Professional Documents
Culture Documents
Prof. Bennoune
A hundred years ago, a student would have called it the ‘law of nations’. And, indeed it was: States were
regarded as the only legitimate int’l actors, the only entities capable of exercising int’l rights and duties. But
in the 20th Century, States ceased to be the sole subjects of int’l legal rules. This is certainly one of the most
significant developments in this area of law, for it makes possible the application of norms of conduct to a
wide range of individuals, institutions, and businesses. In short, it had ‘democratized’ law for int’l relations
and opened vast vistas of practice opportunities for legal advisors around the world. Int’l law is: i) the
normative expression of a political system; ii) the product of its particular ‘society’, it’s political system; a
construct of norms, standards, principles, institutions, and procedures; iii) about harnessing power (political
or otherwise). Purpose is: to establish and maintain order and enhance reliable expectations, to protect
‘persons’, their property and other interests, to further other values. Constituency is: states, institutions,
individuals, businesses, etc. But states remain ‘basic constituent entities’ and int’l law continues to be
described and characterized as the law of ‘the state system’ or ‘inter-state law’, long ago renamed ‘int’l
law’. Requisites are/were: Int’l law has never flourished in times of anarchy nor, for that matter, in times
of hegemony. The ideal environment for the development of int’l law have been times of multi-polar int’l
relations, where a number of states (which themselves have strong internal institutions and a profound self-
awareness/sense of nationalism) have competed and cooperated in a particular part of the world. The birth
of int’l law is often given as 1648 or the end of the 30 Years War, which culminated in the Treaty of
Westphalia. The Treaty was also the birthplace of the notion of:
Sovereignty: the idea that states are autonomous and independent, and accountable only to the whim
of their rulers, or (in what was then the exceptional case) the popular will of the people. States thus
owed no allegiance to a higher authority – not to god, a moral order, or an ideological ideal. States
answered to nothing but themselves and to the extent that int’l law existed it was only because states
had specifically consented to be bound by such rules; sovereignty is understood to have impose
certain kinds of limits on int’l law; Pros – reflects the local will, self-determination, and
independence; Cons – hyper-nationalism
Corfu Channel Case/U.K. v. Albania (p. 4): “This notion has evolved, and we must not
adopt a conception of it which will be in harmony with the new conditions of social life. We
can no longer regard sovereignty as an absolute and individual right of every state, as used
to be done under the old law founded on the individualist regime, according to which states
were only bond by the rules, which they had accepted. Today, owing to social
interdependence and to the predominance of the general interest, the states are bound by
many ruled which have not been ordered by their will. The sovereignty of states has no
become an institution, an int’l social function of a psychological character, which has to
be exercises in accordance with the new int’l law.”
New Substantive Rules of Int’l Conduct & New Procedures of Dispute Settlement between Int’l
Actors: almost always on the coattails of war; it thus appeared that int’l law was the stepchild of
war and destruction, offering a utopian hope of order and moral renewal.
Naturalists - Hugo de Groot (aka “Grotius” aka “the father of int’l law”) who wrote On the Laws of
War and Peace – a ‘common law’ of states backed up by religious and philosophical principles of
good faith and good will between nations and people; (What we should do/ethics)
Positivists – Emmerich de Vattel (had a greater influence than Groot) who wrote The Law of
Nations – States are subject to no moral authority above them; reigned supreme from 1848-1919
(What we must do/law)
Treaty of Versailles and the Covenant of the League of Nations (1919): history’s first attempt at an
organization for global peace and security; was doomed from the start due to WWII and the Cold War;
established an ambitions program for codifying int’l law and systematizing the rules of int’l conduct;
established a permanent int’l judicial tribunal; was concerned with issues of significance to people, and not
just gov’ts such as: economic developments, protection of the rights of minorities, and prevention of
disease; but these were still unable to keep the peace
The U.N. System: end of war WWII (1945) spawned the system; created an organizational architecture for
the int’l community; the U.N. system has since reached out into every aspect and spectrum of human
cooperation; has placed state concerns (i.e. sovereignty and maintaining peace) side-by-side with the
principle of protecting and extending the dignity of individual human beings; at least partly premised on a
natural law notion of the inherent worth of human beings, and is manifested in the creation of rules by
which a state must treat its own citizens; cannot impose its will on any state; was founded on the
prohibition of the use or threat of force between states (Article 2(4)) so, the Security Council was not
conceived as a body that would police/enforce int’l law generally and the charter did not create institutions
to enforce int’l law, except in respect of the prohibition on the use of force and related threats to int’l peace
and security
Article 1 of the U.N. Charter (1945 - - post WWII) – sets forth its major purposes (p. 1 of the Supp)
1) To maintain int’l peace and security
2) To develop friendly relations among nations
3) To achieve int’l co-operation in solving int’l problems of an economic, social, cultural, or
humanitarian character, and in promoting and encouraging respect for human rights and for
fundamental freedom for all
Note: Preamble contains a clause whereby the peoples of the U.N. “dedicated themselves to
practice tolerance and live together with one another as good neighbors”
The Cold War: dominated the int’l law scene particularly because both the USSR and the US had veto
power in the U.N.; int’l law took a back seat to this conflict but it flourished in the post cold war era, which
lasted about 10 years
Post 9/11 Era: where we are now; security is the central focus of the int’l law scene
Is Int’l Law Really Law at All?: debate continues since there is no ‘world government’ to legislate, judge,
and enforce int’l laws; the int’l law system is set up horizontally not vertically as is the case within nations;
law is enforced by: sanctions/economic pressure, ‘mobilization of shame’ (the classic example is S. Africa
& Apartheid; usually the role of NGO’s and int’l organizations such as the U.N.), exclusion of participation
in int’l organizations (i.e. the World Bank), national courts are occasionally used to enforce int’l law;
emergence of int’l courts that directly enforce int’l law upon individuals; anyway, most of int’l law is just a
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codification of existing mores; Effect: int’l is mostly successful; it affects most facets of our lives (i.e. world
trade, security, travel (which includes entering state B but also the actual trip to get there), international
mail, etc.; hard part is building a coherent law in the face of diversity (i.e. race, religion, gender, economic
systems) and different legal systems
In the U.S.: per Restatement 3rd on Foreign Relations Law of the U.S. Part I, Chapter I, “int’l law is
like other law, promoting order, guiding, restraining, regulated behavior. States, the principal
addressees of int’l law, treated is as law, consider themselves bound by it, attend to it with a sense of
legal obligation and with concern for the consequences of violation…It is part of the law of the
U.S., respected by presidents and congresses, and by the states and given effect by the courts.”
Responses to Objections to Int’l Law Based on Lack of Enforcement Mechanisms (p. 23):
1) There is much more voluntary compliance with int’l law than the critics would like to
acknowledge; if we understand the forces that motivate voluntary compliance, then perhaps we
can improve the content of the rules, or improve the system for making rules, so that a greater
portion of the system will exert a greater pull towards compliance
2) There are more sanctions for disobedience than is generally realized, although some of those
sanctions are relatively soft; the force of public opinion and the ‘mobilization of shame’ are not
trivial kids of enforcement mechanisms; also NGO’s effectively bring the glare of publicity on
violations of int’l law, to mobilize public pressure for compliance
3) There are more coercive sanctions for disobedience than the critics would admit, although
those sanctions are largely decentralized and non-forcible; i.e. economic sanctions, suspension
or termination of treaties, etc.
4) There may be non-forcible remedies available in national courts; i.e. a victim state might use
its own courts or other domestic tribunals to adjudicate claims of its national against the
breaching state; alternatively, it may be possible to invoke judicial remedies in 3rd party
countries for violation of int’l obligations
5) There are some forcible measures which provide even stronger forms of compulsion; if one
state violates the rule prohibiting force against another’s territorial integrity or political
independence, then the victim state can respond with individual or collective self-defense
6) There are embryonic centralized enforcement mechanisms, both forcible and non-forcible; the
primary source of these is Chapter VII of the U.N. Charter; i.e. collective economic sanctions,
the use of multilateral military force for enforcement purposes, etc.
7) Some centralized organs now exist for the enforcement of int’l criminal law against
individuals; the ad hoc International Criminal Tribunals have been created through the authority
of the Security Council under Chapter VII; substantial progress has been made toward the
establishment of a standing international criminal court
8) The int’l system is currently undergoing significant changes that could substantially transform
the effectiveness of coercive enforcement
The most important norm of 20th Century int’l law: the prohibition of the use or threat of force between states -
- Article 2(4) of the U.N. Charter
Where do we look to find the rules of international law on any given point?
i) Municipal law: domestic law of other countries (term used in international context)
ii) Common law
iii) Legislation: statutes, constitutions, etc.
Note: Number of sources makes this a complicated area of int’l law
Restatement 3rd §102 (p. 56): goes to international law but is a U.S. statement; Article 38 below is the actual
‘source of sources’
Ex Aequo et bono: according to what is equitable and good on the merits of the case - - equity rather
than points of law
Notes: if you learn nothing else in this class, for the love of gawd know Article 38; it gives no
express hierarchy but treaties are placed first in the text because they are express agreements but in
actuality both treaties and custom have the same weight (with priority given to what was set up later
in time); Summary = tells us about the identity of the sources of international law and that there are
different ones
Voluntarism: is the classic doctrine of state sovereignty applied to the formation of int’l law; it holds that int’l legal
rules emanate exclusively from the free will of states as expressed in conventions or by usages generally accepted
at law; supporters emphasize its necessity for a heterogeneous pluralistic world society and the importance of
maintaining a clear distinction between existing law (lex lata) and law in formation (les ferenda)
Positivism: emphasizes the obligatory nature of legal norms and the fixed authoritative character of the formal
sources; it also tends to consider that to be ‘law’, the int’l norm must be capable, in principle, of application by a
judicial body
Positivist voluntarism: means that states are at once the creators and addressees of the norms of int’l law and that
there can be no question today, any more than yesterday, of some ‘int’l democracy’ in which a majority or
Do we need new sources? Does it have to be enumerated in article 38 to have any meaning?
Pros and cons of expanding sources: Progressive development but if you expand, you’ll have legitimacy problem
of having too many sources.
Primary Sources: roughly as a practical matter this is the order in which you approach an issue
A. Custom: not clearly written down or clearly agreed to internationally; often referred to as a
‘mysterious phenomenon’; two basic elements we need to establish to say that a customary
international law exists/Test: 1) general and actual practice of it (widespread preferred) – objective
test [legislation; official connotations – things done at official governmental level and expressed
officially] AND 2) general acceptance of it as a legal obligation (aka opinio juris) – subjective test;
sometimes it is held that only the first prong is necessary however, as a practical matter, you really
do need to satisfy both
Hilton v. Guyot (p. 65): The extent to which the United States, or any state, honors the
judicial decrees of foreign nations is a matter of choice, governed by "the comity of
nations." Comity "is neither a matter of absolute obligation, on the one hand, nor of mere
courtesy and good will, upon the other." United States courts generally recognize foreign
judgments and decrees unless enforcement would be prejudicial or contrary to the
country's interests.
The Paquete Habana (p. 62): an incredibly important foundational case for U.S. Int’l
Attorneys; what court is this and how did this question of customary int’l law come up?:
U.S. Supreme Court in 1900, context is the Spanish American War, foreign nat’ls going to
u.s. courts to challenge u.s. confiscation/impounding of their boats/property; court says –
seizure was unlawful under customary int’l law (they were willing to look at that law b/c
int’l law is part of the federal common law & there was no controlling treaty in place at the
time); see Hilton v. Guyot; how does he find an int’l customary law to justify his ruling that
such seizures is wrong = a history of leaving ships alone during times of war, especially
civilian ships; he actually looks at, previous wars and agreements during them, judicial
decisions during other times of war, national laws in various countries, executive and
monarchical degrees in history, acts of military commanders, and judgments of national
courts; looks at mostly European, ‘civilized’ countries (really just means England and
France); Note: today ‘civilized’ mean everyone with an organized national government –
dropped the racist/time dated connotations/limitations; often referred to as one of the
greatest upsets in American jurisprudence b/c foreign nat’ls were able to use the U.S. court
against U.S. parties; p. 66, 1st partial paragraph, “no civilized nation….”;
The Case of the S.S. Lotus (France v. Turkey) (p. 68): which court are we in? permanent
court of international justice – which is a construct of the league of nations (aka PCIJ – first
institution of its kind, very active during the period, won some and lost some); year is 1927;
CIL comes up collision b/w French and Turkish ships; absent an international law on the
matter, CIL is resorted to; PCIJ agrees with turkey and says that all they have to show that
there is no CIL which prohibits exercising jurisdiction; French come up with one such law;
court rejects this b/c they don’t buy that the rule the French are citing to actually exists/is
customarily practiced because that practice only went to one ship crashing into non-ships
and only went to French ships = not applicable here; also there was another practice in
France which suggested concurrent jurisdiction; so, France loses; important classical rule
here: that which is not prohibited to states is deemed permitted
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Legality of the Threat or use of Nuclear Weapons (p. 77): most important international
comment to date; this case was really pushed by non-legal parties (not gov’ts); how does the
question of CIL come up here?: nuclear weapons had only been used once = no custom; not
all states have nuclear capabilities = no custom; Issue: is the threat or use of nukes ever
permitted (implicitly then ever forbidden) under int’l law?; court looks at int’l treaties but
none of them fully answer the question here, general assembly resolutions and the states
who have pulled together to say they prohibit the use of nukes, which the courts find can be
evidence of CIL but are not here b/c the ones sited were designed to have international
effect; court ultimately decides – you can’t use a threat that fails to meet Hilton v. Guyot but
you can us it if it is an issue of survival or humanitarian law (you can’t use nukes when it is
against the law to do so – PCIJ, CIL, and treaties; but we can’t say that it would always be
unlawful); criticism by Higgins of court here is that they turned it into a non liquet = a legal
question to which there is no answer, when they didn’t have to and really should have done
the interpretive work to figure this one out. Note: the court does say that there exists an
obligation to pursue negotiations in good faith leading up to a nuke threat and/or use.
