions: Article @:(9)(d) o !ypes of tri#unals 'undreds of ad hoc ar#itral #odies o 1es udicataB #tare decisisB o

9@

ICJ: "tare decisis is not technically a principle% !he decisions are #inding only on those two parties in that case "till persuasive authority$ though Dut without stare decisis$ who wants to #ring a case #efore the courtB Duergenthal said they do consider stare decisis o )o a#ility to create international common law or expand existing laws 'eachings of $u+licists: Article @:(9)(d) o Civil law it4s common to refer to a treatise as resolving a case o 8ery rare to have the ICJ cite in a ma*ority opinion "ometimes still referred to$ even if not cited Decause there are so many disagreements +etween writers and scholars o )on7official #odies Institut de Aroit International International Law Association 6estatement of the Foreign 6elations Law of the 1nited "tates o "(ewed to developed countries o Allowed to loo( at them as su+sidiary sources =Soft Law> o Acts of I-s <hat conditions must exist to generate lawB &A resolutions: ,ilartiga v. Pena Irala/ 9E:; <rongful death action #rought in Federal Court in 1"% Father and a sister #rought against +ena7Irala$ who tortured the #rother to death when he was a +araguayan police officer Court says it4s international law that you can4t torture people and they cite a 1) declaration$ which is an authoritative- statement o "pea(s to a legal norm$ has widespread adherence$ no ma*or defect$ thin( it is helping push state practice in a particular direction Legalit) of t&e %&reat or Use of Nuclear Wea$ons (Advisory 3pinion)/ 9EE= "hows that a series of resolutions fell s&ort of establis&ing a rule in international law 2any dissenting opinions addressed this %e9aco Overseas Petroleum et al. v. Lib)an Arab 1e$ublic / International Ar#ital Award$ 9EEG Li#ya made an agreement with oil companies$ then tried to nationalize the property that the deeds of concession were for 6esolution 9:;@ (9E=?) includes reference to international law o 8oting analysis says it4s a good law o .conomic$ geographic$ and ma*ority were all good +aragraph :C: resolution is implying that it4s within the right of each state to decide compensation (ave to loo. at t&e votes 3utside the scope of article @: o odes;#uidelines;Standards;$olicy Statements .xamples 8oluntary codes and guidelines: o Codes for <'3 re: #reast mil( o 1sually followed$ even #y non7accepting states International standards o 3#ligation is created #y general acceptance in fact rather than the procedure which made the standard International 6ules of )&3s o 3lympics (autonomous regime$ #inding)$ cy#erspace +olitical declarations and concerted acts

9>

o Informal v% formal o Can #e used to settle disputes <hat conditions must exist to generate lawB "ometimes they will interface with treaty regimes

9C

'he Actors of IL: States, I-s, N#-s, and Individuals

6ecognition of States ? #overnments o State> defined (6estatement K!hirdL): under international law$ a state is an entity that has a defined territory and a permanent population$ under the control of its own government$ and that engages in$ or has the capacity to engage in$ formal relations with other such entities% o 6est @d J ?;= capacities, rights, and duties of states "overeignty over its territory and general authority over its nationals "tatus as a legal person$ with capacity to pwn$ ac,uire$ and transfer property$ to ma(e 0s and entr into int4l agreements$ to #ecome a mem#er of I3s and to pursue$ and #e su#*ect to$ legal remedies Capacity to *oin with other states to ma(e international law$ as customary law or #y international agreement o &hen does the @uestion of statehood ariseB Drea(up of an existing state "ecession or attempted secession #y part of a territory <hen foreign control is exercised over the affairs of a state <hen states have merged or formed a union Claims #y constituent units of a union5federation Communities which have a special international status #y virtue of treaty or customary law and which claim statehood for certain purposes o 'raditional criteria in identifying a state (9E@@ 2ontevideo Convention on the 6ights and Auties of "tates$ Article 9) !erritory +ermanent population 6uled #y own government A#ility to engage in foreign relations RIn 9E@@$ this is how the <estern 'emisphere identified the criteria% !his helped form the ideas of statehood that are in practice today% o 6ecognition of States !wo theories onstitutive: the act of recognition #y other states confers international personality on an entity purporting to #e a state .eclaratory: depends on the facts and one whether those facts meet the criteria of statehood laid down in international law% o 2ontevideo Convention #asically endorses this theory !he 8atican .xample "hould the 8atican #e regarded as a stateB o 'as territory$ population$ governs Catholics (the 'oly "ee) o Is it recognized #y other nationsB 3ther states have em#assies to the 8atican$ ?; some states% o 8atican has entered into treaties "mallest independent state in the world 2ost residents are dual7nationals% Italy exercises some powers in the 8atican o +olice powers !he 'oly "ee is sovereign to a glo#al population H are they really a gov4tB )ot a mem#er of the 1)$ #ut is a non7mem#er something or other% <hen it comes to 1) thingies$ it uses its nature as a state to get access$ #ut its other nature gives it weight when it spea(s H it spea(s for a glo#al population% 3ther entities +alestine .1

9=

o 2oney 7 currency Antarctica o )o population "xample of 'ransition: former Nugoslavia 1sed 2ontevideo$ #ut also used a #unch of other guidelines (.%C% &uidelines on the 6ecognition of )ew "tates in .astern .urope and in the "oviet 1nion) o 6espect for Charter of 1) o 6ights of ethnic5nationals5minorities o Inviola#ility of all frontiers o Aisarmament and non7proliferation o "ettlements #y agreement o 6ecognition of #overnments Ae *ure gov4t ('aiti I Aristide) Aristide has control of 'aitian assets outside 'aiti Ae facto gov4t ('aiti I Cedras) Collective non7recognition of illegal regimes Secession re@uirements <ill have to demonstrate su#stantial independence$ #oth formal and real$ #efore it will #e regarded as definitely created 6ecognition v% diplomacy: diplomatic relations do not constitute a seal of approval- Aeputer "ecretary of "tate <arren Christopher$ 9EGG 2exico gives no recognitions o .mergence of new criteria: collective recognition In connection with the disintegration of the 1""6 International -rgani8ations o Formation5+ersonality 'ow do they interactB 3ften they enter into agreements with their host states Legal acts on the international plane rather than within a municipal law system o 'ypical -rgans Aifferent organs have different powers under the treaties Can #e referred to as living creatures$ #ecause of changes in the treaty (amendments) and through the changes wrought #y practice%

International organization

+lenary organ

.xecutive organ

"ecretariat

Judicial organ

.xpert commission or committee

Airectly elected parliament

.xample: 1nited )ations

9G

'as a #ilateral agreement with the 1" a#out 'S #eing in )N which addresses ,uestions of suit$ etc% important- ,uestions re,uire ?5@ votes% "tudy the 1) 2eans that practice #ecomes extremely important for interpreting the charter of an I3 Article ?C T Ch% G of the Charter lead to a legal situation where if the "ecurity Council is acting under Ch% G and adopts a resolution saying state Q must do something$- that is regarded as a #inding decision Articles E?7E=: International Court of Justice EG79;9: "ecretariat Non%#overnmental -rgani8ations o not usually created #y treaty (hence$ )&3) o play important role in law creation ex: International Campaign to Dan Landmines eventually those gov4ts adopt and adhere to a treaty #ecause of the )&3s o interpretation o enforcement go gather information and map it against treaties and pu#licizing it ex: 'uman 6ights <atch ex: Amnesty International o )&3 reps aren4t elected H have #een formed$ good at fundraising H money coming from wealthy countries H are the )&3s pushing the wrong messagesB 3zone v% fresh water o )o votes for what the important issues are$ there is no democracy in )&3s Individuals o 'uman rights treaties o !rans7#order investment treaties o Also incur responsi#ility/ piracy o .xamples of individuals in international law Crimes under CIL for which individuals could #e tried and punished #y national courts Forceful intervention #y a state to protect its own nationals from mistreatment in another state Implicated under the CIL of state responsi#ility If an alien individual is in*ured #y a wrongful act or omission #y$ or attri#uta#le to$ a state and if the individual is una#le to o#tain redress under the legal system of that state$ the state of which the in*ured is a national may intercede and assert a claim against the offending state International agreements created rights in individuals and *uridical entities against foreign states

9:

Law of "tate 6esponsi#ility

State 6esponsi+ility #enerally
+rimary- v% "econdary- 6ules o $rimary: the rules that determine the legality or illegality of conduct o Secondary: determine the legal conse,uences of failure to fulfill o#ligations esta#lished #y the primary rules principle of international law that the #reach of an agreement involves an o#ligation to ma(e reparation in an ade,uate form%- +ermanent Court of International Justice$ !&or6ow ,actor) Case ?;;9 ILC Articles o &eneral Assem#ly commended- them to states$ influential with tri#unals o )o movement to turn them into a #inding treaty !hreshold 6ule ILC Articles o 9: trigger article to #ring others into play: if you have esta#lished that there is an internationally wrongful act$ it will trigger rights and responsi#ilities for the states involved% o ?: elements of an internationally wrongful act (act5omission$ attri#uta#le to a state$ #reach of international o#ligation) o @: this issue will #e governed #y international law ILC Articles >799 'ypo: can we attri#ute Din Laden4s acts to AfghanistanB o Ae facto gov4t was the !ali#an o Al Saeda were the trainers5promoters o Article 99: if the state ac.nowledges and ado$ts the conduct% Aid AfghanistanB "tate said they hadn4t accepted$ condemned 2ight it #e implied consentB Decause for years had as(ed !ali#an to ,uit it o Article E: absence or default of the authorities o Article >: conduct of an) organ is the conduct of the state/ conduct- includes omissions Article =: It does not matter if an act is attri#uta#le to the e9ecutive: legislative: or udicial branc&$ nor whether it was entirely a domestic affair ICJ v% International Criminal !ri#unal for the Former Nugoslavia standard o "ffective control test of t&e I!" too high !est announced in Nicaragua$ said they must #e organized military or paramilitary actors Found that #ecause it didn4t have effective control$ "er#ia wasn4t responsi#le o IC!N lowers the standard H it4s enough that you can say that "er#ia was #asically underta(ing support such that the Dosnian "er#s are acting on #ehalf of "er#ia ILC Articles 9?79E o 9?: doesn4t matter what (ind of law it is #rea(ing o 9>: temporal/ if #reach occurs at the time of the act$ then/ if the #reach is the effect$ then the #reach is still at the time of the act 6ole of Fault o )egligence$ lac( of good faith$ intentional failure to comply with standards o Issues arise mainly in connection with trans/boundar) $ollution of t&e atmos$&ere: rivers: or ot&er common waters o Is intent necessaryB Is negligenceB Is actual in7ury re,uiredB o In the case of some primary rules$ a #reach does not occur unless and until in*ury occurs (duty to protect an em#assy is #reached with the em#assy is attac(ed)

<hat is 2eant #y an Internationally &rongful ActB

Attri+ution of onduct

<hen is conduct a +reachB

9E

o o o

!reaties which govern relations #etween states: actual violation must ta(e place$ not *ust the potential .151" trade law case: 1" had not employed those laws against the .1$ so no violation yet Latent effects 3#ligations erga omnes ICJ: !ase !oncerning t&e ;arcelona %raction: Lig&t and Power !o. (Delgium v% "pain)/ 9EG; 3#ligations to the international community as a whole$ due #y the very nature of the rights involved 'as not led to su#stantial international litigation$ though accepted #y the ILC and 6est @d 1) mem#ers may act if a #reach of the duty to cooperate has #een reported to the 1)"C After a *udicial finding is made #y an International !ri#unal Action may ta(e various forms$ such as political or moral condemnation

Concept of State rimes

Article 9E: peace and security concerns/ self7determination of peoples/ slavery$ genocide$ apartheid/ environmental +eople commit crimes$ not states% 2ixed reactions$ with some strong opposition Article ?;: onsent o Consent validly given is o(ay$ as long as the act remains within the limits of that consent o Aoes not apply if the o#ligation arises out of a peremptory norm of general international law o 'ypo: entering air space$ as( for permission$ #ut who can grant the permissionB Article ?@: Force :a7eure and Fortuitous .vent o Irresisti#le force$ unforeseen event$ ma(ing it materially impossi#le to perform o#ligation o Force of nature hypo Article ?>: .istress o Aoing something to save lives o 'ypo: fire on airplane$ landing in Iran instead of landing in the water o 1ainbow Warrior case &reenpeace was promoting non7nuclear zone in "outh +acific France destroys #oat$ causes a death$ two French agents get sentenced to +acific island time 3ne had a#dominal pain$ the other was preggers and her dad was sic( )U4s dr% said yes to a#domen pain for tests in +aris Doth ultimately circumstances (eeping them there went away$ #ut they stayed in +aris anyway Article ?G: to t&e e9tent t&at t&e circumstance $recluding wrongfulness no longer e9ists $- then don4t get to (eep nonperforming Aidn4t see( )U4s approval in good faith #efore #ringing preggers #ac( to France ILC articles loo(ed at cases li(e this for instances that preclude wrongfulness Article ?C: Necessity o If: safeguarding an essential interest against a grave5imminent peril/ didn4t seriously impair an essential interest of the state toward which the o#ligation existed o Can4t #e invo(ed if it4s a peremptory norm or if #y a treaty which doesn4t allow for excludes the possi#ility of necessity$ or if the state has contri#uted to the occurrence of the state of necessity o -abci.ovo3Nag)maros Pro ect "ame case as in treaty law H fundamental changes in circumstances$ etc% (CCG7E) "ay that it4s an environmental peril Dut peril only possi#le )ot imminent$ long term <ater has improved over time% All of these exceptions are still su#*ect to peremptory norms onse@uences of successful invocation (ILC Article ?G) o Can4t (eep nonperforming if the circumstance ends

ircumstances $recluding &rongfulness

?;

Compensation for any material loss caused #y the act

ountermeasures (i%e% "elf 'elp-)

