International Law Chapter 1 - The Nature of International Law A.

The History of International Law International Law is a system of rules that are binding on international actors o Whenever there are interacting states, there is a system of intl. law Types of Actors o National states o Non-state actors - Individuals Systems of International Law o 1648 Peace of Westphalia Wesphalian System  Strong system of national states (creating a system) o Unfavorable situations for intl. law  Anarchy no states, E.g. The Dark Ages  Hegemony Dominate state, E.g. Roman Empire o No system before 1648 because of the opposing forces of Feudalism and the Roman Catholic Church o War and conflict can be the catalyst for new systems of international law  Napoleonic Wars Congress of Vienna  WW1 Treaty of Versailles League of Nations  WW2 United Nations Theorists o Naturalism  Francisco de Vitoria  Alberico Gentili  Hugo Grotius father of international law y Mare Liberum o The seas must be kept open for navigation, no exclusive sovereignty y De jure belli ac pacis on the law of war and peace o Legality of the use of force in international law  Averroes  Thomas Aquinas y Divine law and reason are complimentary o Positivism  Richard Zouche  Cornelius van Bynkershoek  Emmerich de Vattel  Jeremy Bentham international law term y Peoples rights exists because the states grant them those rights  John Austin y Sovereign imposes law on individuals, but how can it impose a law on itself?  Hans Kelsen y Intl law is enforceable by sanctions Basis of the Rules of International Law = Natural Law o Early = Roman Law  Stoicism = what the law ought to be  ius/jus = law  ius naturale = natural law  jus gentium = the law of peoples  jus civile = civil law y Citizens interacting with other citizens

Justinian y Corpus juris civilis, Digest  Jus naturale merges with jus gentium Greece/Aristole/Stoic Philosophers Natural Law  Man is a rational animal and universal rules flow from human nature  Exists independently of any positive law 16th century re-emergence  ius gentium = law of nations

Positivism o Looks at state practice to determine what the law actually is o Law can only be established by the consent of individual states  Explicit (treaties)  Implicit (customary intl. law) Post WW2 Needs to be some kind of restraint on international law / return to natural law ideas o How can states treat its own citizens, organizations  States are bound by rules/binding norms/jus cogens o Critics Vague/ uncertainty / Realist Approach  States obey only when it is in there interest to do so o Why would states obey intl. law?  More advantages to live in an orderly international society of states Filartiga v. Pena-Irala o Dr.s son was kidnapped and tortured by Pena-Irala, the daughter observed the body. When Pena-Irala enters the US, the daughter brings suit for wrongful death of her brother. o Deliberate torture under the color of official authority is a violation of the norms of international law o International law confers on all people fundamental rights and one of those rights is freedom from torture. o Just because states participate in torture, does not diminish its binding affects as a norm of international law Universal Jurisdiction o International law allows (or requires) for universal jurisdiction in some extreme cases o If US can assert US jurisdiction over foreigners, foreign states can assert jurisdiction over US citizens Chapter 2 Treaties A. The Sources of International Law Article 38 Statute of the ICJ (The World Court The Hague) o Sets of the courts procedures o The court shall apply:  (1) International conventions; y Treaties, pacts, protocols, (sometimes) declaration Did the parties intend the instrument to have legally binding force? y US Domestic constitutional law = Treaty entered into by the P with the advice and consent of 2/3 of the Senate o Have to have to be a treaty under US law y P can enter into executive agreements without congressional consent y P can enter into international agreements with the concurrence of both houses Presidential Congressional Executive Agreement y For international purpose, they all carry equal weight o Dualism y Treaties may be: o General o Particular

o Can have characteristics of contracts or legislation or both o Can codify existing or develop new international law  (2) International custom; y Two elements for custom to become a rule: o (1) General practice o (2) Accepted as law  (3) General principals of law recognized by civilized nations;  (4) Judicial decisions; and y Not binding except on the parties in the case (civil law view) y There is no doctrine of stare decisis in civil law & international law y Dealing with both international and domestic tribunals o ICJ follows its own decisions although there is no requirement that they do so  (5) Teachings of the most qualified publicists There is jus cogens that trump treaties  Law against torture  Super custom/Super Norm that cant be contracted around

Treaty between the Jews and the Romans o Mutual defense pact / collective security agreement o Economic sanctions upon the enemies of either side The Peace of Westphalia / 30 years War / 1648 o Modern international law Establishes state sovereignty as the fundamental building block of international authority o Set out political boundaries and created religious toleration through a series of bilateral treaties o Liberty of conscience Treaty of Paris o Revolutionary War recognizes the sovereignty of the US o Relinquishes claims and establishes boundaries to the US The Cessation of Alaska o Russia cedes all of its territory to the US for $7.2 million Kellogg-Briand Pact o Condemning recourse to war for the solution of international controversies o Resulted in the Treaty of Versailles League of Nations  Aggressive war is a violation of IL and IL prohibits war to further national policy y Customary international law Hull-Lothian Agreement o Churchill wants to purchase warships (voluntary gift) from the US to build against an impending attack by Germany. Roosevelt does not think that he has the authority to make gifts of US property. Agreement is made in diplomatic notes Contract. o Executive Agreements are binding in international law, but not under Art. II of the US Constitution with the advice and consent of 2/3 of Congress  USSC says EAs are valid but do they have the same status as treaties made under Art. II procedure? y Scholars think that Art. II & Fed. Statute would trump an EO o Might also decide that it is a non-judicable political question y International Law Vienna Convention if there is no violation of Art 46-53, then the treaty may be valid o International law and domestic law are separate legal systems  Dualism Where its legal in one, doesnt imply that it is legal in another Functions of treaties

o o o

(1) Contractual  Hull-Lothian, Alaska Cessation, Jews and Romans, Treaty of Paris  Bi-lateral treaties tend to be contractual (2) Legislative  Treaty of Westphalia, Vienna Convention (3) Constitutional  Treaty of Westphalia, UN Charter, Treaty of European Union (4) Aspirational  Kellogg-Briand

Treaty Making Process Vienna Convention (Articles 6-25) o (1) Negotiation  Could be head of state, head of govt, Secretary of State, ambassador to a foreign country, or a person specially appointed o (2) Signing o (3) Ratification  Art. II Constitution specifies, with the advice and consent of the Senate  EO P alone ratifies without the Senate  Legislative EO P ratifies with simple majority of both houses  Parties sometimes express reservations to the treaties o (4) Accession  Multilateral Further signatures at accession  Treaty is open to others o (5) Deposit of instruments of ratification o (6) Registration  All treaties that UN members enter into must be registered with the UN Secretary and if not, it cannot be invoked before any organ of the UN o (7) Entry into Force  Generally on a date specified on the text C. The Law of Treaties The Vienna Convention o Codifies pre-existing conventions of IL o Doesnt completely displace the customary international law  Not all states are parties, e.g. the US US Courts look to the VCLT because the US is already bound by it o Art. 26 Pacta sunt servanda, pacts must be observed = treaties must be complied with Reservations to treaties o Problematic in multilateral treaties o In Bilateral treaties a reservation acts as a counteroffer o VCLT Art. 19-23: Validity and legal effect of reservations The Reservations to the Genocide Convention Case o The Genocide Convention was approved unanimously, but as the result of a series of majority votes and certain reservations. o RULE: A minor reservation that keeps in mind the object or humanitarian and civilizing purpose must provide the reason under which the State makes the reservation  Each state that is a party to the convention can then appraise the validity of the reservation and in turn decide whether that state is a party to the convention.  If a party objects/agrees to a reservation, its up to each State to decide and the relationship is only between reserving State and the objecting State o The treaty may preclude or limit what types of reservations are possible o Dissenting:  The integrity of the terms is more important than the universality of acceptance

It would be better to lose as a party that does not agree to the terms of the Convention, than to permit it to become a party against the wish a State that has accepted all the obligations.