There are treaties like the Antarctica Treaty of 1959 the Test-Ban Treaty in 1963 that
do completely legally prohibit the use of nuclear weapons; these treaties however do
not add up to a prohibition because there are exceptions to the prohibitions;
Customary law: what is the problem with this source of law; nuclear weapons have
only been used once; since then never been used, this isn’t a custom because
circumstances may arise again where nuclear weapons may be used; there are
assumption we cannot make; states do not practice deterrence not because of legal
requirement but rather because of fear; the need has not arisen; why states follow
deterrence is not clear
General assembly resolutions are not binding; what is the content of the resolution
and the conditions of the adoption of that resolution; if these are voted for by all
members of the UN then it can’t really show custom
The use of nuclear weapons would be in direct conflict with the rules of armed
conflict; when nuclear weapons are used civilians are not protected or excluded, this
violates int’l law rules on warfare
Possession itself is in conflict with non-usage; don’t want to use them, don’t need to
have them
There are no parties in this case, it’s an advisory opinion; the jurisdiction being used
is advisory jurisdiction; it’s not solving a dispute between two states; it’s answering a
question posed to it by an authorized body to the UN
Justice Weeramantry is from Sri Lanka, and his nation would be dramatically
affected by a nuclear war between India and Pakistan
Is the outcome of this case useful? The court did the only thing it could under the
circumstances; it tried to maintain credibility when faced with so many conflicting
ideas of the use of nuclear weapons
Opinio Juris sive necessitatis: (“opinion that an acct is necessary by rule of law”)The principle that
for a country’s conduct to rise to the level of int’l customary law, it must be shown that the conduct
stems from the country’s belief that int’l law (rather than a moral obligation) mandates the conduct
Case Concerning Military and Paramilitary Activities In and Against Nicaragua ICJ
1986: 96
Nicaragua claims unlawful military action by the U.S.; this case goes thru an analysis of
customary intl. law; the body of customary norms is separate from the body of treaty law;
the norms prohibiting the use of force here are called jus cogens ((“compelling law”) a
mandatory norm of general international law from which no two or more national may
except themselves or release on another; the fundamental peremptory norms, can only be
replaced by another norm of the same level)
• Court does not just rely on treaty principles for use of force but also relies on a separate
legal basis- co-existing custom principles for non-use of force and the attribute referred to
expresses an opinio juris respecting such rule.
• What is a Persistent Objector? A state may escape the effect of customary rules of law if
the State has persistently, promptly and consistently object to the application of that rule
from its inception. If a custom becomes established as a general rule of intl. law, it binds all
States which did not oppose it even if they themselves had not been active in its formation;
to NOT be bound by customary norm, a state must expressly oppose it, except jus cogens
(example: rule against apartheid); what about new-born states being bound to pre-existing
norms; these states begin with a clean slate (free from all treaties and customs).
B. Treaties:
• Intl. Law Commission is a body assigned the task of promoting both progressive development and
codification of the law; they draft texts for the UN that are to be negotiated by states
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• Treaty-making goes on all the time and is vibrant. Live source of international law.
• Bilateral treaties are clearly a source of law as to the two contracting parties. Bilateral treaties are
not usually considered a source of general international law when the reason for concluding them
was to create an international obligation that did not exist under general international law.
Extradition treaties fall into the category of contract-law. Absent a bilateral agreement, general
international law would not usually require the extradition of an alleged offender. The mere
existence of a network of bilateral extradition treaties in and of itself has no general law-creating
effect.
• Multilateral conventions with a large number of States parties may be a source of international
law, either as evidence of what these states declare the law to be, or by setting forth a new rule of
law by implication affecting all states. See Case Concerning Reservations to the Genocide
Convention.
C. General Principles of Law (aka int’l common law among civilized nations): include a rule of good
faith in int’l obligations (known as pacta sunt servanda: (“agreements must be kept”) The rule that
agreements and stipulation, esp. those contained in treaties, must be observed; see Quebec Case) and the
doctrines of necessity and self-defense; the least abstract (and more concrete) the principle, the more useful
it is, but also the more difficult it is to find a consensus among domestic legal systems (good example of
this is the principles of statue of limitations/laches or, as its known in civil law systems extinctive
prescription); recognized by civilized nations (done within the nations); ICJ will not determine presence of
GP unless it finds principles across different many systems and legal systems. Actual law, not custom.
Near universal private law rules may be indicative of principles of public international law.
Diversion of Water from the Meuse (Netherlands v. Belgium) PCIJ 1937: 128
Belgium wants to build canals and the Netherlands filed this complaint because the canals
alter the flow of water of the River Meuse; principles of equity have been seen in Anglo-
American Law, Roman Law; equity has real historic routes; many states derive their civil
laws from Roman law; it is appropriate to use equity in such a case; an agreement is a
contract between two states and under contract law equity is used to judge such a case
• “He who seeks equity must do equity”; P here was not innocent had done some of the same
stuff they were beefing with Belgium about;
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Corfu Channel Case (UK v. Albania) ICJ 1949: 133
Similar to the Meuse case; Albania is exploding mines and UK naval ships are being
damaged and the ICJ invokes general principles of humanity; elementary considerations of
humanity even more exacting in peace than in war; treaty rule (Hague Convention) not
applicable cuz it’s not a time of war; thus, General principle of elementary considerations of
humanity requires Albania to notify countries that may pass through its waters.
Secondary Sources: Article 59 – Statute of the Int’l Court of Justice p. 37 in Supp; very often used as ways
to interpret the primary sources
A. Judicial Decisions: (surprising to U.S. attorneys but done this way b/c not all countries in the
world have judicial systems where our system/jurisprudence is as important/even exists – civil law
countries are very different); only binding on the parties in the case; applies to municipal decisions
and ICJ’s decisions
Statute of the Int’l Court of Justice – Chapter II Article 38(d) – p. 34 in Supp: The Court,
whose function is to decide in accordance with int’l law such disputes as are submitted to it,
shall apply: Judicial decisions and the teachings of the most highly qualified publicists of the
various nations, as subsidiary means for the determination of rules of law; these include:
1. Decisions of the ICJ – regarded by int’l lawyers as highly persuasive on existing int’l law
2. Decisions of Intl. Arbitral Tribunals and other intl. courts
3. Decisions of Municipal Courts
B. Scholarly Writings (aka the teachings of the most highly qualified commentators):
Scholars/Judges/Professors/Associations. Never relied on to make new law but to understand
existing law. Interpretive value. Problem of national bias not reflective of international view.
Divergence of view among writers: who do you believe? Who’s right? Historically, the role of
writers was significant. Helped to create law. Kept track of international law. Its role is less
important now due to the sophistication of IL today.
General Assembly Resolutions: can be cited as int’l law, depending on who & how many
voted; 3 kinds
a. Law declarations
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b. Procedural: binding effect on member states
c. Declaratory resolutions: argued to be less legal end of the spectrum.
Texaco Overseas Petroleum Et al. v. Libyan Arab Republic Intl. Arbitral Award 1997: 148
Libya attempted to nationalize all the rights, interests, and property of 2 intl. oil companies
within the nation; the companies assert this is a violation of the deeds of concession granted
to them jointly by the govt.; the companies asked ICJ to appoint an arbitrator to hear the
dispute; Libya contests this arbitration asserting nationalization = act of sovereignty; the
arbitrator found in favor of the companies saying that the deeds should be given full force
and effect; refusal to recognize a UN resolution must be qualified; the resolution seeks to
create a balance between a state’s rights of sovereignty and the adaptation of that
sovereignty to intl. law, equity, and the principles of intl. cooperation; there is a resolution
that supports Libya’s view that protects sovereignty and another that tries to compel
compliance to customary intl. law; the arbitrator looks at the voting conditions in these
resolution like who voted and who abstained; the resolution that Libya is citing deals more
with the compensation that a state can allot itself in such situations; another resolution deals
with the natural resources of a nation; certain countries will/won’t vote for a certain
resolution because they have more interests around the world; Who has voted in favor or
against? Major ideological divide.
• Texaco – looked at the particulars of each resolution and decided one was binding over the other;
but the resolutions were (and are) given some weight internationally = an evolving approach
towards sources of int’l law which are debated but evolving nonetheless
-Should we make these distinctions regarding UN resolutions? Yes, certain resolutions need more
weight (i.e. jus cogens); states may or may not apply resolutions to their own domestic laws; diff.
resolutions do diff. things some being grandiose (creating new norms) some very forward looking
not just stating law, some very technical
• UN Gen. Assembly resolutions are not formally binding (not formally legislation) but these
statements have legal value; not independent source of law; often unanimously voted; there is no
other body where all states are represented equally; these resolutions fit in the gray area; the way to
understand resolutions is in relations to the 3 primary sources; they have legal value if seen as
similar to treaty law
General Considerations: Intl. law is binding on the state, states are obliged to give it effect, but states make and
apply int’l law thru their gov’t and their constitutional and legal systems; it does not replace domestic laws;
obligation to int’l law is upon the state not on any particular branch of its govt. but any violation by any branch is
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the responsibility of the state; every state has the duty to carry out in good-faith its obligations arising from treaties
and other sources of intl. law; regardless of what a state’s domestic law may say about international law, all that
matters to IL is whether that state is complying with IL. A state’s own law is not a valid excuse for non-compliance
of international law otherwise int’l law could be totally subverted.
Dualist: regard international law and municipal law as separate legal systems which operate on different
levels; international law can be applied by municipal courts only when it has been ‘transformed’ or
‘incorporated’ into municipal law; international law, as incorporated into municipal law, is subject to
constitutional limitations applicable to all domestic law, and may be repealed or emphasize the international
legal personality of states, rather than of individuals or other entities. (this is the U.S. approach for the
most part ); con = it may be harder to enforce international law with this; Preserves localism and
democracy. Implementing legislation is needed.
• Treaty entered by US is considered as part and parcel of the law of the land.
• Treaties are equivalent to legislation, and as a result can be amended and repealed.
• Role of customary international law as federal law
• Modern view: international customary law is our law; Habana
• As a matter of federalism, federal courts have jurisdiction: coherent foreign policy, one voice; balancing
international and domestic law; really irrelevant to IL. All must comply. It doesn’t absolve anyone. You still have
to abide by international law.
What if a State, while abiding by an intl. treaty, creates legislation in opposition of that treaty, BUT continues to
abide by the rules set forth in that treaty; is that legislation a violation of intl. law? Unless such a law is a violation
of jus cogens, and until the treaty is violated, the domestic legislation itself is not a violation.
US Constitution
Article II, Section 2: The President shall have Power, by and with the Advice and Consent of the Senate,
to make Treaties, provided two-thirds of the Senators present concur; Executive Agreements don’t require
Senate support
Article VI: “This Constitution, and the Laws of the US which shall be made in Pursuance thereof; and all
Treaties made or which shall be made, under the Authority of the US, shall be the supreme Law of
the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of
any State to the Contrary notwithstanding.
Restatement 3rd :An int’l agreement can’t take effect as domestic law without implementation by Congress
if the agreement would achieve what lies within the exclusive law-making power of Congress under the
Constitution; things that can’t be done via treaty without Congress:
1) Int’l agreement providing for payment of money by the U.S.
2) Int’l agreement to take the U.S. into war
3) Int’l agreement creating an int’l crime (i.e. genocide) or requiring states parties to punish certain
actions (i.e. hijacking)
4) Int’l agreement to raise revenue by itself imposing a new tax or tarriff
Treaties and the Supremacy Clause: The constitution does not expressly impose prohibitions or prescribe limits on
the Treaty power
Non-self executing treaty: (requires the passing of a domestic law) Requires implementing legislation. It
has no direct effect. Anything that requires congressional action. If can’t operate by itself, it’s non-self
executing. The UN charter, and in particular its human rights provisions, have been held to be non-self
executing (see case and explanation on bottom of p. 209) as they are “framed as a promise of future action
by the member nations.”; Congress may also consider whether new legislation is necessary; can depend of
whether there is already an existing law on the books as well; grander, more sweeping intl. agreements are
usually non-self executing (i.e. human rights laws)
Notes: all treaties are subject to the constitutional limitations that apply to all exercises of federal power,
principally the prohibitions of the Bill of Rights (since they have been incorporated in the 14th
Amendment); numerous statements also assert limitations on the reach and compass of the Treaty Power.
The states do not conduct foreign affairs , but they do influence them, and the extent to which they can do
so is also limited by the constitutional safeguards for individual rights
Foster and Elam v. Neilson Sup. Ct. of US 1829: 205 - - Treaties as Law of the Land
Appellants seek to recover a tract of land in Louisiana which they claimed under a grant made by the Spanish
governor; the grant is void because it is subsequent to the transfer to France and the US of the territory in which
the land was situated; 1819 treaty between US and Spain “all the grants of land made before the 24th of Jan.
1818…shall be ratified and confirmed to the persons in possession of the lands to the same extent as if they had
remained under the dominion…”; the treaty did not ratify or confirm appellants title; in the US, treaty law =
legislative law; but when a contract imposes a particular act on one of the parties, than the legislature must execute
the contract before it can become rule; without Congressional act, the existing laws cannot be encroached
As a matter of international law, US must adhere to the treaty even though as a practical matter, implementation
might be difficult and opposed.
International Law in the Municipal Law of Other States: Many handle it differently in the context of their own
domestic law
- Netherlands: monists; direct application of international law and not by virtue of a transformation into
municipal law; France and Switzerland have similar doctrines
- Fed. Rep. of Germany: “the general rules of public intl. law shall be an integral part of federal law. They
shall take precedence over the laws and shall directly create rights and duties for the inhabitants of the
federal territory.”
- Italy: “conforms with the generally recognized principles of intl. law.”
- Austria: “The generally recognized principles of intl. law are valid parts of the Federal law.”
- Greece: “The generally acknowledge rules of intl. law, as well as intl. conventions as of the time they are
sanctioned by law and become operative according to the conditions therein, shall be an integral part of
domestic Greek law and shall prevail over any contrary provision of the law.”
- It doesn’t matter how they seek to arrive at the end so long as they comply with their int’l obligations
A. States
1. Intro
In the beginning it was generally held that only fully sovereign states could be int’l legal persons. Over time,
individuals, corporations, NGO’s, etc. have come into int’l legal personhood via customary international law or
international agreement. However, states are still the core actors having the greatest number of legal rights and
duties, they enjoy a sort of preeminent int’l person status; States don’t exist until they have and evolve into
sovereign entities.