ILC articles >E7C>/ among the most controversial$ as they try to compromise #etween seemingly irreconcila#le positions o >:: esta#lishes procedural re,uirements$ such as negotiations o >E: o#*ects and limits of countermeasures 2ust #e ta(en in such a way as to permit the resumption of performance of the o#ligation o C;: o#ligations not affected #y countermeasures/ prohi#its countermeasures if !hreat5use of force is prohi#ited #y the 1) Charter .xtreme econ5political coercion designed to endanger the territorial integrity or political independence of the state which committed the wrongful act Conduct which infringes the inviola#ility of diplomatic5consular agents5premises5archives5docs +eremptory norm o C9: proportionality o C?: conditions relating to resort to countermeasures 'ave to give notice #efore you ta(e the C2s If other side ceases wrongful conduct$ and ar#itration is going forward$ cease C2s o C@: termination of countermeasures o C>: measures ta(en #y states other than an in*ured state 2ultilateral treaties: if o#ligation is owed to a num#er of states$ you may #e a#le to respond/ may def if you are in*ured directly or owed to all- human rights o#ligations !ase !oncerning t&e Air #ervices Agreement between ,rance and t&e United #tates $ Ar#itral Award of Aec% E$ 9EG: o France saying no small planes$ 1" says no flights into LA o )eed to ma(e sure they4ll ar#itrate fast o 0eep one side from getting #enefit while in*ured state has to ar#itrate o "elf7contained regimes .1$ <!3: mem#ers #ring dispute settlement and there is a #inding process -abci.ovo3Nag)maros Pro ect o 8ariant C ,uestion: can they ta(e the countermeasure to change the plan completelyB o Court says no/ countermeasure was unlawful #ecause it was not proportionate 6eprisal56eciprocal56etorsion Aistinguished o 6eprisal is an act which would #e unlawful if not for the prior illegal act of the state against which it is ta(en o 6eciprocal measures refer to nonperformance #y the in*ured state of its o#ligations toward the offending state when such o#ligations correspond to5are directly connected with the o#ligations #reached% o 6etorsion usually tal(ing a#out an act that is allowed in the first place )ot unlawful/ unfriendly6eparation for in*ury o Indemnity is the most common form of reparation #ecause money is the common measure of valua#le things o ILC Articles @>: forms @C: restitution In (ind: Aesigned to re7esta#lish the situation which would have existed if the wrongful act5omission had never ta(en place/ usual sanction for a 0 violation @G: satisfaction )o actual harm$ *ust to reputation$ etc% Could #e apology$ could #e discipline @:: interest

6eparation and 6ules for "ee(ing It

?9

In international law$ paid from the point where the in*ury occurs until the compensation is paid @E: contri#ution to the in*ury o 6estitiution5 ompensation @=: compensation Iran Air#us Flight =@C: figure out life expectancy in certain country$ salary levels in diff countries$ etc% +rocedural 6ules <hen Dringing a Claim o ILC Articles >9: violating state must cease wrongful act >?: invocation of responsi#ility >@: notice of claim >C: loss of the right to invo(e responsi#ility >=: plurality of in*ured states/ may #e re,uired to provide guarantees of non7repetition >G: plurality of responsi#le states >:: invocation of resp #y a state other than an in*ured state o )otice5<aiver5Laches Laches: the trend in recent claims programs has #een for the agreement or instrument esta#lishing a tri#unal to set relatively #rief time limits for receipt of claims o "tanding "tates may present claims only if they have the re,uisite legal interest "ome international conventions allow any party to #ring a case o Admissi#ility Article >>: to #ring a claim against another state on #ehalf of a person5company$ need to worry a#out the nationality of the claimant .x: Iran plane explodes$ @C; people (illed H Iran only allowed to as( for the Iranian nationals Article >> also has the exhaustion of local remedies rule <ays around it: no courts in the country$ appellate courts can only decide issues of law$ not fact$ and lost at trial court on issue of fact 2echanisms for "ettlement5.nforcement of Claim o 3ften countries pay if they are ordered to o Li#ya wouldn4t pay$ what does !exaco doB 3il% )eeds to #e exported to #e refined and sold$ so !exaco proceeds with the 'ot 3il- cases$ and go after the oil in various *urisdictions% .ven in situations where they don4t get it successfully$ they tie it up in litigation o 1) compensation commission set up to handle claims against Ira, after the first &ulf <ar 2any countries felt they were in*ured #y Ira,4s actions o In cases of noncompliance .xecution against assets of non7complying state .xecution through domestic courts of state in which funds of *udgment de#tor are located .nforcement provisions in multilateral treaties .sta#lishment of a fund for payment of awards

??

International Aispute 6esolution

-+ligation to Settle Aisputes
1) Charter 3#ligations: Article ?$ para @ settle their international disputes #y peaceful meanso Additional re,uirement to settle if it endangers peace and security or if the 1)"C tells them to !reaty o#ligations of peaceful settlement o After the 1) Charter$ #ilateral treaties that dealt solely with settlement decreased sharply o Aispute clauses in other treaties onsultation;Negotiation o !rying to avoid disputes/ used #efore a conflict occurs o +rovisions for clearing an action with another country #efore you do it o .nough of these (inds of re,uirements under different treaties that people are positing a duty to consult o Aisadvantages: )ot #inding Asymmetry in power #etween the countries/ winner isn4t always the stronger legal position :ediation o 2ediator has a more active role and furthers negotiation o Individuals$ committees$ or institutional #odies "ecretary &eneral or appointee 'eads of gov4ts and diplomats o 2ediator ma(es proposals$ non7#inding In@uiry; onciliation o !rying to figure out facts of the situation o Come up with a solution and propose it o )on7#inding o Loo(s li(e ar#itration o Iceland5)orway Continental "helf Aispute/ 1e "an 8a)en Island !rying to decide where the continental shelf is 9E:;: Iceland and )orway create ?7person conciliation commission 9E:;7:9 commission investigates and proposes a dividing line 9E:9: Iceland and )orway incorporate proposal into a treaty 8CL! Article ==: if you are trying to terminate a treaty$ )ou ma) be bound to arbitration: udicial settlement: or conciliation Ar+itration o Advantages It will #e resolved$ one way or the other Li(e going into a court$ in that you have a level playing field Can (eep everything confidential (the hearings closed to the pu#lic$ (eep pleadings confidential$ (eep award confidential) o Aisadvantages Could ta(e a couple of years Is #inding o #etting started .sta#lishment #y compromis 2odel 6ules #y the ILC: the compromis should say o "u#*ect7matter o !he method of constituting the tri#unals and V of ar#s o Law o +ower to ma(e recommendations

Non%Ad7udicatory +rocedures 5 Non%0inding Forms of Aispute 6esolution

0inding Forms of Aispute 6esolution

?@

o 6ules of procedure o Can say we want these rules #ut change rule 9; .sta#lishment #y compromissory clause +rovision inserted into something li(e a treaty +ermanent Court Ar#itration "tate v% state "tate v% I3 "tate v% person International Centre for the "ettlement of Investment Aisputes 3nly state v% person "ome ,ey issues (for all of these$ can pic( a shelf set of rules$ and *ust change one) Appointment of ar#itrators Choice of forum IC"IA o <ashington Convention (9E=C) o 9C> states are parties to this treaty$ including the 1" o *urisdiction arises when contract calls for it #ilateral treaty calls for it ad hoc consent host state national law calls for it o how to get a case to IC"ICB Dilateral investment treaty Investor7state contract Local law Choice of procedural law 'earing ,uestions$ award issues Choice of su#stantive law Nou can choose international law Can choose national law o <ashington convention says parties can agree$ #ut in a#sence of agreement$ will apply the law of the contracting state party to the dispute "ome salient legal pro#lems Severa+ility of the ar+itration clause If a party is claiming that the treaty has #een #reached$ and so is suspended or terminated$ the ,uestion is does that include the portion that provides for #inding dispute settlementB 1sually say no it4s a separate agreement 3therwise what would #e the pointB .enial of 7ustice #y refusal to ar#itrate Su+stantive pro+lems !he authority of truncated tri#unals In t&e 8atter of t&e International %itle to t&e !&ami6al %ract / 9E99 o 3riginal idea of the treaty was center of the channel- is the location to use o Issue comes up with some regularity in the context of national courts (challenges to the final award) 6ole of national courts .nforcement of agreement to ar#itrate Defore ar#itration even ta(es place )ew Nor( Convention on 6ecognition and .nforcement of Foreign Ar#itral Awards

?>

Art II(9): each contracting state shall recognize an agreement in writing under which the parties underta(e to su#mit to ar#itration all of any differences%%% .nforcement of ar#itral award )ew Nor( Convention on 6ecognition and .nforcement of Foreign Ar#itral Awards o Art III: each contracting state shall recognize ar#itral awards as #inding and enforce them%%% o Art 8: Can show lac( of capacity$ lac( of notice$ matters outside scope of su#mission$ improperly created ar#itral panel$ award is not yet #inding$ enforcing state doesn4t allow ar#itration under its law on such a matter$ enforcement would #e contrary to the pu#lic policy of te enforcing state !wo states involved$ it4s more difficult and much less common to try to enforce in the state courts H usually gets played out as a diplomatic issue International ourts (e%g% the ICJ) o

'he International ourt of <ustice

-rigins +%C%I%J% in 9E?9 o Always a 1" *udge selected #y the mem#ers of the League of )ations$ which didn4t include the 1" o <hy put the court in the 'ague if the League is in &enevaB I%C%J% in 9E>= o Article G of 1) Charter$ paragraph 9$ sets up principle organs of 1) o Article E?: principal *udicial organ o E@: all mem#ers of the 1) are ipso facto parties to the statute of the ICJ o ?%9 H "tatute of the I%C%J% +rincipal 'as,s Contentious cases o !wo countries #attling it out #etween themselves o ?5@ of the doc(et Advisory opinions o Agencies or organs can #e empowered to as( ,uestions of the court o 1) Charter$ Art E@: &eneral Assem#ly$ "ecurity Council o organs$ specialized which are authorized within the scope of their authority 3ther functions o Appointing authority for ar#itrators5chairmen <udges and .oc,et Article ?: independent *udges$ elected$ regardless of nationality$ moral$ need ,ualifications for their country4s highest court o Law professors or foreign ministers who are lawyers$ don4t necessarily have to #e experienced *udges o 2ore li(e appellate cases$ no need for trial experience Article @: o 9C *udges o )o more than ? from one state Article >: elected from a list of persons nominated #y national groups in +ermanent Court of Ar#itration o )eed a ma*ority vote in #oth &A and "C o !hen loo( at the availa#le slots and ta(e the highest vote7getters o <.3& gets C *udges (always going to have a 1"$ French$ and 10 *udge on the court) o Asia5)ear .ast gets @ *udges (including China$ which is guaranteed one) o Africa gets @ o Latin America gets ? o .astern .urope gets ? (including 6ussia$ which always gets one) Art 9@: E year terms Independence of the *udges not entirely the case

?C

o o

Always have the firm C *udges on the court H not *ust a nod to those people$ a nod to their countries$ which you want on the court Art @9: get to sit on cases for their nationalities$ if there is none of your nationality on the court$ you get to appoint an ad hoc *udge

.oc,et ?5@7@5> contentious cases )ot insignificant num#er of advisory opinions Current doc(et: extraterritorial stuff$ armed force$ genocide o 2aritime Aelimitation #etween )icaragua and 'onduras Issue is where should the maritime #oundary #eB $ursuing a ontentious ase File an Application or Joint Compromis 6e,uest for $rovisional 2easures of +rotection o !ase !oncerning United #tates 0i$lomatic and !onsular #taff in %e&ran (1"A v% Iran)$ 9EGE Iran doesn4t show up$ argue that the conflict is ongoing and this is only part of it Iran argues that it is a domestic matter As(ing for the individuals to #e released$ Iran is saying that this is the final *udgment$ which is not what interim measures should #e !here may #e situations where there is a congruence #etween the two$ #ut that doesn4t mean the court won4t issue them o Loo( for irrepara#le harm 5 urgency "atisfied in Iran and Nicaragua cases Aegean #ea !ontinental #&elf !ase (&reece v% !ur(ey)$ 9EG= !ur(ey is doing seismic exploration of &reece4s sea#ed )ot harming anything Contrast with if they start drilling for oil o +rima facie *uris needed <urisdiction;Admissi+ility +hase o +rima facie *urisdiction 'ave to show some possi#ility that down the road there is *uris If not$ can4t get interim o -nly states may #e parties to cases #efore the court Art @C: "tates parties to the present statute )on 1) mem#ers may #e a party to the "tatute of the ICJ Art @C$ para ?: If not a party$ may #e a#le to #ring a case if it4s authorized #y the 1) Deing a party to the ICJ doesn4t mean they have plenary *uris over any cases #etween mem#ers$ only means you are capa#le of #eing in the *uris of the court o Ad hoc Art @=$ +ara 9: all cases which the parties refer to ito 0y treaty Art @=$ +ara 9: all matters specially provided for in the Charter of the 1) or in treaties ad conventions 2ay #e arguments a#out whether dispute is covered #y the treaty$ whether the treaty is in force$ a#out the contents of the treaty 1" v% Iran: 1" loo(s at > treaties$ says they all say can4t do that% )icaragua v% 1": loo( at treaty$ court says that *uris exists under it (para GG7:@) o ompulsory *urisdiction "tatute of the ICJ$ Art @=$ para ?: may at any time declare that they see compulsory$ ipso facto$ all disputes going to the court Country issues a declaration and sends to the ICJ su#mitting themselves to the *uris of the ICJ

