Professional Documents
Culture Documents
INTRODUCTION
I. WHAT IS INTERNATIONAL LAW?
1) Law generally is composed of:
a) Right Process certain steps that have to be gone through in order to make something
"law"
b) Authoritative Decision correct institution undertakes the process right body made the
authoritative decision to make the laws |i.e. legislatures, administrative agencies (executive
rule making power) and courts (interpretation and enIorcement)|
2) International Law is about agreements between nations and how they are enforced
a) orking deIinition international law is the body oI law that governs:
i) Between states
ii) Between states and international organizations
iii)Between international organizations
iv) Between subnational actors across state borders
v) Between states, international organizations and individuals across national
boundaries
b) Other definitions of International Law
i) Public International law is the law that regulates the intercourse oI nations
ii) International law also deals with law regarding the relationship between
international organizations and the laws used to create those organizations
(1)Examples oI international organizations (IOs): E.U., O.A.S., O.P.E.C.,
NATO
iii)International law applies to sub-national, individual actors i.e. through human
rights
c) Composed of
i) International Business
ii) Comparative Law
iii)International Courts and tribunals
d) Transnational: things that happen across borders and the types oI problems that are
encountered with a cross-border relationship
3) !urpose of international law - why do states abide by international law?
a) Predictability: states want to know how other members oI the international community will
act
i) II several states sign onto something and they're all bound by it, can be conIident
that everyone that's party is going to at least try and make it look like they're doing
what they said they would
b) #eputation and Prestige: (Iunctions as a source oI power) iI country is good in certain
areas then can be given certain amount oI discursive power in international system (i.e.
what they have to say carries more weight) and do not want to be one that looks bad and
becomes disadvantaged
i) States want to avoid international condemnation and lack oI trust. If do not abide by
obligations, then down the road other states will not sign agreements with them.
c) inding: states would like to bind others more than they want to bind themselves
d) ifficulty of anonymous violation: it will be very hard Ior state or international
organization to violate international law without being noticed
e) osts of violations: sanctions can be applied to the bad state by the whole international
community
ProIessor Borgen Fall 2008
I) Note: oIten see smaller states going to the international state system Ior help because they
do not have the support oI the bigger countries that were backing them
4) Relation to Domestic Law is it the same as domestic law? Borgen's theory: NO, but no one says
that it has to be
a) There is no single executive in international law (and there doesn't have to be) but there are
rules that cause people to act and work in certain ways
5) Criticisms of international law
a) nforcement: sanctions tend to hurt the wrong people; strong countries can get away with
breaking laws and weak countries cannot (about the eIIicacy in enIorcing the "laws")
b) airness: |related to rights process| is it Iair to make rules where some can get away with
it, but others cannot, and then call that law?
II. WHY IS THERE AN INCREASE IN THE STUDY OF INTERNATIONAL LAW?
1) ore interaction between countries and increased globalization oI norms and ideas (through
economics, trading, living abroad and other things that have led to cross-border relationships)
2) The end oI Communism
a) End oI the Cold ar has led to decreased animosity between U.S. and Russia which means
UN is now a functioning organization and there is greater participation among the
countries
b) Companies doing business in Iormer soviet block states want laws tailored to laws oI their
locale
c) These same countries now want to join international orgs, such as the TO
3) ith greater interaction, there is an increasing diIIiculty Ior any one state to regulate/address
public policy issues that in the past they could do on their own
a) There are more interactions among the states that lead to more complex bargaining across
substantive grounds (leverage where law and power interact!)
III. SOURCES OF INTERNATIONAL LAW
1) Where does international law come from? (IC1 Article 38)
a) Treaties
b) Customary International Law ("customs"): practice oI states in recognizing that there are
obligations between them and other states
c) General principles "recognized by civilized nations" (and other basic procedural ideas)
|gap-Iillers|
i) Ex. res judicata, estoppel
d) Subsidiary Liens
i) Judicial Decisions:
(1)International Tribunals
(2)Domestic Tribunals
ii) Teachings oI publicists
2) Other sources
a) Trade Agreements and "SoIt Law"
b) International Organization Law (i.e. E.U. law)
3) Corpus oI Rules international law may just be a "body oI rules"
IV. INTERNATIONAL COURT OF 1USTICE ("IC1")
1) hat is it?
a) Principal Legal Organ oI the UN
ProIessor Borgen Fall 2008
organizations
8) Interpreting Treaties
a) mportant ssues #egarding 1reaties
i) Interpret the treaty in good Iaith cannot use a tortured interpretation to make your
case
ii) hen interpreting:
(1)Use the ordinary meaning oI the words in the text (Iind the plain meaning oI
the word and that is going to the applicable meaning)
(2)Look at the related and subsequent agreements
(3)Try to determine the meaning through context
(4)Look Ior speciIically deIined terms in the treaty
(5)Can also look at the preparatory work Ior meanings
b) Modes Used to Interpret a Treaty
i) Textualist: rely on text oI treaty itselI |majority oI treaty interpretation is textualist|
ii) Intentionalist: relying on the intent oI the parties
iii)Purposive: tries to construe treaty with its overall objective and purpose give it a
reading that will square it with the purpose oI the states
c) Treaties and the UN Charter iI there is disparity between what the treaty says and what
the UN charter says, the UN Charter governs
9) Coerced Treaties treaties can have no legal eIIect iI they have been signed under coercion
a) Article 51 of VCLT: person signing the treaty has to be the one who was coerced
i) %he expression of a states 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.
b) Article 52 of VCLT: treaty is void when it was signed by threats that are in violation oI
principles oI international law
i) ust be a general sense oI Iear that something will happen
ii) %reaty is void if its conclusion has been procured by the threat of force in violation
of the principles of international law embodied in the Charter of the United Nations
10)Terminating a Treaty
a) VCLT Article 42 validity and continuance in Iorce oI treaties
i) %he validity of a treaty or of the consent of the State to be bound by a treaty may be
impeached only through the application to the present Convention
ii) %he termination of a treaty, its denunciation or the withdrawal of a party, may take
place as a result of the application to the provisions of the treaty of the present
convention. %he same rule applies to suspension of the operation of a treaty.
b) enunciation: when a party says it will no longer be bound by the treaty (bilateral treaties)
note: in multilateral treaties, its reIerred to as "withdrawal"
i) The procedure Ior ending the treaty is set in the treaty (i.e. how it will occur) it
may give speciIic right to a signatory to denounce
ii) Denunciation and ithdrawal VCLT Article 56 treaty which contains no
provision regarding its termination and which does not provide for denunciation or
withdrawal is not subfect to denunciation or withdrawal unless (a) it is established
that the parties intended to admit the possibility of denunciation or withdrawal, or
(b) right of denunciation or withdrawal may be implied by the nature of the treaty ...
c) reac: when party breaks its responsibility under treaty (not Iormal denunciation oI the
treaty)
i) Customary International Law (prior to VCLT) iI one party breaches any obligation
ProIessor Borgen Fall 2008
under the treaty, then the other party has the right to terminate the treaty
ii) Termination or Suspension oI the Operation oI a Treaty as a Consequence oI Its
Breach VCLT Article 60 the non-breaching party can only decide to terminate
in the Iace oI a breach oI the treaty only iI the other party has materially breached
an objective or purpose oI the treaty (speciIically linked). The non-breaching party
may also allow Ior suspension oI the treaty beIore it is terminated in order to allow
Ior things to work out (iI it doesn't, then the treaty can be terminated)
(1)Material Breach of a bilateral treaty ... entitles the other to invoke the
breach as a ground for terminating the treaty or suspending its operation in
whole or in part
(2)Material breach of multilateral treaty ... entitles
(a)other parities by unanimous agreement to suspend the operation of
the treaty in whole or in part or to terminate it either (i)in relations
between themselves and defaulting state, or (ii) as between all
parties
(b)party specially affected by the breach to invoke it as a ground for
suspending the operation of the treaty in whole or in part in relations
between itself and defaulting state
(c) any party other than the defaulting State to invoke breach as a
ground for suspending the operation of the treaty ... if ... material
breach of its provisions by one party radically changes the position
of every party with respect to further performance of its obligations
under the treaty
(3)Material breach of a treaty ... consists in.
(a)Repudiation of the treaty not sanctioned by the present Convention,
or
(b)Jiolation of a provision essential to the accomplishment of the obfect
or purpose of the treaty
d) Suspension: two ways to suspend a treaty
i) aterial breach by another party
ii) "Fundamental Change" (rebus sic stantibus) where the underlying Iacts oI the treaty
that makes the treaty necessary does not make sense anymore and the treaty should
thereIore be suspended
e) RUDS |Reservations, understandings and declarations|
i) Reservations: in multilateral treaties, one State signs onto an agreement but
reserves as to a part oI it (essentially reIuses to accept one or more oI the treaties
provisions claiming that particular clause or part oI clause will not apply to that
state)
(1)Does not really occur in bilateral treaties - no point in having it in there
(2)EIIects oI Reservations other states have two options:
(a) The other parties can accept the reservation: the treaty is in Iorce but
modiIied as to the reserved portion (the reserved portion doesn`t drop
out completely unless the reserving state decides to drop the portion
completely)
(b)They can reject the reservation, and iI it chooses to do so it can
accept the reserving party: the treaty is in Iorce except Ior the
reserved portion (he reserved portion drops out completely)
(c) They can reject the reservation and the reserving party: there is no
ProIessor Borgen Fall 2008
treaty relationship
(d)Note: iI a state is silent as to another state's reservation, then the
silent state is deemed to have accepted the reservation (Article 21(3))
(3)Functions oI Reservations
(a) Sometimes a state puts in a reservation when it believes that one
clause is lousy, but its going to sign onto the treaty anyway
(b)Usually has to do with domestic politics and not really international
politics (state knows treaty as written would not be accepted
domestically)
(4)Note: treaties will usually list clauses that a state is not allowed to reserve to
iI the state wants to get out oI those clauses then they should not sign the
treaty
(a) hy? Usually these clauses are the ones that the states consider as
primary importance
(5)VCLT Article 20:
(a) A reservation expressly authori:ed by a treaty does not require any
subsequent acceptance by the other contracting States unless the
treaty so provides.