Henkin writes (p. 5): as applied to a state, elements long identified with ‘sovereignty’ are inevitably only
metaphors however, some of them do constitute essential characteristics and indicia of statehood today,
these include principally: independence, equality, autonomy, ‘personhood’, territorial authority, integrity
and inviolability, impermeability, and ‘privacy’; Henkin hates the word and its use in int’l law
What is a state - - per the U.S.? Restatement 3rd, §201 (p. 250): it is an entity -
1) that has a defined territory
a. but does not cease to be a state if occupied by a foreign power
b. and does not cease to exist when a previously functioning gov’t becomes ineffective or defunct
c. no minimum amount of space required
2) a permanent population
Corral 14 Fall ‘05
a. but no minimum number has been set
b. a significant number of ‘permanent’ inhabitants will suffice even if large numbers of nomads
move in and out of the territory
c. a new state does not have to extend nationality to its population as a condition of statehood
3) which is under the control of its own government
a. a new state formed by secession from a metropolitan state will have to demonstrate substantial
independence, both formal and real, before it will be regarded as definitively created
b. where a state is created by grant of power from the former sovereign, independence is treated as
a predominantly formal criterion
4) and engages in, or has the capacity to engage in, formal relations with other such entities
a. must have ‘competence, within its own constitutional system, to conduct international relations
with other states, as well as the political, technical, and financial capabilities to do so.
i. A state that voluntarily turns over these rights/responsibilities to another state does not
cease to be a state
For the U.S. Secretary of State Baker added the following: so long as the state adheres to
1) determining the future of the country peacefully and democratically, consistent with the Conference on
Security and Cooperation in Europe (CSCE) principles (who says democracy is best?)
2) respect for all existing borders, both internal and external, and change to those borders only through
peaceful and consensual means (do we have this?)
3) support for democracy and the rule of law, emphasizing the key role of elections in the democratic
process (questionable here)
4) safeguarding human rights, based on full respect for the individual and including equal treatment of
minorities (do we have this?)
5) respect for international law and obligations, especially adherence to the Helsinki Final Act and the
Charter of Paris
The Determination of Statehood Int’lly – Convention of Rights and Duties of States – Article 1 (p. 44 of the
supplement); 4 criteria/conditions of statehood for the purposes of int’l law:
1. Defined Territory
- No need for completely defined or undisputed territories; (i.e. Israel)
- Consistency in the area governed
- Sovereignty over a specific territorial area is essential
2. Permanent population
- Formally, there is no lower limit to meet the criteria (i.e. Nauru = 8,000); Liechtenstein = 28,000)
- There must be some population based in the territory, in other words not just nomadic bands of
people in and out of the place
3. Government
- Some type of stable and effective authority is required; it must be strong enough to assert itself
without the assistance of foreign troops. It is much easier for an entity to obtain statehood than it is
to lose it (i.e. Somalia, Burundi, Rwanda, Lebanon = no stable authority but their state status hasn’t
been revoked)
- There is nothing that tells us what this means, there is no real definition; the working definition is:
a stable organization/public authorities with enough clout to do what is necessary and maintain
control (in Finland the govt. was not recognized until the civil war was over)
4. International capacity/Independence
- Does this government really called the shots for this state?
- Capacity to conduct intl. relations; state must have competence within its own constitution,
financial/technical/political means
E.U. added even more (p. 259) and are stricter than most other standards; book says the new conditions it added
were hand tailored to fit their specific interests.
The U.S. picks and chooses who to recognize and how much to recognize them to suit its own interests too (p. 260
– 261)
Capacities, Rights, and Duties of States include:
1) sovereign over its territory and general authority over its nationals
2) status as a legal person, with capacity to own, acquire, and transfer property, to make contracts and
enter into international agreements to become a member of international organizations, and to pursue,
and be subject to, legal remedies
3) capacity to join with other states to make international law, as customary law or by international
agreement
2) Declaratory: existence or disappearance of a state is a question of fact and whether those facts meet the
criteria for statehood established by int’l law; primary function of recognition is to acknowledge the
fact of the state’s political existence and to declare the recognizing state’s willingness to treat the entity
as an int’l person, with the full rights and obligations that go along with that (most authority and
practice lies here)
A Duty to Recognize?
Acts of recognition or refusals to recognize may have a significant and at times decisive role in determining
controversial situations. An entity that meets the conditions of statehood cannot, because of the lack of
recognition, be denied it’s rights or escape its obligations. So, the theoretical gap between these two
theories is rather less in practice than in theory. A state is not req’d to accord formal recognition to any
other state, but is req’d to treat as a state an entity that meets the requirements of statehood. However, a
Corral 16 Fall ‘05
duty not to recognize may be applicable when an entity does not yet satisfy the criteria for statehood under
int’l law or when it has come into existence in violation of fundamental principles of int’l law.
Premature Recognition as Unlawful Intervention: If the parent state has not yet recognized the new state, but other
nations have already, complaints will arise (i.e. Rhodesia claims to be a state but its parent nation the UK
sees this as a rebellion; this is an illegal state because it is as the UN Security Council calls it a “racist settler
minority”)
Self Determination of ‘Peoples’ – “the right of the people in non-self-governing territories (i.e. colonies) to freely
determine their political status” (p. 269) ; There was no coherent theory of self-determination after WWI, nor was
there a legal expression of the concept in the Covenant of the League of Nations; in 1945 via the U.N. Charter,
self-determination was embraced as a ‘principle’, and in due course became accepted as a principle of customary
as well as treaty law. Was codified in many other treaties (p. 269) too. In the eyes of some jurist and judges, the
principle of self-determination is not only a binding rule of int’l law, but even enjoys the status of a peremptory
norm (a norm that is so fundamental that a state cannot contravene it); it is widely held that the political future of a
colonial or similar non-independent territory should be decided in accord with the wishes of the inhabitants; self-
determination is very much about internal democracy, rights of minorities; the end of colonialism has opened up a
lot of questions on this topic (i.e. Western Sahara)
See the UN Friendly Relations Declaration on p. 270 – General Assembly Resolution on the Principle of
Equal Rights and Self-Determination of Peoples
On Separatist Movements -
2) Principle of effectivity (p. 280): an illegal act may eventually acquire legal status if, as a matter of
empirical fact, it is recognized on the international plane. This does fly sometimes but this is no reason
to pre-approve such acts
On Recognition of Statehood -
Recognition from the U.S. (p. 292): Dan Webster puts our nation’s position as one of acceptance/cooperation with
all kinds of governments; the way it’s really been though is:
1) recognition of gov’ts was not a matter of int’l obligation but could be granted or withheld at will to
further national policy
2) other times, policy has been to recognize the gov’t in power despite distaste for the way it acceded to
power, or for its ideology, policies, or personnel
3) in recent years, practice has been to de-emphasize and avoid the use of recognition in cases of changes
of gov’ts and to concern ourselves with the question of whether we wish to have diplomatic relations
with the gov’t
The Two Governments of China (p. 295): the first case in which two rival gov’ts existed in
the same state; Issue: what test should be used to determine recognition? Held: a principle of
numerical preponderance is inappropriate and legally incorrect; does the new government
exercise effective authority within the territory of the state and is their authority habitually
obeyed by the bulk of the population (assessed on a case by case basis)
The Estrada Doctrine (p. 297): adopted by Mexico; generally understood to mean that recognition of gov’ts is
unnecessary once the state has been recognized by another state.
The U.K. (and many others have followed suit): ‘we have concluded that there are practical advantages in
following the policy in not according recognition to gov’ts. We shall continue to decide the nature of our
dealings with regimes, which come to power unconstitutionally in the light of our assessment of whether
they are able themselves to exercise effective control of the territory of the state concerned and seem likely
to do so.
1. The possession of the state must be exercised in the name of the sovereign (a titre de
souverain)
2. The possession must be peaceful and uninterrupted
3. The possession must be public (for all to know about it)
4. The possession must endure for a certain length of time
2. Force/Conquest (not legit anymore) – we don’t go back to invalidate ones that were attained this way
previously but this rule is applied prospectively
Stimson Doctrine of 1932 & U.N. Charter via the Friendly Relations Declaration of 1970: a
policy not to recognize the validity of territorial acquisitions brought about by force
Uti Possidetis Juris (p. 331) – “as you possess, so may you possess”; provides that states emerging from
decolonization shall presumptively inherit the colonial administrative borders that they held at the time of
independence; it largely governed the determination of the size and shape of the states of former Spanish Latin
America beginning in the early 1800’s, as well as former European Africa and Southeast Asia beginning in the
1950’s. The relevance of this doctrine today is evidenced by the practice of states during the dissolution of the
former Soviet Union, Yugoslavia, and Czechoslovakia, and much of Africa apparently sanctifying the former
internal administrative lines as interstate frontiers; was essential during the post-Cold War breakups; many
populations are inherently unsatisfied with the boundaries upheld by the principle during these breakups; THIS IS
A BLACK LETTER LAW RULE IN INTERNATIONAL LAW
ILC Draft Articles on State Responsibility – p. 301 Supp: soft law but very influential
Corral 21 Fall ‘05
Breach of Int’l Obligation - - Chapter III (p. 303): when responsibility arises
• Element of Imputability: Article 7 – p.302; whose actions can constitute state action that can be
attributable to a state. Goes to action by state agents but the realm of possibility doesn’t end there
because there are other actors whose acts can be attributed to the state - range of governmental
agencies; legislative, executive, judicial, and organs which are not part of the formal structure of the
State. Also any territorial government can act for the state (i.e. Federal system) and de facto state
acts, committed by other actors imputable to state for the purposes of state responsibility law
Article 9. States are responsible for the acts of their secret service, private individuals, and police,
regardless of whether they are covert;
- Conduct of private persons: Article 8 – p. 302; can be imputed to state if it’s established they were
acting on behalf of the state. Can be imputable to the state if: a) it is established that such person or
group of persons was in fact acting on behalf of that state; or b) such person(s) was in fact
exercising elements of the gov’tal authority in the absence of the official authorities and in
circumstances which justified the exercise of those elements of authority
• Ultra Vires Actions: Articles 10 & 11 unauthorized/beyond the scope of power allowed or granted
by the law of the state – can be individuals or ‘organs’; even under this condition, a state will be
held liable because we need clarity and security in IL. (i.e. Union bridge company; Youmans Case)
Policy motivation is to promote clarity in IL. At the end of the day, what matters is whether you’re
complying with IL. Fairness to other states.
• Basis of Responsibility: level of fault we have to find state responsibility. Degree of intention
/negligence v. just the fact of noncompliance (violation) aka strict liability v. negligence; Answer is
mixed. But strict liability for states is common in international tribunal approach (i.e. Corfu case)
Opinion is divided but strict liability is more common. This approach begets clarity and uniform
standard. Non-violating/victim state doesn’t care about degree and intent of negligence.
•Erga omnes: a legal obligation toward all; usally used in reference to human rights or
environmental issues. The term falls within the International Law Principle of Universality, that is
the idea that certain activities are so reprehensible that the rules of jurisdiction are waived so that
any state may apprehend an alleged perpetrator and try them under their own jurisdiction. Such
crimes might include: piracy, slave trade, operating a "stateless vessel", genocide, and war crimes.
A state is responsible to all states for these even if those states cannot show injury. Takes state
responsibility and translates into a particular situation. By nature of the obligation, everyone has an
interest in holding that violating state accountable. Erga omnes is just for states.
Case Concerning the Barcelona Traction, Lights, and Power Co. Ltd. (Belgium v. Spain), 2nd Phase ICJ 1970:
694
1) You have to have conduct that you can attribute to the state;
2) It must be a violation of intl. obligations of that state;
3) No defenses for the conduct;
• Concept of erga omnes is embraced in this case. All states can be held to have a legal interest in their protection.
(i.e. All states have an obligation to enforce the Geneva Conventions.)
3. Remedies
Counter Measures and Self-Help: Chapter II – p. 309 Supp/p. 713; must be necessary to stop the harm and must be
proportional to the violation and injury and necessary; must be something that is reversible; fairness
towards injured state is the greatest consideration here; among the most controversial of the Draft
Articles as they embody a series of compromises b/w arguably irreconcilable positions; NOT the
same as self-defense
3 Types of Countermeasures:
1) Reprisal – would be illegal but for the prior illegal act; sometimes involve use of force (illegal
but allowed)
Corral 23 Fall ‘05
2) Reciprocal Measures – non-performance in fulfilling obligations towards the offending state so
long as those obligations correspond to or are directly connected with the original breach. Non-
performance can’t be something you can’t take back (legal)
3) Retorsion – generally permissible in int’l law irrespective of prior breach (i.e. diplomatic
severance) (legal but rude)
• Limitation on all of the above. If the other side bombs your city, you can’t do the same;
same for summary execution.
Forms/Methods of Countermeasures:
1. Reparation – Article 42 the injuring state must make full reparation to the state it injures;
account shall be taken of the negligence or the willful act or omission of: a) the injured state; or b) a
nat’l of that state on who behalf the claim is brought, which contributed to the damage; in no case
shall reparation resulting depriving the population of a state of its own means of subsistence; the
injuring state may not invoke its municipal law as justification for the failure to provide full
reparation.
2. Restitution in Kind – Article 43 this is the priority int’l law although its rare in reality because
its usually not possible (i.e. someone is dead, the land is bombed, etc.); the re-establishment of the
situation, which existed before the wrongful act was committed, provided: a) that it is possible, b)
that doing so would not violate a peremptory norm , and c) would not burden the injuring state out
of all proportion to the benefit which the injured state would gain
3. Compensation – Article 44 specifically includes interest now; is much more common than the
above; available if and to the extent that the damage is not made good by restitution in kind; covers
any economically assessable damage sustain ed by the injured state
4. Satisfaction – Article 45 much more important than it seems; cannot be the kind that impairs the
reputation of the injuring state though; goes, in particular to moral damage caused by the injuring
act; may take the form of one or more of the following: a) am apology; b) nominal damages; and/or
c) in cases of gross infringement of the rights of the injures stat, damages reflecting the gravity of
the infringement; if done by agents of the offending state, they may be punished
Dispute Settlement:
a) Conciliation – Article 56 a 3rd party comes in and tries to resolve the issue; more pro-
active than mediation; non-adjudicatory
b) Mediation – Article 55 some as conciliation but less pro-active 3rd party; non-adjudicatory
Preeminent IGO = The United Nations whose primary goal is to prevent war/promote human rights and social
welfare according to its charter. Not supranational organization like the EU. Under their umbrella also:
• Security Council: principal organ dealing with issues of peace and security.
• General Assembly: highest democratic body in the world. Deals with humanitarian, legal, funding, and
constitutional initiatives and supervises various sub organs.
• ICJ: Judicial wing of the UN. It doesn’t have automatic judicial review.
• Economic and Social Council: political body. Members are state representatives. Supervises a range of
important bodies (i.e. relationships between NGOs and UN).