?=

 'oped that everyone would su#mit declarations A#out G; countries 1nited "tates: no longer 10 is the only permanent mem#er still on the list )icaragua argued that 1" was exposed to *uris #y treaty and compulsory Argument a#out )ic4s acceptance is that in 9E?E )ic said that it ratified the +CIJ statute )ic4s pro#lem was that they didn4t deposit the ratification of the +CIJ statute Court says that when )ic *oins the 1) and so *oins ICJ statute$ have #oth acceptance of ICJ statute and the declaration that was made 1" says yes in 9E>=$ #ut 1" got wind )ic was going to file this case$ so 1" sends an amendment to its declaration that says it doesn4t apply to disputes with any Central American state Court says you need to give = months4 notice$ and amendment and termination and things of that nature aren4t a#out reciprocity o 6eciprocity: scope and su#stance of the agreement Charter wasn4t #efore the court$ #ut they say that CIL is now reflected #y the Charter o 6eservations to$ or conditions on$ *urisdiction 1" agreement had reservations 3ther tri#unals #y virtue of other agreements Aisputes that are within the *uris of the 1" domestic courts$ as *udged #y the 1" o Dad$ #ecause every other country can ta(e advantage of that reservation o 'appens on several occasions that the 1" (ept trying to #ring compulsory *uris$ and other countries would say domestic- and 1" can4t argue against that reservation Aisputes under a multilateral treaty$ unless%%% o :ootness;admissi+ility;non%appearance 2ootness: France stopped atmospheric testing )on7appearance In the Iran case$ Iran didn4t show )o default *udgments Ao examine the side of the non7appearing party$ which gives a #it of an advantage: don4t4 have to answer ,uestions$ #ut the court ma(es sure its views are examined 2erits phase 'hird%$arty intervention o Article =? permissive intervention: state allowed in if it has an interest$ #ut isn4t #ound$ and isn4t regarded as a party 'ard to do$ court doesn4t li(e it o 3ther situation is if it is a party to the convention which is #efore the court .amages;enforcement o Article E> of the Charter: everyone says they will comply with decisions Future for the CourtB

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International Law as a +art of 1%"% Law

:onism vA .ualism 2onism: single legal system o International law stands higher- in a hierarchy of legal norms o International law cannot #e su#*ect to national law o 1" has never dou#ted that IL is supreme$ #ut it will not give effect to a treaty provision nor CIL norm that is against the constitution Aualism: ? separate legal systems o the only way international law is applica#le is if it4s incorporated into the national system o #oth monists and dualists accept that international law does #ind a nation state% !he difference is does that norm come into the national system and have an effect on the nation state4s system%-

Foreign Affairs and the 9ASA onstitution

Article 9$ J :$ cl% @: commerce with foreign nations Article 9$ J :$ cl% 9;: Congress can define and punish piracy/ offenses against the Law of )ations Article 9$ J :$ cl% 99: Congress declares war Article 9$ J 9;$ no state shall enter into a treaty%%% with permission of Congress may compact with other states Congress: lay and collect duties$ provide for common defense$ esta#lish laws on neutrality$ call forth militia to repel invasion Article ?$ J ?: exec ma(es treaties with advice of Congress Article @$ J ?: treaties$ am#assadors$ maritime$ interp the laws of the 1" Article =: constitution$ laws$ and treaties are the supreme law of the land

ustomary International Law in 9ASA Law

Famous "tatement: Paquete Habana International law is a $art of our law$ and must #e ascertained and administered #y the courts of *ustice of appropriate *urisdiction$ as often as ,uestions of right depending upon it are duly presented for their determination% For this purpose$ where there is no treaty$ and no controlling executive or legislative or *udicial decision$ resort must #e had to the customs and usages of civilized nations%%% 1sed to say t&at customar) law is ust as good as a treat) 'ow did incorporation originally occurB It was the law of .ngland$ and so the law of the colonies$ and so came into our law as common law Could have #ecome our law when the 1" #ecame a sovereign state$ #y virtue of its status as a nation$ customary international law is a part of 1" law Is it state law or federal common law or something elseB )ormally$ common law is of the states Longsc&am$s case says that customary international law was state law$ #efore the constitution was written 2odern position is that customary international law B federal common law o !he "C affirms that in ;anco Nacionale <hat relationship to other sources of lawB Constitution o Constitutional norm W CIL "tatutes o 'en(in argues CIL is at least on par$ #ecause it is incorporated into the common law o Dut it4s not *udge7made law/ it4s a norm created #y glo#al practice o Created with the participation of the executive #ranch o If a CIL emerges at t9$ and at t? a statute emerges$ then the statute controls$ if they are on the same tier Controlling- executive acts o -arcia/8ir v. 8eese: district court held the long detention of a large num#er of Cu#an aliens was ar#itrary and a violation of CIL o "C found that the decision of the Attorney &eneral was a controlling executive act- #inding on the courts (phrase derives from %&e Pa'uete (abana)

?:

"tate law o Federal common law$ so it should win$ and seems to #e the case that it does% o "tate law is the one area where CIL comes out on top Statutory incorporation For punishing crime For providing civil redress: Alien !ort "tatute 1se of CIL when interpreting 1" "tatutes o <hen we have a statute in front of us$ and it is am#iguous$ it is appropriate to use CIL to illuminate the meaning of the statute <udicial A+stention .eference to executive #ranch views o Aoesn4t want to say something that4s the opposite of what the president is doing o <eigh that against the fact that they are a separate #ranch and need to push #ac( sometimes and not only act as a mouthpiece for the executive #ranch $olitical @uestion doctrine o ;a.er v. !arr/ 1" 9E=? 6esolution of such ,uestions fre,uently turns on standards that defy *udicial application Involve the exercise of a discretion demonstra#ly committed to the executive or legislature 2any such ,uestions uni,uely demand single7voiced statements from the gov4t Act of "tate Aoctrine

Act of State .octrine

.very sovereign state is #ound to represent the independence of every other sovereign state$ and the courts of one country will not sit in 7udgment on the acts of the gov/t of another, done within its own territory % 6edress of grievances #y reason of such acts must #e o#tained through the means open to #e availed of #y sovereign powers as #etween themselves%- Under&ill v. (ernande6/ 9:EG ;anco Nacional de !uba v. #abbatino/ 9E=> o Castro comes to power and ta(es over sugar plantations so they4re owned #y the Cu#an gov4t and not #y foreign investors/ "a##atino says the sugar never went from CA8 to Danco$ Danco never gets the sugar and doesn4t have the rights to get the money o "a##atino says it4s not only Cu#an law$ it4s also international law$ so you shouldn4t use the act of state doctrine "upreme Court says that it4s not possi#le$ under the current state of IL$ to say that it4s definitely a violation of international law to ta(e the property Dy implication says it4s not a #ad argument$ #ut it *ust doesn4t apply 3ver time:it &as become acce$ted t&at ta.ings do violate international law Second Hic,enlooper Amendment o Congress adopts a statute saying no court should do what the "upreme Court *ust dido 6everses presumptions: under the amendment$ the Court would presume that it may proceed with an ad*udication on the merits unless the +resident states officially that such an ad*udication in the particular case would em#arrass the conduct of foreign policy o Applies only to ta(ings$ #asically/ "a##atino got his money on remand% Kalama6oo #$ice 49traction v. -ov2t of #ocialist 4t&io$ia: clear violation of a treaty$ so act of state was set aside &eneral presumption is that it4s still alive and well$ #ut there are carve%outs o ?d 'ic(enlooper o 8iolation of explicit IL o <hat if gov4t says don4t apply itB ;ernstein case: executive #ranch said don4t apply and it was accepted #y the court H still has never #een accepted #y the ma*ority of the "C Not a glo+al phenomenon o "ome countries have o 2any don4t

?E

"o don4t view it as re,uired #y international law

'reaties in 9ASA Law

!reaty7ma(ing process in 1%"% law Article ?$ J ?$ clause ? of 1" const o !he $resident shall have power #y and with the advice and consent of the senate%%%-

!ypical +rocess for 1" adherence to treaty

+resident negotiates$ votes to adopt treaty$ and signs treaty

+resident transmits the treaty to the "enate

"enate Foreign 6elations Committee holds hearing$ votes$ issues report$ and sends to the "enate floor

Full "enate de#ates whether to give advice and consent (?5@ vote needed)

+resident ratifies (or accedes to) treaty

onstitutional Limits on 'reaty $ower 2ust treaties #e consistent with the constitutionB o 'extual reading of the constitution yields argument for why treaties don4t have to #e consistent with the constitution: supremacy clause lists @ things (const$ laws$ treaties) Su+7ect matter limitationsB o Assume the 1" treaties with .uro Communities$ which says there shall #e denominations of currency of X9$ XC$ etc%- Creates a new currency$ which is in .urope as well% Fully within the scope of Congress$ under their power to coin currency% Congress4 power under Art 9$ J : is incredi#ly #road% <ould cover trade$ narcotics$ etc% that treaties cover% Jefferson as 8+ under Adams said this view Congress4s powers have evolved and expanded/ certainly now in a position that t&ings t&at are in A <: = > aren2t in t&e treat) $ower o <hat if you want to do something #y treaty that Congress is prohi#ited #y doing under A 9$ J :B .%g% treaty called the gun free zones treaty Can4t do that$ acc to Lo$e6 o <hat a#out a payment to 2exicoB 'ouse of 6ep gets to appropriate funds% +ro#a#ly a constitutional pro#lem with that treaty Separation of power limitationsB o !he senate may impose conditions to its consent o If the senate includes an interpretation of the treaty$ the executive is #ound #y that interpretation o A treaty cannot increase$ diminish$ or redistri#ute the constitutional powers of the #ranches of the fed o Cannot delegate powers to others Congress4 power to declare war +resident4s command of forces Court4s exercise of *udicial power +ower of the treaty7ma(ers to ma(e international agreements for the 1" Drings up issues with I3s 0ill of 6ights limitationsB

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1eid v. !overt/ 9ECG Civilians with military forces a#road$ murdered hus#ands/ 1" military wants to ta(e *uris and prosecute$ as they are entitled to under the agreements we had with these countries% +ro#lem is that there4s no way to #ring them to the 1" and put them in a normal court% Aefendants said have a right to trial #y *ury #ecause they4re 1" citizens 1" says 1C2J is implementing the treaty$ has a right to ta(e control "C says )ou &ave to give t&em t&e $rotections of t&e ;o1: can2t ta.e t&at awa) from t&em b) treat) Federalism limitationsB o 8issouri v. (olland/ 9E?; 9E9@ 2igratory Dird Act Courts stri(e this down$ says can4t regulate 9E9= 1"710 2igratory Dird !reaty (10 had dominion over Canada) 9E9: 2igratory Dird !reaty Act 9E9E 2issouri sues arguing 9;th Amendment 9E?; "upreme Court issues decision 'olmes seems to say whether unconstitutional or not$ here is the outcome <hat would result in a treaty #eing struc( downB If the treaty is invalid% Also tal(s a#out the national interest$ which will supersede state challenges% !he treaty in ,uestion does not contravene any prohi#itory words to #e found in the Constitution H doesn4t run afoul of anything in the const !he only ,uestion is whether it is for#idden #y some invisi#le radiation from the general terms of the 9;th Amendment H if there is some critical interest that pushes #ac( against the Federal interest !reaty power can s,uish states even if you otherwise couldn4t have *ust with Congress <hat if you made a guns free treaty to overrule LopezB o 8issouri v. (olland certainly stands for that general proposition o )othing in the Constitution that says you couldn4t o Invisi#le radiation5#alance of interestsB Implementations Supreme Law of the land H treaties are *ust li(e statutes$ once enacted$ they are the law Statutory o ,oster and 4lam v. Neilson/ 9:?E !erritory disputed #etween "pain and 1" in 9:;@% 9:;>: "pain issues a grant of land in that area$ to + in ,oster v. Nielson/ 1" also issues a land grant of that area In 9:9:$ "pain and 1" enter into a treaty called the Adams 3nus- treaty$ where "pain gives FL to the 1"% "aid all grants of land shall #e ratified and confirmed .,uivalent to an act of the legislature whenever it operates of itself without the aid of a legislative position% !hat suggests there will #e treaties that re,uire legislative provisions Language is shall #e ratified$- sets a re,uirement for the legislature to act they didn4t in this case$ so the treaty is calling upon the 1" to do something it hasn4t done$ and therefore there is no #asis for giving to the +5appellant the land U# violated t&e treat)% o United #tates v. Perc&eman/ 9:@@ Comes #ac( around$ and the "panish ma(es it sound li(e it actually does self7execute Aoctrine was decided on incorrect facts$ #ut is still used today o &enocide Convention Implementation Act (1" statute$ adopted right after the &enocide Convention) J9;E9(a): #asic offense definition #asically parallels the definition of the convention J9;E9(#): lists punishments/ treaty does not give punishments$ only o#ligates the state to punish o !orture Convention Implementation Act o

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J?@>;(a) whoever outside the 1" attempts or commits torture 1" had already punished torture$ #ut there was a gap H an ina#ility to reach out to persons who had committed torture a#road who were now in the 1"% Self%execution doctrine o "ituations where it4s self7executing !he language suggests no further action Is the language v% determinantB If Congress and the +resident don4t do anything after they consent to and ratify the treaty !reaties that create o#ligations to refrain from acting are generally self7executing o "ituations where it4s not self7executing !he language is a contract$ and Congress has to do something else ( ,oster and 4lam v. Neilson implies that 2arshall court thought that a 0 set up follow7up action) Is the language hortatory or vagueB Conduct of the president and Congress If there is a declaration the treaty is non7self7executing$ it is generally *ustified #y the fact that it includes the 'ouse of 6eps to implement legislation and so is more democratic 1) Charter (especially human rights provisions) have #een held to #e non7self7executing 'reaties versus Statutes Conflict of !reaty with 1" statute o W&itne) v. 1obertson/ 9::: 1"$ 'awaii treaty: no duties on sugar 1"$ A6 treaty: most favored nation- which means whatever you give to other countries$ you need to give to us$ too <hen A6 tries to send sugar into 1" and it gets dutied$ A6 is mad% "ues to say hey$ treaty$ 'awaii If the two are inconsistent$ the one last in date will control the other o ;reard v. -reene/ 6epu#lic of +araguay v% &ilmore/ 9EE: 9E=;s treaty$ 9EE= statute$ the statute governs If t&ere is some wa) to read t&e instruments as consistent: and t&e) bot& can survive: t&at2s &ow a court will read it$ particularly if it4s an earlier in time treaty o Later in time will control .ffect in 1" Law of reservations If we4re *oining a treaty that provides rights against the gov4t$ including one that says no executions under 9:% when the 1" *oins$ it may reserve right to execute minors b) filing reservation o .ffort to try to #ring 1" national legal system into sync with o#ligations under the treaty 0omingues v. #tate of Nevada/ 9EE: o .xactly that scenario: 1" didn4t li(e ICC+6 Art =$ para C$ and reserved Also ma) declare t&e treat) to be non/self/e9ecuting o <hen 1" *oins a treaty and says that$ outside forces may say on the one hand you4re saying you *oin$ on the other hand you4re saying not self7exec% !hat shouldn4t #e permissi#leo 1" may say we already have this awesome rights system$ don4t need a lot of that stuffSuspension;'ermination of 'reaties As a matter of 1" law$ who terminates themB o <hen you *oin$ the "enate gives consent% Constitution is silent on who terminates% o <hy "enate should #e involved 6e,uires the "enate4s consent for ma(ing it a treaty$ it ought to #e re,uired for terminating it o <hy "enate should not #e involved Aisentangling is less ris(y 2ay have to #e done ,uic(ly o "ince the president acts for the 1" internationally$ he can effectively terminate a treaty !he "enate has not esta#lished its authority to *oin him or veto him