Consequences of an Invalid Reservation o (1) Reserving State is not a party to the treaty at all  Majority approach With respect to any other party that objects to the reservation  Traditional Approach / Dissent Approach Integrity of the terms is more important o (2) Reserving State is a party and the reser iv7qizvation is treated as null and void  Belilos Case Switzerland argues that it entered a reservation and was therefore shielded from liability. According the ECHRs rules, specific reservations are permissible, but here that reservation was too general and invalid. Treaty Interpretation Eastern Airline v. Floyd o Pilot informs passengers that he is going to have to put the plane down in the ocean but is able land safely. Warsaw Convention says that an international air carrier can be held liable for injuries to passengers. Passengers want damages for mental distress. Airline argues that physical injury is a condition of liability. o An air carrier cannot be held liable under the Warsaw Convention when an accident has not caused a passenger to suffer death, physical injury, or physical manifestation of injury  Rule: The goal is to give the words of the treaty a meaning consistent with the shared expectations of the parties. o When interpreting a treaty, we begin with the text and then the context:  (1) French text and the meaning of lesion corpelle  (2) French legal meaning / Dictionary y The translations do not permit recovery for purely psychic injuries  (3) French legal materials to determine jurists contemporary understanding  (4) Legislation  (5) Applicable cases  (6) French treatises and scholarly writing  (7) Additional sources / Drafting Documents y Many countries did not recognize compensation for purely psychic injury y The parties wanted to protect air carriers and foster a new industry  (8) Conduct of the parties after the legislation went into effect y Proposed amendments thought the language was too narrow  (9) No international agreements are persuasive.  (10) Israeli Court decision is not in accord with what the parties meant when they initially concluded the treaty o Scalias dissent  We should look at foreign constructions as evidence of the original shared understanding of the contracting parties. Methods of Treaty Interpretation UN Charter Art. 31-33 o (1) Textualism  UN Charter exists in five (5) authentic texts = equally authentic  Art. 33(4) use text whose meaning that best recognizes the object and purpose o (2) Intentionalism  Similar to legislative history in statutory interpretation, originalism in constitutional interpretation y Negotiating History o (3) Teleological (Purposive) Meaning that best represents the object and purpose  Similar to living constitutionalism Case Concerning the Gabcikovo Nagymaros Project

o o o

1977, Hungary and Czech entered into a treaty that would divert the Danube River into Czech territory by a dam built by both countries. 1992 Hungary unilaterally denounced the treaty. The notification of denouncement was premature and did not have the legal effect of terminating the treaty under the Vienna Convention Hungary could not support termination of the treaty because:  (1) Necessity is not a ground for termination as soon as the necessity ceases, the treaty obligations arises again (temporary suspension)  (2) Impossibility of performance requires permanent disappearance or destruction of an object indispensable for the execution. y Art. 61(2) no impossibility of performance from a countrys own obligations.  (3) Changed Circumstances Art. 62(1): o (1) Unforeseen o (2) Preexisting circumstances were essential o (3) Radically altered the terms still to be performed y The political situation in eastern Europe was not so closely linked to the object and purpose of the treaty to qualify as a fundamental change  (4) Breach of the Treaty y Chronological problem the breach was premature y Art. 60 Breach has to be material  (5) Changes in environmental international law y The parties recognized that norms of environmental law and the treaty were not static  (6) Both parties had repudiated the treaty y Contract law rescission Mutual breach is not the same and mutual repudiation

World court can acquire jurisdiction: o (1) By Treaty o (2) States may enter into an agreement to submit o (3) Optional Clause (opt into a situation where jurisdiction is automatically acquired) The Eastern Greenland Case o The Norwegian claim of certain territories in Eastern Greenland was unlawful because they belonged to Denmark. Danish minister, anxious to express its sovereignty over all of Greenland, says that there would be no difficulties of the part of the Norwegian Govt.  M. Ihlen Ihlen Declaration y After examining the words and circumstances, it could not have meant to give then and there a definitive recognition of Danish sovereignty over Greenland. o A reply in the nature of the Ihlen Declaration, given by the Minister of Foreign affairs, is binding upon the country to which the minister belongs. o The settlement was unconditional and definitive so Norway is under an obligation to refrain from contesting Danish sovereignty over Greenland. To prove that a treaty is invalid: o (1) Examine municipal rules regarding who has the authority to make treaties o (2) A manifest violation of municipal law regarding competence to enter into treaties Advantages of Treaties o Rules are set out clearly o State consent to be bound is more unambiguous Disadvantages of Treaties o Always going to be a need for supplemental rules o What are the rules pertaining to the states that dont sign or agree to the particular treaties ICJ does not require States to keep themselves informed of legislative and constitutional developments in other States, which are or may become important for the international relations of these States.

Chapter 3 - Custom and the Non-Consensual Sources of International Law A. Customary International Law Binding force is based on the idea of implied consent (ICJ Art. 38) Two ways to establish: o (1) General practice  Objective determination based on international practice (yearbooks and state department publications)  Must be uniform, consistent, and longstanding o (2) Accepted as law  Opinio Juris subjective determination  States do so because they believe themselves to be bound y Positivist Theory o Customary IL is based on state practice and opinio juris y Observed out of a legal obligation or necessity o E.g. when a foreign dignitary comes to visit, you fly the flag of that country, it is done out of courtesy, not because we think there is a rule of customary international law The Paquete Habana o Two fishing vessels, engaged in fishing off the coast of Cuba, under the Spanish flag are captured, brought to Key West, condemned and sold at auction o The capture of the fishing vessels was unlawful and without probable cause because in violation of customary international law  Rule: That coast fishing vessels, honestly pursuing their peaceful calling of catching and bringing in fresh fish, are exempt from capture as prize of war. Does not apply if the vessel is engaged in a war-like purpose. o Since International law is part of our law, resort must be had to the customs and usages of civilized nations:  (1) Customary IL is part of our law, doesnt need to be incorporated by legislation  (2) May be evidence by jurists and commentators  (3) (Dicta) Customary IL may be trumped or overridden by an executive act or judicial decision o The weight of their testimony is increased every time their authority is invoked  No single nation can change the laws of the sea (Universal obligation) o Frequently cited on three issues:  (1) The manner of determining rules of customary international law  (2) Incorporation of customary IL into the municipal law of the US  (3) The proper relationship between U.S. Courts and executive branch in legal matters touching on international relations o Introduced positivism as the dominant theory of law o States are bound only by laws that they had consented to Levels of Customary International Law: o (1) Global International Law / Universal / General  Global custom, general principals, natural law, jus cogens, equity o (2) Regional o (3) Local / Special The Asylum Case o Victor Raul Haya de la Torre unsuccessful leader of military revolt in Peru sought political asylum in Colombian Embassy. Peru rejected Colombias assertion of diplomatic immunity and refused to let him leave the country. Columbia asserts that it is a custom peculiar to Latin American states that allows it unilaterally declare Haya de la Torre a political offender eligible for diplomatic asylum. o Such a custom does not exist and even if it did, it could not be invoked against Peru because they would have repudiated it by refraining from ratifying the Montevideo Convention. o To rely on a custom, Columbia needed to prove that the custom (Art 38):

(1) Was in accordance with a constant and uniform usage practiced by the States in question; and (2) That this usage is expression of a right appertaining to the State granting asylum and a duty incumbent on the territorial state (opinio juris) ICJ Treatment of the States reaction  (1) Consistent State practice  (2) Adhered to out of uniform usage

 

Persistent Objector Rule The way you opt out of a rule is by persistently objecting o Once the rule has been formed, you can no longer opt out What counts as an objection? o Global Custom  Silence is not enough  Silence implies consent  POR is favorable to the forming of global customary law 1 set of rules applicable to everyone o Regional custom  Silence is enough, it implies rejection  Peru failed to sign the treaties  The court cant point to persistent objections  The hardest to form o Local / Special custom  Silence is sufficient for consent  Silence implies acquiesances  The court doesnt perceive a threat to IL The Lotus Case o Two ships run into each other, French Lotus and Turkish Boz Kourt, on the high seas. The Turkish ship sank and the French continued to Constantinople. The French captain was arrested and sentenced to 80 days in jail. o Rule: A State may exercise jurisdiction in its own territory with respect to acts which may have taken place abroad so long as it does not overstep the limits of IL  Positivist view y Turkey may make rules in the any matter that it chooses so long as it does not violate a principal of IL y States are only bound by the laws that they consent to y The burden of proof is on France to prove that there was an explicit prohibition of jurisdiction/violation of IL  High water mark of positivism o The rule has been reversed by the Geneva Convention  In crime on the high seas, only the flag state of the national state of the accused may prosecute the officer in a case of a collision on the high seas. B. General Principals of Law Now there is no part of the world that is not part of a nation state and civilized nations The more abstract the principal, the less likely it will be useful in specific cases The AM & S Case o EC Commission requires applicants to provide documents on the production and distribution of zinc metals to make sure no members violate the treaty. o The power to compel production is subject to a restriction imposed by the needs to protect confidentiality provided that the communications are questions exchanged between a client and their lawyer an independent lawyer.  Rule: General principals of law that have not been expressly stated may nonetheless exist as part of community law. (Judge Pescatore)