• Secretariat: Bureaucrats. Civil Servants.
UN Charter Article 41 p. 10 Supp; enumerates what measures the Security Council can take; may include
complete or partial interruption of economic relations and of rail, sear, air, postal, telegraphic, radio, and
other means of communication, and the severance of diplomatic relations
Reparation for Injuries suffered in the service of the UN ICJ 1949: 361
The UN was seeking reparations for the death of its chief negotiator, Bernadette; the question at issue in this case is
whether or not the UN can bring action itself; does the UN have a legal personality? The ICJ looked at the UN
charter to determine whether or not the UN had the right to bring such a claim and the ICJ found that it did; the UN
must have legal capacities and personality; the UN was intended to exercise and enjoy (and that’s what it’s doing)
functions and rights which can only be explained on the basis of possession of a large measure of intl. personality
Prosecutor v. Tadic International Criminal Tribunal for the Former Yugoslavia 1995: 372
Did the UN have the authority to establish this criminal tribunal? It was established as a measure of the UN Sec.
Council; the Security Council has to report to the General Assembly within the parameters of the assembly; the UN
security council must maintain and restore peace and sometimes the methods necessary for that were not foreseen
when the UN charter was written; the UN is an evolutionary organization though
• Tadic claimed that the Security Council was not authorized to establish an international criminal tribunal.
• Rule: Once the Security Counsil determines that a particular situation poses a threat to the peace, it enjoys a wide
margin of discretion (exceptional powers under Chapter VI and VII of the UN Charter) in choosing the course of
action; not ultra vires for Security Council to set it up.
• The charter of the UN provides that the Security Council shall determine the existence of any threat to the peace
and decide what measures shall be taken to restore international peace and security.
• Security Council has a wide margin of discretion in choosing the course of action. • Here, Tadic was
challenging the legality and appropriateness of the measures chosen by the Security Council.
• Interlocutory Appeal: the appeal of an issue that does not resolve the disposition of the case, but is
essentially to a determination of the parties’ legal rights.
- Slippery slope argument; how far can the discretion go?
- There is no clear sense of judicial review or hierarchy between various tribunals and ICJ. Instead, it is a
decentralized legal system.
Non-Governmental Organizations (NGO’s): not the creations of states but rather are formed by individuals or
private groups sharing a common objective; they include worldwide organizations involved in humanitarian,
health, human rights, and environmental matters; professional and scientific associations; federations and
international unions made up of national associations representing labor or employers; religious bodies; scientific
academies; etc.; they provide vehicles through which transnational ‘civil society’ can influence the decisions and
actions of states and of int’l organizations, and indeed the attitudes and conduct of diverse actors
Restatement 3rd Part II, Chapter II on NGO’s: Int’l orgs are created by int’l agreements and are governed by
the law pertaining to such agreements. The law of int’l orgs has become a separate subdivision of int’l law,
much as in national legal systems the law of corporations developed independently of the law of contracts
even while retaining links to it. Particularly when organs of an int’l org are authorized by its constitutive
agreement to make decisions, allocate funds, admit and expel members and interpret or even amend the
constitutive agreement, the org. can be said to have a law of its own, a kind of ‘int’l constitutional law’.
• Greenpeace and other such grass-roots organizations; the ACLU, NRA; such organizations are becoming
more involved in the intl. law scene; such organizations can be present during the UN General Assembly;
they can do anything the delegates can do except vote; should we be concerned about this? Maybe, because
NGO’s do not have to answer to anyone; they are not elected and not necessarily accountable (unless they
are a membership organization or fundraising)
Trial of Individuals before the Nuremberg Military Tribunals under Control Council Law 1951: 406
An International Tribunal formed to punish violators of war crimes, crimes against peace, crimes against humanity,
conspiracy; penal law of Germany not sufficient enough; the General Assembly affirms that genocide is a crime
under intl. law that the civilized world condemns and for the commission of which principals and accomplices
(whether private individuals, public officials, or statesman, and whether the crime is committed on religious, racial,
political or any other grounds) are punishable; the General Assembly is not a legislature but it is the most
authoritative organ of world opinion; Nuremberg Trials are not enforcing German law but rather world law
• Rule: As to the punishment of persons guilty of violating the laws and customs of war, tribunals may be
established and punishment imposed by the state into whose hands the perpetrators fall.
• Holding: Defendants contend they should not be found guilty because they acted within the authority and
command of German laws and decrees. The Nuremberg Tribunal enforced law as declared by the International
military tribunal charter and CC Law 10, pursuant to which it enforced international law as superior to any
Germany law. Such law did not excuse persons on the basis that they were acting in accordance with law
prevailing at the time of the crime, but that participation in the enforcement and enactment of such laws constituted
war crimes and crimes against humanity in itself and amounted to complicity in the crime.
Multilateral treaties like International Treaties on the Treatment of Children adopted by all but Somalia =
international law
Treaties of Progressive Development: where there is no custom/relevant practice; preparing draft conventions on
topics where there hasn’t been state practice/custom before; “Adoption of the text of a treaty at an intl. conference
takes place by the vote of 2/3 of the states present and voting unless by the same majority they shall decide to
apply a different rule; this is more “progressive development”; (but they look for consensus primarily)
Treaties of Codification: taking agreements/understandings/customs that already exists and turning them into
treaties and codify them = international treaty; writing down in treaty from previously existing custom/custom that
was very close to wide acceptance
Three potential relationships between treaty law and international custom law (from book):
1) Treaties can expound upon custom that is pre-existing
2) Treaties can crystallize pre-existing custom and expand its reach
3) Treaties can create new law that can eventually create custom
Treaty Law:
• Treaties are a principal source of obligation in international law and must be registered with the UN via
Article 102
• The term covers the binding agreements between subjects of international law that are governed by
international law. Closest to legislation/black letter law. Best medium to imposing binding laws of precision.
- How to know when governed by int’l law:
a) The agreement’s subject matter entails high politics between states
b) The intention of the parties to be bound by int’l law
c) The agreement goes to principles of customary int’l law
• Does NOT cover:
a) Agreements between a state and a private company, even a multinational one, even if it is
half-owned by the gov’t
b) Purchase by a state of one thousand tons of chilled beef from another state govt
c) Purchase of a building or a piece of land for a legation, when this transaction is subject ot the municpal
law of one or the parties or to that of a 3rd state
d) A loan or a guarantee agreement between the World Bank and a state
• The Vienna Convention on the Law of Treaties: (p. 134 Supp) THE principal authoritative source on the
law of treaties; adopted in 1969; The convention is regarded in large part as declaratory of existing law.
Entered into force in 1980; is taken as a statement of customary intl. law: been invoked and applied by
tribunals; many examples of when the laws codified inthe convention were applied before it was put into
force in 1980 (p. 453); No provisions for war between Contracting Parties (today war is called Armed
Conflict)
Vienna Convention Part II, Section I: Conclusion of Treaties (p. 135 Supp)
Article 7 – p. 135 Supp; defines who may represent a state for the purpose of adopting a treaty for
that state
a) Those producing appropriate full powers
b) Those who it appears the state intends to have such powers via their action & other
circumstance
c) Heads of State, Heads of Gov’t, ministers of foreign affairs
d) Heads of diplomatic missions
e) Designated state reps
Article 8 – p. 136 Supp; if a treaty is concluded by someone who turns out to be unauthorized, the
treaty is without legal effect unless afterwards confirmed by the state
Note: All these are equal and state binds itself. State party; undertaking the responsibility of
the treaty.
Article 18 – p. 138 Supp; obligation not to defeat object of a treaty; when a state signs a treaty
subject to ratification, the state is obliged to live up to the treaty (unless it rises to meat
the level of customary international law). Doesn’t meant that the state has to fully
implement that treaty(doesn’t have to change its legislation). It just can’t take
affirmative acts to defeat the treaty, especially for the Death treaty. Obligation is more
than not signing a treaty but less than if you ratified it. This interim last until the state
made its intention clear not to become party to the treaty. Misuse of rights prior to
ratification may amount to a violation of its treaty obligations; this obligation begins
when a state enters in negotiations for conclusion of a treaty; you cannot take steps to
defeat the scope and purpose of a pending agreement
Vienna Convention Part II, Section II: Conclusion of Treaties p. 138 Supp
Article 21 – p. 139 Supp; discusses the legal effect of a reservation; when a reservation is accepted
it DOES NOT change the treaty; it merely changes the legal obligations undertaken by
the reserving State from the treaty, and the relationship of other states to that reserving
State. It does not modify the treaty itself; it does not change the relationship between
the other states that are a part of the treaty (i.e. Libyan diplomatic bag reservation-
Libya could open anyone’s diplomatic bags, and anyone could open up Libya’s; BUT
France cannot open up Britain’s diplomatic bags); the key rule is reciprocity. States
can withdraw reservation in writing.
• We have reservation to encourage states to participate: tension between the objectives of preservation of
the integrity of the text of the treaty and desire for universal participation.
Exclusion of reservations: can a convention of ‘legislative’ nature not allow any reservations at all? I.e. UN
Convention of the Law of the Sea 1982: no reservations or exceptions may be made to this convention unless
expressly permitted by other articles of this convention
Article 26 – Pacta Sunt Servanda: (“agreements must be kept”) The rule that agreements and
stipulations, esp. those contained in treaties, must be observed; Principle of good faith
compliance with the real meaning of the law. Attaches legal meaning and obligations.
If one state complies, it believes it can rely on others to do the same. Every treaty in
force is binding and must be performed in good faith. Purpose and intention should
prevail over its literal application.
Article 27 – A state cannot invoke its internal law as a justification for its failure to perform a
treaty. In national legal systems, domestic law should be construed insofar as possible
to avoid violating a state’s international obligation - - “Charming Betsy”
Vienna Convention Part III, Section II: Application of Treaties p. 141 Supp
Interpretations of Treaties
You want to interpret the treaty so as to give force to its goal, to meet the ends of the treaty; beyond the
intention of the drafters the treaties aims/goals are most important; Judicial legislation is something that
should be avoided; they should interpret not revise treaties
Article 32 – (p. 142 Supp); Supplementary Means of Interpretation; preparatory work; Travaux
Preparatoires: in order to confirm the meaning but can only be used if Article 31
reading a) leaves the meaning ambiguous or obscure b) leads to a result which is
manifestly absurd or unreasonable. Helpful because it gives a sense of what the
drafters were thinking. On the other hand, negotiations occur informally that aren’t
recorded Different from the treaty itself.
Travaux Preparatoire- every major treaty has this that gives background of
the treaty and the intentions of the drafters. This is considered supplemental,
but it is looked at. United States looks to this and proposed that it be looked
at as a primary source of interpretation, but this was shot down.
Article 33 – all the language versions have equal weight. If one offers more limited interpreted
than others, then the limited one will relied upon because all states have at least
agreed to it.
Article 36 – (p. 142 Supp.) Third State Entries: state that is not a party to the treaty in question.
There has to be an intention to bind the third party and express acceptance by the
third party. If the third party is benefiting, it has to conform to the treaty. You can’t
bind a state that hasn’t agreed to a treaty, except in jus cogen area.
Vienna Convention Part IV: Amendment and Modification of Treaties p. 143 Supp
Article 41 – Usually treaty says how you can amend and modify a treaty. Article 41
Amendment only binds those states who agree to the amendment. If a state doesn’t
agree, it is only bound by the underlying treaty.
Vienna Convention Part V: Invalidity, Termination, and Suspension of Treaties p. 144 Supp
Article 42 – you can only invalidate a treaty through a provision of VC on treaty. Even if you
can get out, that doesn’t mean that you are absolved from other areas of
international law.
Article 43 – the invalidation of the treaty can’t impair the duty of any state to fulfill any
obligation embodied in the treaty to which it would be subject under int’l law
independently of the treaty
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Article 44 – separability of treaty provisions; a right of a party to withdraw from, denounce, or
suspend the operation of the treaty may be exercised only with respect to the whole
treaty unless the treaty otherwise provides or the parties agree otherwise; for
exceptions see Article 44 (3) p. 144 Supp
Ultra Vires Treaties: treaty not complying with municipal law requirements. The way that a state
entered into a treaty. Has to be of fundamental importance. Consent to bound was made in such a
way that is in violation of rule of fundamental importance (ie constitutional rule). Not in accordance
with the procedure of that state. The rule has to be manifestly clear. You can’t get out of your
international obligations, unless there is egregious error. The state can claim that the treaty never
came into effect. It doesn’t affect the treaty as a whole.
Article 48 – Error; 1. A State may invoke an error in a treaty as invalidating its consent to be
bound by the treaty if the error relates to a fact or situation which was assumed by
that State to exist at the time when the treaty was concluded and formed an
essential basis of its consent to be bound by the treaty.
2. Paragraph 1 shall not apply if the State in question contributed by its own
conduct to the error or if the circumstances were such as to put that State on notice
of a possible error.
3. An error relating only to the wording of the text of a treaty does not affect its
validity; article 79 then applies.
4. you can’t use the error in wording of the treaty to get out of a treaty.
Article 49 – Fraud; If a State has been induced to conclude a treaty by the fraudulent conduct of
another negotiating State, the State may invoke the fraud as invalidating its consent
to be bound by the treaty. Fraud destroys the whole basis of mutual confidence
between the parties in a way that error does not. Fraud implicates good faith.
Article 50 – Corruption; If the expression of a State's consent to be bound by a treaty has been
procured through the corruption of its representative directly or indirectly by
another negotiating State, the State may invoke such corruption as invalidating its
consent to be bound by the treaty.
Article 51 – Coercion of a State Rep; Gravely viewed. Consequences are more serious because
of the gravity of situation; The expression of a State's consent to be bound by a
treaty which has been procured by the coercion of its representative through acts or
threats directed against him shall be without any legal effect. Any consent to be
bound is automatically invalidated.
Article 52 – Coercion of a State; A treaty is void if its conclusion has been procured by
the threat or use of force in violation of the principles of international law
embodied in the Charter of the United Nations.(Article 75 contains an
exception for coercion; if a state uses force, and met with force from the
intl. community, the peace treaty signed is not void); economic coercion is
excluded.
Article 56 – Termination of or withdrawal from a treaty with no provisions for it; if the right to
withdrawal is implied, a state has to give 12 month notice period. Implied
withdrawal can be for example: if parties intended to withdraw. Or such a right can
be implied from the nature of the treaty (i.e. Alliance at war; Commerce, etc.)