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It has claimed the right to reserve a voice in the termination of a treaty as a condition of its consent -oldwater v. !arter/ 9EGE Aismissed$ said it4s a political ,uestion !&arlton v. Kell)/ 9E9@ !erminating a treaty #ecause of a #reach #y the other country (Italy refuses to extradite) Court said that the president hasn4t terminated$ so you can4t dispose of the treaty$ and are going to include it as law

-ther International Agreements in 1%"% Law

.xtraordinarily high percentage of the international agreements the 1" does aren4t official treaties As a matter of international law$ all agreements are treaties and are su+7ect to the ( L' As a matter of domestic law, they are not all treaties$ most are not% Lac, of onstitutional Foundation Constitution o +rohi#its states from ma(ing treaties (first clause) o <ith consent of Congress$ can ma(e agreements or compacts with foreign powers (third clause) Historical +ractice o In colonial times$ simply as a matter of expediency$ agreements were #eing made without treaties o Articles of Confederation$ same thing% Although you might thin( that Congress under the AC had the treaty power$ nevertheless you had the several states doing the same (inds of agreements o Doth states and the president made agreements (postal agreement$ maritime agreement) without necessarily sending it to the "enate for consent% 'ypes of other international agreements 'reaty%+ased agreement o If you have a treaty that was sent to the "enate$ tal(s a#out cooperation #etween the 1" and someone else$ use these agreements to fill/in/t&e/ga$s o +resident4s position is the strongest if the treaty contemplated additional agreements o Another strong argument if they are not included is if they are re,uired for implementation ongressional%executive agreement (most dominant of all types of agreements) o 'ave a concluded agreement$ and the #asis of its authority is a ma*ority vote (C9O) in #oth the 'ouse and the "enate &ives an e,ual role to the 'ouse o Authorization prior to negotiation o Authorization after negotiation ()AF!A approach) Sole executive agreement o Conclude an international agreement without Congress at all o U.#. v. ;elmont/ 9E@G 1""6 nationalized a metal wor(s company$ and too( property a#road and at home$ including accounts in )N/ )N #an( wanted to (eep money for the creditors of the company or the shareholders Agreement #etween the 1" and 1""6 with various components$ including that all 1""64s claims against 1" nationals would #e released and assigned to the 1"% Letting the 1" get that money )N argued that this should have #een a treaty !he court upholds the assignment Constitutional *ustification for federal power 'anging it to a certain extent on the $resident2s $ower to recogni6e foreign gov2ts$ which comes from his a#ility to send5receive am#assadors o )ot *ust recognizing$ effecting property rights in the 1" #trong endorsement of federal $ower to conclude agreements $ even if it4s s,uishing rights in the 1" (li(e property rights) Dig tic(et items are done as treaties (nuclear$ human rights$ etc)

@@

'rade agreements have all gone the direction of cong5exec agreements H need an adapting statute$ so ease it through the 'ouse #y getting them in on the start onflicts with other sources of lawB 'ierarchical statutes of executive agreementsB o Constitution wins against exec o !he harder issue is exec agreements v% statutes )ot esta#lished that the later in time wins% Aon4t have much case law on it% "ituations where lower courts have said later exec doesn4t trump an earlier statute$ #ut the "C has never spo(en a#out it o 'en(en argues on p% ?@C why they should #e treated as statutes In international law$ they4re the same as treaties !reaties are same as statutes$ so why aren4t agreementsB 2ay#e not happy with a sole exec agreement trumping a statute #ecause you wipe out the legislature o "tate law loses out even with respect to a sole executive agreement -ther countries/ approaches (loo( at .C context H national$ .C law$ international law) p% ?@:7?>C &ermany Italy Austria &reece France "witzerland !he )etherlands "outh Africa Dritish .C o

9ASA <urisdiction over 'ransnational Acts or $ersons

'ypes of National <urisdiction Jurisdiction to $rescri+e o Legislative *urisdiction o Creation$ through something li(e a statute$ of legal norms o Common law (customs)$ administrative rules o &oing to regulate conduct in some way Jurisdiction to Ad7udicate o Judicial *urisdiction o <hen is it o(ay for a national legal system$ in applying its laws$ rules$ etc% to reach out and ta(e *urisdiction over an issue Jurisdiction to "nforce o .xecutive *urisdiction o <hen is it that the national legal system can coerce the person into some (ind of #ehavior $otential National Law Limitations on the .xercise of )ational Jurisdiction <ant to (eep 1" law from #ecoming too entangled with other countries !he fact that international law allows you to do something$ doesn4t mean you can do it o 'ave to chec( with national law to #e sure they4ve done it onstitutional Limitations o Aue process re,uires minimum contacts o +resumption Congress is not intending to regulate matters a#road Accepted that it is possi#le for the federal government to regulate matters a#road Statutory Limitations

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If a statute is written without specific application a#road$ it will #e presumed to #e intended only nationally onflict of laws limitations $otential International Law Limitations on the .xercise of )ational Jurisdiction 6estatement @d o J >;? 'erritorial principle #c&ooner 49c&ange v. 8c,addon: the *urisdiction of the action within its own territory is necessarily exclusive and a+solute -+7ective territorial principle: United #tates v. Aluminum !o. of America: if the conduct is intended to and has effects in the 1nited "tates Nationality principle ;lac.mer v. United #tates/ 9E@? o "u#poenaed$ doesn4t return to the 1" to testify at a trial$ gets contempt o 1nder the statute$ the 1" can compel 1" national to return$ and if he doesn4t an is in contempt$ can ta(e their property o )o ,uestion of international law% 2erely municipal law that esta#lishes the duty owed to the gov4t #y its own citizens o Clear statement #y the "C that international law allows )ou to reac& out and touc& )our own nationals o Accepted$ and now IL 1ncontroversial o 1" Logan Act: +rivate Correspondence with Foreign &ov4ts (any 1" citizen who contacts foreign gov4ts or officials to try to influence the measures or conduct of the gov4t) 3ther countries do this more ro#ustly than the 1" does o 10: statutes proscri#e treason$ homicide$ #igamy$ per*ury$ and other crimes o &ermany: &erman criminal code applica#le anywhere/ &erman criminal law applica#le to persons ac,uiring &erman citizenship after the act was committed o France: can #e prosecuted in France for any felony and some misdemeanors orporations o If organized under the laws or a state or if a foreign #ranch of a corp organized in state $assive personality principle 1": whoever murders a national of the 1" will #e punished/ can4t prosecute unless the atty gen certifies that it was meant to intimidate$ coerce$ or something else the gov4t or its citizens 6egulates activity of other people$ occurring a#road$ against nationality United #tates v. ,awa6 ?unis/ 9EE9 o 'ostage ta(ing charges o #o clear t&at !ongress intended t&e statute to cover international law that the court will uphold it no matter what o 3verriding CIL o 'ighlights dual system of national and international *urisdiction laws $rotective principle Find this less often Certain conduct outside its territory #y persons not irs nationals that is directed against the security of the state or against a limited class of other state interests "ense seems to #e that if there4s conduct occurring abroad of an) .ind t&at will &arm ot&er states$ if that person ends up in the 1"$ 1" can prosecute Counterfeiting$ espionage$ etc% o

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9niversality principle 6estatement @d J >;> 1nited )ations Convention on the Law of the "ea$ Art 9;; 1egina v. ;artle$ Dow "treet "tipendiary 2agistrate and Commissioner of +olice$ .x +arte +inochet/ 9EEE o Farthest #ranch you could #e on o )o connection or extremely limited connection under any other principle 49tremel) egregious acts o +iracy o "lave trade o &enocide o !orture o <ar crimes 2any human rights violations that aren4t included 4ic&mann case o !a(en #y voluntary organizations- to Israel o Israel didn4t even exist at the time of his crimes o !his was one of the first uses of universality o Judges in the house of Lords found that this torture was under *urisdiction 2urphy4s law hypo o for the sole purpose of promoting the well7#eing of Ira,i nationals$ any Ira,i national who commits an act of terrorism against Ira,i nationals in Ira, shall #e lia#le for their los$ damage$ or in*uryo 1" Aistrict Courts shall have *urisdiction over such actions !erritorialB 1" territoryB )ationalityB )eeds to affect the interests of a 1" national% any 1" national who commits an act of terrorism- H then clearly #e a statute see(ing to regulate the conduct of 1" nationals +rotective sole purpose of- would have to change to for the purpose of promoting sta#ility in Ira, to ena#le 1" troops to withdraw 'ypos o American (ills a Canadian in the 1"% !here is a law against this% !erritorial o American (ills a Canadian in Canada% !here is a law against this )ationality o Canadian (illing an American in Canada% !here is a law against this% +assive personality o Canadian (illing a Canadian in Canada% !here is a law against this +erhaps in some fact pattern it would #e protective% All the American consular officials in Canada are Canadian% &etting (illed$ protective principle% 2ore li(ely is if this is some sort of genocide$ then universality% Accepta+le 0ases of <uris to $rescri+e: !he Concept of 6easona+leness or $rescriptive omity 0alancing of Interests o 6easona#leness- !est o 6estatement @d Factors J >;@ gives limitations on *urisdiction to prescri#e even when a #asis of *uris from >;? is present$ a state can4t exercise- if Lin( to the territory

J >;>

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 Connections #etween the state and the person Importance of the regulation to the regulating state .xistence of *ustified expectations Importance to international system .xtent to which it is consistent with CIL Another state4s interest !he li(elihood of conflict !esting the Limits: Applying the -+7ective 'erritorial $rinciple o 9E>C U# v. AL!OA (early #alancingB) 3ne of the earliest cases articulating an effects doctrine 6e,uires some level of intent for the effect and re,uires effects$ that4s when Congress intended it to regulate 'ere$ the court is thin(ing a#out that there can #e conduct a#road with no intent to harm the 1"$ and may#e the effects didn4t exist$ even if there was intent Articulating situations where it is o(ay to regulate and situations when it is not o 9EE@ (artford ,ire Insurance v. !alifornia (re*ection of #alancingB) 1nless there is a true conflict #etween the 1" law and the 10 law$ the 9S law may +e applied +retty narrow #andwith in which the 1" statute will #e struc( down o ?;;> ,. (offman/La 1oc&e Ltd. (return of #alancingB) 2ay interfere$ #ut application of 1" law is still reasona+le$ consistent with principles of prescriptive comity Court seems to thin( that ultimately there were no effects #y this complained7of conduct in the 1" Aecides not to apply 1" antitrust laws to conduct occurring a#road (#ecause intent #ut no effectsB) <urisdiction 1nder national H is it reaching out a#roadB 1nder international o is it permissi#le (C categories of permissi#le *uris) o apply the rxa#leness test$ we thin($ in the 1" 2ost of this class is focusing on *urisdiction to prescri#e !o ad7udicate$ in int4l law$ loo(s *ust li(e minimum contacts type analysis !o enforce$ is #asically getting at a coercive activity in a foreign country$ is that country consenting to your presenceB Are there immunities that the other party hasB +resent or foreign gov4t officials Aiplomatic and consular immunities "overeign immunities o )ational o Foreign

Sovereign Immunity from 9ASA ourt <urisdiction

A+solute 'heory %&e #c&ooner 49c&ange v. 8c,addon/ 9:9? o )apoleon seized a shipping vessel owned #y two Americans$ turned it into a warship and returned to the sea$ where it was forced to go to port in +ennsylvania$ where it was seized o 1" gov4t v% the owners of the ship% 1" was saying don4t allow them to get this ship o 2arshall says "overeignty: Jurisdiction within its territory is exclusive and a#solute Immunity: 1nderstanding #etween nations that two countries at peace$ in the case of warships$ they should #e allowed in open ports If it had #een a private citizen$ then no deal% )o immunity

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 when private individuals of one nation%%%o Component of reciprocity: if we seize French ships$ they4ll seize ours% .ven the most powerful state has interests that its properties a#road not #e exposed to suits o +art of it is showing that we4re a powerful country and trying to play with the #ig #oyso .ven at this time$ there were some exceptions: admiralty actions were carved out at times$ actions relating to inheritances Change to restrictive theory is a good example of a change in IL 6estrictive theory !ate Letter o 3utlines countries that use a#solute theory and those which use restrictive theory o !ells a#out the trend to restrictive o &hy ma,e the shiftB Adhering to a theory of a#s immunity$ all the communist entities (hello everything is gov4t) are wholly immune to process in courts "tarted allowing citizens to sue the gov4t (F!CA)$ so why should foreign gov4ts #e allowed immunity from your citizens for certain things if you4re notB !ate letter didn4t give details for what courts are supposed to do$ so they were left to figure it out 1) Convention is hardly worth studying #ecause so few states have *oined it Aecision to enact the F"IA 'he Foreign Sovereign Immunities Act of 9EG= states are not immune from the *urisdiction of foreign courts insofar as their commercial activities are concerned$ and their commercial property may #e levied upon for the satisfaction of *udgments rendered against them in connection with their commercial activities%o decided #y courts of the 1" and of the "tates RAon4t sue an am+assador or an individual with this% o 1se 8ienna Convention on Aiplomatic relations o 8ienna Convention on Consular relations o 'ead of "tate immunity <urisdictional statute only "xclusive *urisdictional #asis o Argentine 1e$ublic v. Amerada (ess #&i$$ing !or$%/ 9E:E )ot trying to use the F"IA act <hy does it not ma(e sense to wal( into a court to try to use universal *uris as a #asis for arguing 1" *urisdictionB "aying any#ody could ta(e it$ so why should the 1" ta(e itB Can you use the Alien !ort "tatuteB ourt says the FSIA is the sole +asis for finding 7urisdiction Complaints shall henceforth- #e decided with F"IA F"IA J 9=;C: "xceptions to immunity o &aiver J9=;C(a)(9) .xplicit or implicit &ood idea to put it in a contract if you4re wor(ing with a foreign state If a "wiss em#assy shows up and starts litigating$ may have implicitly waived #y not asserting immunity right away o ommercial activity exception J9=;C(a)(?) @ ways this applies: Dased upon a commercial act carried on in the 1" #y a foreign states Dased upon a commercial act performed in the 1" in connection with the foreign state Act outside the 1" in connection with commercial activity which directly affects the 1" Argentina v. Weltover/ 9EE?