National law may be probative of these unwritten principals of community law total unanimity is not required y Not a least common denominator approach general agreement is sufficient  Generally a client should be able to speak freely, frankly, and fully to his attorney Since the communications were drawn up preceding and immediately following the adding of the UK to the community, the circumstances are sufficient to justify the communications as falling within the context of the rights of defense y

C. Natural Law and Jus Cogens Formal Sources of International Law o (1) International conventions o (2) International custom o (3) The general principals of law recognized by civilized nations (Jus Cogens) Jus Cogens = super customary law / Equivalent to Constitutional Law o International law > Customary law (Opinio Juris)  States can opt out of customary international law o Jus Cogens > International law  States cannot opt out of Jus Cogens o VCLT Art. 53  A treaty that violates Jus Cogens is void o Jus Cogens norms:  (1) Prohibition of the use of force  (2) Prohibition of genocide  (3) Prohibition of racial discrimination  (4) Prohibition against crimes against humanity  (5) Prohibitions against slavery  (6) Prohibition against piracy  (7) Treaties must be complied with  (8) Principle of self determination o Jus Cogens are erga omens obligations (owed to everyone universal jurisdiction)  E.g. contract rights (bilateral obligations), property rights (against everyone in the world) US v. Smith o A crew mutinied, seized a vessel, proceeded to sea, and then plundered & robbed a Spanish ship o Piracy is a crime under the law of nations and correctly defined by Congress:  In order to define piracy within its constitutional authority Congress may specify the crime of piracy by referencing a technical name, determining the extent of the crime, or enumerating the acts in detail. o Realistically, no matter what source you look to, the CL, maritime law, the law of nations, or great writers, piracy is universally an offense against the law of nations. Prosecutor v. Furundzija o Military commander was convicted of torture and rape of a Bosnia Muslim during the BosniaHerzegovina conflict o Since international crimes are universally condemned wherever they occur, every State has the right to prosecute and punish the authors of such crimes.  Torture constitutes a breach of the right of all members of the international community and evolved into a preemptory norm (jus cogens) y Higher rank that customary rules y Designed to produce a deterrent effect y Serves to internationally de-legitimate any legislative, administrative or judicial act authorizing torture The Michael Domingues Case

o o

US A state may contract out of a custom in the process of formation by persistent objection Commission on Human Rights Execution of offenders under 18 is so offensive to the standards of decency that it has evolved into a preemptory norm/jus cogens and the US is bound by that norm not to impose capital punishment  The norm cannot be validly derogated by treaty or by persistent objection

D. Equity Article 38 o Equity is not mentioned in article 38 as one of the primary sources of international law o A court is authorized to rule ex aequo et bono (according to what is just and good)  No court has ever invoked, but equity and the basic principals of fairness are used  Part of the general principals of law that are recognized by civilized nations Ways to Apply Equity: (1) Intra legem (Secundum legem)  Equity within the letter of the law y Confirm or flesh out the equitable principals (2) Praeter legem  Equity outside the law / law is silent y Gap filler (3) Contra legem (adversus legem)  Equity against the law Most controversial not common y Overrides established legal principals The Cayuga Indians Case o The Cayuga Indians relocated to Canada. The US recognized Cayuga nationals and agreed to pay a perpetual annuity and provide a reservation. The agreement was observed in a treaty (State of NY cant enter into a treaty not constitutional). Money was paid to Cayugas in Canada them in 1811 it was paid to Cayugas in the US. o Since there are no general rules of IL that determine what is the fair result, equity determines that the Cayuga Indians in Canada should get a proportionate share of the annuities paid from 1810 to the present.  When a situation legally so anomalous is presented, recourse must be had to generally recognized principles of justice and fair dealing The Meuse Case o Alimentation of certain canals in the Netherlands and Belgium o The N and B locks are in the same position. They cant be treated more unfavorably that the other. If such alimentation of one lock is a violation of the Treaty, it is also a violation as to the other lock  Rule: where to parties have assumed an identical obligation, one party which is engaged in a continuing non-performance of that obligation should not be permitted to take advantage of similar non-performance of that obligation by the other party.  The Netherlands should not be granted relief that Belgium discontinue from the operation of the lock because Netherlands cannot be left to continue operation of its own illegal lock The North Sea Continental Shelf Cases o Article 6 of the Convention on the Continental Shelf (516 U.S.T.S. 205 (1958)) says that if there are two countries separated by a sea, the boundary between then should be calculated as the point equidistant from both coastlines. Germany argues that it is getting less seabed under the principal. o Dont need to follow the equidistance principle because it is inequitable  The boundary should be redrawn based on equitable principals to leave as much as possible without encroaching on the natural extension of the territory of the other. y Equidistance principle was still relatively new, not yet customary IL  The rule of law requires equity y Opinio Juris customary international law requires equity

Chapter 4 International and Municipal Law A. Treaties and the Constitution Self-Executing Treaty Whenever the treaty operates by itself, without the aid of any legislative provision o When the treaty imports a contract, the legislature must execute before it becomes a rule o Self-Executing Treaties are the exception o Possible to have a partially self-executing and partially non self executing treaty o International and Municipal law are separate and discrete legal systems  Rules from one system must be specifically incorporated into the other in order to be applied o US position on self-executing and non-self-executing:  Non self-executing, dualist approach  Self-executing, monistic approach (customary IL) How to Determine a Self-Executing Treaty: o (1) Language it must appear that the framers of the treaty intended to prescribe a rule that would be enforceable in the courts o (2) Circumstances Foster & Elam v. Neilson (review two page outline foundational case) o The Spanish governor made a grant of land and the Spanish King ratified the grant. Neilson is in possession of a title to the land. Foster and Elam think they are entitled to the land because the Spanish governor granted it. o 1819 Adams-Onis treaty says that ratification and confirmation are promised and must be made by the legislature. Until such act is passed, the court cannot disregard the existing laws on the subject. It is a nonself executing treaty.  In the US a treaty is the law of the land and equivalent to an act of the legislature, whenever it operates of itself, without the aid of any legislative provision. y There is no law that that legislation must be implemented in order for a treaty to have direct effect  When the terms stipulate a contract, the legislature must execute the contract first Asakura v. City of Seattle o The city passed an ordinance limiting the pawn broking trade to licensed brokers and then required that brokers be US citizens in order to obtain licenses. Asakura argues that the ordinance is in violation of a treaty between the US and Japan that guaranteed equality of treatment in the commercial sphere. o The US/Japanese treaty is binding and self executing in the State of WA and the rule of equality cannot be disregarded by a municipal ordinance  Treaties are the supreme law of the land y Only thing a treaty cannot do is to overrule an express term of the constitution  Here the treaty operates of itself without the aid of any legislation, state, or national, and it will be applied and given authoritative effect by the courts Sei Fujii v. CA o Sei Fujiis land was escheated to the state under the CA Alien Land law o State law trumped by a US Treaty. Relief is granted via the US constitution (violates 14th amd, rather than the UN Charter) o The UN Charter is not self-executing because the provision relied upon were not intended to supersede existing domestic legislation and cannot invalidate the alien land law o A treaty does not automatically supersede local laws unless the treaty provisions are self-executing  The provisions and the preamble of Art 1 are not self-executing they state general purposes and objectives  Future legislative action by the several nations would be required to accomplish the declared objectives  Articles 55 and 56 are not customarily employed in treaties which have been held to be selfexecuting