Examples of perpetual implied relations = Territorial session or settlement
Article 60 – Breach of a Treaty and the Consequence; Conflicting arguments to abolish from
treaty because of breach
Some jurist argue that it is o.k. to abrogate (abolish) treaty for breach.
(unqualified)
Other jurist view this as a way of just getting out of the treaty and limit
abrogation to material breaches.
Paragraph 1; A material breach of a bilateral treaty by one of the parties entitles the
other to invoke the breach as a ground for terminating the treaty or suspending its
operation in whole or in part.
Paragraph 4 The foregoing paragraphs are without prejudice to any provision in the
treaty applicable in the event of a breach.
In a nutshell, Article 60: Bilateral treaty: A commits violation, B can invoke the breach as a ground
for terminating or suspending the treaty: multilateral treaty: If one commits a material breach, the
other states can: a) by unanimous agreement suspend or terminate the agreement between all the
parties or between itself and the defaulting party; b) if one country feels it is particularly
aggrieved, it can invoke the breach as a ground for suspending the treaty only against the defaulting
party; or c) material breach by one party changes the position of everyone (i.e. disarmament
treaties) then any party can get out of the treaty on its own without first obtaining the agreement of
the other parties to suspend the operation of the treaty with respect to itself generally in its relations
with all the other parties (Pg. 546); 2 Exceptions: 1. if the treaty has its own rule, then you follow
those; 2. treaties of humanitarian character.
Appeal Relating to the Jurisdiction of the ICAO Council (India v. Pakistan) ICJ 1972: 551
Jurisdiction of the Council to entertain the dispute between India and Pakistan-Question of whether this dispute
involved a 'disagreement ... relating to the interpretation or application' of the Chicago Convention and Transit
Agreement alleged irregularities in the procedure of the Council-Relevance of this question to the task of the Court
in the present case.
Rule: A merely unilateral suspension does not per se render jurisdictional clauses inoperative.
FACTS: Pakistan (D) brought a complaint against India (P) before the Council of the International Civil Aviation
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Organization (ICAO) for violation of treaty provisions after India (P) unilaterally suspended flights of Pakistan (D)
aircraft over Indian (P) territory. India (P) appealed to the I.C.J., asserting that the treaties had been suspended by
India (P) on grounds of a breach by Pakistan (D) when it hijacked an Indian (P) plane. Pakistan (D) objected to the
I.C.J.'s jurisdiction, claiming India's (P) unilateral suspension had made the jurisdictional clauses inoperative.
If you allow the clause to suspend the clause then the whole thing becomes a dead letter.
ISSUE: Does a merely unilateral suspension per se render jurisdictional clauses inoperative?
HOLDING AND DECISION: No. A mere unilateral suspension does not per se render jurisdictional clauses
inoperative. If a mere allegation that a treaty was no longer operative could be used to defeat its jurisdictional
clauses, all such clauses would become potentially a dead letter. The Court has jurisdiction.
• No right to just dissolve but you have a claim to be able to do it. Further, the point of jurisdictional clause is to
adjudicate a claim of material breach; Right to make a claim, not unilateral action. Jurisdictional action rules
prevail in the face of claim of material breach
Example from the book state converting from agriculture to industrial and
abandoning agricultural treaties cannot invoke fundamental change if the conversion
was itself a breach. If the conversion is not a breach, then rule 62 2.b has not been
violated
Paragraph 3 If, under the foregoing paragraphs, a party may invoke a fundamental change
of circumstances as a ground for terminating or withdrawing from a treaty it may also
invoke the change as a ground for suspending the operation of the treaty.
Goal of the treaty: Treaty of 16 September 1977 concerning the construction and operation of the Gabcikovo-
Nagymaros System of Locks on the Danube River; because Czechoslovakia no longer exists, is this treaty still
valid?; there is no fundamental change; the treaty is still valid because the fundamental change was not unforeseen;
fundamental change is only applied in exceptional changes according to article 62; Paragraph 1 was not proven
Hungary tried to invoke fundamental change as a reason for not continuing the completion of the dam. Hungary
argues the purpose of the treaty was a joint economic venture and now that the two legal regimes no longer existed,
the fundamental object was gone. Court shot this down saying that the regime did not cease to exist. Hungary also
invoked Article 61 – necessity (impossibility) which was shot down because 61 para. 2 says that if the
impossibility is a result of your own breach (failure to complete building dam) then it cannot be invoked. The
prevalent political conditions were thus not so closely linked to the object and purpose of the treaty that they
constituted an essential basis of the consent of the parties. New developments in the state of environmental
knowledge can’t be said to have been completely unforeseen. Even what appear to be massive changes, unless they
are connected to the nature of the obligation, you can’t invalidate a treaty.
E. Human Rights
Intro:
Historically the treatment of nationals by a state was an internal issue; the treatment of aliens was always an intl.
human rights issue; today how a state treats its own nationals has been brought upon the intl. human rights law
stage; (Holocaust, WWII, Bosnia, Apartheid, etc.); one of the most innovative areas of IL; human rights are: a right
to basic human dignities and are deserved by everyone
The Int’l Bill of Rights/Universal Declaration of Human Rights: (p. 165 Sup) not a treaty; it’s a declaration and
is not legally binding. Charter, statement of collective values of international community; Human rights are
universal. This means that EVERYONE has these rights; includes economic, social, and political rights. Set out
that all human beings, wherever they live and go, by virtue of being human, have certain rights. Adopted by GA.
There is an entire table of intl. human rights instruments on p. 599 - 600; multi-lateral soft law/something to be
strived for; Declaration is bifurcated into two different covenants:
International Covenant on Economic, Social, and Cultural Rights (ICESCR) §8.2 – (p. 168 Supp) Requires
affirmative steps, but really both require restraint and affirmative steps to an extent; there is disagreement
on the legal status of this (Not ratified by the U.S.)
• Argument that it’s different and needs separate enforcement mechanisms; weaker.
• Takes provision from the universal declaration and transforms them into hard law.
• The obligation is to take steps toward implementing these rights, not immediate like CCPR. Level
of obligation is different.
• Emphasis on international cooperation. Wealthy countries helping poor countries.
• Working on draft to allow complaints like CCPR.
International Covenant on Civil and Political Rights (ICCPR) §8.3 – (p. 173 Supp) requires the states to
refrain from conduct; talks about the rights of individuals unlike the ICESCR which talks about the rights
of states; created legal obligations unlike the UDHR (ratified but non-self executing in the U.S. +
reservations)
• Takes the elements out of Universal Declaration and crystallizes them: right to privacy, equality
before the law, etc. All given hard law. Human Rights Committee (consisting of experts who serve
in expert capacity rather than their country created to monitor compliance. States can choose to
ratify or not. US ratified it with reservations.
- 2 Optional Protocols:
1. Optional Protocol to the Int’l Covenant on Civil and Political Rights §8.4 – (p. 184 Supp)
Creates complaints mechanism; any individual in a country that has ratified the protocol can
complain directly to HRC violations within his country. Elevating individuals as
international person. They review reports re: how they are implementing the treaty at
home. Radical notion. Public reporting on human rights and the committee releases a public
document. They also issue general comments: quasi jurisprudence.
2. Second Optional Protocol to the Int’l Covenant on Civil and Political Rights, Aiming at
the Abolition of the Death Penalty §8.5 – (p. 186 Supp); no on within the jurisdiction of
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a state party to this protocol shall be executed; states must take measure to abolish the
death penalty; no reservations may be made except in time of war; parties must report the
measures they are and plan to take
Article 4 (p. 174 Supp) Derogation: suspension of human rights in a particular situations is allowed
by a treaty itself. In times of emergency which threatens the life of the nation and the existence of
which is officially proclaimed, the states parties to the covenant may take measures derogating from
their obligations, provided that such measures are not inconsistent with their other obligations under
IL and do not involve discrimination solely on the ground of race, color, sex, language, religion or
social origin. The only obligations non-derogable are those of basic human rights which cannot be
derogated (jus cogens like: right to life, freedom from torture, slavery/servitude, natural law). Must
notify the Secretary General.
• Threshold for use is very high: event must jeopardizes national security.
• Why notify? Because they do not want to look like they are just disobeying. It also gives
accountability for the state’s actions; it must be public; it must be for a limited time; can’t
derogate all rights, just those necessary to remedy the emergency; Derogation is not a
reservation; it’s a limited exceptional situation; cannot be perpetual
• When the emergency ends, so too must the derogation
• Two most frequently derogated rights: Article 9 arbitrary detention (see Lawless Case),
Article 14 right to a fair trial
Lawless Case European Ct. of Human Rights. European Convention on Human Rights: 608
Irish govt. said organization was threatening the govt. they were creating violence resulting in destruction of
property and loss of human rights. Mr. Lawless was detained without trial or being charged w/specific crime
Arbitrary detention of suspect individuals; Ireland derogated one of its obligations; what could they have done
instead? Sealed the border; that gives up freedom of movement; either could be derogated; the European Court of
Human Rights said detention was ok to be derogated; sealing the border stops everyone whereas detention only
violated one person’s rights; in this case there is judicial supervision of the detention (not just the executive
branch). Derogation in this case is properly tailored to the national security issue; This is an instance when the
human rights framework tries to be flexible in such instances of terrorism; Trade off between state and individual
autonomy.
• A state may hold an individual without trial in a time of national emergency if doing so is necessary to meet the
emergency. The European convention prohibits such activity. However, the convention provides for derogation
from such prohibitions if a national emergency exists, and the derogation is necessary to meet the emergency.
Here, Ireland was experiencing widespread violence which normal police procedures had proven unable to handle.
It appears that gathering evidence necessary to gain a conviction in regular courts was nearly impossible against
IRA members. This, coupled with the grave peril the IRA presented to Ireland, validated the derogation for the
Convention. Most Charters and Conventions of an intern’l character provide for appropriate derogations.
Convention on the Prevention and Punishment of the Crime of Genocide §8.6 – (p. 187 Supp/625)
Article VIII – (p. 189 Supp) Enforcement by UN; Any contracting party may call upon organs
of the UN to take action under the Charter to prevent and suppress genocide (from
sanctions to war); no state has ever actually used this Article to bring an action
against genocide
Article IX – Dispute Settlement; disputes shall be submitted to ICJ; States refer actions through
the Security Council; Two types of legal accountability: hold a person
responsible or the entire state; The front line of human rights law is at the domestic
level; to truly enforce and make the treaties, obligations, and covenants of human
rights laws effective, a nation must have them within its own law human rights
laws; otherwise their obligations are meaningless.
International Covenant on Civil and Political Rights (ICCPR) §8.3 – (p. 173 Supp) relatively weak
Part II, Article 2 – (p. 174 Supp) Most important Article towards enforcement of the Covenant;
1. Each State Party to the present Covenant undertakes to respect and to ensure to all
individuals within its territory and subject to its jurisdiction the rights recognized in the
present Covenant, without distinction of any kind, such as race, colour, sex, language,
religion, political or other opinion, national or social origin, property, birth or other status.
2. Where not already provided for by existing legislative or other measures, each State Party
to the present Covenant undertakes to take the necessary steps, in accordance with its
constitutional processes and with the provisions of the present Covenant, to adopt such laws
or other measures as may be necessary to give effect to the rights recognized in the present
Covenant.
3. Each State Party to the present Covenant undertakes: - - Obligations of each state party
(a) To ensure that any person whose rights or freedoms as herein recognized are
violated shall have an effective remedy, notwithstanding that the violation has been
committed by persons acting in an official capacity;
(b) To ensure that any person claiming such a remedy shall have his right thereto
determined by competent judicial, administrative or legislative authorities, or by any
other competent authority provided for by the legal system of the State, and to
develop the possibilities of judicial remedy;
(c) To ensure that the competent authorities shall enforce such remedies when
granted.
Article 28 – (p. 180 Supp) Human Rights Committee; this is the Covenant’s principal organ of
implementation; consists of 18 members, nationals of states parties, who serve in
their personal capacities; the committee considers the reports submitted by states
parties per Article 40
Article 40 – (p. 182 Supp) Enforcement & Reports; States must submit a report to the Secretary
General. When this is not done, the UN has threatened to review their records based
on NGO’s or news reports. Secretary General submits to the respective committees
who issue general comments to the economic and social council
Article 42 – (p. 184 Supp) Conciliation Commissions; if a matter referred to the Committee in
accordance with Article 41 is not resolved to the satisfaction of the states parties
concerned, the Committee may, with the prior consent of the states parties
concerned, appoint an ad hoc conciliation commission, which shall consist of 5
members acceptable to all states parties (parties have 3 months to pick the 5; can
go with just three if they don’t meet the 3 month deadline though); committee
appointed to work out problems when a matter referred to a committee remains
unresolved. Optional Protocol, human rights committee can hear complaints from
Horizontal Enforcement: formally sovereign equals. States enforcing rules against each other; putting pressure on
states largely via public shaming/public exposure of violations
• Largely insufficient system but there are mechanisms to deal with it.
• Recourse to ICJ re: genocide. Upside: resolution Downside: time involved & people already killed. Any
party can bring violation to the attention of the security council.
Ultimately, it comes down to NGOs and concerned individuals to translate international human rights obligations
into reality.
• Branch of law that holds individuals directly responsible for their violations of international law; came of age
during the Nuremberg Tribunals.
• International crime is a crime committed by an individual defined by IL.
• jus ad bellum: when states can use force (hen do they have just cause?
• jus in bello: how states can use force. Govern how a states uses force
- Cold war completely paralyzed ICL. Not until the end of Cold War/1990’s that Int’l Criminal Law undergoes a
heyday. Series of ad hoc tribunals, via resolutions of Security Council.
Principle VI: The crimes hereinafter set out are punishable as crimes under international law:
(a) Crimes against peace: (i) Planning, preparation, initiation or waging of a war of aggression or a
war in violation of international treaties, agreements or assurances;
(ii) Participation in a common plan or conspiracy for the accomplishment of any of the acts
mentioned under (i).
(b) War crimes: Violations of the laws or customs of war which include, but are not limited to,
murder, ill-treatment or deportation to slave-labour or for any other purpose of civilian population
of or in occupied territory; murder or ill-treatment of prisoners of war, of persons on the Seas,
killing of hostages, plunder of public or private property, wanton destruction of cities, towns, or
villages, or devastation not justified by military necessity.