(b)hen it appears from the limited number of the negotiating States
and the obfect and purpose of a treaty that the application of the
treaty in its entirety between all the parties is essential condition of
the consent of each one to be bound by the treaty, a reservation
requires acceptance by all the parties
(6)VCLT Article 21:
(a) A reservation establishes with regard to another party (modifies for
the reserving State in its relations with that other party the
provisions of the treaty in which the reservation relates to the extent
of the reservation, (b) modifies those provisions to the same extent
for that other party in its relations with the reserving state
(b)%he reservation does not modify the provisions of the treaty for other
parties to the treaty inter se.
ii) Understandings: state explains at time oI signature what it understands some oI the
key language to mean
(1)Ex. "we understand that deIinitions oI torture is what we know in US as
cruel and unusual punishment under constitution"
iii)Declarations: things that state wants the others to know about when it signs on
(1)Ex. "In eIIect, this treaty is non-selI executing and there are no domestic
causes oI action in US courts based on this"
iv) Issues with RUDS -
(1)Limits on RUDs
(a) Cannot do anything that would go against object oI treaty (main
purpose)
(b)Cannot reserve/derogate a jus cogens norm
(2)!roblems with RUDs
(a) ith RUDs, states are essentially not taking on any new
responsibilities
(i) Counter Argument: by putting in RUDs, make it clear to the
remaining signatories that state is taking treaty seriously and
ProIessor Borgen Fall 2008
make sure they're signing onto what they have to and not
something they cannot Iollow
(b)Any advantage to RUDs?
(i) Sometimes make treaty more Ieasible to be passed
domestically
(ii)Treaties cannot be backdoor to changing constitution (RUDs
allow them to sign onto treaty and in eIIect change domestic
law but not Constitution)
(c) Idea: greater "eIIect" iI you sign on with RUD (shows you're taking it
seriously) compared to just signing onto treaty without them (shows
you're not taking it seriously and whole thing is worthless piece oI
paper)
(3)Monitoring Body set up through UN to monitor treaty compliance (i.e.
Human Rights committee); asks Ior periodic reports Irom states about
compliance and allows Ior grievances and diplomatic discussion to resolve
problems
(a) Remember: monitoring body is not controlling but states can give
them deIerence to look at things and report back
11)hen a State cannot have a signed treaty invalidated
a) Article 45 oI VCLT Loss oI a Right to Invoke ground Ior Invalidating, Terminating,
ithdrawing Irom or Suspending the Operation oI Treaty: state losses the right to
invalidate when they have (1) expressly agreed that the treaty is valid or it remains in Iorce,
(2) by reason oI conduct it is considered as having acquiesced
i) A State may no longer invoke a ground for invalidating, terminating, withdrawing
from or suspending the operation of a treaty ... if, after becoming aware of the facts.
(a) it shall have expressly agreed that the treaty is valid or remains in force or
continues in operation ... or (b) it must by reason of its conduct be considered as
having acquiesced in the validity of the treaty or in its maintenance in force or in
operation...
(1)!roblem: Unequal treaties there are treaties between states where there is
a vast disparity oI power smaller states have brought up that issue, but
overall it has been rejected as a grounds Ior invalidating a treaty. This could
easily become a 'get out oI treaty card to allow states escape their
obligations when something doesn`t go according to plan.
CY!RUS CONFLICT
1) Facts: 1878 Turkey transIerred Cyprus to the US and both Turkey and Greece signed a treaty
accepting British rule over Cyprus. Cyprus wants to be independent in 1960. The population is
80 Greek Cypriot and 20 Turkish Cypriot. Unrest occurs Greek Cypriots are upset Iirst
(claiming that they gave up too much), there is civil unrest, peacekeepers and the UN come in, and
in 1974 there is a Greek engineered coup and the result is that Turkey invades and holds the
northern 3rd oI the island
2) Agreements entered into
a) asic $tructure Agreement: set out the new constitution Ior Cyprus and also set out a
certain balance oI power between the Greek and Turkish Cypriot communities as well as
recognizing certain minority rights
b) Treaty of Guarantee: Greece, Turkey, U and Cyprus (parties to the treaty) Cyprus
agrees to respect new constitution (respect basic structures and promises made within
constitution), while the other three countries agree to respect Cyprus' independence,
ProIessor Borgen Fall 2008
territorial integrity and security oI Cyprus as well as the basic structure (so Cyprus gets all
the beneIits oI sovereignty)
c) 1reaty of Alliance: Cyprus, Greece and Turkey (parties to the treaty) all agree to good
and Iriendly relations between them
3) Issue Authority to Sign a Treaty treaty was signed on behalI oI Cyprus by two individuals
(akarios and utchuk) who were not heads oI state (because there was no state) but were selected
as representatives did they have the authority to bind the state?
a) Greek Argument they were not leaders and Cyprus was not yet a state as the VCLT
requires
b) Turkish Argument should be considered heads oI state
c) Result: state practice Ior the years Iollowing did not indicate any objection on the power oI
these two on signing on, and they were both elected as president and vice president
4) Issue - Coerced Treaties
a) Cyprus argued: coercion in signing the treaty and the treaty was really unequal and unjust
("sign or Iace the consequences" they had to sign or they would not get sovereignty)
b) Turkey's Argument: everyone had to give something in order to get something (essence oI
compromise)
5) Issue - Military Intervention
a) Turkey's Argument: under Treaty oI Guarantee, they had a right to military intervention
their nationals were being killed and they have a right to intervene (Nationality principles)
b) Greece and Cyprus' Agreement:
i) Fundamental norm oI international law oI sovereignty and lack oI use oI Iorce (non-
intervention)
ii) Treaty prohibits the use oI Iorce
iii)Under UN Charter, 103 iI there is a conIlict between the UN charter and any
other treaty, then the UN charter has precedence UN charter does not allow Ior
intervention
iv) Turkey has other options other than using military Iorce in order to get what they
want
c) Arguments against Turkey's reading
i) II the parties meant "military action" they could have written it in (but maybe there
is an intentional gray area here because they knew the treaty would not be signed
otherwise)
ii) Goal is to have a uniIied Cypriot community iI the other countries are allowed to
intervene militarily, then that goes against the purpose oI the treaty
iii)Context oI the clause it does not make sense to establish a treaty and then allow
one party to step-in unilaterally
6) Issue - Terminating the Treaty
a) Under Article 56, Cyprus does not have a valid ground Ior denouncing the Treaty oI
guarantee because by its nature (i.e. created sovereignty) it does not make sense that they
should simply just be allowed to denounce it
b) Breaching the Treaty
i) Argument against Turkey: they breached the treaty because they allowed the
military incursion
ii) Argument against Greece: they breached Iirst because they supported a coup and got
rid oI akarios, and since they breached Iirst, Turkey could terminate the treaty and
do what they want
ProIessor Borgen Fall 2008
iii)Break the law (TRICY but showing that State has done it beIore may help!)
b) Criticisms
i) UnIair against new states because they do not have the opportunity to persistently
object don`t have an opportunity to send representatives to various meetings
where they can object persistently
ii) Undemocratic because people Irom the outside are attempting to impose ideas onto
people within the state that have not been able to vote and decide on them
iii)Favors Large States that can Iield large numbers oI lawyers and diplomats that can
respond to changes in the system and disIavors those smaller states that cannot get
their acts together and cannot Iight the rules
3) Issues to Consider
a) To what extent can something like a treaty be used as an example oI customary
international law?
b) Can there be regional customary international law (i.e. within just Europe, or Latin
America)
4) Cases analyzing Customary International Law
a) Paquete Habana Iishing vessel had been seized during the Spanish-American ar. Court
Iound that under customary international law civilian ships that are unarmed and not
engaged in any activities against another sovereign should not be seized during a time oI
war.
i) EIIect oI Customary International Law on reaching this decision
(1)State Practice analysis through history (examined treaties and letters
stating proposition that these Iishing vessels should not be subject to
capture)
(2)Opinio Juris court looked at evidence that some actors involved thought
there was legal obligation not to capture Iishing vessels (i.e. admiral's
activities) and general acceptance through passage oI time suggests that
countries had maybe started it because oI selI-interest (Ior their own beneIit)
it has hardened into an idea that this is the way States are supposed to act |all
based on court's inIerence that there is opinio juris|
ii) Criticisms
(1)Using "custom" but only based on the activities oI 4 European countries
(a) Response: there were only a Iew States with navies so can really only
look at those countries to Iind custom
(b)orld community was not that big at the time
(2)Over a period oI 350 years, only Iound limited number oI examples
(3)Inverse proportionality: number oI states versus time in terms oI getting
something to become a custom courts do not want there to be a short
amount oI time with just a Iew states, but may be more willing to accept it as
customary international law iI there are large number oI states in a short
amount oI time
b) Expropriation Cases: dealing with issues when a government takes the property oI a
subnational entity and has not properly compensated that entity/individual
i) $O Iran-US Claims Tribunal (dealing with claims that arose out oI the
Iranian revolution). Issue is determining the standard oI compensation.