Missouri v. Holland o Missouri wants to shoot the birds flying over their state, the federal government cant regulate because the Const. (10th Amd) says nothing about the power to protect birds. o Migratory Bird Treaty Act Federal Statute, previously a 1916 Treaty between the US and Britain protecting the birds crossing between the US and Canada.  Non-self executing - needed to enacted Migratory Treaty for protection. o The Treaty is constitutional because the federal govt has the power to make treaties (Art. II, 2), Supremacy Clause (Art. VI), Necessary and Proper Clause (Art. I, 8) o Therefore although the treaty was not self-executing, the govt had the power to make and implement the treaty Reid v. Covert o US military courts have jurisdiction over crimes committed on US bases abroad, specifically dependents of US military persons abroad (because active military can be court martial) o No Agreement with a foreign nation can confer power on the Congress, or on any other branch of Government, which is free from the restrains of the Constitution Crosby v. National Foreign Trade Council o MA law restricts entities from buying goods or services from any person from doing business in Burma. Congress passes a federal statute also imposing sanctions on Burma o The MA law is an obstacle to achieving the objectives of the federal Burma law because preemption applies in three types of cases:  (1) Express preemption  (2) Federal law occupies the field y No concurrent legislation can be permitted  (3) Conflict or inconsistency between State and Federal law y Cant comply with federal because of state y Or the law is an obstacle to achieving the objectives of the federal Burma law o Objective of the Federal Statute is to give the P ways to deal with Burma flexibility the MA law is limiting the Ps power Whitney v. Robertson o Plaintiffs are importing sugars into the US and argue that it should be admitted on the same terms as the sugar admitted by Hawaii o Treaty grants the Dominican Republic most favored nation status and was implemented by an act of Congress  Treaties and statutes have the same authority under the constitution (Holding) y When the two relate to the same subject, the courts will always endeavor to construe them so as to give effect to both, if that can be done without violating the language of either, but if the two are inconsistent, the last in date will control the other, provided the treaty is self-executing o Dualistic view Executive Agreements International agreements made by the P with other nations without the advice of 2/3s of the senate o Constitutional sense does not explicitly mention more EA than a treaty  Established by diplomatic practice (repeatedly upheld by courts) o Art. II sense they are all treaties  Exclusive process by which international agreements may be concluded Types of Executive Agreements: (1) Treaty based  Express or impliedly permits the P to make subsequent executive agreements without having to go back to the Senate every time

(2) Constitutional based sole executive agreements  Pursuant to his constitutional powers y E.g. Hull Lothian Agreement  Commander-in-chief power y E.g. US v. Belmont, Litvinov Agreement y Ps power comes from his power to send and receive ambassadors and thus the power to establish diplomatic relations and settle outstanding claims (3) Congressional executive agreements  By the P, not with 2/3, but with the approval of the simple majority of both houses of Congress (looks just like a statute) US v. Belmont o Settlement of claims pursuant to Litvinov agreement (diplomatic recognition of the USSR). USSR assigns to US all its claims that it had against US citizens o The P has the power to enter into and the power to make the agreement o Rule: Executive agreements are constitutional and trump any inconsistent state laws and constitutions (Dicta made a holding in US v Pink) o The P has the authority to speak as the sole organ of the government in external affairs  Dont need the advice and consent of the Senate o Missouri v. Holland Rule applies not just to treaties but to EAs too Executive Agreements and Treaties may not be completely equal. Treaty really has two meanings: o (1) Treaty in Article II(2) that requires the advice and consent of the Senate. Typically used for:  Boundaries, War & Peace, Military Alliances, Arms Control, Immigration, Taxation, Environment, Human Rights, International Organizations o (2) Treaty in Article VI(2) that is given supremacy  Congressional-Executive Agreements y Trade, Finance, Energy & Fisheries (E.g. NAFTA)  Sole Executive Agreements y Minor, Technical, Routine Matters United States v. Curtiss-Wright o To reduce wars in South America, Congress issued a Joint Resolution authorized by the P to prohibit the sale of arms if the prohibition would contribute to the establishment of peace in the region. CurtissWright was charged with conspiring to sell fifteen machine guns to Bolivia. He argues that the commerce involved was not interstate commerce, but international commerce, Congress cant regulate and Interstate Commerce Clause doesnt apply o Rule: P has the sole authority to speak for the nation in foreign affairs (Marshall) o Power of the government in foreign affairs is independent of the constitution  The most important role in exercising these powers is inherent in the role of the President. o Justice Sutherlands opinion  P doesnt need an act of Congress to exercise his foreign affairs power  Plenary and exclusive power to act with or without Congress in foreign affairs  The P is uniquely situated to act (better sources, position, agents, Secrecy, swiftly) o Curtiss-Wright So Im Right Cite (a lot of talk of the inherent power, but here the P was not acting independently of Congress Youngstown o Truman inherent power to seize the Steel Mills to protect the nation in times of war because of NS concerns. USSC struck down Trumans actions. Black wrote the opinion:  There is no such thing as extra constitutional power o Justice Jackson tripartite scheme Dames & Moore v. Reagan

o o

o o

After hostage crisis in Iran, President Carter declared a national emergency and froze the property and interests of the Iranian government. Algiers Agreement - Hostages were released, all litigation between the US and Iran govts would be decided in arbitration, and all US claims against Iran were terminated. Since the Ps actions were taken pursuant to congressional authorization, it is supported by the strongest presumption and the widest latitude of judicial interpretation and the burden of persuasion rests heavily on that might attack it. Looks to Youngstown & Justice Jacksons Tripartite Scheme  (1) P acts with express or implied authorization of Congressional y High Ebb  (2) P acts without approval and disapproval of Congress y Twilight Zone  (3) P acts against with express or implied will of Congress y Lowest Ebb Congress enacted a statute and the P is acting pursuant to that statute (category 1) The lack of legislation does not disapprove (category 2)  Rule: The international claims act of 1949 shows that Congress has implicitly (read: making inferences based on Congressional legislation) agreed to settle claims by EA Past practice: Ps frequently that settle outstanding claims in the specific areas 10 such binding settlements (Litvinov, Pink) Frankfurters concurrence  Systematic unbroken practice may be treated as a gloss on executive power  Longstanding practice of consistent P authority? Yes then inherent power

Avena o ICJ: Foreign nationals denied rights under VCCR are entitled to review and reconsideration of those conviction Medellin v. Texas o Jose Medellin (18 yr. old Mexican citizen) and gang members raped and killed two girls. Medellin admitted to the crime and signed a confession after Miranda. Not advised of his Vienna Convention rights (Art. 36). Medellin was convicted and sentence to death. Medellin appeals to the USSC writ of certiorari granted  These treaties make the ICJ binding + Supremacy Clause = Supreme law of the law and trumps any state procedural law o What is the legal effect of a final order by the ICJ in the US Court system? o Although an international treaty may constitute an international commitment, it is not biding domestic law unless Congress has enacted statutes implementing or the treaty if self executing  There is not direct effect in US Courts because the treaty is not self-executing  Vienna Convention Optional Protocol - Disputes arising out of shall lie within the compulsory jurisdiction of the ICJ y Submitting to jurisdiction and agreeing to be bound are two different things  UN Charter undertakes to comply means well try to comply if we want o Decisions of the ICJ are not binding domestic law  Avena is binding as a rule of IL, but it is not binding in domestic law (Dualism) o Absent an act of Congress or Constitutional authority, the P does not have the power to enforce international treaties or decisions of the ICJ  P does not have the ability to convert a non-self-executing treaty into a self-executing one (acting in conflict with understanding of Senate Category 3)  Past practice by itself does not create power (no longstanding practice either)  Take Care Clause Allows the P to execute the laws, not make them o Concurring Stevens  Undertakes to comply = contemplation of future action by political branches o Dissenting Breyer, Souter, Ginsburg  The ICJ judgment is enforceable as a matter of domestic law  Treaty obligations bind the courts no less than would an act of federal legislation  Too much weight on language presence/absence of language proves nothing

 

Irdell some treaty provisions are automatic (Ratification of constitution) Treaty is self-executing because (1) Mandatory and binding language;(2) Relation to specific individual right; (3) Logic; (4) Diplomatic imperatives; (5) Judicial nature of the task; (6) No non-judicial activity required; (7) No P or congressional concern with judicial enforcement of the treaty