(c) Crimes against humanity: Murder, extermination, enslavement, deportation and other inhuman
acts done against any civilian population, or persecutions on political, racial or religious grounds,
Principle VII: Complicity in the commission of a crime against peace, a war crime, or a crime against
humanity as set forth in Principle VI is a crime under international law.
Ex Post Facto Argument (p. 1325): largely refuted because even though that stuff wasn’t against
German law, it was against general int’l law so, they should have known their actions were
wrong/illegal
2. Such subsidiary organs as may be found necessary may be established in accordance with the present
Charter.
Charter of the UN Chapter V, Article 25 – (p. 7 Supp) The Members of the United Nations agree to accept and
carry out the decisions of the Security Council in accordance with the present Charter; member states are obligated
to accept and carry out decisions of the security council.
Prosecutor v. Jean-Paul Akayesu (p. 1355): Akayesu was up on charges of Genocide; a great step forward for int’l
law here was the inclusion of rape/sex crimes in the definition of genocide; furthermore rape was not given a male-
centric definition focusing solely on penetration; notion of a ‘plurality of offenses’: one particular act may
constitute both genocide and a crime against humanity; intent component of genocide can be inferred from the
totality of the circumstances;
Tribunals have since been proposed for: Cambodia, East Timor, and Sierra Leone.
“Borders should not be considered as a shield against the reach of the law and as a protection for those who
trample under foot the most elementary rights of humanity.”
Introduction:
• Cutting edge/big step forward in terms of enforcement of IL.
• The permanency is very different from other tribunals. Nuremberg concentrated on only one side and
Yugoslavia and Rwanda were limited in its geography.
Artcile1: (p. 638 Supp) the ICC will be a permanent institution vested with competence to try
individuals indicted for the most serious crimes of international concern specified in Article 5; also
provides that the court shall be complementary to national criminal jurisdiction
Artcile 5: the jurisdiction of the Court is limited to the most serious crimes of concern to the
international community as a whole. It has jurisdiction to the following crimes:
1. Genocide – Article 6 (definition lifted from the Genocide Convention): genocide means any of
the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or
religious group, as such:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to member of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its
physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group.
2. Crimes against Humanity (1371) Article 7 – any of the following acts when committed as part
of a widespread or systematic attack directed against any civilian population, with knowledge of the
attack: during war time or not. May be separate from armed conflict. Can happen in peacetime.
Knowledge requirement may be difficult for Prosecutor: high threshold and mens rea. Broader
attack. Fairness argument: aggravated offense and not ordinary murder. Orchestrated and planned
atrocity.
(a) Murder;
(b) Extermination;
(c) Enslavement;
Article 12: (p. 644 Supp) A State which becomes a Party to this Statute thereby accepts the
jurisdiction of the Court with respect to the crimes referred in article 5. The State where the crime
took place must’ve ratified the statute and/or the accused individual must be national of a state that
has ratified the statute. Focus on nationality prong. Compromise: 2 basis of jurisdiction:
territoriality and nationality, not passive and universality. If the acceptance of a state which is
not a party to the statute is required that state may by declaration accept the exercise of jurisdiction
by the Court. The Court may exercise jurisdiction over anyone (even non-nationals of a party)
anywhere in the world if either the state in which the crime was committed or the state of the
accused’s nationality consents.
Article 15: (p. 645 Supp) Prosecutor & Investigation; Can investigate on the basis of information
within the jurisdiction of the court; there are specific procedures for the prosecutor to follow; may
initiate investigations proprio motu (self-initiating prosecutor) on the basis of information on
crimes within the jurisdiction of the Court with the consent of two judges. Prosecutor can seek
information from States, organs of the UN, IGOs or NGOs, or other reliable sources and can receive
oral or written testimony. If the Prosecutor deems that there is a reasonable basis to proceed with an
investigation, he shall submit to the Pre-Trial Chamber a request for authorization of an
investigation. If the Pre-Trial Chamber agrees, then it can authorize the commencement of the
investigation.
Article 16: (p. 646 Supp) Deferral of Investigation or Prosecution; Sec. Council can ask for a
deferral of hearings up to 12 months; (Sec. Council can also ask to stop a case if by unanimous
vote). Here, SC has to pass a resolution to suspend investigation.
Article 124: (p. 672 Supp) Transitional Provision; A state, on becoming a party to this Statute, may
declare that for a period of seven years after the entry into force of this Statute for the State
concerned, it does not accept the jurisdiction of the Court with respect to the category of crimes
referred to in Article 8 (war crimes) when a crime is alleged to have been committed by its
nationals or on its territory.
Intro:
• Traditionally, international law did not ban war, regardless of cause. IL was to confine and regulate the
effects of war. Assumed that states can use force. Discussion on how to limit the suffering caused.
• War is a particular legal category: state of war is a legal state IL has focused on use of force. These two
mean different things. For war, you need a declaration of war. UN charter doesn’t distinguish war and
declared war.
United Nations Charter: (p. 1 Supp); nations are unwilling to entrust full authority over war and peace to the UN
because:
1) the continuing struggle between the conflicting demands of national sovereignty and intl. order
expressed in claims and limitations of the national right of self-defense
2) the development of means of destruction so swift and devastating that the traditional time lag between
the development of an armed attack and the organization of defense has become largely obsolete
3) the enormously increased importance of political and ideological warfare, which has created new forms
of “indirect” aggression, not amenable to the established criteria and definitions of aggression;
Article 1: (p. 1 Supp) The principal purpose of the United Nations is “to maintain international
peace and security, and to that end: to take effective collective measures for the prevention and
removal of threats to the peace, and for the suppression of acts of aggression or other breaches of
the peace, and to bring about by peaceful means, and in conformity with the principles of justice
and international law, adjustment or settlement of international disputes or situations which might
lead to the breach of the peace
- During the Cold War it was ineffective cause of the veto power of the 5 head members, one
of whom was USSR; end of the Cold War has revitalized the Security Council’s role; unlike
the League’s charter binding only members, the UN’s charter is binding to all universally
Article 2 (3): Peaceful Dispute Settlement (p. 2 Supp) All members shall settle their int’l disputes
by peaceful means in such a manner that int’l peace and security, and justice, are not endangered.
Article 2 (4): Prohibition on the Use of Force (p. 2 Supp) All members shall refrain in their
international relations from the threat or use of force against the territorial integrity or political
independence of any state, or in any other manner inconsistent with the purposes of the UN.
Article 2 (6): Effect on Non-Members (p. 2 Supp) The Organization shall ensure that states which
are not members of the UN act in accordance with these principles so far as may be necessary for
the maintenance of peace and security. It is commonly accepted that in substance Article 2(4) has
become a principle of customary law binding on all states, and has acquired the character of jus
cogens.
Defining Aggression –
- U.S. says: Any definition of aggression is a trap for the innocent and an invitation to the guilty.
Corral 52 Fall ‘05
- This position prevailed at the San Francisco Conference, and the charter adopted a system whereby the
appropriate UN organ, in the first instance the Security Council, would determine on a case-by case basis
whether aggression has taken place.
- Difference are primarily one of objectives; they are essentially of a political and ideological, not of a
logical, character
Resolution on the Definition of Aggression– p. 409 Supp/943; adopted in 1974 by consensus (so no vote req’d)
Article I: (p. 410 Supp) Definition: Aggression is the use of armed force by a State against the
sovereignty, territorial integrity or political independence of another State, or in any other manner
inconsistent with the Charter of the United Nations, as set out in this Definition. Explanatory note:
In this Definition the term "State":
(a) Is used without prejudice to questions of recognition or to whether a State is a member of
the United Nations;
(b) Includes the concept of a "group of States" where appropriate.
Article 2: First Use of Force: The First use of armed force by a State in contravention of the Charter
shall constitute prima facie evidence of an act of aggression although the Security Council may, in
conformity with the Charter, conclude that a determination that an act of aggression has been
committed would not be justified in the light of other relevant circumstances, including the fact that
the acts concerned or their consequences are not of sufficient gravity.
Article 3: Acts of Aggression: Any of the following acts, regardless of a declaration of war, shall,
subject to and in accordance with the provisions of article 2, qualify as an act of aggression:
(a) The invasion or attack by the armed forces of a State of the territory of another State, or
any military occupation, however temporary, resulting from such invasion or attack, or any
annexation by the use of force of the territory of another State or part thereof,
(b) Bombardment by the armed forces of a State against the territory of another State or the
use of any weapons by a State against the territory of another State;
(c) The blockade of the ports or coasts of a State by the armed forces of another State;
(d) An attack by the armed forces of a State on the land, sea or air forces, or marine and air
fleets of another State; another states military
(e) The use of armed forces of one State which are within the territory of another State with
the agreement of the receiving State, in contravention of the conditions provided for in the
agreement or any extension of their presence in such territory beyond the termination of the
agreement;
(f) The action of a State in allowing its territory, which it has placed at the disposal of
another State, to be used by that other State for perpetrating an act of aggression against a
third State;
(g) The sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries,
which carry out acts of armed force against another State of such gravity as to amount to the
acts listed above, or its substantial involvement therein.
Article 4: Above list is not exhaustive: The acts enumerated above are not exhaustive and the
Security Council may determine that other acts constitute aggression under the provisions of the
Charter.
Article 6: Scope of Charter Unaffected by the Above: Nothing in this Definition shall be construed
as in any way enlarging or diminishing the scope of the Charter, including its provisions concerning
cases in which the use of force is lawful.
Article 7: Doesn’t Limit Self-Determination: Nothing in this Definition, and in particular article 3,
could in any way prejudice the right to self-determination, freedom and independence, as derived
from the Charter, of peoples forcibly deprived of that right and referred to in the Declaration on
Principles of International Law concerning Friendly Relations and Cooperation among States in
accordance with the Charter of the United Nations, particularly peoples under colonial and racist
regimes or other forms of alien domination: nor the right of these peoples to struggle to that end and
to seek and receive support, in accordance with the principles of the Charter and in conformity with
the above-mentioned Declaration.
Article 8: All of the above interrelated: In their interpretation and application the above provisions
are interrelated and each provision should be construed in the context of the other provisions
Intervention: a state can intervene illegally but lower culpability than aggression. Lower level of concern than
aggression. Does not give rise to use self defense in response to intervention. See Nicaragua Case.
Military and Paramilitary Activities in and against Nicaragua (US v. Nica.) 1986: 955
US was claiming it was acting in self-defense on behalf of El Salvador; a “collective self-defense”; Honduras,
Costa Rica, and El Salvador all neighbored Nicaragua and over many years it had troops in those nations; the US
acting under a notion of “collective self-defense” aided the contras in resisting this military force; can only respond
with self-defense if the state is a victim of an armed attack; but what is an armed attack? Sending troops, armed
bands, groups, irregulars, mercenaries, etc; is aiding a military force in another country an armed attack? No but it
is a violation and thus unlawful but it’s less than the direct armed attack; the argument for “collective self-defense”
is utterly rejected by the court; is the action of self-defense both necessary and proportional? In this case the court
says the US’s action is not necessary because it came after the main offensive occurred and any further action
would be useless; the only thing Nicaragua did was funnel arms into El Salvador and the US’s response was
certainly not proportional
• If you’re using force in collective self-defense, the victim state itself has to perceive itself as attacked & must
request assistance.
Justifications for the use of force despite 2(4) and Article 51: all must be necessary/imminent & proportional
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1. Waiver/Invitation, especially in civil wars
2. Humanitarian intervention of either: a) a state abusing it’s own nationals; or b) of a state abusing someone else’s
nationals
3. Self Defense as recognized by Article 51 (if armed attack (military), individual v. collective, anticipatory
(Caroline Case – Brits invade NY), must be facing big danger)
Article 51: (p. 11 Supp) Self Defense Exception: Takes preexisting customary international law and
codifies it. Right to use force in self defense predates any statutory language. Underlying right but
only if armed attack occurs and until the Security Council has taken measures to try to restore
international peace and security. Can’t be ongoing. Limited and circumscribed. Must report it the
UN.
• Dual concepts of individual and collective self-defense.
• Broad ban on unilateral use of force today, with 2 exceptions (black letter law)
•The problem is there is no bright-line rule; the issue of use of force beyond that
permitted in Article 51 is controversial and complicated; some will say it’s ok in
furtherance of democracy; others will say it’s ok as long as it does not threaten the minimum
level of order
Use of Force for Benign Purposes: As a matter of IL law, it’s not acceptable practice, unless it’s within the 2
exceptions.
1. Humanitarian Intervention: Strongest claim to allow an exception to the prohibition of armed force is use
of force to save lives of innocent human beings threatened by massacres, atrocities, widespread brutality,
destruction, etc; renunciation of armed force could never have been meant to prevent it for humanitarian
reasons when all other remedies have been exhausted; claim of humanitarian intent was used to justify
Vietnam’s entrance into Cambodia; Kofi Annan asks many questions regarding the use of force in Kosovo
and Rwanda; should we just stand by and watch the atrocity or should we violate intl. law to stop it? Must
have a bright-line rule that can withstand abuse and not be used for the personal agendas of a state; it’s a
way to promote customary intl. norms;
2. Intervention For Democracy: still a tough debate (p. 976); No legally accepted exception here. Just
scholars talking
a) The Reagan Doctrine – asserting the right of the U.S. (or any other state) to intervene by force to
defend, maintain, restore or impose democratic gov’t
b) The Brezhnev Doctrine – the Reagan doctrine’s counterpart from the Soviet Union
•The black letter int’l law = use of force in humanitarian law that is neither in self defense nor unauthorized by UN
is illegal. There is however emerging arguments to allow for certain humanitarian violations. Humanitarian
intervention authorized by UN is legal.