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o o

Argentina having a currency crisis$ guaranteed to #usinesses that they would pay the difference in an exchange rate with a 1" dollar/ when didn4t have enough currency to pay$ they went to the international mar(et and issued #onds$ and then couldn4t pay for the #onds$ so rescheduled unilaterally paying #ac($ and +anamanian and "wiss entities sued "uing in 1" court Argentina says it was acting as a sovereign state$ doing things that only states can do to sta#ilize currency o Nature, not purpose, that matters Is this really a sovereign functionB 3r is it playing in the private sector for purposes of sovereignty$ #ut still acting privatelyB .irect effect: if it were commercial$ would have to determine the direct effect in the 1" o Finds that it was commercial o Finds that there was a direct effect Funds were supposed to #e deposited in a )N #an( and Argentina failed to pay )N was the place of performance$ so rescheduling affected 1" #audi Arabia v. Nelson/ 9EE@ 1" citizen recruited and signs a contract in 1"$ goes to wor( in hospital owned #y "A$ tells them a#out the pro#lems$ and they seize him$ *ail him$ #eat him$ torture him$ don4t tell his family where he is% upon return to the 1"$ tries to sue "audi gov4t $ushes the commercial exception o 'ired in the 1"$ signed contract here o Find that it wasn4t related to 1" commercial activity o Loo( at the heart of the complaint$ which is the a#use of police power$ not a #reach of contract% 3nly gov4ts as gov4ts can act that way% o !he employment contract may have called for "A *urisdiction "tevens4 dissent finds that they4re recruiting from the 1"$ so accounta#le Aidn4t use tort exception$ #ecause needs to ta(e place in the 1" "xpropriation KJ9=;C(a)(@)L If you are ta(ing property in violation of international law and didn4t give compensation$ that is a means for getting past sovereign immunity Inheritance;Immova+le property KJ9=;C(a)(>)L 2ost recent "C case was on immova#le property so indissolu#ly connected with the territory of a "tate that the "tate of the situs cannot permit the exercise of any other *urisdiction in respect thereof'ort exception KJ9=;C(a)(C)L .x: car accident Amerada (ess case Argentina #lew up the vessel Aidn4t happen in the 1"$ so ma(e attenuated argument a#out international waters )o effects on 1" consideration$ only that it happened in the 1" "nforcement of Ar+itral Agreements KJ9=;C(a)(=)L If you have an agreement under which disputes go to ar#itration$ and the other party tries to sue in 1" court$ can (ic( them out if they won4t ar#itrate Also used to go after assets once a decision has #een made 'errorist%state exception KJ9=;C(a)(G)L )eed to esta#lish "tate is a sponsor of terrorism 3ccurred outside that state (if it happens within$ have to give them the opp to ar#itrate the matter first) 8ictims have to #e 1" nationals

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!orture$ extra*udicial (illing$ aircraft sa#otage$ hostage ta(ing$ or provision of support or resources for these things 1nder the color of state authority Action for in*ury or death Ale andre v. 1e$ublic of !uba/ 9EEG .xplains the factors and why they have #een met #y the families of the victims Awards punitive damages and an explanation for the calculation 8ery high7dollar cases$ sometimes vindicated sometimes not o If have 1" assets$ plaintiffs may go after them successfully F"IA J 9=;G: ounterclaims o If a foreign gov4t sues in a 1" court$ you can counterclaim and they don4t have immunity

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"tudies of International Law in Certain "u#*ect 2atter Areas

In7ury to Aliens and Foreign Investors
Introduction If there is an in*ury to an alien$ first loo, for a treaty: !reaties of Friendship$ Commerce$ and )avigation o 2ostly from the =;s and G;s o Droader in scope than a DI! Dilateral Investment !reaties o Focused on investment activities !hen the traditional view of state responsi+ility Aoes not arise in the a#sence of a dereliction of duty on the part of the state itself in connection with the in*ury$ as for example #y failure to afford a remedy$ or to apply an existing remedy If the alien receives the #enefits of the same laws$ protection$ and means of redress for in*uries which the state accords to its own nationals$ there is no *ustifia#le ground for complaint unless it can #e shown that the system of law or its administration falls #elow the std generally recognized as essential #y the community of nations <ant to esta#lish something as a customary norm 6elationship to #eneral rules on state responsi#ility o Although rules a#out claims #etween states cut across su#*ect areas and apply to most of them$ many5most came out of cases a#out nationals crossing #orders Human rights law o !reaties emerged during the mid ?;th century o 2any rules operating in this area of law influenced the early content of human rights law o 3nce human rights law emerged and #ecame a source of so many treaties on the way a state should deal with its own national$ #efore long human rights #ecame more sophisticated and complex than what alien law had to offer )ow$ when ma(ing alien law rules$ one must loo( at human rights law 0asic Standards on 'reatment of Aliens National treatment standard o Aliens are entitled to no greater protections than nationals are$ #ut are entitled to the rights that aliens are o Article > of the FC) treaty of 1"7+a(istan nationals of either party shall #e accorded national treatment in the application of laws and regulations within the territories of the other party that esta#lish%%% o (ull/8e9ico letters 2ex expropriated property without compensation and 1" was trying to get compensation 2exico said national treatment$ 1" said there is a minimum standard o 2uch of Latin America supported this approach$ states emerging from colonialism$ socialist states :inimum standard of 7ustice o Applies a minimum standard that countries must accord to aliens$ even if they don4t accord those protections to their own nationals o 'ull72exico letters 'ull is pushing for a minimum standard Clashing of standards o <hen arguing min std$ may +e hard to esta+lish that a standard is +eing violated 6est @d J G99 a state is responsi#le for an act or omission that violates (a) A human right that a state is o#ligated to respect (#y int4l law) for all persons su#*ect to its authority (#) A personal right that a state is o#ligated to respect (#y int4l law) for individuals of foreign nationality

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(c) A right to property5econ interest that a state is o#ligated (#y int4l law) to respect for persons$ natural or *uridical$ of foreign nationality Loo( to treaties or universal human rights norms :ost Favored Nation standard o If country A has 2F) treaty with D$ then A has to accord the #est treatment that it offers to any and all states to D o &uarantees that D4s nationals gets as good of treatment as any other nationals are getting o FC) 1" +a(istan treaty Article C: nationals and companies shall #e accorded national treatment and most7favored7nation treatment with respect to access to the courts%%% 2eans that gets the same protection as #oth nationals and the #est of the other aliens .enial of 7ustice standard o Sometimes defined as a su+set of min std o !argeted at the way an ind or corp is #eing treated in the *udicial system of the state Fine to give protections to aliens$ #ut need to #e sure that the aliens can get into the courts to vindicate their rights o A#ility to hire counsel$ etc% o Intimidation #y local law enforcement agents may #e considered a denial of *ustice o 1sually in a treaty 1"7Italy FC) Article 8(>): access to courts$ etc% o If they are #eing denied *ustice$ then can4t get the claim through the court system of the nation <ill have to get their gov4t to #ring the claim on their #ehalf 0asic $rocedural 6ules Concept of "spousal o &ov4t is ta.ing a claim awa) from its national and ta.ing it on "tate is claiming that now it has #een harmed #ecause of the harm to its national !he national loses control of the claim &ov4t decides whether to settle and how much to settle for &ov4t also gets the funds from the award and decides what to do with them o Fully in the discretion of the gov4t whether it ta(es on the claim &ov4t may choose not to ta(e on a national4s claim for a num#er of reasons !he national may #e frustrated "xhaustion of local remedies rule o A national has to exhaust the local remedies #efore his state can espouse his claim o <hy do we have a local remedies ruleB Fairness: want to give a state the opportunity to remedy wrongdoing o !ase !oncerning 4lettronica #icula #.P.A. (.L"I) (1nited "tates v% Italy)/ 9E:E Dusiness in 2assachusetts sets up su#sidiary in "icily !hings don4t go well$ they decide to go through an orderly li,uidation Italy steps in and seizes control of the plant and (eeps it operating/ this doesn4t help and it needs to #e #an(rupted Dasically a ta(ing$ #ut carefully 6aytheon as(s 1" to espouse the claim$ and the 1" does )o re,uirement in the treaty to exhaust local remedies$ so the 1" says it wasn4t a violation Court said that excluding it from a treaty doesn4t implicitly dispense it +erhaps if the treaty had explicitly displaced it 1" argued in the alternative that they had exhausted local remedies Dan(ruptcy trustee was operating in the Italian courts Italy didn4t provide to the court any evidence that there was something more that 6aytheon should have done

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#tandard isn2t 5&ave t&e courts addressed t&e issue@7 it2s 5&ave t&e) e9amined t&e 'uestion and exhausted it in full@7 o 8ondev case Doston court found against a Canadian corporation Suestion a#out whether they reached the right decision$ went #efore )AF!A )AF!A said our *o# isn4t to review it de novo% It4s *ust to see if the standards were met% It4s not a denial of *ustice if the court *ust got it wrong% ontinuous nationality rule o )eed to have the status at the time the claim arose and continuously thereafter to the date of the presentation of the claim .ual nationality o dominant- state gets the claim o "ee where they4ve lived more$ are they expected to move #ac($ spouses and children4s nationalities Cey Su+stantive Issues Failure to protect o Dasic idea: not harmed #y the gov4t$ #ut #y a different actor o Suestion: is it possi#le to view that as a violation of international lawB o Nes$ if we4re tal(ing a#out a situation where the gov4t should have #een on alert to the need to protect the alien and failed to do anything a#out it "xpropriation o Concept of expropriation 'as expropriation actually occurredB If Italy were go ta(e over the plant in .L"I and say this title is ours now$- clearly an expropriation 'arder and more common is something in the grey$ li(e .L"I: went into the plant to avoid la#or unrest$- it was a local police action Can #e a fairly sophisticated analysis$ if formally there was not a transfer of ownership #ut de facto$ that4s what happened o "tandard for compensation Assuming that you prove an expropriation$ what should the country payB appropriate- compensation Aeveloped world says what it is worth$ full compensation Aeveloping world says may#e less than full 6estatement on foreign relations law "uggests that from the 1" perspective "hould #e full compensation "ome other countries are still pushing #ac($ #ut the tri#unals are usually awarding something close to full compensation o

Human 6ights: Su+stantive Law

Foundations $re%Nurem+erg Charter o 2uch of what was thought to have generated the hostilities in <<II were a#uses of minority groups within countries o <ant to design a system in the League of )ations to help prevent the out#rea( of another war o !reaty of 8ersailles has rules and mechanisms for protecting minority interests o 3ttoman empire$ even #efore then$ agreed to protections of minorities that the .uropean powers were worried a#out Nurem+erg harter o First prosecution for crimes against peace- (article =KaL) o war crimes- article =(#)

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crimes against humanity- article =(c) Against any populations Deing held accounta#le for any civilian population hurt$ even if it4s &erman nationals o !housands of people prosecuted$ hundreds executed #lo+al Instruments o
9E>C 1) Charter

9E>: 1niversal Aeclaration of 'uman rights

9E== International Covenant on Civil and +olitical 6ights

9E== International Covenant on .conomic$ "ocial$ and Cultural 6ights

First 3ptional +rotocol on +etitions #y Individuals to ICC+6 'uman 6ights Committee "econd 3ptional +rotocol A#olishing Aeath +enalty

9N harter o 8ery first words are we the peoples$- not we gov4ts or we states #&ift in t&e conce$tion of actors on t&e international stage o 9st pream#ular paragraph: to save generations from the scourge of war o ?d pream#ular paragraph: to reaffirm faith in human rights$ dignity and worth of the human person$ e,ual rights of men and women and of nations large and small o Article DD ? DE: concern for human rights$ pledge to ta(e action to achieve them 3nly ? articles$ too( later things to ma(e it happen 9niversal .eclaration/ 9E>: o Loo(s li(e a #ill of rights o 8ery short$ pithy references to a lot of human rights o )ot a treaty$ not something to ratify$ so wasn4t regarded as creating #inding law upon states o Later$ this is viewed as a #asis for IL o Article C: no one shall #e su#*ected to torture or to cruel$ inhuman$ or degrading treatment or punishment <hat does that meanB )o definition$ couldn4t reach agreement o 6egarded later as dominated #y <estern states o !oo( ?; years for two treaties to ta(e this and ma(e it real ovenants o ICC+6 o IC."C Aifferent from the ICC+6 #ecause the rights are of a different nature !he type of rights in the ."C are rights that states are supposed to try to provide to people as opposed to rights held #y individuals that states shouldn4t ta(e away Important caveats Article ? o each state party%%% underta(es to ta(e steps%%% to the max of its availa#le resources%%% to achieving progressively the full realization of the rights "tates have to endeavor to do things$ #ut no #lac( letter re,uirement <hyB econ resources are limited 1" not a party$ not a winning argument in our courts