B. The Law of Nations in American Law Two aspects to the Law of nations o (1) General principals of law o (2) Jus cogens Respublica v. De Longchamps o Longchamps threatened bodily harm and violence on a French ambassador and then two days later threatened and assaulted him in the street o The Defendant cannot be turned over to French authorities and imprisoned in France o The crime is in violation of the law of nations and the law is part of the law of the state Alien Tort Act provided redress of international law violations committed by individuals The Charming Betsey holds the vessel was to be treated as belonging to a Danish citizen and hence not subject to forfeiture o Shows the early American courts were treading carefully o The Political Question doctrine Sometimes evoked to abstain from deciding sensitive foreign policy questions  Powell three part test: y (1) Does the issue involve resolution of questions committed by the text of the Constitution to a coordinate branch of govt? y (2) Would resolution of the question demand that a court move beyond areas of judicial expertise? y (3) Do prudential considerations counsel against judicial intervention? Sosa v. Alvarez-Machain o Alvarez-Machain, a Mexican physician, was present and believed to have acted to prolong DEA agents life to extend the interrogation. The DEA hired Mexican nationals to seize Alvarez and bring him to Texas. Alvarez claimed his seizure was outrageous govt conduct and in violation of the extradition treaty between the nations.  District/Ninth Circuit Agreed/USSC reversed o Alvarez claims damages under FTCA and ATS for a violation of the laws of nations  USSC NOW reverses each both claims are dismissed o Alvarez cannot recover under the ATS because it was not one of the limited causes of action for the small number of violations with a potential for personal liability.  As soon as the ATS was passed it was meant to have practical effect furnish jurisdiction to limited violations of the law of nations that created personal liability y Blackstone: (1) Violation of safe conducts; (2) Infringements of the rights of ambassadors; and (3) Piracy o RULE: Any claim based on present day law of nations should rest on a norm of international character accepted by the civilized world and defined with specificity comparable to the 18th century considerations.  Statutes may need to clarify make common/natural law more concrete  Congress can then recognize new torts so long as it is sufficiently well established, specific, clear and universally recognized as the original three causes of action that were clear violation of international as the three y Need to look at the consequences o Scalias dissent looks at level of specificity named torts & no further

Preserves the ATS and excepts that it applies to violations recognized in modern international law provide that they are sufficiently well established

Chapter 5 International Courts and Tribunals A. Public International Arbitration Jay Treaty (1794) Dispute resolution mechanism authorizing mandatory arbitrations o Each side appoints an equal number of commissioners o Commissioners then appoint another commissioner of their own to prevent deadlock The Alabama Arbitration o Judgment from tribunal composed of judges from US, GB, Italy, Switz, and Brazil to decide whether Britain violated international law when it permitted British companies to build Confederate warships. o Ruled that Britain owed the US a duty of active due diligence to prevent private parties from supplying the southern rebels and Britain failed to observe her international obligations as a neutral state. GB was ordered to pay the US $15.5M  No effective measures of prevention  Measures taken for pursuit and arrest were also very weak. o Important demonstration that disputes between powerful states may be arbitrated to avoid war Inspired creation of Permanent Court of arbitration The Hague Peace Conference o Permanent Court of International Arbitration (Peace Palace). Ratified by most of the states existence at that time and all the major powers. Process:  (1) Try to achieve a resolution through informal procedures  (2) Then arbitrate y Standing panel y States designate arbitrators who then render legally binding awards Modern International Arbitration o (1) Public o (2) Private o (3) Mixed The Dogger Bank Affair o Thinking that the Russians were under fire from Japanese torpedo boats, they opened fire on a group of English fishing boats (trawlers). England was on the verge of declaring war, The PMs met and decided to submit to an inquiry conducted by an international body o Based on the facts and circumstances it was not justifiable for the Russian commander to open fire and he is responsible for his actions.  There was not a hostile act, the vessels were identifiable, and no evidence of torpedo boats. The Rainbow Warrior Case o French agents Marfart and Prieu attached mines and sank the Rainbow Warrior, a ship belonging to Greenpeace International, in Auckland, New Zealand. Two of the agents were arrested and sentenced to jail. UN Secretary General mediated, decided that the agents would be held at the French military base on Hao for three years and could not leave. In 1990 France evacuated the two agents before tolling of the three-year period. o France committed four material breaches in its obligations in arbitration agreement.  France must prove three conditions to avoid a wrongful breach: y (1) Very exceptional circumstances of an extreme urgency y (2) Reestablishment of the original situation y (3) Existence of a good faith effort to try and obtain the consent of NZ o Mafart (1) France did not breach its obligations to NZ by removing him, but committed a material and continuing breach by failing to order his return

o o

 Dissent: Medical emergency was not serious enough Prieur France committed three more breaches:  (2) France committed a material breach of its obligations by not make a good faith effort to obtain NZs consent  (3) Committed a material breach by removing her  (4) Committed a material and continuing breach by not ordering her to return to the island NZs request for cessation and discontinuance of the French conduct cannot be issued because the international obligation is expired  Dissent The agreement was for three years, not until a certain date France the appropriate remedy is satisfaction moral or legal damage done directly to the State, especially involving international obligations Ad-hoc mixed arbitration o

The Case Concerning the Air Services Agreement of 27 March 1946, US v. France o Compromissory Clause agreement in advance that the parties will agree to binding arbitration  Authorized a panel of arbitrators to hear disputes concerning the interpretation or application of the Agreement o Also a supplemental agreement Arbitration conducted pursuant to a separate compromis  Its possible for arbitration to be based solely on a compromis  Can have a compromis with out a Compromissory clause B. The International Court 1. The Jurisdiction of the International Court WW1 PCIJ = The World Court WW2 ICJ = International Court of Justice o Article 2-15 (Procedure for Judges)  15 judges, no two judges of the same nationality, independent, impartial, nine year renewable terms, staggered terms, candidates are voted on by the SC and the GA (majority in both houses are elected) y Five members of the SC always had a judge on the world court y Remaining ten seats are distributed by region  Generally the judges sit as a full court (Plenary session) o Article 3 If one party doesnt have a national on the court, they can to nominate one  Possible to have up to 17 judges additional two judges are ad-hoc judges o Article 55(2) (check?) If there is a tie, the president of the court casts the deciding vote o The UN SC may legally impose binding measures e.g. sanctions to pressure a state to comply with and ICJ judgment 2 Main Types of ICJ Jurisdiction (1) Contentions jurisdiction Art. 36  Parties must consent to jurisdiction  36(1): parties refer to specific request for jurisdiction over this particular dispute o Ad hoc agreement = compromis y Treaties may contain a Compromissory clause o Parts of the treaty may be submitted to ICJ jurisdiction o Must unambiguously indicate that the parties submit to jurisdiction  36(2): Compulsory jurisdiction / optional clause jurisdiction y Automatically submit jurisdiction to the ICJ, but only if the other party to the dispute has invoked the optional clause y Today only about 65 states have issued an optional clause declaration o Its hard to know in advance what jurisdiction you will be subject to o The US had an optional clause declaration in force until 1985 y If you still have an optional clause it is likely subject to several reservations