UN Charter Article 41 p. 10 Supp; enumerates what measures the Security Council can take; may
include complete or partial interruption of economic relations and of rail, sear, air, postal,
telegraphic, radio, and other means of communication, and the severance of diplomatic relations
The UN can also call upon the parties to apply provisional measures as deemed necessary. Some of the
measures are designed to be less harsh/severe as force. If the measures are inadequate then what can the
UN do? Sec. Council claims that the authorization of use of force must be explicit. (One of the only 2
instances when the UN could take action during the Cold War was in S. Africa with Apartheid)
The Law of War: International Humanitarian Law or Law of War (IHL) (p. 1054/421 Supp)
•Much of the law of war was codified at the Hague Peace Conferences of 1899 and 1907,then strengthened
after the World Wars – notably through the four Geneva Conventions (GCs)of 1949 – an in 1977 with two
additional protocols to the 1949 GCs. These treaties have all received widespread multilateral adherence,
and in most aspects – with some notable qualifications – they reflect contemporary customary int’l law. As
of 2000, all 189 members of the UN as well as non-member Switzerland were parties to the 4 GCs, making
them among the most widely ratified of int’l treaties; applies even if states aren’t parties to a treaty, they are
still bound; older than human rights law
First Geneva Convention (p. 426 Supp) "for the Amelioration of the Condition of the Wounded and Sick in
Armed Forces in the Field" (first adopted in 1864, last revision in 1949)
Second Geneva Convention (p. 429 Supp) "for the Amelioration of the Condition of Wounded, Sick and
Shipwrecked Members of Armed Forces at Sea" (first adopted in 1949, successor of the 1907 Hague
Convention X)
Third Geneva Convention (p. 434 Supp)"relative to the Treatment of Prisoners of War" (first adopted in
1929, last revision in 1949)
Fourth Geneva Convention (p. 439 Supp) "relative to the Protection of Civilian Persons in Time of War"
(first adopted in 1949, based on parts of the 1907 Hague Convention IV) : most important; comesinto play
during armed conflict when civilians are in the hands of a party of which they are not a ntation; prohibits
violence to life and person and allows no distiction based on race, religioin, or political opinion.
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In addition, there are two additional protocols to the Geneva Convention:
Protocol I (1977): (p. 441 Supp) Protocol Additional to the Geneva Conventions of 12 August 1949, and
relating to the Protection of Victims of International Armed Conflicts; elaborates on the conduct of war.
Prohibits indiscriminate attacks. Broader protection available. Prohibits reprisals. Extends protection to war
for self-determination and liberation; much stronger protection afforded to international war rather than
internal war.
Protocol II (1977): (p. 455 Supp) Protocol Additional to the Geneva Conventions of 12 August 1949, and
relating to the Protection of Victims of Non-International Armed ConflictsU; extends greater protection to
civilians and combatants in internal fighting but only where the government is fighting against a well-
organized group who controls a part of territory. You have to distinguish civilian and military targets and
only military targets are lawfully subject to attack. Civilians and objects are never to be made a target of
attack.
Note: #1-#3 only apply to international war and occupation; but Common Article does afford
protection to internal war.
- jus ad bellum: are a set of criteria that are consulted before engaging in war, in order to determine whether
entering into war is justifiable.
• jus in bello: The laws of war, which define the conduct and responsibilities of belligerent nations, neutral
nations and individuals while engaged in warfare, in relation to each other and to protected persons, usually
meaning civilians.
• Applies to all parties whether the underlying cause is just or unjust.
• US has ratified the four conventions of 1949 but not the 2 protocols.
• Collateral Damage is lawful where civilians are killed accidentally after targeting military targets. As a
matter of targeting you can’t target civilian persons or objects. Any collateral damage isn’t allowed.
• Key theme of HL: choice of weapons/means and methods of warfare is limited in achieving military
objective. Unnecessary losses are prohibited. No indiscriminate targeting. exp. Cluster bomb.
• Captured combatants have protection: no torture, no coercion, just minimum information. Can be tried
but same procedure you would use against your soldier. Civilians also have protection. Provide for basic
needs to provide with relief.
• Protecting women in armed conflict: Rape is a war crime and crime against humanity and genocide.
Sexual based crimes. Sexual slavery; prostitution.
Regulation of Weapons:
• Regulation of weapons come under conduct of war (as does treatment of prisoners, and injured
participants, treatment of enemy nationals and their property, and protection of nonmilitary ships);
deviations from the laws of war the jus in bello were violations of intl. law; with the emergence of lethal
and non-lethal technology rules have had to change; there are codified treaties in addition to the customary
intl. law; there are new demands on the laws of war; attempted to eliminate weapons that cause
unnecessary suffering
• Bullets, poisons, gases, and aerial bombardment was what was being limited in the past two centuries;
from mustard gas to dum-dum bullets to nuclear weapons; Must protect civilian population; Protocol I is a
modern version of Martens Clause = civilians and combatants remain protected under intl. law
Treatment of POWs and the sick and wounded on Land and Sea p. 1064
Emphasized in the 2nd half of 19th century; 3rd Geneva Convention is the authoritative statement concerning POWs;
prisoners are not required to give a lot of info; not to be tortured and must be able to retain his personal effect; the
work that the prisoner does cannot be inherently dangerous, humiliating, or directly connected with the operations
of the war; the prisoner must be permitted contact with his family and have correspondence privileges; there must
be a system for registering complaints and it must be used; there are penal and disciplinary sanction prescribed in
the Convention
4th Convention, Article 27 – women shall be especially protected against any attack on their honor, in
particular against rape, enforced prostitution, or any form of indecent assault
Protocol II, Article 4(2)(e) – outrages upon personal dignity, in particular humiliating and degrading
treatment, rape, enforced prostitution and any form of indecent assault are prohibited at any time and in any
place whatsoever
Article 39 - The Security Council shall determine the existence of any threat to the peace, breach of the
peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in
accordance with Articles 41 and 42, to maintain or restore international peace and security.
Article 40 - In order to prevent an aggravation of the situation, the Security Council may, before making
the recommendations or deciding upon the measures provided for in Article 39, call upon the parties
concerned to comply with such provisional measures as it deems necessary or desirable. Such provisional
measures shall be without prejudice to the rights, claims, or position of the parties concerned. The Security
Council shall duly take account of failure to comply with such provisional measures.
Article 41 - The Security Council may decide what measures not involving the use of armed force are to be
employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply
such measures. These may include complete or partial interruption of economic relations and of rail, sea,
air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations.
(if Article 40 doesn’t work)
Article 42 - Should the Security Council consider that measures provided for in Article 41 would be
inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be
necessary to maintain or restore international peace and security. Such action may include demonstrations,
blockade, and other operations by air, sea, or land forces of Members of the United Nations. The Security
Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression
Corral 58 Fall ‘05
and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41
and 42, to maintain or restore international peace and security. (if Article 41 doesn’t work)
Peacekeeping: completely different category. SC and GA can be involved in the authorization of peacekeeping
forces. Peacekeepers can only use arms in self defense. Theoretically different from Chapter 7. No specific
provision for peacekeeping forces.
IRAQ
660: calls for immediate withdrawal.
Security Council Resolutions:
661 – sanctions by all states (even non-members) upon Iraq; only medical and humanitarian needs;
and verify their cargoes and destinations and to ensure compliance of 661.
678 – Iraq refused to comply with Resolution 660; this resolution gave Iraq and ultimatum stating that if it
did not withdraw from Kuwait then the UN member states are authorized to use whatever means to restore
intl. peace and security; this resolution also calls for all states to provide support; 678: all necessary means
to uphold. Deadline imposed. Authorization for action under art. 42 after the deadline.
• Iraq did not withdraw and air strikes began; the Sec. Council in this case actually did what it was designed to do
and did it well.
• Did Resolution 1441 give authorization for the War in Iraq? No, the US wanted language incorporated
into 1441 that would authorize use of force but it was not put in.
- Argument in Favor of Iraq War: Iraq was in breach of its obligations under the cease fire from the first
war and thus invalidated the cease fire. However the terms of the cease fire do not expressly state that a
breach of the terms invalidates the cease fire and allows for further use of force.
• US/UK action in April of 2003 is illegal because it does not fit in under self-defense exception or under
humanitarian justification and the UN Sec. Gen. stated that an attack of such kind is a violation of the UN
charter.
• This seems more like a war of aggression. Such a war is the gravest of violations of intl. law. Aggression
is the use of armed force by a state against the sovereignty of another state or in any other manner against
the Charter of the UN. Two of the leading members of the intl. community have violated the Charter by
committing this aggression.
• The former Iraqi govt. committed gross violations of intl. law, humanitarian law, (even genocide of the
Kurds); but the lawlessness of one kind should not be met by lawlessness of another kind.
Taft Article: Justifying us War in Iraq. Implied authorization derived from previous resolutions.
Frank Article: his view of Taft’s argument re: past resolutions. He doesn’t agree with Taft. SC must make explicit
and express authorization. Too much time has passed. Taft put forward a de minimis argument. His policy concern
Corral 59 Fall ‘05
is implication of Article 2(4). Concern that the whole system that governs the use of force will be weakened. Basis
for the war not legally justifiable.
Dispute Settlement
• Fundamental Obligation by states to settle disputes by Peaceful Means, done in a way not to jeopardize
peace and security and do justice. Overwhelming emphasis on peaceful resolution of disputes.
• Judicial Settlement: many international courts and of wide range of subjects these days. Now,
proliferation of tribunals. Regional and subjects courts. No clear hierarchical relations between these
courts.
UN Charter Article 2, Paragraph 3: Dispute settlement: “All members shall settle their international disputes by
peaceful means in such a manner that international peace and security, and justice, are not endangered.”
Meaning of Dispute – has particular meaning, not just any difference in views of states
• Requires a degree of specificity and contestation; Legal disagreement.
• It’s not a dispute if the resolution does not effect relations between the states;
• ICJ definition: disagreement on a point of law or fact, a conflict of legal views or interests between
two persons. The matter has to be ripe for adjudication.
• The Court’s judgment must have some practical consequences in the sense that it can affect existing legal
rights or obligations thus removing uncertainty from their legal relations.
Dispute Settlement:
a) Conciliation – Article 56 a 3rd party comes in and tries to resolve the issue; more pro-
active than mediation; non-adjudicatory
b) Mediation – Article 55 some as conciliation but less pro-active 3rd party; non-adjudicatory
c) Negotiation – Article 54 the two sides site down face to face and try to compromise their
way out of it; essentially involved in all of these methods as agreement will have to be
reached for all of them; best use is for strong states against a weak state; non-adjudicatory
d) Inquiry – 3rd party investigates the disputed facts and gives a report of what actually
occurred and sometimes adds a recommendation; non-adjudicatory
e) Good Offices - Article 55 same as an inquiry but under the auspices of the UN Secretary
General or some other int’l big shot; non-adjudicatory
f) Arbitration – Article 58 a form of mediation but the holdings are binding; different from
resorting to court because the parties can choose the applicable law and the arbitrators; semi-
adjudicatory
g) Judicial Settlement – the most preeminent institution is the Int’l Court of Justice (ICJ);
best use is for small states with a strong case; expensive in terms of money and expertise;
adjudicatory
Good Offices, Inquiry, Mediation, Conciliation – all entail 3rd party involvement in seeking a resolution of the
dispute; the two disputing parties agree to have a 3rd party hear it, but are not bound by the decision of the 3rd party;
Mediators, conciliators or other third-party facilitators may be individuals, committees, or institutional bodies.
Logistics of the Court: successor to PCIJ; similar in structure; ICJ created by the UN charter to be
the principal judicial organ; when a state ratifies UN Charter, it accepts ICJ Statute; located in the
Hague, Netherlands; Judges are selected by complex process. These are experts and by and large
they function as such. They are nominated by a complicated process and elected by SC and general
assembly. A lot of political in-fighting. Judges aren’t supposed to represent their country of origin;
15 judges; 5 westerner, 3 African and 3 Asians, 2 Eastern European, 2 Latin America
- Small chambers: 3 justices, to develop expertise, on a given case.
- Court issues single judgments but may append concurrences and dissents
- English and French are predominant languages
- Judicial practice in global setting. Practice of recusal: they can participate even with same
nationality defendant.
- Has held that the principles of int’l law outlawing acts of aggression are obligations erga
omnes, to the int’l community as a whole
2 kinds of jurisdiction: either contentious cases or issue advisory opinions; only states can be
parties to cases, not international organizations or private persons; jurisdiction is based on the
consent of the parties; consent and reciprocity are the bedrock principles of contentious jurisdiction;
36(1): allows for treaty or agreement. Parties have agreed to jurisdiction on a specific matter.
36(2): compulsory jurisdiction. A state has to make a declaration (optional clause declaration) to
recognize the competence of the court. They can be brought into ICJ without any particular
agreement, but only if a state is brought in by another state who agreed to the same obligations=
reciprocity. Under Article 36(2) states can declare that they recognize as ipso facto and w/o special
agreement the jurisdiction to the Court in all legal disputes; (examples of compulsory jurisdiction)
Usually broad language. Jurisdiction concerning:
1. the interpretation of a treaty;
2. any question of international law;
3. the existence of any fact which, if established, would constitute a breach of an
international obligation;
4. the nature or extent of the reparation to be made for the breach of an international
obligation.
• A case brought under a treaty clause does not require a special agreement; it is begun by a unilateral
application.
• Some general multilateral conventions provide for compulsory jurisdiction through optional protocols.
Other conventions have jurisdictional clauses that allow any party to bring the dispute to the Court.
36(5): permanent court of international justice jurisdiction; Declarations made under Article 36 of
the Statute of the Permanent Court of International Justice and which are still in force shall be
deemed, as between the parties to the present Statute, to be acceptances of the compulsory
jurisdiction of the International Court of Justice for the period which they still have to run and in
accordance with their terms. (This was central to Nicaragua Case).
Forum Prorogatum: takes place if the parties to a dispute, after the initiation of proceedings consent to the
jurisdiction of the ICJ; without this consent, the Court would not be in the position to exercise jurisdiction; A state
can also invoke by pleading to the merits of a claim without raising any objections to jurisdiction. In this case, if
the D loses on the merits, the court will exercise jurisdiction.Exceptional situation in 36(1).
Nuclear Tests Cases (Australia v. France and New Zealand v. France) ICJ 1974: 865
France holds atmospheric nuclear tests in the South Pacific; dispute arises between France and the two nations; France says
effect is negligible; Australia disputes it; this court cannot opine upon the facts; France has agreed prior to this case to stop
the testing above ground and is now testing below ground = P lacks standing; Australia made no attempt to claim damages
and totally should have; this court for such reasons finds Australia’s claim to have no object; even though France already
stated intent to stop testing, a judgment from this court might be of use but no further judicial action required;
• The court’s action, based on “inherent jurisdiction,” to authorize it to decide that France is now under an obligation to
terminate atmospheric nuclear tests in the South Pacific Ocean.
RULE: A clear, unilateral statement made to the international community as a whole to terminate nuclear testing
constitutes an undertaking possessing legal effect. No question of damages arises since the objective of the applicants was
to seek protection against such further testing.
• Thus, a State may create an international legal obligation as a purely unilateral matter.