(1)"uestion oI Compensation two standards:
(a) Full Compensation: prompt, adequate, eIIective. Immediate and Iull
value oI your investment that is gone
ProIessor Borgen Fall 2008
is Survey was conducted to Iind out what the diIIerent treaties, conventions etc have said
in order to make "guidelines"
i) Deals with:
(1)Foreign Direct Investment company or state invests in another country Ior
purpose oI actually running business (ex. Nike chooses to build plant in
Indonesia its direct investment because Nike is concerned with running
that investment)
(2)PortIolio Investment indirect way oI being compensated (ex. buying stock
oI something in another State and then just getting the dividends)
ProIessor Borgen Fall 2008
they do not want to be recognized as such, but can still enter into
agreements)
vi) Note: whether or not a state meets the criteria is basically determined by whether or
not the other states believe that it meets the criteria
b) Generally: iI an entity acts like a State and can Ieel the type oI power that a State has, they
will oIten be treated like a State (but not always)
c) Issues oI Recognition do not conIuse the issue oI recognizing a government with that oI
recognizing the existence oI a State
d) US States: do NOT meet the criteria and cannot be called "States" because they do not have
the ultimate sovereignty needed (i.e. there is an entity higher than them that makes
decisions)
i) BUT the Vatican is viewed as a State it barely passes the criteria in the
Convention, and was created via treaty
4) Self-Determination: by virtue oI this right they Ireely determine their political status and Ireely
pursue their economic, social and cultural development (right oI people to govern themselves)
a) In past, selI-determination was not issue idea oI terra nullius ("empty territory") oI
colonies where people were treated as resources, and colonial powers did not see their
sovereignty
i) European Powers viewed that they were protectors oI land and they had a legal right
to the land oI the people they took over could keep/transIer/sell the land without
having to worry about what the native population thought
5) Two types of self-determination
a) nternal self determination what we would understand in the US as being a combination
oI civil rights within that political participation and minority protections. II you are within
a country and that country gives you real civil rights and be Iree Irom persecution, ability to
speak your language and educate your children, keeping your culture, political
participation, then you have selI determination. This is what you have a right to
b) ternal self determination ability to actually start a new state. This is highly
controversial.
c) Aaland slands Sweden ceded Finland (and the Aaland Islands) to the USSR, aIter the
revolution Finland gained independence Irom Russia.
i) Role oI International Law: it involves international law because they're dealing with
the transition oI Finland (where Finland is stepping out to become an independent
state)
(1)Domestic Law could play a part in the decision iI its about a minority
group Iighting Ior better rights within a State (because oI the principles oI
sovereignty, other are not allowed to interIere)
ii) Tribunal: selI-determination is not customary international law it is not a positive
rule among the law oI nations (there is not enough state practice)
(1)Rule: in order Ior secession, need to prove Iairly serious/extreme problem
like persecution
iii)Deals with external self-determination (secession) vs. internal self-
determination (minority rights)
(1)Solution: rather than allow them to split oII Irom Finland, provide Ior
minority rights within the state that takes into account their heritage |internal
selI-determination|
d) Changing view oI "people":
i) 18th Century "people" was the citizens oI a particular nation-state
ProIessor Borgen Fall 2008
(2)II the group cannot point to a time when they belonged to another state
historically, then they cannot break oII
(a) Ex. urds cannot point to a historic "urdistan" so its hard to make
the argument under Uti Possidetis that they should have their own
state
6) Recognition recognizing another State's existence. Legal importance oI recognition becomes
melded with political intentions oI the states
a) Two views on recognizing a state
i) eclaratory Jiew: political act and is irrelevant to whether or not a state actually
exists (consistent with state practice)
(1)Recognition is purely a political act that States undertake Ior a variety oI
reasons, Ior example to show support Ior a new state, but it is irrelevant Ior
the legal determination oI statehood.
(2)ontevideo Convention Article 3 (political existence oI the State is
independent oI recognition by the other states)
ii) onstitutive Jiew: recognition is part oI statehood
(1)Regardless oI the satisIaction oI objective criteria, a claimant to statehood is
not itselI a state until it has been recognized by others
(2)Opposition smaller states do not like this view because oI the Iear that they
need the O oI other states beIore coming into the international system and
do not want statehood to be held up by it
b) EU Guidelines on Recognition oI New States
i) There are 5 requirements to Iorm a state Changed the game: now requires that
there be a democratic government and Ioreign relations have to respect certain
things in order to be recognized as a State
ii) Other views oI the "changes"
(1)Didn't change recognition but made out rules Ior countries they want to
"play with"
(2)As a legal matter the deIinition oI statehood has not changed, but Ior the
European States aIIected, they tweaked recognition to Iit their requirement
by having main trading partners require these things
c) Recognizing a government is diIIerent Irom recognizing the state
7) State Succession legal rights oI states
a) Issues: how will the new state be aIIected by the predecessor states?
i) Treaty Obligations
ii) International Organization membership
iii)Disposition oI state assets and state property
b) Two approaches
i) Clean Slate: State arising out oI transIormation comes out like a new baby NOT
bound by treaties
(1)Course oI action that severs all links between the new state and the old one
(2)New State would assume none oI the rights, obligations, memberships,
assets or debts oI the predecessor State
ii) Continuity: each successor State is considered bound by treaties and obligations oI
the pre-existing State
(1)New State assumes all rights and obligations oI the prior state, all its
memberships in international organizations and some pro rata share oI its
assets and debts
ProIessor Borgen Fall 2008
c) Two Tests in Succession |majority oI states have no signed onto either view|
i) Vienna Convention on Succession of States (VCSS) (oIten invoked as a
statement oI international law)
(1)Rule: States are bound unless they otherwise agree
(2)Article 34 separation oI parts oI States: states created through secession or
other separations are BOUND when a state or new state Iorms Irom the
predecessor state, treaties remain in Iorce except Ior certain circumstances
(a)(1)hen part or parts of the territory of state separate to form one or
more states, whether or not the predecessor state continues to exist.
(i) (a) Any treaty in force at the date of the succession of states
in respect of the entire territory of the predecessor state
continues in force in respect of each successor state so
formed,
(ii)(b) Any treaty in force at the date of the succession of States
in respect only of that part of the territory of the predecessor
state which has become a successor state continues in force
in respect of that successor state alone
(b)(2) Paragraph 1 does not apply if.
(i) %he states concerned otherwise agree, or
(ii)It appears from the treaty or is otherwise established that the
application of the treaty in respect of the successor State
would be incompatible with the obfect and purpose of the
treaty or would radically change the conditions of the
operation.
(3)Article 16 new states that were previously colonies are NOT bound:
(a) A newly independent state is not bound to maintain in force, or to
become a party to, any treaty by reason only of the fact that at the
date of the succession of States the treaty was in force in respect of
the territory to which the succession of states relates.
(4)Article 11 Boundary Regimes: succession oI states does NOT aIIect
boundaries
(a) A succession of states does not as such affect.
(i) (a) A boundary established by a treaty, or
(ii)(b) Obligations and rights established by a treaty and
relating to the regime of a boundary.
(5)Article 35 position oI state aIter separation oI part oI its territory: treaties
that were in Iorce Ior predecessor state stay in Iorce Ior the predecessor state
(a) hen after the separation of any part of the territory of a State, the
predecessor state continues to exist, any treaty which at the date of
the succession of States was in force in respect of the predecessor
state continues in force in respect of it remaining territory, unless
(i) %he states concerned otherwise agree,
(ii)It is established that the treaty related only to the territory
which has separated from the predecessor states, or
(iii)It appears from the treaty or is otherwise established that the
application of the treaty in respect of the predecessor State
would be incompatible with the obfect and purpose of the
treaty or would radically change the conditions for its
ProIessor Borgen Fall 2008
operation.
(6)Note: Colonies are not bound because want to encourage their independence
and allow them to start clean (also they had no say in what the state signed
onto originally anyway, so its unIair to make them bound)
(7)Ultimately discourages secession because all the obligations are in place
ii) Restatement 210 (closer to the clean slate principle)
(1)Rule: when part oI a state becomes a new state, it does not succeed to the
prior states obligations not bound unless you explicitly or implicitly (by
actions) agree to be bound
(a) (1) hen part of the territory of a state becomes territory of another
state, the international agreements of the predecessor state cease to
have effect in respect of that territory and the international
agreements of the successor state come into force there
(b)(2) hen a state is absorbed by another state, the international
agreements of the absorbed state are terminated and the
international agreements of the absorbing state become applicable to
the territory of the absorbed state
(c) (3) hen part of a state becomes a new state, the new state does not
succeed to the international agreements to which the predecessor
state was party, unless, expressly or by implication, it accepts such
agreements and the other party or parties thereto agree or
acquiesce.
(2)hy is it set up this way? Academics wrote it not necessarily the same
people who had a sense oI what the state's interests are (they made a
judgment call as to what the law should be)
d) Succession oI the states oI the USSR what happens to the rights and obligations oI the
new states Iollowing the break up Ior the
i) Alma Ata Declaration:
(1)International Obligations: new States were going to be bound view that
international obligations are theirs and they're going to make sure that the
rules are Iollowed
(2)Seat at UN: decided and negotiated amongst themselves that Russia was
going to get the seat in the UN
ii) Contrast to the break-up oI Yugoslavia in the SFRY situation the new "States"
could not agree on what to do (they were in the midst oI the war as they were
separating out) so there wasn't the negotiations and Iormal declaration like in the
USSR situation
COLONIES STATES VIA SECESSION
VCSS Not Bound (Article 16) Bound (Article 34) discourages
secession
Restatement Not Bound (3) Not bound
BALAN CRISIS AND YUGOSLAVIA
1) Facts: three entities (Bosnia, Slovenia, Croatia) were claiming that they were sovereign states aIter
the state oI SFRY was called into question
2) Issue of Secession: there is question as to whether these groups were previously independent
a) Considerations was there any history oI abuse? Is SFRY really dissolving or are these
ProIessor Borgen Fall 2008
(2)Treaties can Iunction to help move Irom punishment to reward: history, prior
negotiations, communication, and punishment all play a part in treaty
Iormation
b) Tragedy of the Commons: everyone is a Iarmer and there is only a certain amount oI
grass. II everyone holds down how much they can graze, then everyone will be better oII,
but the more you send your sheep out the better it is Ior yourselI.
i) Temptation becomes to deIect everyone is IearIul that the other is going to send
more sheep out to graze)
ii) Result: total collapse
iii)How do we prevent the collapse? International organizations are set up to help with
this situation Irom regional groups to global groups we can see how the
international groups play against each other based on the prior agreements that they
made (Iacilitate activity)
5) Legal Personality oI International Organizations
a) Scenario: normally States can get reparations Ior an injured citizen under a claim oI
espousal. Do International Organizations also have this legal personality to sue that is
separate and distinct Irom the states?
b) Reasons to allow Ior legal personality oI organizations
i) II the delegate is Irom a weak state, that State may not be able to provide enough
protection Ior the delegate to do the work he needs to do, so the organization legal
personality provides an added security
ii) EIIiciency Concern iI the organization wants to be able to get things done, then
the delegates shouldn't be concerned with how he is going to be protection and he
wouldn't otherwise be willing to do his job
c) ernadotte Case advisory opinion about reparations Ior injuries suIIered in the service oI
the UN (Swedish mediator blown up in Israel). The decision determined that the UN had
legal personality to sue on behalI oI those individuals who suIIered while working Ior the
UN.
i) Implications not every international organization is going to have a legal
personality it will depend on the duties oI the international organization, what it
needs to IulIill those duties and then applying the certain personality it needs
ii) %o ensure the independence of the agent and consequently the independent action of
the international organi:ation itself, it is essential that in performing his duties he
need not have to rely on any other protection then that of the organi:ation
iii)Organi:ation must be deemed to have those powers which, though not expressly
provided in the Charter, are conferred upon it by necessary implication as being
essential to the performance of its duties
6) United Nations
a) UN Charter Article 23: the Security Council shall consist of 15 members of the UN.