o Art. 59 Decision are binding only on the parties in that case (2) Advisory Jurisdiction Art. 65 of the ICJ / Art. 96 of the UNC  Any request must be in writing, be accompanied by all relevant documents, exact statement of the question  Permissible, the court does not have to give an AO  Not binding on anyone, but they are authoritative opinions of the law y The organ requesting the opinion is expected to listen to the AO  The US doesnt have advisory jurisdiction, but some state courts can (MI can requests from the state legislature) Other Jurisdiction o Incidental Jurisdiction Matters ancillary to the main types of Contentious or Advisory Jurisdiction  Intervention by third states in contentious cases  Interpretation or revision of its own judgments o Compulsory Jurisdiction Art. 36(2) Can attach conditions  US initially attached three reservations (terminated in 1985): y (1) Acceptance would not apply to disputes the solution of which the parties shall entrust to other tribunals by virtue of agreements already in existence or which may be concluded in the future y (2) Self-judging domestic reservation Connelly Amendment o Prevented the US from using Art. 36(2) to bring claims to the ICJ y (3) Vandenberg Amendment o Declaration would not apply to disputes arising under a multilateral treaty unless (1) all parties to the treaty affected by the decision are also parties are before the Court, or (2) specific agreement to jurisdiction The Minquiers and Ecrehos Case o Great Britain and France entered into a special agreement (Compromis) on 12/29/50 to submit the dispute regarding islands in the English Channel to the ICJ. o The islands belong to Great Britain because France has not produced evidence shows that it has any valid title to the group.  The court looks to various treaties, historical documents, political history, quo warranto proceedings, jurisdiction and local administration, and finally diplomatic exchanges to determine that the British had control over the islands. o By framing the question that the arbitral tribunal would answer, the parties ensured that the Court could only rule one way or the other as to which state had sovereignty The Diplomatic and Consular Staff Case o The US government was heavily involved in the creation of govt that was overthrown by the Iranian people and then resulted in the 11/4/79 hostage crisis in Iran. Iranian security made no attempt to stop, provide relief, clear the premises, rescue, or persuade the militants to terminate their action. Security Counsel adopted resolution 457 calling for Iran to release the hostages and resolve the dispute peacefully. o The Court has jurisdiction and Iran has violated its obligations owed to the US under the long established rules of general international law o Jurisdiction is provided since Iran didnt plead or argue before the ICJ, made no attempt to explain the connection between the overall problem and its grievances against the US, and the Vienna Convention Optional Protocols provide a basis for the Courts jurisdiction. o Iran has obligations and responsibility for its actions because:  Phase One Attack on the embassy y Under Art. 22 of the Vienna Convention and general principals of international law, Iran had a responsibility to ensure the protection of the US Embassy and inaction is a serious violations of its duties  Phase Two Subsequent conduct of Iranian govt y Iran had a duty to make every effort to bring a speedy end to the hostage crisis y Under Art. 31 the threat of having some of the hostages submitted to a trial before a court or some other body was serious breach

Dissent (Russia) The wrongful acts cannot be considered in isolation, the US act have to be considered too

3. Advisory Opinions at the International Court When a party fails to appear and does not present evidence, the ICJ may still render an opinion, but Court must determine that the claim is well founded in fact and law o Sufficiency of a factual record isnt same major concern in every legal proceeding Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory o Resolution 181 recommended the adoption and implementation of two independent States one Arab, the other Jewish. Armed conflict breaks out. Rhodes agreement establishes the GREEN LINE. In 1997 Israel begins construction of the wall and the General Assembly requests an ICJ advisory opinion. o The Court has jurisdiction to give the advisory opinion because the general assembly has the competence to request an advisory opinion from the security counsel. There is no reason for the court to decline jurisdiction, it is performing its duties within the organization.  Duties of the organization maintain international peace Art. 24 and responsibility to recommend peaceful adjustment measures Art 14 y Issuing an AO the Court is participating in the organization Art. 65 y Not just a bilateral matter between Israel & Palestine total UN concern  The court has sufficient facts at its disposal about the impact of the wall  The advisory opinion would serve a purpose because it would determine the legal consequences and then Security Council can draw its own conclusions o The construction of the wall and its associated regime are contrary to international law  (1) Even though Israel says it is not annexing, the wall creates a fait accompli and could become permanent, resulting in de facto annexation  (2) The Israeli wall threatens the demographic compositions and is a breach of Palestinian right to self-determination and sovereignty (disproportionate affect)  The wall is not necessary to obtain security objectives, infringes a number of rights, cannot be justified by exigencies, national security, or public order o Israel must cease construction, dismantle what exists and make reparations for all damages o The US judge was troubled by what he saw as an insufficient factual records (Biased) Chapter 6 Individuals and International Law A. Individuals As Objects of International Law Traditional Only states have rights in international law (Positivism) o Individuals were viewed as objects of international law o Objects of concern, but not bearers of rights and duties o Duties belong to the states not the individuals Diplomatic Protection State protection over an individual o Must be a national of that state o What is nationality?  (1) Jus sanguinis blood relation  (2) Jus soli the right of the soil y Primary doctrine of nationality in US law/ Adoption of the 14th amendment  Dual nationality is possible o Stateless persons inhumane should not be imposed as punishment for a crime  Art. 15 of the Declaration of Human Rights Everyone has a right to a nationality State Protection Permitting but not obliging, a state to protect its nationals State Responsibility When/How a state is responsible for a breach of an international obligation o E.g. Nottebohm state claims give rise to a claim of state responsibility

An international claim gives rise to state responsibility where: (1) It is otherwise admissible (Nottebohm); (2) Based on an act or omission; (3) Attributable to a State; (4) Wrongfully violating a duty to another state or its nationals; (5) Causing injury; (6) Without justification

Attribution o A state is responsible for all acts of its organs, legislative, executive, and judicial o States generally not be held responsible for a private actor Reparation Every breach of a states international obligations gives rise to a duty to make full reparations. Three forms: o (1) Restitution o (2) Compensation Monetary payment, not to punish, but to make the state whole o (3) Satisfaction Reparation for non-material injuries (see Rainbow Warrior Case) The Nottebohm Case o Born in Germany, moved to Guatemala and then applied and received Liechtenstein naturalization. Returned to Guatemala, arrested and interned in the US. o Liechtenstein cannot extend protection to Nottebohm because there is not a sufficient connection and bond of attachment to confer nationality.  When a state exercises domestic jurisdiction it does not necessarily have international effect  In cases of dual nationality there is a preference for the real and effective nationality y Effective Nationality/Genuine Link TEST: The national must prove a meaningful connection to the state in question o The state of real and effective nationality is the country that can provide protection o Factors: Habitual residence, Center of interests, family ties, participation in public life, attachment for the country y Application of the effective nationality test: o Nottebohm never fully severed his interests in Germany, his ties to Guatemala are strongest, and there is little evidence of a meaningful connection to Liechtenstein o Narrow view Avoid the consequences of laws of war & abuse of the law of state protection  Counsel for Guatemala connection to Nazis and the nationality was bought/sham o Broad view State protection will not be recognized without a showing of real and effective nationality The Barcelona Traction Case o Barcelona Traction initially incorporated in Canada and provided power in Spain. At some point most of the companies shares were in the hands of Belgian SHs. The Company issued bonds, but the Spanish Civil War disrupted the interest payments and a bankruptcy declaration obtained. Trustees created new shares and most purchased by Juan March. o Belgium does not have a right to exercise diplomatic protection because the corporation has a permanent connection to Canada and as such Canada has the discretionary power to provide protection to SHs.  Nationality alone confers upon the State the right of diplomatic protection  The Company against which the alleged unlawful acts were directed is expressly vested with a right, not the shareholders. y Barcelona still exists and maintained legal capacity, so no individual right of action exists  Connection to Canada y Rule: diplomatic protection of a corporate entity is given to the State under which laws it is incorporated and location of registered office y Since Barcelona is incorporated in Canada and registered office there is a close and permanent connection to that State  A state has the discretionary power to decide whether to protect y If the natural person decides that their rights are not adequately protected, they must turn to municipal law y If a state decides not to protect, that does not mean another state can do so

o o

Equity opening the door to competing diplomatic claims would create confusion and allow a right of protection secondary to that of the national State Concurring Opinion / Philip Jessup (US judge)  Accepted Effective Nationality/Genuine Link y Belgium might meet test because 88% of the shares were held by Belgians y UK, US, and Canada connections with Barcelona were transitory and nominal  Claim fails anyways because there was no continuous interest between the time the injury was inflicted and the date Belgium adopted the claim y No one has standing Controversial decision because no justice was provided to the foreign and no equitable solution No genuine link is needed in EU Human Rights law states may protect private parties against other state regardless of the nationality of the victim