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In other countries$ hard to give it any su#stance Aefenders say it wasn4t designed for litigation$ #ut as a means of galvani6ing our understanding of the importance of this set of rights -ther ,ey treaties (1" Adherence) o ICC+6 (yes$ #ut no to two protocols) o IC."C6 (no) o Convention against genocide (yes) o C.6A (yes) o C.AA< (no) o Convention against torture (yes) o Convention on rights of the Child (no #ut yes to two protocols) o 6egional human rights conventions .uropean Inter7American Convention on '%6% (no) African court o Int4l La#or 3rganization Conventions ustomary international law o 6estatement J G;? 8iolates if its policy &enocide "lavery or slave trade 2urder or causing the disappearance of individuals !orture or other cruel$ inhuman$ or degrading treamtment or punishment +rolonged ar#itrary detention "ystematic racial discrimination ()3! religious) A consistent pattern of gross violations of internationally recognized human rights )ot meant to #e exclusive "erves as a #ac(drop$ can help fill in gaps Limitations #eographical limitation o ICC+6 Art ?: each state party to the present covenant underta(es to respect and to ensure to all individuals within its territory and su#*ect to its *urisdiction the rights recognized in the present convention 1": what a#out &uantanamoB Could say it4s not really 1" territory$ leased from Cu#a$ #ut still wholly under 1" *urisdiction 1" gov4t says A)A$ not a territory$ ICC+6 doesn4t apply 'extual limitations o )eed to read closely o ICC+6 Art E: ar#itrary arrest and detention- gives a certain amount of wiggle room in the interpretation o 1sually not a#solute prohi#itions .erogation due to national emergency o In time of pu#lic emergency which threatens the life of the nation and the existence of which is officially proclaimed$ the states parties to the present covenant may ta(e measures derogating from their o#ligations%%% to the extent strictly re@uired #y the exigencies of the situation arve%outs of this exception: Can4t #e against other treaties Can4t #e on #asis of race only )o derogation from certain articles o Lawless case/ 9E=9 First case heard #y the .uro Court of 'uman 6ights I6A launching attac(s in )orthern Ireland

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 Aetained in a manner inconsistent with usual law <hether or not the state of emergency was properly invo(ed and allowed Ireland to set aside the Convention And assuming it was invo(ed$ whether the measures ta(en were strictly re,uired #y the emergency <hy did Ireland winB 6eleased everyone when the state of emergency was over "aid if you promise you won4t do #ad things$ we4ll let you go 6eservations$ understandings$ and declarations (61As) o 6eservation is #asically a formal attempt to alter the treaty o 1nderstanding is an effort to say the treaty says x$ we agree$ we thin( x is%%% o A declaration is intended to assert 9S Adherence to Human 6ights 'reaties (see list a#ove) &enerally o 1" has *oined some of the ma*or human rights instruments o ICC+6$ not IC."C6 o 'asn4t *oined Convention on the .limination of Aiscrimination against <omen "ent to the "enate #y Clinton Aiscussion a#out providing advice and consent Foreign relations committee had a hearing$ reported favora#ly$ never got to the "enate floor o 'aven4t *oined rights of the child ICC+6 61As o 6eservation: "peech$ death penalty$ cruel and unusual$ penalty$ *uries o 1nderstanding: compensation$ prison$ counsel$ *urisdiction o Article ?; (propaganda for war is prohi#ited #y law$ #ut what a#out free speechB)

Human 6ights: "nforcement

Inherent &ea,ness in 'uman 6ights .nforcement Interstate Actions &lo#al Courts (e%g% ICJ) 6egional courts o .C'6 o I7AC'6 o AC'6 Interstate complaints to treaty committees o <ould want to (now if a country has opted into the complaint process o "ee if that will wor( then move onto the next area of redress .iplomacy5mo#ilization of shame "conomic;military sanctions o 'urting the population$ not the leaders :onitoring +y glo+al institutions !reaty Committee 6eporting5Commenting o 'andle inter7state complaints$ when authorized o 6eceive$ comment on state reports o &enerally comment on meaning of treaty o 6eceive petitions from individuals$ when authorized 1) 'uman 6ights Council o +reviously 1) 'uman 6ights Commission 1) 'igh Commissioner on 'uman 6ights )&3s

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+etitions #y Individuals to !reaty Committees Feature of several of the treaty regimes 1" has not *oined the 3ptional +rotocol to the ICC+6$ which would allow you to #ring something against your gov4t International riminal $rosecution 2ost don4t view human rights law as within their *urisdiction 1sually *ust genocide$ crimes against humanity$ etc National Laws; ourts Dring an existing infrastructure that4s already far more sophisticated than anything in the international arena In the 1"$ many of these laws already existed #osa case o A!" conferring *urisdiction over any civil action #y an alien for a tort only$ committed in violation of the law of nations or a treaty of the 1" o Alvarez was a 2exican dr% and A.A accused him of torturing an agent$ had him (idnapped$ then case was dismissed o Alvarez sues "osa$ one of the guys who (idnapped him$ and the 1" under the F!CA o <as A!" *ust a *urisdictional statute$ or did it provide a cause of action in addition to *urisdictionB Court finds it4s *ust *urisdictional <ill get you in the door$ #ut then need to find a treaty or law of nations to give you a cause of action o Ao you need a statute to tell us what the law of nations5treaties areB Can use customary international law <hat type do you needB o Ar#itrary detention is the issue in #osa$ and he loses <hy isn4t it a violation of the law of nationsB 'ere$ he wasn4t a#le to prove it was CIL

>G

9se of Force without 9N Authori8ation

Area where$ if you don4t #elieve in the norms$ you can thin( international law really doesn4t have a #ite% Dut$ one of the most im$ortant $laces to develo$ norms wit& vitalit) H effects of trans7#order uses of force and armed conflicts are hugely important% $re%9N harter +re79=>: Influences 9=>:79E9> :easures Short of Formal &ar o Intervention o 6eprisal Nautlilaa incident 2iscommunication #etween &ermans and +ortugese &ermans in +ortugese territory$ @ &ermans (illed$ &ermany was totes too aggressive$ attac(ed and destroyed forts and posts After <<I$ ar#itrators are as(ed if it is o(ay to respond o Ar#s say yes$ if there is a demand first and it goes unsatisfied o 'as to #e *ustified #y necessity and #e proportional to the harm o Self%defense !aroline incident Insurrection in Canada$ insurgents have a ship$ are stationed in America$ Canadians attac( the ship which had some 1" citizens on it 1" says self7defense should #e confined to when necessity of that self7defence is instant$ overwhelming$ and leaving no coice of means$ and no moment for deli#eration% Also mustn4t #e unreasona#le or excessive Formal &ar o )ot prohi#ited$ #ut *ust- wars favored !heological concept that says that in some cases it is o(ay to use force against other sovereign entities that are out there 3(ay #ecause there is a certain *ustice to it Appeal to earlier &ree( natural law doctrine o !riggering of jus in bello Jus ad #ellum: when can a state resort to war H 1) Charter Just in #ello: how must a state act after war commencesB 'ague5&eneva <hen formal war was declared$ us in bello was triggered Laws of neutrality also triggered o Concept of neutrality &&I to &&II League of Nations o 6egulating resort to war o Articles 9?$ 9@$ 9C 6e,uirement that mem#ers of the league give disputes to ar#itration or legal settlement Art 9?$ para 9: in no case to resort to war until @ months after the award #y ar#itrators or decision Cellogg%0rand +act o Danning resort to war o "till in force$ G; something countries are party o First thing to outright #an the resort to the use of force Nurem+erg !ri#unal o Criminalizing resort to war

>:

'he 9N harter o $rohi+ition on resort to force o Language of Article ?(>) <ord war- isn4t used o 9EG> Aefinition of aggression 6esolution on the Aefinition of Aggression List of things in Article @ Invasions or attac( Dom#ardment Dloc(ade Attac( on land$ sea$ or air forces Armed forces attac(ing when they are in territory with permission Allowing its territory to #e used for prep of an act of aggression Armed #ands$ groups$ irregulars$ or mercenaries$ on #ehalf of gov4t o Concept of indirect aggression 6adio Free Cu#a 6allying troops o 2eaning of threat- to use force "hooting a warning shot across the #ow: threat or useB 1sually means the next shot will #e into the ship !hreat more than use o $ro+lem of consent Aoes the person have authority to consentB <hat if there is a civil pro#lem H gov4t v% insurgency o Inherent right of self%defense o Assuming a country has engaged in conduct which might #e a violation$ what are the limits on how a country may invo(e its right to self7defenseB )eed to report use immediately Can4t affect the authority of the security council H if$ after the report$ the "C condemns your action$ then you are acting against them o Individual self7defense (Article C9) o ollective self7defense (Article C9 and Chapter 8III) o 9E:= Nicaragua v. U.#. *udgment (merits) Court ends up saying that mining the har#ors$ attac(ing oil$ are violations of ?(>) Loo(ed at whether there was an armed attac( #y )ic on .l "alvador that would *ustify self7 defense Arms distri#ution never got to the level that could have #een an armed attac( )ever said there was an armed attac( or re,uested assistance Aidn4t send report to 1) "till have re,uirements imposed on the rights of self7defense emanating from Article C9 o $ro+lem areas o Anticipatory self7defense Caroline standard (necessity$ instant$ overwhelming$ no choice of means) !he idea of an imminent attac( is the linchpin of anticipatory self7defense "eems to #e some acceptance in international law o $reemption;preventative self7defense If anticipatory and nationals are allowed in international law$ it opens the door to preemptive self7 defense o $rotection of nationals "tates are pretty tolerant of these types of activities

>E

 Isreal in 1ganda$ 1" in Iran$ etc% o 6eprisal )ot defense$ #ut punishment$ and so not permitted 'owever$ there are many incidents where the fact pattern indicates reprisal Dush in 0uwait$ attempted assassination$ Clinton #om#s Daghdad In the #ox of preemption$ #ecause no imminence and no nationals in danger Intervention in Internal onflicts 'raditional law o "panish Civil <ar cast dou#ts on the via#ility of this construct o 6e#els got support while other countries refused to get involved$ and so overthrew the gov4t o If there is no respect for the norms$ are they normsB o ICJ view of collective counterintervention in the Nicaragua case Acts of which )ic was accused weren4t enough to *ustify counter7measures$ and def not enough to *ustify intervention involving the use of force $ost% harter law o Charter trumps all treaties$ under Article @ o Intervention in civil wars o 'umanitarian intervention 0osovo: "er#ia is committing sever human rights violations$ and the 9E countries of )A!3 say this is something that we4re allowed to use force to stop o +re7democratic intervention )ot the way the system is constructed 2any countries which aren4t democracies are in the international system$ so it can4t #e right to interpret the charter as giving permission to the 6eagan doctrine

9se of Force with 9N Authori8ation

!he 9N harter in 'heory Article 9(9): the principal purpose is to maintain international peace and to ta(e effective collective measures for prevention and removal of threats to the peace Chapter 8I $acific Settlement of Aisputes o Article @@ see( a solution #y negotiation o @> "C may investigate o @C 9 may #ring to the attn of the "C ? if not a mem#er #ut consent to follow$ "C will decide @ su#*ect to Art 99 provisions o @= 9 "C may recommend procedures5ad*ustment ? ta(e into consideration things the parties already provided for themselves @ legal disputes to the ICJ o @G 9 if fails$ go to the "C ? "C will decide what to do o @: "C may$ at re,uest of parties$ ma(e recommendations for a pacific settlement Chapter 8II Action with 6espect to 'hreats to the +eace$ 0reaches of the +eace$ and Acts of Aggression o Article @E "C will determine existence of threats to the peace and decide what to do o >; "C may call upon the parties to do anything to prevent aggravation of the sitchy o >9 measures not involving use of armed forces to implement its decisions (sanctions) o >? if >9 is inade,uate$ may use air$ sea$ land forces as necessary o >@ 9 mem#ers have to help ? agreements will govern the help

C;

 @ will #e negotiated #y the "C o >> will invite a mem#er whose forces may #e used to #e part of decision ma(ing o >C mem#ers will ma(e air forces availa#le immediately o >= "C will ma(e application plans for forces with assistance of 2ilitary "taff Committee (2"C) o >G 9 2"C will advise5assist "C for military re,uirements ? 2"C will #e Chiefs of "taff of the permanent mem#ers or representatives and others as invited @ 2"C is responsi#le for strategic direction > may esta#lish regional su#committees o >: 9 mem#ers of the 1) have to do what the "C decides ? mem#ers will act directly and through international agencies of which they are mem#ers o >E mem#ers will offer assistance mutually in carrying out "C4s decisions o C; if preventative or enforcement measures ta(en #y "C cause economic pro#lems for any state$ they may #ring it to the attn of "C o C9 nothing here impairs the inherent right of individual or collective self7defense$ report these actions immediately Chapter 8 'he Security ouncil o ?> "C has primary responsi#ility for the maintenance of international peace and security o ?C everyone is #ound #y the "C4s decisions Chapter Q8I :isc $rovisions o 9;@ if there is a conflict #etween o#ligations under another agreement and the Charter$ the Charter wins !he 9N harter in $ractice old &ar $ro+lems o Aeadloc( over Article FG Agreements Dy 9EC;$ there aren4t any >@ Agreements in place$ so had to ma(e 0orea agreements ad hoc <hyB 6esistance to giving the 1) so much power <orry a#out the control structure and the use of troops for purposes other than for which they are given &iving power to organization that powerful states don4t want to relin,uish Dig political ris(s H if the operation goes #adly o Aeadloc( over Security ouncil $eace "nforcement 3riginal vision of what it was we would have in the "C has never emerged .ven without those agreements$ perhaps things could have #een done$ #ut Cold <ar stymied peace efforts on an ad hoc #asis 0orea is the only example of something #eing done "oviet delegate didn4t show up$ so were a#le to vote for intervention in 0orea Detween 9E>C79EE;$ only Apartheid caused the "C to impose compulsory measures under Ch G H stopping oil on its way to 6hodesia and "outh Africa 1) #eneral Assem+ly as $eace "nforcerB o ?> says primary- responsi#ility for the "C$ not soleo <hen the "oviets return to the "C$ switches to the &A$ who starts passing resolutions .xtends the mandate .xpands the mandate In the context of ma(ing recommendations to the mem#er states o 9niting for $eace 6esolution 6ecognition in the pream#ular language conscious that failure of the "C to discharge its responsi#ilities%%% does not relieve mem#er states of their o#ligations Clearly stating that the "C isn4t stepping up Also says doesn4t strip the &A- of its power to step up