Permanent China, France, USSR/Russia, UK, USA. %he General Assembly shall select
10 other members of the UN to be non-permanent members of the Security Council. Non-
permanent members shall be elected for a term of 2 yrs.
b) UN Charter Article 24: in order to ensure prompt and effective action by the UN, its
members confer on the SC primary responsibility for the maintenance of international
peace and security, and agree that in carrying out its duties under this responsibility the SC
acts on their behalf.
c) UN Charter Article 25: the members of the UN agree to accept and carry out the
decisions of the SC in accordance with the present Charter.
ProIessor Borgen Fall 2008
d) UN Charter Article 27: (1) each member of the SC shall have one vote, (2) decisions of
the SC on procedural matters shall be made by an affirmative vote of nine members.
e) Breakdown oI the UN
i) Secretariat (lead by )
(1)OIIice oI Legal AIIairs in-house council Ior the UN also advice the
Secretary General as to broader issues oI international law
ii) General Assembly
iii)Security Council
(1)embers: 5 permanent members |US, U, Russia, France, China| and 10
others rotate on
(a) Non-permanent seats allocation: 3 to AIrica, 2 to Asia, 2 to Latin
America, 2 to estern Europe and other states, and 1 to Eastern
Europe
(2)In order to pass a resolution need 9 YES votes and no vetoes
(3)Only organ within the UN that can pass resolutions and bind all the members
(4)ReIorm oI Security Council countries like Japan, India, Nigeria, Germany
and Brazil want to get some type oI permanent seat or what there to be
change in the Iormation oI the Security Council
(a) Problem: usually a competitor in that region that will not let it
happen
I) Note:
i) Legal System within UN ICJ is the main body Ior dispute resolution BUT there
are tribunals that are set up to deal with particular issues
(1)Other tribunals are not adjuncts oI the ICJ, but oI the Security Council
(2)Chapter VII oI the Charter Chapter VII Tribunals iI there is a threat to
peace, their decisions can bind the other members oI the UN with a policy
announcement
(a) Criticism: these tribunals are only responsive to the needs oI the
permanent members oI the Security Council
ii) Committees within General Assembly numbered and deal with speciIic matters
(1)Ex. 6th Committee deals with codiIication oI international law and all the
issues that deal with that)
iii)Specialized Agencies (under economic and social council) deal with speciIic issues
(1)Problem: oIten see themselves as separate Irom the UN and problems arise
because oI conIlicts that occur
(2)Ex. orld Bank and the IF
7) Apartheid
a) nternational onvention on te $uppression and Punisment of te rime of Aparteid
i) Article I: the States Parties to the present Convention declare that apartheid is a
crime against humanity and that inhuman acts resulting from the policies and
practices of apartheid and similar policies and practices of racial segregation and
discrimination.are crimes violating the principles of international law
ii) Article II: for the purposes of this convention, the term 'the crime oI apartheid`
shall apply to the following inhuman acts committed for the purpose of establishing
and maintaining domination by one racial group of persons over any other racial
group of person and systematically oppressing them.
(1)Denial to a member or members of a racial group or groups the right to life
and liberty of person
ProIessor Borgen Fall 2008
i) Breaking diplomatic relations with the Government of the Republic of South Africa
or refraining from establishing such relations
ii) Closing their ports to all vessels flying South African flag
iii)nacting legislation prohibiting their ships from entering South African ports
iv) Boycotting all South African goods and refraining from exporting goods, including
all arms and ammunition to South Africa
v) Refusing landing and passage facilities to all aircraft belonging to the Government
of South Africa and companies registered under the laws of South Africa
(1)What is the problem w/ resolution 1761? This resolution 'requests states
to do it. This is a general assembly resolution which is not binding. This
was passed but it doesn`t require anything oI the states.
6) Security Council Resolution 181 is a little harsher then GA Resolution 1761, the SC can do
more and can 'dictate to the states
a) ey Language: solemnly calls upon all States to cease forthwith the sale and shipment of
arms, ammunition of all types and military vehicles to South Africa.
i) This is still just a request. It is not binding b/c it is not under Chapter VII. The SC
can decide whether they want to make something legally binding.
7) South AIrica's Ability to sit in the UN discussion surrounded whether or not they can sit at the
UN even though they're not meeting their requirements to conIorm to the principles in the UN
charter
a) ho should get to decide? Security Council had the ultimate vote and vetoed the General
Assembly's decision to revoke credentials so South AIrica sits
8) Importance shows the interplay between the General Assembly and the Security Council there
is a lot oI political will when it comes to sanctioning and there is going to be diIIerent results based
on who gets makes the decisions
III. NON-STATE ACTORS (NON-GOVERNMENTAL ACTORS)
1) hat are NGOs? Group oI individuals united to advocate a particular agenda on the domestic or
international stage
a) New actors in international law and have caused the most change
b) Types oI NGOs
i) NGO the group
ii) Corporation
iii)Individual
iv) States oI the United States
(1)Examples: Greenpeace, FIFA
c) What can NGOs do?
i) nowledge making and knowledge dissemination good at research studies and
getting the inIormation out to the public
ii) $pecialization can Iocus on a particular issue and bring it to the Iore-Iront
iii)Ability to Organize can get together other like-minded interests and use that to
Iorward a particular point oI view
iv) obbying meeting with oIIicials who can eIIectuate change
(1)How can they assist governments? Not always in conIlict with government!
Can Ieed great deal oI inIormation to government policy makers
(relationship oI give-and-take)
v) onsultative $tatus NGO is able to go and consult in an international Iorum it a
non-voting position, but can bring people into the Iorum oI international law when
ProIessor Borgen Fall 2008
they might not normally have that opportunity and help with the negotiation and
preparation oI any Iinal documents, resolutions or agreements
2) Are NGOs good or bad?
a) Positives
i) Can mediate between states that might not be able to get along and work with them
ii) ay have a deeper knowledge on a topic/issue
iii)You can get to a bigger source oI experts
iv) Gateway to networking w/ other experts and other sources oI inIo
v) "Voice in the wilderness" know what everyone else says/Ieels, bring a diIIerent
point oI view
vi) Outsider viewpoints/increased public participation and cosmopolitan viewpoints
(views that transcend the view oI just one state)
b) riticisms
i) Too many voices at the table (can increase disagreements)
ii) Because oI their specialization may make extreme claims (miss the political
realities governments have to deal with)
3) Accountability who do NGO's have to answer to? They have to answer to the people that Iund
them
a) Two groups oI donors:
i) Average ember (dues paying member)
ii) Large corporate (or government) Iunders
(1)Problem: iI NGO is doing something the corporation does not like, they run
the risk oI losing a great deal oI Iinancial support and occasionally the
Iundraising scope oI the NGO will aIIect their programs and views
b) Result there is oIten a "hybrid" when NGOs act where they're advancing the views oI the
people/issue they represent but also have to keep their donors happy
4) airo onference on Population and EIIect oI NGOs
a) ain Concern demographics, but NGOs helped move the Iocus towards how to
prevent/holdback overpopulation
b) How did they achieve the shiIt?
i) Organized other women's groups to have a united Iront on issue
ii) Domestically lobbied governments Ior changes and support remind politicians that
they will need the members` vote (retail politics)
iii)Chose the most contentious issues ("pick your battles") managing the message
sideline the radical view because radical vies aren`t persuasive
iv) Talked to other States to gain support
v) Built relationship with international organization Ior support
vi) Provide model texts that delegations can choose to use or not to use
5) States of the United States as NGOs
a) Issue: how do we justiIy American conceptions oI Iederalism with American conceptions oI
nationalism and what eIIect does that have in Ioreign aIIairs and international law?
i) eep in mind the powers oI the Iederal executive in comparison with powers oI the
states (how the Iederal treaty making power aIIects them both)
b) assacusetts urma ase A wrote a law saying that they will not do business or
contract with companies that do business in Burma
i) Issue: are they allowed to do that?