B. Individuals as Subjects of International Law Modern Individuals are subjects of international law o Bearers of rights and duties, but not the same rights and duties of states o Post WW2 Major human rights developments:  (1) UN Charter (1945)  (2) Nuremburg and Tokyo War Crimes Tribunals (1946)  (3) Universal Declaration of Human Rights (1948) o Two main areas:  (1) International Human Rights Law  (2) International Criminal Rights Law Doctrine of Humanitarian Intervention States may intervene if a state treats its own citizens in a way that shocks the conscience Early recognition of individuals as subjects: o Piracy o Diplomatic immunity o Maritime Law C. International Human Rights Law 1. Human Rights and Municipal Law 2. The Nuremberg Judgment London Charter (August 1945) established the punishable offenses: o (1) Crimes against peace  More controversial unjust v. just war  Treaty making aggressive war illegal o (2) War Crimes  Most well established in IL as being crimes o (3) Crimes Against Humanity  Most controversial no clear basis in treaty law  Leader are responsible for all acts performed in execution of such plan o International Law does not recognize conspiracy (except conspiracy to commit genocide) The Nuremberg Judgment o 10 month trial, 24 leading members of the Nazi party were put on trial  (1) Nullum crimen sine lege (principal of legality) (ex post facto) y No one made aggressive war a crime at the time Hitler initially invaded o Pact of Paris outlawed crimes against peace

o o

 The law of war reflects customs and principals  It is not static living constitutionalism  (2) Positivist Doctrine y Where the act is an act of state, those who carry it out are not personally responsible, but are protected by the Doctrine of State Sovereignty o IL imposes duties on individuals and states need individual responsibility for IL to operate properly  *Rejecting the positivist doctrine and official immunity*  Defendants in an official position have an obligation to IL that transcend their obligations to the state  (3) Victors justice y Chief Justice Stone Sanctimonious fraud y Not an arbitrary expression of power, but the view of the entire Tribunal  (4) Nuremberg Defense y Following orders does not free you from obligations, but can mitigate if a moral choice was possible.  (5) Tu quoquo You also did it Not valid defense States may be liable for mistreatment to its own citizens Individuals are subjects with rights and duties and not just objects of IL

Major Human Rights Treaties: o UN Charter (1945) Preamble / Art 55  Promote universal respect for, and observances of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion  GA established the UN Commission on Human Rights (very politicized) and then replaced by the UN Council on Human Rights (2006) o International Bill of Rights  Universal Declaration on Human Rights (1948) (Not a treaty) y First attempt to set the scope of fundamental human rights norms y Negative rights / Liberty Rights (Articles 1-21) o Prevent the government from taking certain action/intruding on certain human rights Limits o 18th century rights / 1st Generation rights / US Bill of Rights y Positive rights / Welfare (Article 22-30) o What the government must do o 20th century rights / Second generation rights o Depend of the resources of the state, but every State should attempt y Your negative rights are meaningless if you are not granted positive rights y Declaratory of customary international law  International Covenant on Civil and Political Rights (ICCPR) (Treaty) y Treaty, States are required to submit periodic reports showing compliance y US has signed and ratified, Judgments are not legally binding y Optional Protocol states can opt into a system where individuals complaints may be brought  Intl Covenant on Economic, Social, & Cultural Rights (ICESCR) (Treaty) y Depend of the resources of the state, but every State should attempt (political action) y US has signed, but not ratified, no compliance mechanism, human rights are typically not judicable o Convention on the Elimination of All Forms of Racial Discrimination o Convention on the Elimination of All Forms of Discrimination Against Women o Convention Against Torture; Convention on the Rights of the Child Regional Human Rights Treaties o American System  OAS Charter, American Declaration on Human Rights (1948)  American Convention on Human Rights (1969) (Commission + Court)

European System  European Convention on Human Rights (1950) y Most successful regional and national human rights system African System  African Charter on Human and Peoples Rights (1981)

Damian Thomas v. Jamaica o 15 year old arrested for murder. Sent to prison with adults instead of juvenile for as long as her majestys pleasure (arbitrary) o Allegations regarding detention in an adult prison are admissible. Jamaica had violated his HR even though it has withdrawn from the treaty  Denunciation goes into force 3 months after the optional clause has been evoked. o Art. 10 Juvenile prisoners Cant be mixed with the general adult population o Art. 24 Every child shall have the right to protection because of minor status  For every violation there must be a remedy y Placement in the juvenile facility and compensation for his suffering D. European Human Rights Law Council of Europe o Separate from the European Union  More broad 47 members compared to 27 all western European countries and some states have observer status o Goal is to protect of democracy and human rights o European Convention is widely influential on other State constitutions o Protocol 11 (1998)  Court becomes a permanent body, case load increases dramatically y Can have a grand chamber of twenty or more judges o Protocol 14 (2010) reforms to alleviate the docket, 1 judge review to strike  New reforms have been adopted to alleviate the docket  1 judge will review and strike meritless claim Sunday Times Case o Thalidomide was used as a drug for sleeping aid/morning sickness in Europe and it caused birth defects. Five Plaintiffs who refused to accept the settlement. The govt sought an injunction to prevent the Sunday Times from publishing further articles about the litigation. The Q.B. says that publishing the articles it might prejudice the free choice of Plaintiffs. Lord Denning overturns no trial by newspaper, but here there is a compelling public interest that outweighs the concern of any parties to the litigation. House of Lords reinstate the injunction. Sunday Times then brings an independent claim to the European Commission. Commission sees a violation and refers to the Court o Art. 10 is violated (Freedom of expression / (exception not in the US 1st Amd democratic society must maintain impartiality of the judiciary). Conditional on whether:  (1) Prescribed by law y It is prescribed by common law, not statutory, but written down somewhere  (2) Legitimate purpose y Purpose is to maintain the authority of the judiciary  (3) Necessary for a democratic society y Analogous to strict scrutiny (necessary to achieve a compelling interest) y But its not necessary because freedom of expression is important y The role of the media is to report and the people to receive o Narrowly tailored to achieve such interest y Plaintiffs had an interest to know the facts o 11 votes to 9 Lots of people thought the court had gone too far The Soering Case

o o o

Jens Soering (German national) kills the parents of his Canadian girlfriend that live in Virginia. Detained in the UK on charges of check fraud and confesses to US investigators. UK wants assurances that if extradited to the US, that he is not sentenced to the death. The US does not provide an assurance. UK begins extradition proceedings and Soering brings a claim with the ECHR. Argues that no one shall be subjected to torture, inhuman, degrading treatment or punishment (Art. 80); and the death row phenomenon/ death penalty violate (Art 3 cruel and unusual punishment)  Extradition would not violate Art. 3 because convention contemplates the possibility of the death penalty, but the death row phenomenon is considered to be cruel and unusual punishment because confinement by its nature is so inhumane and degrading that it amounts to a violation of Art.3. Eventually extradited on the understanding that the death penalty would not be imposed

E. International Criminal Law International Criminal Law examines the rights and duties of individuals Ad Hoc Tribunals Adjudicate crimes arising out of a particular situation o Establishes a body of law laws against genocide o Nuremberg (Germany) International criminal tribunal o Tokyo War Crimes Tribunal (Japan)  Judges from major allied powers, but in the hands of US (sole occupier) o International Criminal Tribunal for former Yugoslavia (The Hague)  Slobodan Milosevic o International Criminal Tribunal for Rwanda (Arusha, Tanzania)  Convicted 24 Defendants for their role in the genocide in Rwanda o Special Court for Sierra Leone (Freetown)  Charles Taylor (Former President of Liberia) Permanent Criminal Tribunal o International Criminal Court (The Hague) (2006) (Treaty of Rome) o Can only prosecute crimes after 2002 o 119 parties to the treaty  Nonparties include US, Russia, China, most Asian, and most Islamic countries o Procedure:  Victims to have significant input at all stages  Parties elect one P of the Court, judges, and prosecutors (independent) o Jurisdiction  States & UNSC can refer or a prosecutor can open a matter by himself (sua sponte)  Four categories of subject matter jurisdiction: y (1) Genocide y (2) Crimes Against Humanity y (3) Crimes of Aggression (not defined cannot prosecute until agreement) y (4) War Crimes  Limited territorial jurisdiction y Where ever a crimes was committed on a territory of the state party y Anywhere when provided by the UN Security Council y When the victim is in nation of a state party  Complementarity Jurisdiction y Must exhaust domestic remedies before seeking international prosecution y Prohibition of Double Jeopardy unless the prior proceeding was a sham o Current Investigations:  Referred by the states involved y Uganda (Lords Resistance Army) (2004 - ) y Democratic Republic of the Congo (2004 -) y Central African Republic (2007 - )  Referred by the States themselves (sua sponte) or the Security Council

y Kenya (07-08 post election violence) (2010 - ) y Libya (2011 - ) y Cote dIvoire (2011 - ) US position on the ICC  Clinton signed, but did not submit to the Senate for ratification (Wait & See)  Bush unsigned expressing concerns of politically oriented prosecution and did not consider itself bound y Questionable under IL if you can even do this y Art 18 Convention on the Law of Treaties Even by signing you have an obligation to refrain from acts that subvert the treaty y American Service Members Protection Act (2002) prohibited aid to members of the ICC and authorized military force to free those detained y Bilateral Immunity Agreements  Bushs 2nd term Changed not efficient, dropped prohibitions, etc.  Obama administration Return to the Clinton cooperative and sympathetic