C9

+art A: resolves that the lac( of unanimity of the permanent mem#ers$ which causes them to shir( their primary responsi#ility$ the &A will ma(e appropriate recommendations to its mem#ers for collective measures Constitutional gra# for power 1" and <estern .uro influence was huge at the time$ so the 1" pushed hard for this resolution !hen there was a shift with post colonial countries and the emergence of the developing world "uddenly &A is no longer su#*ect to 1" control5influence 1se of this resolution declines dramatically <hy not use this anymoreB +ossi#ly not loo(ing for uses of force as much as western countries would #e Lac( of resources and capa#ility$ so developing nations don4t push for it 0osovo crisis in 9EEE: on the part of the )A!3 countries and others$ (new that there were a#out to #e human rights violations o #ut 6ussia was going to #loc( a resolution of the "C o !hought was given to going to the &A o <ould lend greater legitimacy to humanitarian intervention o <orry a#out #eing voted down$ possi#ly not interested in #uilding &A as next stop when can4t get through the "C$ dangerous precedent for "C mem#ers Security ouncil as $eace "nforcer o $ost% old &ar $eriod and 6evitali8ed S Ira@%Cuwait &ar$ 9EE;7E9 August 9 of 9EE;$ immediately after Cold <ar ends$ Ira, invades 0uwait "C condemns the invasion and demands Ira, withdraw$ say the two sides should discuss pro#lems #etween each other after the withdrawal o Aid not yet declare it to #e a threat to peace "C 6esolution ==9 o Imports and exports into and out of Ira,$ except for humanitarian$ aren4t allowed 6esolution ==C halted all shipment in and out and re,uired inspections of ships o 2ostly 1" and other coalition partners o 1se of force for enforcing the sanctions regime o Language that continued to resonate in later use of force resolutions: authorizing the use of measures commensurate to the specific circumstances as may #e necessary to halt inward and outward shipping 6esolution =>: o Article >? trigger: measures that are forci#le o authorizes mem#er states co7operating with 0uwait- unless Ira, implements #efore Jan 9C to use all necessary means to uphold 6esolutions and restore peace and security in the area 6esolution =:G o Ira, and 0uwait need to respect the #oundary #etween them o Creation of a demilitarized zone extending 9; (ilometers into Ira,$ controlled #y a 1) o#server mission (1)IC32) o First mission in which all C permanent mem#ers had forces o Aestruction of weapons of mass destruction (part C) Ira, must identify and destroy all weapons of mass destruction 1ntil this happens$ were (eeping econ sanctions on Ira, "tayed in place until 2arch ?;;@$ when 1" invaded 9S invaded in )HHG o Legal *ustification for invasion wasn4t installing democracy or human rights violations

C?

Continuing in the authorization that occurred in 9EE; under =:G to uphold resolutions and restore peace and security in the area

6elationship to Self%.efenseB Aoes 6esolution =G:$ authorizing force against Ira,$ ta(e away Ira,4s right of self7defense against )A!3 and other 0uwait supportersB Article C9 says nothing in this Charter- will ta(e away the right to self7defense$ which includes Article G$ as ro#ust as it may #e Article C9 also says nothing ta(es away the right- until "C ta(es measures o How far can the 9NS goB <hat if Ira, had only invaded part of 0uwaitB Could "C say get out of there$ or we will ta(e over country$ seize leadership$ prosecute them$ etc%-B Aoes there have to #e proportionality in events and reactionsB Ch G doesn4t limit "C in any specific way 1)"C 6esolution 9G>G Against Iran$ including em#argo on conventional weapons going to Iran$ freezing assets$ loans$ all Article >97type stuff Invo(ing Chapter G$ Article >9 in imposing these things Iran should #e worried that the next step will #e Art >? <hat is the legal #asis for saying Iran can4t have nu(esB o 3nly the C permanent mem#ers of the "C are allowed to have nuclear weapons o )+! "mergence of 9N $eace,eeping o )o peace(eeping- in the charter )o reference to anything that loo(s li(e peace(eeping Dut regarded as something that4s em#edded in the idea of Ch = or G ( hA EAD-) o "arly cases 1).F 1) .mergency Forces Ara+%Israeli Conflict +res )asser says he doesn4t want forces anymore$ so 1) pulled them out "hortly thereafter$ 9E=G war 'ighlights that you need the agreement of the local state 8alue added is not holding off armies physically (typically lightly armed)$ it4s a confidence #uilding measure H political sta(es are pretty high -N9 1) Aeployment to ongo Congo gov4t invites in a 1) peace(eeping force 3)1C is supposed to help restore order +rogressively$ 3)1C was a little more ro#ust in using force$ which led to tensions at the 1) and uncertainty a#out whether this is an appropriate way to use forces who are only supposed to #e monitoring cease7fires o !ertain 49$enses Case o "econd &eneration $eace,eeping vA $eace "nforcement $eace,eeping $eace "nforcement Charter Authority Ch% =5G Ch% G 6elevant -rgan 1)&A or 1)"C 1)"C 'ost state consentB Nes )o <ho commandsB 1sually 1) 1sually national states ArmedB Lightly 'eavily Dasic missionB 9st &eneration: Dorder +atrol Coerce a peace

C@

?d &eneration: Internal "trife Financed #yB 1) )ational states o In practice$ there are situations where there is a lac( of clarity #etween these two things Congo: pro#lem over the peace(eeping operation in that there were times when the forces were in situations where they felt they had to engage in com#at$ and if they aren4t e,uipped for that$ it is a recipe for a pro#lem 'as happened in other situations as well$ li(e "omalia

C>

Law of the Sea

#rotius/ Freedom of the "eas <rote a treatise on the freedom of the seas Autchman who was trying to help his gov4t (eep ships from #eing attac(ed on the seas Contemporary Codification 9N L-S I (41DI Convention) > Conventions resulted o !erritorial "ea and Contiguous Uone o Continental "helf o 'igh "eas o Fishing and Conservation of the Living 6esources of the 'igh "eas o 1" is a party to @ conventions which came out of the 9EC: conference o Left undecided some important issues If everyone accepts a territorial sea$ what is the widthB 'istorically$ the cannon shot- (@ n%mi%) 9N L-S II (failed) o Failed H if there was no agreement in C;s$ how could they do it in the =;sB o )eeded the time in #etween$ even though things got worse o !echnology advancing$ fishing collapsing$ polluting ta(ing off 9N L-S III (41I) Convention) o 6e,uired 99 negotiating sessions$ resulted in the creation of a single treaty 'ugely complicated treaty @?; Articles$ E Annexes$ attempts to create a structure for all aspects of the sea$ as well as the air a#ove and sea #eds #elow o 4DD;41) countries have ratified or acceded to it/ ratified in 9EE> o 9S 6elationship 9E:?79EE>: 6eagan administration didn4t li(e the sea #ed mining parts ree(ed- of gov4tal control of sea #eds and mining "ome a#staining states were out whom everyone wanted in Agreement on Implementation of 9EE> o -uts t&e article on sea bed mining o Allows the other countries to *oin the treaties Law of the "ea Convention enters into force in 9EE> o Status as IL Argument that this treaty$ if you don4t persistently o#*ect to it$ is creating norms that may #ind you 6eagan made an announcement that the U# will act in accordance wit& most of t&e treat) 1" is trying to have its ca(e and eat it$ too H not #e a party$ #ut ta(e advantage of the E;O of the treaty that it li(es 3ther states don4t li(e this H pac(age deal% Nou give us the deep sea mining #it$ and we4ll give you the straits #it o 1eservations aren2t $ermitted wit& t&is treat) o 3verview of <urisdictional Jones Dands with certain rights accorded to the coastal states !he closer to the coast$ the greater the rights for the coastal states$ the lesser for the other states and vice versa Defore the L3"C$ #ecause the coastal state wanted certain minimal rig&ts to the end of the ..U$ they had to assert all their rights all the way to the end of the ..U 'erritorial Sea "tarts at the low tide line$ so states have the most land possi#le Article = L3"C: reefs extend the low7water mar( to protect states4 lands 0aselines (Articles C79;$ 9@)

CC

Normal Daseline o Article C: .xcept where otherwise provided in this Convention$ the normal #ase7line for measuring the #readth of the territorial sea is the low%water line along the coast as mar(ed on large7scale charts officially recognized #y the coastal state% Indented Coasts5Fringe Islands56ivers5Days o +ro#lem of deeply indented coasts ,is&eries !ase (10 v% )orway) Indentations on land would ma(e the line almost impossi#le to (now where it is )orway wanted to smooth the lines and ma(e it a series of straight lines from which to measure the zones 10 is saying no$ have to do the low water mar($ #ecause they want to come in closer Court rules for )orway 1easoning embedded in Article A o <here the coastline is deeply indented$ the method of straight +aselines$ *oining appropriate points$ may #e employed o 'as to not depart too much from the general direction of the coast H can4t use extremes as your #aselines o !he pro#lems of fringe islands If you have an island that4s *ust off the coast$ it4s fine to extend the #aseline to ta(e account of the island o 2ouths of 6ivers: Article E o 0ays are pro#lematic (Article 9;) )eed to discern when it4s a #ay and when it4s *ust an indentation of the coast ?> mile closing line adopted in 4C: and retained in Y:? o 9S characterizes #ays #ased on a max closing line of 9; miles and a minimum area of enclosed waters$ or an historic test Area must #e as large or larger than that of a semicircle whose diameter is a line drawn across the mouth of the indentation 'istoric #ays considered internal waters (Article :) No rig&t of innocent $assage in a #ay/ considered internal waters Archipelagoes5free7standing islands5reefs o Line for the archipelagoes can4t exceed 9;; nautical miles% 'as to #e E to 9 water to land ratio o Free7standing islands &et their own #aseline Can have zones #uilt off the islands Article 9?9 o )eeds to #e a#le to sustain human life to have an ..U or continental shelf Internal &aters (Article :) o Daseline is also important for discerning internal waters o <ater$ #ut treated #asically as sovereign territory 'erritorial &aters (Articles ?$ @$ 9G7@?) !erritorial "ea: up to 9? n%mi% from #aseline% "tate must declare zone% Innocent $assage o Article 9:: meaning of passage$ 9E innocent passage 9E: passage is not innocent if !hreat or use of force <eapons Collecting information +ropaganda Launching$ etc% aircraft

C=

 Launching etc% military devices Loading commodities$ currency$ persons contrary to customs laws of coastal state +ollution Fishing 6esearch or surveying Interference with communications of coastal state Any activity not having a direct #earing on passageo Article ?C: may #e suspended to protect its security o *uestions a#out whether warships are entitled to innocent passage at times Article @;: if any warship doesn4t comply with the law of the coastal state$ the coastal state may tell it to leave immediately !his is ta(en as implying that warships do get the right of innocent passage o Article ?;: Su+marines must surface and fly their flag o 'ypo: what if fishing vessel were stopping and ta(ing picturesB 9 no fishing ? no research or surveying @ no stopping > may #e pre*udicial to the peace$ say if it were )orth 0orea off of 'awaii o 'ypo: what if a #oat were going #ac( up and forth the west coast )ot passage H not going somewhere Can4t #rea( the laws of the coastal state o 'ypo: what if you wanted all oil tan(ers to have dou#le holdsB Article ?9: can4t re,uire design of ships in a certain way unless it4s esta#lished CIL Straits and 'ransit $assage o Concerned a#out engulfing passages with territorial seas o !orfu !&annel Case (1nited 0ingdom v% Al#ania)/ 9E>E 10 warships going through the Corfu Channel as an exercise of their right of passage$ Al#anians shoot at them to scare them and get them not to come #ac(/ 10 hits mines while passing through Al#ania says that in the middle of possi#le hostilities$ could go around the strait$ don4t need to go through it ICJ says states$ in times of $eace: &ave t&e rig&t to send t&eir s&i$s in innocent $assage t&roug& straits wit&out $rior aut&ori6ation of t&e coastal states <e already (new this If you loo( at L3"C$ it gives more: Article @E +ara 9(c): ships while exercising the right of innocent passage shall refrain from activities other than those involved in expeditious transit "u# expeditious transit is underwater H don4t have to surface when going through straits Archipelagic "ea7Lane +assages o Archipelagic state$ even though it4s declared those #aselines$ and even though you may have normally made them internal waters$ there is a transit regime for archipelagoes o 'ave to allow other states to transit through o Articles >=T ontiguous Jone (Articles @@$ 999) 9? n%mi% from the territorial sea/ states must declare Article @@ o prevent infringement of its customs$ fiscal$ immigration$ or sanitary laws o prevent infringement of the a#ove laws and regulations committed within its territory or territorial sea o may not extend #eyond ?> n%mi% o )3 security rights or exclusive fishing rights !&urc& v. (ubbart$ "C3!1"/ 9:;> o 3(ay to have a #uffer zone to do some regulatory activities o For the purpose of implementing laws that have #een crafted for your territory%