(1)Article 27 of VCLT State is responsible Ior violations by a substate entity
(regardless oI the legality oI the action)
ProIessor Borgen Fall 2008
(b)Congress can get greater authority over what executive signs onto
(2)Agreement was pulled "gentlemen's agreement" that US would not sign
onto any more human right's treaties either without Senate's consent or
without RUDs
iii)#eid v. overt: issue with conIlict between treaties/agreements and Constitution
wiIe who killed her husband was tried by court martial. Held: conIlict between
agreement and Constitution, and where there is conIlict the Constitution trumps
(even though both are supreme law oI land)
(1)hen there is a constitutional problem/conIlict, treaty cannot exist treaty
does not give government a "back door" to amend Constitution
(2)Treaties give us law oI land iI properly enacted
(3)Later in time statute will nulliIy an existing treaty. (p. 279) a later in time
statute will nulliIy a earlier in time treaty and vice versa.
iv) Note: not everything that is in treaty is applied abroad
3) NAFTA congressional-executive agreement between exico, US and Canada set up customs
and agreements, and deals with number oI issues (i.e. commerce, licensing, environment, labor
relations, trade, tariIIs, etc.) This is like a BIT b/w the 3 nations
a) Debates over NAFTA ProIessor Tribe:
i) ircular 175: list oI Iactors Irom State Department based on content and import
oI international agreements, some agreements should go Iorward as treaties
(1)Can do more with treaty than congressional legislation
ii) Cannot have constitutional breaches to make new constitutional law constitution is
what is and treaties/agreements cannot circumvent that
b) ade in U$A oundation v. U$: brought by NGO on whether or not NAFTA is
constitutional
i) Lower Court: passage through simple majority in two houses is all that is needed (so
NAFTA is constitutional)
ii) 11th Cir.: decided it was political question and nonjusticiable express grant to
Congress to regulate Ioreign commerce
(1)There is no text that tells us when something has to be treaty and there are no
judicially manageable standards to determine when agreement is signiIicant
enough to qualiIy as "treaty"
(2)Judges are concerned about not over-stepping limits: iI there is nothing in
constitution telling us what limits oI power are, then judges aren't able as
good at resolving disputes
4) !residential !ower to Make International Agreements ames & oore v. #eagan: issue oI
executive power through treaty power. Held: there was implied authorization Ior president, so
suspension oI claims out oI Iran Hostage Situation could be suspended by President (can read
Congressional statutes as "roadmap" in determining whether or not Congress gave President some
kind oI power)
a) Relationship between Presidential Power and Congressional Power (Steel Seizure Cases)
i) ) with approval oI congress (implied or expressed) in the same direction as
congress, there is a deIinite approval oI congress it is written (highest power oI
president)
ii) Zone oI Twilight (unclear as to congress intent, and we are Ialling back on
president`s power) unclear whether the president can act
iii)Congressional disapproval (going against congress). The president`s power is at its
lowest must rely on the powers given to him by the constitution
ProIessor Borgen Fall 2008
b) Article II: ABM system is a system to counter strategic ballistic missiles or their elements
in flight trafectory, currently consisting of` (a) ABM interceptor missiles, (b) ABM
launchers, and (c) ABM radars
c) Article III: permits each party to deploy, inter alia, ABM system to protect its national
capital
d) Article V: each party undertakes not to develop, test, or deploy ABM systems or
components which are sea-based, air-based, space-based, or mobile land-based.
i) Domestic Issue
(1)Senators: iI you develop any oI these systems, then you are breaching
(a) Biden Condition US shall interpret in accordance with views
shared by Congress at time oI ratiIication oI treaty (i.e. cannot ratiIy
it thinking it means X, and then Iind out later that it means Y). This
is a reassertion oI congressional authority, and the treaty is not giving
possibly secret understanding b/w the executive and the other treaty
powers, the understanding is open b/w the executive and the senate.
(2)Executive: AB only prevents developing technology talked about during
ratiIication, does not apply to new technologies
(a) Sofaer Doctrine hen the senate gives advice and concern and the
treaty, there may be other secret understanding about how the lang. is
to be interpreted, and that is ultimately what you are ratiIying and
that is what you are putting into eIIect. The interpretation oI treaties
is primarily the province oI the executive, it is only the executive
who knows what was going on in the negotiations room and what the
other parties expects this to mean.
(i) Senator Carl Levin: what is the importance oI the advice
and consent process iI the executive can redeIine the terms oI
a treaty at will? II we allow this administration to reinterpret
the AB treaty the Senate will have written itselI out oI the
treaty-making process altogether
e) eep in ind VCLT Article 31: treaty shall be interpreted in good faith, in accordance
with the ordinary meaning to be given to terms of treaty in their context and in the light of
its obfect and purpose
i) VCLT Article 32: Resource may be had to supplementary means of interpretation,
including the preparatory work if the treaty and the circumstances of its conclusion,
in order to confirm the meaning resulting from the application of Article 31, or to
determine the meaning when the interpretation according to Article 31. (a) leaves
the meaning ambiguous or obscure, (b) leads to a result which is manifestly absurd
or unreasonable
5) Alien Torts Claims Act (Alien Torts Statute) "window:" brings international law into domestic
law
a) hat is it? Originally passed as part oI the 1789 Judiciary Act "The District court shall
have original jurisdiction oI any civil action by an alien Ior a tort only, committed in
violation oI the law oI nations or oI a treaty oI the United States."
i) District Courts have original jurisdiction this is a Iederal action
ii) Elements:
(1)Any civil Action (NOT criminal proceeding)
(2)By an alien (not available to US citizen)
(3)Committed in violation oI law oI nations (has to be customary international
ProIessor Borgen Fall 2008
getting him
(1)Cause oI action cognizance (not a cause oI action) but iI cause oI action
exists, this is where it resides
(2)Focused on both areas oI law oI nations (transactional actors and
relationships between states) because statute requires someone acting under
color of law
(a) Very narrow list to be considered under the law oI nations: violation
I saIe conducts, inIringement oI the rights oI ambassadors, and piracy
(b)What does the narrow list mean now? It has to be something
broadly accepted. CIL ATS is Ior the types oI torts which are as
important now as (piracy) were then. e need jus cogens, there has
to be no controversy around that. Something that is approaching jus
cogens, Iundamental broadly agreed international law.
(3)There are still some causes oI action you can sue under (even though its
primarily jurisdictional can inIer it Irom Congress)
(a) BUT has to be as widely accept as original claims in 1789
(b)Needs to be same level oI certainty that these are violations oI
modern international law
(4)Need to observe judicial caution in these cases!
IV. Act of State Doctrine
1) hat is the Act oI State Doctrine? Domestic courts should generally reIrain Irom judging validity
oI another state's sovereign acts taken within its own territory at the time oI suit, in the absence oI a
treaty or other unambiguous agreement regarding controlling legal principles even iI acts violate
customary international law
2) anco ational de uba v. $abbatino Act oI State is not a rule within US Constitution, nor rule
in international law (not required).
a) Find doctrine based on Iunctionality:
i) ReIlect the proper distribution oI Iunctions between judicial and political branches
oI government on matters bearing upon Ioreign relations
ii) Arises out oI basic relationship between branches oI government (essentially system
oI separation oI powers)
b) Rule: act oI state doctrine will protect a sovereign, unless there's clear and unambiguous
international law violation and then you do not apply doctrine
i) ith increasing codiIication, there is more and more oI role Ior judges
ii) Bernstein exception: iI the dept oI state weighs in and says that they don`t have a
problem using judicial power then the cts can step in. State dept can write a letter
relieving the ct Irom any problems in terms oI jurisdiction. Regardless as to what
the state dept says, the ct has its own obligation to see whether it will decide on an
issue based on these constitutional underpinnings.
3) $ irkpatrick v. nvironmental 1ectonics orp. |bribing govt. oI Nigeria| concern about
embarrassment oI executive branch and oI Ioreign countries involved.
a) Rule: judges have to presume validity oI Ioreign government acts, unless there is something
clearly showing otherwise
i) II there is question oI validity, it has be shown that it is not valid
ii) Act of state doctrine does not establish an exception for cases and controversies that
may embarrass foreign governments, but merely requires that in process of deciding
acts of foreign sovereigns taken within their own furisdiction shall be deemed valid
ProIessor Borgen Fall 2008
over whom we can have personal jurisdiction. Even though we can have personal
jurisdiction, this doesn`t mean we can regulate these companies (separating the
adjuratory and legislative jurisdiction).
v) Assumption that Congress intends the rules to apply only to US and not beyond the
US b/c there would be a problem w/ comity
vi) Separation oI powers iI we start to apply rules oI congress overseas there is a
problem w/ power oI the executive, the cts choosing to apply can cause problems
Ior the executive.
vii)The general and almost universal rule is that the character oI an act as lawIul or
unlawIul must be determined wholly by the law oI the country where the act is done
b) AOA: ("when can we have jurisdiction?")
i) EIIects Doctrine can be outside oI state's borders and even be a Ioreign national,
but iI there are eIIects in the country, then you are subject to liability in that country
(1)Need to intend to do something
(2)Needs to be actual intended aIIect
ii) Problems: goes back to problems oI unsurity (all arguments in Iavor oI territorial
principle are now used against eIIects doctrine)
c) 1imberlane: ("when should we have jurisdiction?")
i) Three pronged test
(1)EIIects (taken Irom ALCOA)
(2)Actual Injury to PlaintiII |do not worry about it|
(3)Balancing interests oI US and other country
(a) Degree oI conIlict w/ Ioreign law or policy: a very large conIlict
would be weighted to the side oI the other country (not US)
(b)The nationality or allegiance oI the parties
(c) The location or principal places oI business oI corporations
(d)The extent to which enIorcement by either state can be expected to
achieve compliance
(e) The relative signiIicance oI eIIects on the US as compares with those
elsewhere, to the extent to which there is explicit purpose to harm or
aIIect US commerce
(I) The Ioreseeability oI such eIIect,
(g)The relative importance to the violations charged oI conduct within
the US as compared with conduct abroad
(i) A ct evaluating these Iactors should identiIy the potential
degree oI conIlict iI US authority is asserted (diIIerence in
policy, nationality)
(ii)Having assessed the conIlict, the ct should then determine
whether in the Iace oI it the contracts and interests oI the US
are suIIicient to support the exercise oI extraterritorial juris
d) Hartford ire:
i) Test is there in Iact a true conflict between domestic and Ioreign law?
(1)No conIlict exists, Ior these purposes, where a person subject to regulation
by two states can comply with the laws oI both (you can`t comply with one
w/o breaking the other US law would be Iorcing you to do something that
is illegal in the other country and vice versa)
ii) Dissent
(1)Should assume territorial application oI law unless there is indication oI
ProIessor Borgen Fall 2008
otherwise
(2)Charming Betsy Rule try to Iind a way to read both together with same
meaning
(3)Based on reasonability does not make sense (no way states should be
allowed to regulate all over the place)
e) ain Analysis:
i) II there is no true conIlict regulation
ii) II there is conIlict Timberlane test (problem: these kinds oI cases are rare)
(1)Not clear whether it leads to regulation or not
I) mpagran ase: cts seem to be moving away Irom HartIord Fire and back towards
reasonableness and comity.
i) Test: ct should construe ambiguous statutes so as to avoid unreasonable interIerence
with the sovereign authority oI other nations and this rule oI construction reIlects
principles oI customary international law the law (ct must assume) Congress
originally seeks to Iollow.
g) ood Pulp ase: Comes Irom EC commission that wanted to regulate commerce as point
oI conduct. Conduct where it supposed to be not where the took place. The conduct took
place in the EC and so comes under EC jurisdiction
i) Conduct has 2 parts: there is Iormation and implementations. This was
implemented in the European Community.