Case concerning US Diplomatic Consular Staff in Tehran (USA v. Iran) ICJ 1979: 868
Hostages taken at US embassy in Iran; US Says Iran violated its intl. legal obligations by allowing this hostage taking and
says that Iran must secure their release immediately and pay the US reparations and prosecute the perpetrators; release the
hostages, clear the premises, protect the Americans there, not try any American, and take no action prejudicially against the
US; Iran says what happened should remain within the sovereignty of Iran because of the then occurring revolution and the
hostage taking is just one event in a long chain of other events; The court held that it could not decline to take cognizance of
one aspect of a dispute merely because that dispute had other aspects; US says the ICJ has jurisdiction; US also says Iran not
only allowed the hostage taking but supported it; ICJ rules in favor of US and orders release and security of all attached to the
embassy;
RULE:A dispute which concerns diplomatic and consular premises and personnel and involves the interpretation or
application of multilateral conventions codifying the international law governing diplomatic and consular relations is
one which by its very nature falls within international jurisdiction. The non-appearance of one state concerned cannot by
itself constitute an obstacle to the indication of provisional measures. The Secretary-General of the United Nations has
referred to these events as a "grave situation" posing a "serious threat to international peace and security." Iran (D) cannot fail
Non-Appearance
• The US appeared against Nicaragua to contest jurisdiction and admissibility but withdrew after the court
found jurisdiction. The statute of the court does not provide for default judgment.
• Resolution adopted by the institute de Droit International: Notwithstanding the non-appearance of a state
before the court in proceedings to which it is a party, that state is, by virtue of the statute, bound by any
decision of the court in that case, whether on jurisdiction, admissibility, or the merits; A state’s non-
appearance before the court is in itself no obstacle to the exercise by the Court of its functions under Article
41 of the statute.
Article 53: (p. 36 Supp); Non-Appearnce; In the event that a party fails to appear or does not defend, the
Statute requires the Court to satisfy itself that it has jurisdiction and, if so, that the claim of the applicant is
well founded in fact and law.
Article 53: (p. 36 Supp); Non-Appearnce; In the event that a party fails to appear or does not defend, the
Statute requires the Court to satisfy itself that it has jurisdiction and, if so, that the claim of the applicant is
well founded in fact and law.
• Two criteria for provisional relief are urgency and irreparable injury;
• The Court’s provisional measures jurisprudence requires applicant to show a prima facie basis for
jurisdiction. Where jurisdiction cannot be established even prima facie, provisional measures will be
denied, no matter how urgent the matter or how serious the allegation of likely irreparable harm to
applicant.
Aegean Sea Continental Shelf Case (Greece v. Turkey) ICJ 1976 (Provisional Measure): 897
Greece protested Turkey exploring for oil; brought the case to the ICJ and Sec. Council at the same time; the court
held that Turkey was only doing a survey thus not irreparable
Counter-claims:
Article 80: of the rules of the court NOT THE STATUTE; provides for the filing of counter-claims, which
requires that a counter-claim be “directly connected with the subject-matter of the claim of the other party
and that it comes within the jurisdiction of the Court.”
• Applicant states will have to weigh the possibility of serious counter-claims entailing potentially
heavy liabilities as part of the risk of initiating litigation.
Advisory Opinions:
• General Assembly or the Security Council may request advisory opinions. In addition, other
organs of the UN may be so authorized by the General Assembly.
• A state may not request an advisory opinion. It may, however, it may ask an authorized IGO to
request one for them
• Although an advisory opinion has no binding effect in itself, some international agreements
provide that disputes relating to the interpretation and application of the agreement shall be
submitted to the Court for an opinion that will be accepted as binding by the parties to the dispute.
Legality of the Threat or Use of Nuclear Weapons ICJ Advisory Opinion, 1996: 3 Criteria re: request for
advisory opinion.: 909
General Assembly and WHO asked the ICJ to issue an advisory opinion on this matter; the ICJ must limit who can
appear before it; the General Assembly says is it permitted to use nuclear weapons (a diff. question from is it
prohibited: Lotus principle); such questions have legal and political motivations; some states contested the
advisory opinion because of imputed political motives; but political motives don’t matter because as long as an
authorized UN body brings the claim, it’s lawful
• The court declined to issue an advisory opinion at the request of WHO because WHO did not satisfy all 3 criteria
needed in order to request an advisory opinion:
3 criteria:
1. The agency requesting the opinion must be duly authorized, under the Charter, to request opinions from the
Court;
2. The opinion requested must be on a legal question;
3. This question must be one arising with the scope and mandate of the activities of the requesting agency.
Should there be two bodies: One for advisory opinions and the other a strict court? No, there should be consistency
IV. Jurisdiction
Jurisdiction: Authority to affect legal interest in a particular situation over a particular person.
Three types:
1. legislative/proscriptive –
2. judicial/adjudication –
3. executive/enforcement –
• Classically understood it was the Lotus Principle; now the interests of states must be balanced with the interests
of other states. States now have to affirmatively to show a basis in jurisdiction before acting in a certain way.
• Under international law, the jurisdiction of a state depends on the interest that the state, in view of its nature and
purposes, may reasonably have in exercising the particular jurisdiction asserted and on the need to reconcile that
interest with the interests of other states in exercising jurisdiction.
Bases of Jurisdiction – Criteria for determining Jurisdiction. Sovereignty is always in the background of
jurisdictional discussions; from the perspective of national courts asserting jurisdiction.
1. Territorial Principle – wholly or in substantial part takes place within its territory; includes conduct that
was abroad that affects in substantial part upon that territory where a particular crime/action takes place.
Primary basis of jurisdiction that a state exercise jurisdiction on its own territory. Most accepted basis of
jurisdiction. Requires that crime is committed within the territory.
2. Nationality Principle – jurisdiction over its national even if the activity and the person is abroad;
Blackmer. Asserting jurisdiction by nationality of the perpetrator. Second strongest basis. Based on the idea
that individuals owe allegiance to states to which they are nationals. (i.e. UK nationals enjoy sex trade in
Thailand; court may go after British nationals on the basis of their nationality) Dual citizenship: dual
allegiance.
3. Protective Principle – conduct that threatens existence or injures national interests; who decides it though?
Middle of the pack. Who’s going to decide whose national interests are being undermined.(i.e. Bin Laden
Case p. 1135 where embassies as important interests of the US were harmed; Eichman Case; people lying
to US consular officers, etc.)
4. Universality Principle – offenses that are crimes against the intl. community; newer and increasingly
accepted but still supplemental; some controversy. Middle of the pack. (i.e. Pinochet; Piracy) Understood to
apply to war crimes, torture, hijacking. You have to either try or extradite. Obligation ergo omnes. That
these crimes are so heinous that all states have a duty to prosecute. Concern re: bias in judicial system.
5. Passive Personality Principle – newer, weakest basis; Asserting jurisdiction by nationality of the victim.
Strongly asserted re: terrorism. Controversial because it can be exerted by powerful countries who will
have the ability to apprehend non-nationals. On the other hand, it’s important because no other state may
have any interest in prosecuting.
• Multiple jurisdictional bases may be used to get Jurisdiction and prosecute. (i.e. Eichman Case)
Hypo: Dr. No a Russian national tortures James Bond, a UK national, while interrogating Bond in Uruguay about
his work to prevent the smuggling of briefcase sized nuclear weapons into the US; following Bond’s escape Dr. No
pursues him and winds up in custody in Suriname; who can take jurisdiction? Strongest claim is Uruguay because
of the territorial principle; then Russia cause of nationality; third is UK because of passive personality principle
(victim is a national); fourth is US protective principle claim because of the territory/national interests; last is
Suriname because of universal jurisdiction because of custody (torture); in actuality Uruguay wouldn’t assert
jurisdiction because they have/would get no money; Russia won’t want to take it; Suriname wouldn’t want to
prosecute Russian secret service man because of comity; UK or US would both take but remember double
jeopardy; Any of these countries can use universality if they have Dr. No.
US v. Fawaz Yunis DC Circuit 1991: 1118 - - Jurisdiction Based on Nationality of the Victim (Passive
Personality Principle)
Yunis appeals to challenge his convictions of conspiracy, aircraft piracy, and hostage-taking that stem from the
hijacking of a Jordanian passenger plane in Lebanon; his motions challenging jurisdiction, illegal arrest, and
violations of the Posse Comitatus Act were all denied thus he appealed; Yunis and 4 others hijacked a plane; Yunis
was assumed the leader and lured into a trap and once in intl. waters was arrested by the FBI; universal principle
vs. the passive personal principle; states may prosecute offenders of certain crimes like terrorism, hijacking etc
even if there is no connection; hostage taking must be prosecuted no matter what
Convention on Intl. Civil Aviation – (p. 523 Supp) Convention on offences and certain other acts committed on
board aircraft
Convention for the Suppression of Unlawful Seizure of Aircraft – (p. 537 Supp) hijacking
Regina v. Bartle, Bow St. Stipendiary Magistrate and Commission of Police, Ex Parte Pinochet UK House of
Lords, 1999: 1139 - - Jurisdiction Based on Protection of Certain State, Universal, or other Interests
Pinochet is indicted for acts he committed in Chile; he had foreigners accused of crimes tortured; Spain requests
the extradition of this former Chilean leader (who had himself appointed as a Senator For Life just before stepping
down as Prez); the torture convention didn’t establish a new rule of intl. law; it’s a jus cogens rule; a state cannot
say that part of it’s official policy is torturing criminals and expect immunities; “there is no escape for torturers”;
(Pinochet syndrome): general jurisdiction so that the torturer was not safe wherever he went. The international
law prohibiting torture has the character of jus cogens or a peremptory norm. “Pinochet Syndrome”: using
universal jurisdiction to go after offending criminals.
Foreign Sovereign Immunities Act (FSIA) 1976 to fix problems left by Tate Letter
1) FSIA § 1602 - Findings and Declaration of Purpose: Under international law, states are not immune
from jurisdiction of foreign courts insofar as their commercial activities are concerned, and their
commercial property may be levied upon for satisfaction of judgments rendered against them in
connection with their commercial activities.
2) FSIA § 1604 – General Rule: Foreign state is immune from jurisdiction, with exceptions.
3) FSIA § 1605-1607 (Esp. 1605(a)(2)): Exceptions to sovereign immunity, the most common of which is
the commercial activity exception; are the acts the type of actions by which a private party engages in
‘trade and traffic or commerce’?
4) Not a Perfect Remedy: Many courts have complained about the confusing structure of the Act using
such epithets as “statutory labyrinth”, “twisted exercise in statutory draftsmanship”, and “bizarre
structure”.
Chuidian v. Philippine National Bank 9th Circ. 1990: 1270 - - Immunities of Representatives
Daza a member of the Presidential Commission on Good Govt. in the Philippines denied a letter of credit for
Chuidian who sued; is Daza immune from suit as a govt. official? Is suing Daza the equivalent of suing the
Philippines?
• Only way to find a basis for jurisdiction is by the Act. Chuidian’s suit against Daza for acts committed in his
official capacity must be analyzed under the framework of the Act.
• There is little practical difference between a suit against a state and a suit against an individual acting in
his official capacity.
Regina v. Bartle (Pinochet case) 1999: 1276 - - Heads and Former Heads of State
Ambassadors are immune while ambassador and after they resign as well; but there are different types of
immunities; ratione materiae is immunity to certain kinds of act on behalf of the state in his official capacity (like
an ambassador after resignation; official act); ratione personae is immunity of all acts, broad immunity, only during
office (like an ambassador during office); we need this immunity so that state actors can be free to function; if a
diplomat is subject to arrest every time they leave their country then they will be unable to do their job; (the
Chilean govt. attempted to strip Pinochet of his immunity but was not allowed for his health; but he continues to
give rallying speeches to the military
1. Pinochet as former head of state enjoys immunity ratione materiae in relation to acts done by him as head of
state as part of his official functions as head of state.
2. then, the question has to be answered is whether the alleged organization of state torture by Pinochet would
constitute an act committed by Pinochet as part of his official functions as head of state.
• Can it be said that the commission of a crime which is an international crime against humanity and jus
cogens is an act done in an official capacity on behalf of the state? Thus, torture is not an official act. But
the legal contradiction is the definition of torture, as a function of state. supplement: p. 202 art. 1 “inflicted
by public official. By definition, torture is an official act. So, Pinochet is found not to have immunity.
Downside: state immunity has problems but there for a reason. If you go too far, you run the risk of politicizing the
issue. Potentially difficult issues to think about.
Diplomatic Immunity: Diplos are immune from search, taxation, arrest, customs duty, detention, attacks on their
person and dignity; they and their home residences in the hosting state are inviolable – they can’t be infiltrated
without explicit permission from the diplo mission leader; embassies are also inviolable; No exceptions to the
The Blue List: the diplo list maintained by the Department of State; name on the list doesn’t necessarily mean that
the Executive has endowed you with diplo immunity
The White List: lists all employees of diplomatic missions; also maintained by the Department of State
Vienna Convention on Diplomatic Relations – p. 574 Supp; basic text on diplomatic immunity; drafted by the ILJ
Article 32:
1. The immunity from jurisdiction of diplomatic agents and of persons enjoying immunity under Article 37
may be waived by the sending State.
2. Waiver must always be express.
3. The initiation of proceedings by a diplomatic agent or by a person enjoying immunity from jurisdiction
under Article 37 shall preclude him from invoking immunity from jurisdiction in respect of any counter-
claim directly connected with the principal claim.
4. Waiver of immunity from jurisdiction in respect of civil or administrative proceedings shall not be held
to imply waiver of immunity in respect of the execution of the judgment, for which a separate waiver shall
be necessary.
Article 40:
1. If a diplomatic agent passes through or is in the territory of a third State, which has granted him a
passport visa if such visa was necessary, while proceeding to take up or to return to his post, or when
returning to his own country, the third State shall accord him inviolability and such other immunities as
may be required to ensure his transit or return. The same shall apply in the case of any members of his
family enjoying privileges or immunities who are accompanying the diplomatic agent, or traveling
separately to join him or to return to their country.
2. In circumstances similar to those specified in paragraph 1 of this Article, third States shall not hinder the
passage of members of the administrative and technical or service staff of a mission, and of members of
their families, through their territories.
3. Third States shall accord to official correspondence and other official communications in transit,
including messages in code or cipher, the same freedom and protection as is accorded by the receiving
State. They shall accord to diplomatic couriers, who have been granted a passport visa if such visa was
necessary, and diplomatic bags in transit the same inviolability and protection as the receiving State is
bound to accord.