CG

o 6egulating activity that4s hurting your territory and sea o )eeds to #e related to customs$ fiscal matters$ etc Concept of hot pursuit- (may follow a vessel out of that zone if caught violating laws) o Article 999 &ood reason to #elieve the ship has violated the laws and regulations of that state +ursuit must #e authorized and with a clearly mar(ed vessel of your coastal state 2ust give warning 2ust maintain continuous pursuit/ if lost$ pursuit may not #e pic(ed up again R !hese rules apply mutatis muandis in the ""J and the territorial shelf and #y aircraft ontinental shelf H geological is not the same as the legal 9E>C !ruman +roclamation 9E:? 1)CL3" Arts% G= H :C o Art% G=: legal definition At least )HH nm &o #eyond the ?;; nm limit if there is a shelf past that point If you go #eyond the ?;;nm limit get cut off (9) cant go #eyond the point the shelf ends (?) cant go #eyond @C;nm (@) cant exceed ?$C;; iso#ath/ cant go more then 9;;nm past that (iso#ath is the depth) o Art% GG: rights of coastal states Any natural resource/ no other state has the right to exploit "edentary species which are harvesta#le stage$ either are immo#ile on or under the sea #ed or are una#le to move except in constant physical contact "hellfish$ mussels$ oysters$ cra#$ lo#ster$ ect Nours alone (in the ..U that is not true) no o#ligation to share or conserve o &hen outside the )HHnm zone It is still the case that you have the exclusive rights to the non7living resources Dut under the obligation to share some of t&e $roceeds Art% :?: there is a scheme to pay a percentage of the proceeds into the structure of the CL3" which will in turn pay out (payment made annually$ after the first C years$ then goes up 9O of value of extraction$ and increases until the 9?th year and then tops at GO .elimitation: o ? conceptual approaches e@uidistance H when drawing the line going out$ you are pic(ing points that are e,ual distance from the competing coasts CL3" does not adopt the .,uidistance e@uita+le principles Art% :@ H the states should come to agreement on the #asis of IL to come up with an e,uita#le solution Nort& #ea !ontinental #&elf case H (seen with CIL) o .,uidistance is not the law o Factors (9) general configuration of the coasts$ as well as the presence of any special or unusual features (?) the physical or geological structure and natural resources of the continental shelf areas involved (@) the element of a reasona#le degree of proportionality$ there should not #e ta(en into account the economical position of the parties o !here is compulsory dispute settlement H if there is no agreement$ then an ad hoc panel will decide o .elimitation of the territorial sea (connect with Art% 9C of the convention)

C:

Art% 9C H try and get agreement$ failing that can only extend territorial sea to the median line e,uidistance$ #ut does not apply when there is historical understanding that the sea line should #e something different then e,uidistance "xclusive "conomic Jone 9E>C !ruman +roclamation o Defore CL3" H pro*ecting out the sovereign rights to protect the fishing$ #ut recognized the historic rights of some countries to fish 9EG= 1" "tatute o "ections included on p% 9>@C Fishery Conservation Uone .xclusive Fishery 2anagement Authority 'ighly 2igratory "pecies (tuna/ regard these fish as so highly migratory that they are not protected and other countries have the right to fish them) .ffect on Law of the "ea !reaty o +rotects 1" coast H fishery protection Uone of ?;;nm o 1" pic(ed ?;;nm #ecause E;O of the living marine resources will #e found within ?;;nm of the coast 9E:? 1)CL3" Art% CC H GC o Uone +eyond and ad7acent to the territorial sea o "ets the rights of the coastal state H water a#ove$ not the sea#ed !his is a#out the fish$ rights to exploit fish o Article = Z? H must give due regard to other states o Art% =9 specific language on conservation of specific resources 2aximum sustaina#le yield o Art =? H reference to states that have ha+itually fished in a zone o Art% =E H helping land%loc,ed states o Art% G; H geographically disadvantaged states If there is any left over then you are suppose to let other countries in$ favoring those countries that need it o Art% C: Z9 H cross reference to freedoms related to the high seas )avigation right in the ..U are the same as the high seas Z? H must #e compati#le 9E:@ 6eagan +roclamation "ame issues of delimitation !he whole idea in doing this was to help protect fish !his has #een a colossal failure H started to fish a lot more (handing fishing units over to foreign fishing fleets) 2ust figure out the maximum sustaina#le yield$ then allowed to fish that many$ if you do not then you give it to others High Seas 1)CL3" Art% := H 99E o fishing on high seas su#*ect to the treaty o#ligations and considerations of territorial states .efinitions and freedoms o Art :=: All parts of the sea that are not included in the zones o Art :G: Freedom of )avigation 3verflight Ca#les and pipelines Artificial islands Fishing "cientific research Aue consideration for interests of other states o Art ::: 6eserved for +eaceful +urposes

CE

o Art :E: no state may claim sovereignty o Art E;: every state has the right to sail ships under its flag o Art 99=799:: Fishing on the 'igh "eas Limitations on freedoms o Art EE: Slave !ransport o Art 9;;: $iracy Auty to cooperate in repression of piracy 9;9: definition 9;C: seizure of a pirate ship or aircraft o Art 9;E: 3ffshore +irate 0roadcasting +ro#lem in the 9EC;s in 10 and .urope o Art%99;: all states can use their warships to stop these types of acts Can do if going after these acts$ otherwise no must get permission from the flag state of the vessel .eep Sea 0ed 3utside the legal continental shelf ommon heritage o 2oratorium on .xploitation of 6esources of the Aeep "ea7Ded (&%A%6es%$ 9E=E) o Aeclaration of the +rinciples &overning the "ea7Ded and the 3cean Floor$ and "u#soil thereof$ Deyond the Limits of )ational Jurisdiction Common heritage of man(ind )o appropriation and no sovereignty All activities will #e governed #y regime !%D%A% 41I) 1)CL3" scheme o Article 9@=: Common 'eritage o Art 9@G: legal status of the area and its resources o Art 9@:: conduct of states o Art 9@E: responsi#ility for compliance and lia#ility for damage o Art 9>;: #enefit of man(ind o "aying that *ust #ecause one state can exploit$ is not enough and does not mean they can o !he develo$ed countries will be &urt t&e most b) opening another avenue for the minerals that the developed world already provides 411F Implementing Agreement o 2odified to appease industrialized nations$ who are encouraged to *oin o Annex J ?: !he .nterprise Joint ventures )o funding o#ligation o Annex J @: Aecision72a(ing cham#ers- of states with particular interest have a su#stantial voice in important decisions o Annex J >: 6eview Conference Art 9CC$ ++ 9$ @$ > don4t apply o Annex J C: !ransfer of technology Fair and reasona#le commercial terms ad conditions on the open mar(et$ or through *oint ventures o Annex J =: +roduction +olicy Accordance with commercial principles &A!! governs )o su#sidization of activites o Annex J :: Financial !erms of Contracts Fair Ade,uate means of determining compliance o 9S signed Special Functional 6ules on :arine Activities

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+rotecting the :arine "nvironment o Article 9E>: 2easures to $revent, 6educe, and ontrol $ollution of the 2arine .nvironment o .nforcement #y Flag state Coastal state +ort state o :arine Scientific 6esearch (Article ?>C) o Coastal states have the right to regulate in their territorial sea o In ..U and on Continental "helf (Article ?>=) need consent of coastal state/ states are o#liged to grant it and set regulations Settlement of .isputes (Articles ?GE7EE) o Annex 8I: "tatute for the International 'ri+unal for the Law of the "ea o Annex 8: Conciliation o Annex 8II: ar#itration o Annex 8III: special ar#itration Law of -cean (essels o Nationality of 8essels (Articles E;7E?) o 6egistration o Concept of genuine lin, If owned #y nationals of the state "tate exercises effective control over the ship <hether a company which owns a ship is owned #y nationals <hether the officers and crew are nationals 'ow often the ship stops in ports of the state 'ow extensive5effective is the control that the state exercises over the ship o <urisdiction over vessels o National vessels Flying the flag of a state of convenience is a pro#lem .xpect the nation of that vessel to #e the first line of defense 3ther opportunities to exercise *urisdiction in case the flag state isn4t strict enough o Foreign vessels (Article ?G I ?:) 8essels in your port Local police and *udicial authorities may decide for themselves whether a particular incident distur#s the peace of the port- Wilden&us2 !ase/ 9::G 8essels in your territorial sea Flag state has *urisdiction over criminal acts on #oard$ even when in territorial sea ( U# v. ,lores/ 9E@@) 1" has not ordinarily applied its law to events and transactions a#oard foreign vessels Laurit6en v. Larsen: "C3!1" declines to extend an act to a foreign vessel o

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International "nvironmental Law

Historical Dac(ground o 1" and Canada <aterways !reaty o Lays out what can #e done with the waters$ how$ and where o Commission under the treaty which ar#itrates the matters o Stoc,holm .eclaration on the 'uman .nvironment o +rinciple 9: #asically e,uates your right to an environment to a human right +ushes human rights further than they had #een #efore 'ave to consider future generations o 'ave sovereign right to exploit their own resources$ #ut have to avoid trans+oundary harm o Droad focus on the whole human environment o Created "toc(holm +rinciples o Led to creation of 1).+ o ?; year period from Stoc,holm to 6io o At the national level$ environmental regulations are #ecoming much more sophisticated and important o Also$ notorious incidents Cherno#yl o Aeveloping world has o#*ections$ #ecause they can4t meet the restrictions with their resources o Drundtland Commission Our !ommon ,uture report Sustaina+le development Aevelopment that meets the needs of the present without compromisingthe a#ility of future generations to meet their own needs o 411) 6io Summit on "nvironment and .evelopment o +rinciple ? influenced #y Drundtland o +rinciple 9C: precautionary principle Construct #y which you say even if I4m uncertain a#out the li(elihood of future events$ that shouldn4t prevent ta(ing steps now as a precautiono +rinciple 9:: Cherno#yl o .mergence of the concept of sustaina#le development o Created 6io Aeclaration o Created Agenda ?9 o Climate Change and Diodiversity !reaty signed o Created commission on sustaina#le development o )HH) <ohannes+urg "arth Summit o Focus on pu+lic;private partnerships o Ac(nowledgement that gov4ts alone isn4t cutting it International Institutions o 9N"$ o Coordinates the environmental activities of states and the 1) o Already doing this through others$ #ut this was supposed to #e more effective and greater cooperation o +laced in 0enya Aeveloping world wants change o 1) &A su#sidiary organ o Chec( slide o ommission on Sustaina+le .evelopment o Dased in )N$ reaction to 1).+ in )airo#i o Focused on env T development o onferences of the $arties o 2ultilateral treaty em#edded with autonomous institution (C3+ or meeting of the parties-) o #ecomes not only a gathering #ut a creature li(e an I3

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Climate Change Convention Article G A Conference of the +arties is here#y esta#lished% "upreme #ody%%% regular review of implementation%%% Articles G79; set up a mini I3 o "ome )HH ma7or I"L treaties (chec( slides) o &lo#al commons o Atmosphere o 'ydrosphere o Lithosphere o Diosphere o !rade and environment Su+stantive Law o !reaties o &eneral +rinciples5Concepts o Judicial decisions o %rail #melter case (1" v% Canada)/ Ar#% 9E>9: air pollution from Canada in the 1" Cannot cause in*ury across #orders Atmosphere o !he pro#lem of -8one .epletion o 3zone protects us from harmful sun rays and radioactivity from space o Aon4t want it to go away doy o 9E:C (ienna onvention on the +rotection of the 3zone Layer )o timeta#les Framewor, convention Creates a system #y which at some future point we can solve the pro#lem 1nderta(e to do more research a#out the pro#lem 6e,uires cooperation in scientific and tech fields 9E:G :ontreal $rotocol Follow7up protocol Article ? control measures o 9E:= serves as the #ase year o &oing to #e re,uired to ensure that your consumption doesn4t exceed that level Allows the C3+ to ma(e ad*ustments o As long as the chemical has #een listed the C3+ can ad*ust the level of consumption allowed o <ill #e #ound #y ad*ustment even if you vote against it !reaty regime is regarded as an un+elieva+le success story Advantage here is that there weren4t that many producers of the su#stances o !he pro#lem of climate change o +rincipal emitters are in developed world o 9EE? Framewor( Convention on Climate Change Created C3+$ secretariat$ su#sidiary #odies for expert advice$ and I+CC o 9EEG Cyoto $rotocol &ives limits to #e met #y ?;;:79? +arties are o#ligated to ensure their emissions don4t exceed their assigned amounts Annex A lists gases Annex D lists o#ligated states )o developing countries on this list 1" hasn4t ratified 3nly states that have ratified are #ound in ?;;: .missions trading: if a coutry doesn4t need its full ,uota$ it can give it to another state o

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0iosphere o !he +ro#lem of Diodiversity Loss o 9EE? onvention on 0iological .iversity o Article 9 3#*ectives Interesting: o#*ectives are the conservation of #io diversity$ sustainable use of its components$ and the fair and e'uitable s&aring of its #enefits o Article @: cannot cause damage across #orders o Awaiting ratification in the "enate 'rade ? "nvironment o ?;;; Diosafety +rotocol o !his treaty was concerned with a particular slice of the issue of protecting #iodiversity o Concerned with the movement #etween states of living modified organisms

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ontemporary $erspectives on International Law

$ositivism !his whole course lays out a positivist view of IL 6ule7#ased system: figure out the rule that has #een consented to (#y treaty or custom$ etc%) and apply it 3ften time resort to common sense$ or our idea of the right outcome- #ased on a gut$ soul$ or &od (natural law approach) if there is no #lac( letter law International 6elations5 International Law 6ealists o "(eptics o Is there really international law o "tates only pursue their own interests Institutionalists o "tates are pursuing their interests o !hose interests are in a very ma*or way pushed toward creating and a#iding #y rules and institutions o <ould say we are operating largely in a system of cooperation$ #ecause states get more of what they want and it is more efficient through cooperation o <ith little poc(ets of anarchy Li#eral theorists o 3ther groups that not only form the interests of the state$ #ut are also wor(ing cross7#orders$ and pushing onto the agenda of some states interests of these groups Constructivists o "ociety itself constructs the interests of states o "overeignty and other notions are constructs which are only reached through an appreciation of what the society as a whole is all a#out "conomic Analysis ritical Legal Studies )ew "tream o American Feminism o 2en run I3s$ ma(ing rules which address pro#lems for men o !orture pro#lem !hird <orld +erspectives o &rotius onward it4s all developed world stuff "ystem International Foundations )ature 'istory "ources Actors "tate responsi#ility rules +erspectives !reaties in 1" law Law of the land .,uates to fed statues CIL in 1" law .xecutive agreements Aispute 6esolution )egotiations 2ediation Conciliation Ar#itration courts +ermissi#le #ases of *urisdiction Immunity "u#*ect 2atter Areas In*ury to aliens 'uman rights 1se of force L3"C IDL Associated 1" laws

)ational

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