(1)It is not just eIIects that washed on your shore, there needs to be speciIic
conduct that has to be Ioreseeable, deliberate and intended |direct,
substantial, and Ioreseeable|
Boeing-McDonald Douglas Merger
1) Facts: merger oI two aerospace companies (both are US companies). EU Iinds Iault with merger.
FTC went through investigation and Iound no violation oI anti-trust laws, and concluded that
merger would not cause substantial impact in airline industry. EU threatens consequences iI merger
goes through (i.e. would tax merged company and anyone who does business with it). In eIIect, the
consequences would make merger unviable.
2) Issues: can EU regulate this merger, since both companies are US companies?
3) Territorial Argument even though its legal where you are Irom, there's something wrong with
it, and EU wants to deal with it
4) How does it come out under diIIerent tests oI jurisdictions?
a) ALCOA: eIIect and intent companies are merging with intent to have eIIect on market
b) Timberlane:
i) EIIects (same analysis as ALCOA)
ii) PlaintiII's Injury |do not worry about it|
iii)Balancing Aspect stronger argument is Ior no jurisdiction because it is about two
US companies and US has greater interest since that comprises a large segment oI
US aerospace industry and while they sell certain portion to Europe (its not large
market!)
c) HartIord Fire: no true conIlict not Iorcing companies to break laws in either country, so
EU would be able to regulate it
4) Universal 1urisdiction (!rescriptive 1urisdiction)
a) Other Prescriptive Jurisdiction
i) Nationality Principle: states can regulate their own citizens, even when they are
ProIessor Borgen Fall 2008
abroad
ii) Protective Principle: security oI the state ability to regulate certain acts outside oI
borders because oI need to protect homeland
iii)Universal Principle: any state may exercise jurisdiction over an individual who
commits certain heinous and widely condemned oIIenses (even when no other basis
exists). Juris based on the act itselI even when there is no other nexus w/ the Iorum
(1)Jurisdiction is conIerred Irom the act alone (regardless oI who did it and
where)
(2)Theory: actor is enemy oI international community, so any state can bring
action
b) Historically applied to piracy (pirates were enemies oI all) made sense to have any state
capture pirate (only way to have eIIective response)
c) Today Universal Jurisdiction something else |our citizens were aIIected, something
happened on our soil "prosecute or extradite" any country that has someone within
their territory that has committed a crime has responsibility to either prosecute that person,
or to extradite that person to any other state that agrees to prosecute
i) Typically applied to terrorism (have many anti-terrorism conventions)
d) Problems:
i) Impunity how should one be punished? Can the rest oI community agree and
accept it?
ii) Political interIerence courts are doing more harm than good
iii)II everyone can enIorce it, then have problem oI interpretation (may not agree!)
5) Mechanisms to Try International Crimes
a) Universal Jurisdiction: Ioreign country tries deIendant Ior crime
i) Robust Idea read it into treaties and it is not explicitly written
ii) Treaty-based it is written in (terrorism or anti-apartheid mechanisms)
b) Domestic Court: place where crime took place
i) This is where universal jurisdiction may take a right away
c) Ad hoc Court: court set up speciIically Ior this problem Iunction oI security council
setting up court to deal with problem
d) International Criminal Court: permanent tribunal not set up Ior speciIic conIlict, but also
has ongoing general jurisdiction
i) Tribunal that state's parties have signed onto and whose jurisdiction they've
accepted
e) ixed Tribunals: specially set up Ior an issue have combination oI international judges
and domestic judges
i) ixes the judges and the law that is applied
6) Sovereign Immunity (adjudicatory) when are Ioreign states and nationals going to be immune?
a) Theories oI Sovereign Immunity:
i) Absolute teory: sovereign can`t, w/o his consent, be made respondent in the cts oI
another sovereign
ii) #estrictive mmunity: the immunity I the sovereign is recognized w/ re to the
sovereign or public acts oI state, but not w/ re to private acts
b) $cooner cange - in rem action to recover boat that has been changed into French
vessel. Held: cannot get the boat back (viewed as tied to sovereign itselI)
(1)Territorial Argument: ship is basically French soil and ct cannot decide what
happens
(2)Comity: we want others to respect that where there is US territory we want it
ProIessor Borgen Fall 2008
to be immune
(3)International Law in consensual: there needs to be some type oI consent in
order to have jurisdiction
(4)Could oIIend Ioreign sovereign to say that they have jurisdiction
essentially it is a diplomatic problem between two countries
(5)Rule: when sovereign enters into another country, keep their sovereignty
warship is extension oI sovereignty and it's oIIensive to sovereign to not
respect that. Any exemption haw to come Irom the jurisdiction itselI. II the
country agrees to jurisdiction, then you have it, iI not, there is no
jurisdiction. Private actors submit to the juris oI the country where they
arrives, sovereigns don`t.
(6)Cases that Iollow ( parte Peru and eico v. Hoffman) demonstrate the
shiIt between going Irom absolute immunity to an issue oI constitutional
interplay between executive and the courts
(a) Issue to extend jurisdiction do not do it unless have executive
permission
c) Tate Letters whether or not court can have jurisdiction (public v. private action)
i) Sovereigns are not always immune look at commercial activity
(1)Problem: commercial activity is not deIined
ii) Scenario: when suit is brought into court, seek Tate letter in which they seek
decision on whether or not it involves commercial activity and iI jurisdiction applies
(1)Problems: iI jurisdiction applies, deals with separation oI powers (executive
tells them they have no problem and can exercise jurisdiction)
(2)ill also overwhelm system, so State department needs a clearer method to
make determination
d) Foreign Sovereign Immunities Act (FSIA)
i) DeIault Rule: Ioreign sovereign gets immunity
ii) 1603(d) what is "commercial activity"? Either regular course oI commercial
conduct or particular commercial transaction or act
(1)Focus is on what was done not why it was done
(2)#epublic of Argentina v. eltover Argentina deIaulted on bonds and
unilaterally changed payment schedule and bonds were part oI package with
American banks to Iind a way to get countries out oI debt
(a) Commercial Activity: aIIecting loan repayment
(b)Direct EIIect: while it involved Argentina and can be viewed as
political act, place oI contract was in NY (payment place) direct
eIIect in US |example oI state taking on commercial activity|
(c) Purpose v. Conduct: the purpose was irrelevant, Argentina was a
market player, and there was an eIIect.
(3)$audi Arabia v. elson US national was whistle blower in Saudi hospital,
hospital calls the police on him and he is arrested and tortured.
(a) No commercial activity police power was used and that is only
something a country can do, so there is Ioreign immunity
(b)Criticism: hospital was the actor (called police) and that arguably is a
commercial entity
iii) 1605(a) a Ioreign state shall not be immune Irom the jurisdiction:
(1)aived its immunity either explicitly or by implication
(2)Action is based upon commercial activity carried on in US by foreign state,
ProIessor Borgen Fall 2008
oI other states.
iii)Article 55: commits UN members to promote 'universal respect Ior, and
observance oI, human rights and Iundamental Ireedoms oI all
iv) Article 56: requires UN member states to cooperate in promoting human rights
v) Article 68: contemplated the Iormation oI a UN Commission on Human Rights to
conduct research on human rights and to draIt treaties and other instruments Ior the
articulation and promotion oI human rights
vi) How is it institutionalized in the UN?
(1)UN Human Rights Commission (Article 68: ongoing monitoring oI the HR
situation)
(2)Assigns general responsibility on human rights issues to the General
Assembly
(3)Committee on ECOSOC has direct responsibility
b) UDHR |Universal Declaration oI Human Rights| sets out what human rights are
i) Article 1: all human beings are born Iree and equal in dignity and rights
ii) Article 2: everyone is entitled to all the rights and Ireedoms set Iorth in this
Declaration, w/o distinction oI any kind, such as race, color, sex, language, religion,
political or other opinion, national or social origin, property birth or other status
iii)Article 4: everyone has the right to liIe, liberty and security oI person
iv) Article 5: no one shall be subjected to torture or cruel, inhuman or degrading
treatment or punishment
v) Article 7: all are equal beIore the law and are entitled w/o any discrimination to
equal protection oI the law
vi) Article 8: everyone has the right to an eIIective remedy by the competent tribunals
Ior acts violating the Iundamental rights granted him by the constitution or by law
vii)Article 9: no one shall be subjected to arbitrary arrest, detention or exile
viii) Article 29:
(1)everyone has duties to the community in which alone the Iree and Iull
development oI his personality is possible
(2)in the exercise oI his rights and Ireedoms, everyone shall be subject only to
such limitations as are determined by law solely Ior the proposes oI securing
due recognition and respect Ior the rights and Ireedoms oI others and oI
meeting the just requirements oI morality, public order and the general
welIare in a democratic society
(3)these rights and Ireedoms may in no case be exercised contrary to the
purposes and principles oI the UN
ix) Article 30: nothing in this Declaration may be interpreted as permitting a state to
act in a prohibited way
(1)Problem: its General Assembly resolution, so it is not binding (though it may
put us on the path to customary international law and some has become jus
cogens)
c) ICC!R |International Covenant on Civil and Political Rights| legally binding and sets
out more speciIic and qualiIied language about speciIic human rights
i) Article 2: each state party to the present covenant undertakes to respect and to
ensure.the rights recognized.without discrimination oI any kind, such as race,
colour, sex, language, religion, political or other opinion, national or social origin,
property or other status;
ii) Article 4:
ProIessor Borgen Fall 2008
(1)In time oI public emergency which threatens the liIe oI the nation and the
exercise oI which is oIIicially proclaimed, the State Parties to the present
Covenant may take measures derogating Irom their obligations under the
present Covenant to the extent strictly necessary by the exigencies oI the
situation provided that such measures are not inconsistent with their other
(2)No derogation Irom articles 6 (right to liIe), 7 (ban on torture), 8 ( 1 and 2)
(ban on slavery), 11 (ban on imprisonment Ior debt), 15 (ban on ex post
Iacto crimes), 16 (recognition as a person beIore the law) and 18 (Ireedom oI
thought, conscience, and religion) may be made under this provision
iii)Article 6: (1) Every human being has the inherent right to liIe.No one shall be
arbitrarily deprived oI his liIe; (2) in countries which have not abolished the death
penalty, sentence oI death may be imposed only Ior the most serious crimes in
accordance with the law in Iorce at the time oI the commission oI the crime; (5)
sentence oI death shall not be imposed Ior crimes committed by persons below 18
and shall not be carried out on pregnant women
iv) Article 9: everyone has the right to liberty and security oI persons. No one shall be
subject to arbitrary arrest or detention
v) Article 14: all persons shall be equal beIore the courts and tribunals.everyone
shall be entitled to a Iair and public hearing by a competent, independent and
impartial tribunal established by law. (3) everyone shall be entitled to the Iollowing
min guarantees:
(1)To be inIormed promptly and in detail in a language which he understands
oI the nature oI the cause oI the charge against him
(2)To have adequate time to prepare deIense and communicate with counsel
(3)To be tried without undue delay
(4)To have Iair representation and to be present at the trial
(5)To examine witnesses against him, and be able to get witnesses on his behalI
(6)To have Iree interpreter iI he can`t understand/speak language oI the ct
(7)Not to be compelled to testiIy against himselI or selI-incrimination.
vi) Article 17: no one shall be subjected to arbitrary or unlawIul interIerence w/ his
privacy, Iamily, home or correspondence, attacks on honor or reputation
vii)Article 18: everyone shall have the right to Ireedom oI thought, conscience and
religion.Ireedom to maniIest one`s religion or belieIs may be subject only to such
limitations as are prescribed by law and are necessary to protect public saIety, order,
health or morals or the Iundamental rights and Ireedoms oI others
viii) Article 19: right to Ireedom oI opinion, expression receive and impart inIo oI all
kind regardless oI Irontiers; orally, in writing or in print, art or other media
ix) Article 20: any propaganda Ior war shall be prohibited by law, as well as any
advocacy oI national, racial or religious hatred that constitutes incitement Ior
discrimination, hostility or violence
x) Article 23: the Iamily is a natural and Iundamental group unit oI society and is
entitled to protection by society and the state
xi) Article 25: every citizen shall have the right to take party in the conduct oI public
aIIairs (directly/chosen reps), vote and access to public service in his country
xii)US signed onto ICCPR, but with RUDs (given concerns Irom Bricker
Amendment)
(1)Free Speech (conIlicts with Iirst amendment)
(2)Death Penalty
ProIessor Borgen Fall 2008
vi) Article 14: each state shall ensure in its legal system that the victim oI an act oI
torture obtains redress and has an enIorceable right to Iair and adequate
compensation, including the means Ior such as Iull rehabilitation as possible.
vii)Article 16: which state shall undertake to prevent in any territory under its
jurisdiction other acts oI cruel, inhuman or degrading treatment or punishment
which do not amount to torture as deIined in article 1
5) Torture
a) Issues to keep in mind
i) How do you balance human rights oI individuals with security needs oI society?
ii) How does international law apply in considering levels oI physical Iorce on
detainees?
iii)ho decides whether international law applies and what level oI Iorce is
acceptable?
iv) How is US domestic law and international law interpreted?
v) Geneva Conventions have to do with conduct oI war (just need an "armed
conIlict" declaration oI war becomes unimportant)
(1)Geneva 1: wounded and sick armed Iorces supposed to treat them well
and get medical attention. 'The Red Cross Convention
(2)Geneva 2: sailors on the high seas or shipwrecked same treatment as Ior
soldiers in Geneva 1
(3)Geneva 3: treatment oI prisoners oI war
(a) Article 4 criteria Ior "Iighting groups" to be recognized
(i) Commanded by person responsible Ior subordinates
(ii)Forces need Iixed distinctive sign recognizable at distance
(iii)Need to carry arms openly (no concealed weapons)
(iv)Conduct operations in accordance with laws and customs oI
war
(b)ain Point: iI you act a certain way in combat, then you get GC
protections, but iI you do not act that way, then no protections are
given
(i) Ex. spies act covertly, so they do not get GC treatment
(4)Geneva 4: occupation oI territory and treatment oI citizens in that territory
(a) Additional Protocol 1: Deals w/ diIIerentiating b/w soldiers and
civilians. US not a party but treats as CIL and is bound
(b)Additional Protocol 2: deals w/ internal conIlict (civil war)
(5)Note: Geneva Conventions also suggest that iI application oI GC is not
mandated, that executive can make decision to allow it to apply
b) Torture Memos
i) Issue with treatment oI Taliban v. treatment oI Al "aeda
(1)Should Geneva conventions apply? Argument was made that it should not
apply because both are insurgent groups. Yoo states there were 2 loopholes:
(a) AIghanistan is a Iailed state and thereIore Taliban, is not protected by
the Geneva Convention (conIused recognition oI state v. recognition
oI govt.; only b/c the govt. isn`t recognized doesn`t mean the state
doesn`t exist)
(b)Al "uaida is a non-state actor and thereIore not protected by the
Convention some said perhaps, others said that under Art 1 (all
conventions) the key idea is not reciprocity but rather that even when
ProIessor Borgen Fall 2008
asylum
(b)!ersecution 'membership n a particular social group and 'on
account oI a protected characteristic. 'evidence that the persecutor
seeks to act against other individuals who share the applicant`s
protected characteristics is relevant and may be considered, but shall
not be required
(i) Yes: its ostracizing iI you do not do it (shunned!)
(ii)No: something chosen to be done, and women view it as
positive
(c) ain Argument against: Congress had intended something diIIerent
when it wrote laws Ior asylum (i.e. torture)
(3)Framework for Asylum - n re asinga
(a) Point: reIlects change in international law and recognizing that
asylum is not only Ior what states do to individuals, but what
individuals can do to each other
(b)Framework
(i) Persecution
(ii)Excluding other classes oI people (speciIic group oI people)
(iii)Exclude past victims iI they can show acquiescence
(c) Need to be in "targeted group" n re #-A: court did not allow
asylum because she was not in targeted group (husband was beating
his wiIe because she was his wiIe, not because she was in targeted
group) now iI he was beating his kids as well, then there would be
a target group since there would be several people beaten
(d)oammed v. Conzalez: issue: whether a person who already
suIIered FG still qualiIied Ior asylum. Response: FG must be
considered continuing harm, so that an individual who has already
endured FG, doesn`t need to Iear the same persecution recurring in
the Iuture in order to be eligible Ior asylum.
(e) Abay v. Ascroft: petitioner`s Iear that her daughter would have to
undergo FG iI returned to Nigeria qualiIied both mother and
daughter Ior asylum.
7) Are we overstepping boundaries by imposing what we think violations oI human rights are on
other countries and actors?
a) Universalists: insist that human rights derive Irom our common humanity and so should
apply equally to all
b) Relativists: deny that human rights can or should be universal and argue that human rights
norms must be adapted to reIlect wide variations in culture, belieIs, and economic and
political circumstances.
c) International law is consensual: only liable Ior the norms and obligations you sign on to
d) Arguments are made that it is ok Ior other states to say that someone is violating human
rights
e) Pushing our notions oI human rights surrounds issues oI piercing sovereignty, role oI
international with individual
I) Remember: diIIerences between basic rights and right oI individual, with "right to liIe" as
core right
i) Donnelly Argument essential political unit is the person has basic rights
necessary to any Iunctioning society
ProIessor Borgen Fall 2008
start US Civil ar and height was in I; technology: machine gun; political org:
'Fordism people Iitting into a bigger industrial machine; legal issues: start oI Hague
Convention/League oI Nation.
c) Blitz reig: era oI maneuver warIare. Height: starts at I height is the combination oI
II and aIter; technology: transportation; political org: military industrial complex; legal
issues: response was UN Charter managerial.
d) Network Warfare: swarm many small entities working together to converge on targets
(terrorist cells, guerilla units) height: start at Vietnam, GulI ar 2, height: no idea;
technology: C3I, computers command communication and intelligence; political org:
strategy/changes aIIecting this: globalization; legal issues: response Irom international law
is to be seen: issue oI anticipatory selI-deIense (?), series oI resolutions by UN Iollowing
9/11, making terrorist orgs more Iair game Ior military actions oI states.
5) Sources of International Humanitarian Law
a) Hague Laws and Regulations (core rules) |not focusing on that|
b) Geneva Conventions (protocol I)
i) Article 48: parties to a conIlict shall at all times distinguish b/w the civilian
population and combatants and b/w civilian objects and military objects and
accordingly shall direct their operations only against military objectives.
ii) Article 51:
(1)The civilian population and individual civilians shall enjoy general
protection against dangers arising Irom military operations
(2)The civilian population as such, as well as individual civilians, shall not be
the object oI attack. Acts or threats oI violence the primary purpose oI
which is to spread terror among the civilian population as prohibited
(3)Indiscriminate Attacks
(a) Those which are not directed at speciIic military objective
(b)Those which employ method or means oI combat which cannot be
directed at a speciIic military objective
(c) Those which employ method or means oI combat the eIIects oI
which cannot be limited as required by this Protocol and are oI nature
to strike military objectives and civilians, or civilian objects without
distinction
(4)ore indiscriminate attacks:
(a) An attack by bombardment by any methods or means which treats as
a single military objective a number oI clearly separated and distinct
military objectives located in a city, town or village
(b)An attack which may be expected to cause incidental loss oI liIe,
injury to civilian, damages to civilian objects.which would be
excessive in relation to the concrete military advantage anticipated
(5)Attacks against civilian population or civilians by way oI reprisals are
prohibited
(6)The presence oI movements oI the civilian population or individual civilians
shall not be used to render certain points or areas immune Irom military
operations.iI used to shield military objectives or impede operations
iii)Article 52: (2) attacks shall be limited strictly to military objectives.|which are|
limited to those objects which are by their nature, location, purpose or use make an
eIIective contribution to military action and whose total or partial destruction,
capture or neutralization, in the circumstances ruing at the time, oIIers a deIinite
ProIessor Borgen Fall 2008
iii)Licensing license your name/trademark and ways to make the product to another,
and we get money based on our licensing agreement. No overall regulation, this is
more an issue oI dealing w/ domestic and Ioreign laws.
b) hich one is more attractive? Look at:
i) Economics oI Situation
ii) Regulatory Risk (how risky are these ventures based on legal issues that we would
Iace?)
(1)Generally, investment is viewed as the most risky
3) Global Set oI Rules GATT (General Agreement on TariIIs and Trade) |basic set oI rules|
a) ain Ideas
i) Tariffication: move Irom quotas to tariIIs (i.e. taxing on goods coming into
country)
(1)"uota regulates trade by saying that only certain number oI one product can
come into the country (generally more destabilizing)
(2)TariIIs are easier to negotiate negotiated rounds are attempts to bring down
levels oI tariIIs
ii) Most Favored Nation (FN) Status: basic agreement among all signatories that iI
you have FN status, then have to given the best tariII level given to anyone else
(1)Automatically get best deal granted by one country to another GATT
signatory
(2)Goal: downward pressure on tariIIs whatever best deal is, everyone should
get
iii)National Treatment rule: treat Ioreign/imported goods in a way that is
nondiscriminatory in comparison to domestic goods
(1)Cannot make two kinds oI goods not alike just because one is Ioreign
(2)Sourcing (i.e. "ade in the USA") is generally acceptable, unless separating
it out is done to disIavor the other
(3)Note: in some instances, separating it out might be acceptable i.e. French
ines
b) Dispute Settlement Understanding (DSU) Article 23
i) hen embers seek to redress a violation oI obligations.under the TO
agreements, they shall have recourse to and abide by these rules and procedures
(1)embers shall not make a determination that a violation has occurred. can
do nothing else but invoke dispute settlement
(2)Following the procedures oI dispute settlement, members can determine the
level oI suspension oI concession or other obligations and obtain DSB
authorization b/I taking action.
c) Trade disputes basic responses
i) Counter veiling duties (CVD): iI there is unIair competition Irom a Ioreign co. or
group oI co.s b/c they are receiving a subsidy Irom the govt., which are not allowed,
the importing country can put a CVD, and tax them.
ii) Anti-Dumping Duties: certain types oI abusive trade practices and how goods are
priced. II a co. is Iound to be dumping then you can tax them.
iii)Non-tariff Barrier (NTB) trade problems that are not about tariIIs real goal is
to upset trade and block certain products by claiming there is another reason to keep
it out oI country (i.e. "environmental regulations")
4) WTO GATT is just a system oI rules, so it set up TO (permanent organization to deal with
problems)
ProIessor Borgen Fall 2008
circumstances, to its own investors as well as 'treatment no less Iavorable than that
it accords, in like circumstances, to investors oI any other party or non party
(1)II another country has more Iavorable terms, have to give FN countries
those same terms
ii) inimum Standards oI treatment each NAFTA party is to accord investments
'treatment in accordance with international law, including Iair and equitable
treatment and Iull protection and security
(1)Idea: some countries say that they Ireely take Irom domestic investors, so
they should be able to take Irom Ioreign investors
(a) Cannot use it as a sword! Cannot say "well I treat all domestic
investments bad, so I can do the same to Ioreign investments"
iii)Prohibition on so called perIormance requirements no NAFTA party can require
that investors make certain concessions, such as promise to employ a certain # oI
local personnel, export a certain age oI output, or achieve a certain age oI
domestic content in its goods
iv) Free transIers NAFTA requires that all parties permit all Iinancial transactions
abroad related to an investment, including proIits, dividends, interest, capital gains,
and Iees to be made 'Ireely and without delay and in a 'Ireely usable currency at
the market rate oI exchange.
v) International law standards on expropriation and compensation
(1)no party my directly or indirectly nationalize or expropriate an investment oI
an investor in another party in its territory or take a measure tantamount to
nationalization or expropriation oI such an investment except:
(a) For public purpose
(b)On a non-discriminatory basis
(c) In accordance with due process oI law; and
(d)On payment oI compensation
(2)Compensation shall be equivalent to the Iair market value oI the
expropriated investment immediate b/I the expropriation took place, and
shall not reIlect any change in value occurring b/c the intended expropriation
had become known earlier
8) Regulatory Expropriation iI a panel decision goes beyond the scope oI its power, the litigant is
able to collaterally attack the Iindings and arbitral award at the place oI arbitration in the local ct
a) oewen Case: Canadian company went into &A in US and then pulled out. Sued in
local court in ississippi on commercial tort idea. Jury came back with award oI $500,
and in order to appeal Loewen had to post bond oI $625.
i) Issue: brought to NAFTA on ground that they weren't being treated same as national
companies (especially with appeal bond)
ii) How is it expropriation? Losing their economic value oI Iinal judgment iI have to
post so much money in order to get Iinal judgment
(1)Losing property right oI access to courts in order to get Iinal adjudication oI
claim without compensation
b) Metalclad v. Mexico: US co. building a waste Iacility in X, and given the run around w/
a local permit
i) Argument: lack oI transparency oI local rules local municipality messing w/
Ioreign investor b/c it didn`t want the Iacility there.
ii) There are no transparency obligations under Chapter 11 and the tribunal
overstepped its bounds.
ProIessor Borgen Fall 2008
ate iddle
Ages /
#enaissance
New Legal
System
(independent
states)
Critical period in international law as the society changes]
Political Structure
Rise oI independent states
Decreased power oI the Holy Roman Empire and papacy (due to the reIormation)
Politically Europe was Iracturing into smaller units that began to interact with each
other and trade and travel amongst them Iound that the solutions Rome had was
useIul have to Iind a way to deal with new world and people there
Law and Legal Themes
New Legal System: draws Irom old Roman Law, Church law (even though not applied
in the same way, its still inIluential) and Justinian's Code (codiIication that took place
during Roman Empire)
Increased Trade
Discovery oI the new world (issues now deal with dealing with the new world and
people there)
New military technology
1t & 17t
enturies
estpalian
$ystem
Treaty of
Westphalia
Birth of modern state system as we understand it today and also birth of modern
international law]
Treaty of Westphalia: signed in 1848 to put an end to the 30 years war
(comprehensive peace treaty signed by all oI the monarchs oI Europe)
- Emphasis on Sovereignty: each state has absolute control oI the issues that occur
completely within that state there is no higher power than that oI a given state
(NO empire above the state telling them what to do)
- Rise of !ositivism: reliance on practice oI states and conduct oI international
relations as evidenced by custom or treaties as the basis oI international law (less
concerned with "natural law" and more concerned about the actual acts oI states
(i.e. what they have signed onto)
Ecclesiastic Authority (i.e. Pope) that had gained a lot oI power and were NOT hired
in the state could not tell them what to do (state would have complete authority within
its borders, and its powers did not extend to any other state)
Grotius De Jure Delli ac Pacis (1623-24) On ar and Peace (Iather oI international
law) three key principles:
Restitution: survives today as the law oI responsibility State A hurts State B, then
State A owes B some Iorm oI restitution Ior the harm caused
!romises Must be ept: pacta sunt servanda (comes back Irom the time oI Greece
and city-states)
Freedom of the Seas: (Law oI the Sea) no state controlled the seas (open to all states)
and there was strong sentiment that it was "closed sea" where States could control
parts oI the sea and could do what they want; pirates are also criminals oI all time
18t & 19t
centuries
Concert of
Europe
!ositivism was the dominant form of legal reasoning]
Law and Legal Themes
Sovereignty: crucial importance (stems Irom estphalia, but becomes dominant Iorm
oI legal analysis at this time)
!ositivism: Iocus is on what is provable (what states have actually done and signed on
to)
Vattel "The Law oI Peoples" All effective international law is derived from the will
ProIessor Borgen Fall 2008
1oday
nter ar
Versailles
Treaty
tensions
odern state system (but with Versailles treaty Tensions) also the League oI Nations
(1
st
attempt at a global international organization)
Collective Security (LN) iI any nation attacks any other nation, then all oI the other
countries are supposed to respond (as long as they`re part oI the group)
LN Iell apart!!!
ellogg-Briand (1928): attempt to use legalized structure to say that the parties who
signed it promised that they wouldn`t go to war with each other.
PCIJ precursor to the ICJ (PCIJ cases are still cited today) general jurisdiction under
law and weren`t allowed to use military Iore
14 Points oI oodrow ilson his blueprint Ior making the world saIer Ior democracy
anti-colonial and gave voice to this idea oI selI-determination oI peoples (selI-
determination b/c a big deal later in the 1990s) Iocusing on the rights oI people and that
they should have a right to selI-determination
1oday
Post
Bipolar
System
|Rise oI the UN|
UN similar structure oI the League oI Nations built more realistically establish rules
needed to regulate activities
Intergovernmental not meant to be where there was an independent power like UN
that was going to be the world power and tell the states what to do it was just supposed
to be regulatory (its NOT supranational)
Nonintervention states do not get to interIere with the internal aIIairs oI another state
brings back the ideas oI positivism and sovereignty
Self-Determination (coming back Irom ilson`s time) UN system also says that
peoples should not be subjugated by Ioreign powers
Human Rights also need to be respected
** Tension in the UN system **
Rise of International Courts and Dispute Settlements ICJ and Nuremberg and
Tokyo (major war crimes trials); increased use oI international dispute resolution on trade
areas (more speciIic areas get taken out oI political discussion and more legalistic
methods get built and used)
Post old
ar
(1) Increased use oI international organizations overall UN has become more important;
TO; orld Bank (IBRD) and IF (international monetary Iund)
Regional Organizations become more powerIul and prevalent born during the Cold
ar, but things like the European community turning into the European Union
(2) Importance oI Non-state Actors (see it more in cases like the Greenpeace Rainbow
arrior Case) importance oI individuals as being protected by international rights and
prosecuted by international law
(3) Increasing rise oI courts and tribunals
1oday
(early 21st
entury)
No simple answer to questions in international law]
Live in a time where there is a mix between positivism and return to natural law
Sovereignty is important to states (positivism)
Human Rights we live in a world where you cannot get around issues oI human rights
individuals have human rights that we are entitled to by simply being human, whether or
not our countries agree to them (Ilies in the Iace oI sovereignty)