Situation in the Democratic Republic of the Congo in Prosecutor v. Thomas Lubanga Dyilo o Thomas Lubanga Dyilo appointed President and establishes a military wing and indicted with charges of war crimes in 2006. First person ever arrested from a warrant under the ICC. Problematic proceedings slow, misconduct. o There was sufficient evidence establishing that he repeatedly recruited children as recruits in the military, he played a key overall role, and used them as his personal body guards Chapter 7 States and International Law A. The Sovereign State Vattel, The Law of Nations o State = Political bodies, societies of men who have united together and combined their forces, in order to procure their mutual welfare and security y Social Contractarian Theory  The state in international law is a territorial state  A moral person with its own affairs, interests, will, morality, rights, and obligations  International legal personality  Only states have the full range of rights and duties in international  Exclusive right to enter into treaties, international organizations, and engage in war o Natural law that governs interactions with each other  (1) Each nation should aid to the happiness and advancement of other Nations  (2) Peaceable Enjoyment  (3) Non-interference  (4) Principal of equality o Absolute equality of States in their international rights and duties  Only be exercised through persons even though they belong to the States  Not universally accepted there are situations where States have different rights y Veto rights of the five permanent members of the Security Council o Tension between sovereignty and IL Always limiting each other Constitutive Theory of Recognition o Through recognition only and exclusively a State becomes an international person and subject of international law (Aspects of the positivist approach)  Subjective determination made by other states (Relativistic) o Before recognition a state cant claim any right which a member of the family of nations has towards other members The Montevideo Convention o Adopted at 7th International Conference of American States (1933)

 US and 15 other states New era of relations in the Americas Four Criteria for what is a state:  (1) A permanent population  (2) A defined territory  (3) Government  (4) Capacity to enter into relations with the other states Declaratory Theory of Recognition  Political existence of the state is independent of recognition by other states  Recognition of the State is recognition of an independent objective fact  Becomes the dominate principal in the 20th century away from positivism and toward natural law  Existing states owe a legal duty to recognize an entity that has attained the objective characteristics of a state

Estrada Doctrine o (Mexico) Foreign govts should not judge, positives or negatives of the govts or changes in govts of other nations because it would imply a breach to their sovereignty Statehood & the UN Charter o States cannot unilaterally accede  Art 4 peace-loving states that accept obligations and are able and willing to carry out may be admitted by the SC and GA o Almost every state in the world is part of the UN 192 + South Sudan (newest) o UN membership is neither necessary nor sufficient for statehood (Swiss joined in 2002) o Membership is not a guarantee of statehood Ukrainian Belarus Uncertainties in Statehood o Microstates Nauru, Liechtenstein o Subjugated States Navajo Nation/US, Estonia/Soviet Union, Kuwait/Iraq o Failed States Somalia o Economic and Strategic Unions European Unions, Commonwealth of Independent States o Federal States The Holy See EC Guidelines for Recognition: o Respect for UN Charter & Euro commitments in rule of law, democracy, and human rights o Guarantees for the right of ethnic, national groups and minorities o Respect for the inviolability of all frontiers o Acceptance of all relevant commitments with regard to disarmament, nuclear non-proliferation, security and regional stability De facto o Actual control De Jure o Actual legal control More relevant under municipal law The Tinoco Arbitration o January 1917 Frederico Tinoco overthrew the Costa Rican Govt under Gonzalez o June 1917 Tinoco assumed power and established a new constitution o August 1919 Tinoco retired o September 1919 The Tinoco govt fell and old constitution was restored o August 22, 1922 Govt passed the Law of Nullities, invalidating all contracts between the executive power and private parties made during the Tinoco Era o The Tinoco Govt was an actual sovereign government  Continuity of State Principle Changes in the govt or the international policy of a state do not affect its position in international law

  

State is bound by engagements entered into by govt that have ceased to exist and the restored govt is generally liable for the acts of the usurper (1) The facts on the record discloses the existence of the Tinoco Govt de facto y Declaratory Theory of Recognition (2) To hold that a govt does not become a de facto govt unless it conforms to a previous constitution contradictory to the idea of a revolution (3) It is for the executive to decide foreign policy decisions/de facto character y G.B. did not initially recognize, but that does not prevent them from changing their position y

Autocephalous Greek-Orthodox Church of Cyprus v Goldberg & Feldman Fine Arts Inc. o 6th Century AD a mosaic was affixed the apse of a church in Lythrankomi, Cyprus. Turkey invaded and occupied northern third of the island. Only Turkey recognized new government. Vandals took the mosaic. Art dealer Peg Goldberg bought them for $1.8 M and tried to sell them to the Getty Museum Dr. Marion True alerted Cyprus officials. o Since the TFSC/TRNC did not achieved ultimate success to be viewed as a de facto and recognized government, the Church still retains title and mosaics must be returned.  Its not the courts responsibility to determine the sovereignty of a territory  Post Civil War Cases refused to give effect to property affecting acts of the Confederate state legislatures y Two types of de facto governments: o (1) Exists after it has expelled the regularly constituted authorities and established its own functionaries in their places so as to represent in fact the sovereignty of the nation y Possesses the rightful authority o (2) Exists where a portion of the inhabitants of a country have separated themselves from the parent State and established an independent government  The validity of its acts depends upon its ultimate success = upheld as those of an independent nation  Just because the TFSC/TRNC have maintained control does not mean that they have achieved ultimate success they did not supplant the Republic o Concurring the mosaics would be considered cultural property warranting protection o If TRNC were allowed to intervene directly the judicial branch implicitly recognize it as a legitimate government  No comity (reciprocal courtesy) was due a foreign government appearing as a plaintiff in US court unless the US recognized that government Kadic v. Karadzic o Victims of a genocide campaign carried out by Bosnian-Serb military forces are suing the leader of the insurgent Bosnia-Serb forces who exercised actual control and ultimate command authority over military forces. o There is sufficient SMJ to hold Karadzic potentially liable for genocide, war crimes, and crimes against humanity o Certain forms of conduct violate the law of nations whether taken by those acting under the auspices of a state or only as private individuals  (1) Genocide and war crimes are violations of international law  (2) A state is an entity that has a defined territory and permanent population, under the control of its own government, and that engages in, or has the capacity to engage in, formal relations with other such entities y Customary international law applies to states without distinction between recognized and unrecognized states y State action requires merely some semblance (apparent) of authority, not statehood in all its formal aspects y Srpska controls the territory, populations, and has entered into agreements with other countries o New states are typically bound by customary international law

Republic of Croatia Et Al. v. Girocredit Bank A.G. Der Sparkassen o National Bank of Yugoslavia (SFRY) entered into banking contracts with defendants where funds were invested in Austria and assets deposited in the bank. The SFRY dissolved and successors are trying to figure out how to distribute the assets and liabilities. o Croatia and Macedonia are legitimate successor States and part of the joint ownership community entitled to a share of the assets. o International law distinguishes between:  Dismembratio break up, entirely new states, and property must be distributed to successor states y State property = what was owed at the date of succession  Sucessio break up, but the original nation continues to exist o Yugoslavia/SFRY has dissolved and has been replaced by several successor States  When a State dissolves, its property is to be distributed according to equity  Confiscated of property is communio incidens joint-ownership community of all successor States (Civil law) (Common law = tenancy by the entirety)  Each state has a private law claim to the maintain the status quo and prevent disposition of the property without the joint direction of the States Succession May Affect: o Contractual obligations (Tinoco Arbitration) o State property (GiroCredit Bank) o Achieves and Cultural Heritage (Goldberg Case) o Treaties o Membership in international organizations o Nationality of citizens Chapter 8 International and Non-Governmental Organizations A. International Organizations 1. An Overview of International Organizations 19th century o 1815 Congress of Vienna o 1865 Universal Telegraphic Union (now (ITU)) o 1874 Universal postal union (UPU) o 1919 International Labor Organization League of Nations (1914) o A general association of nations affording mutual guarantees of political independence and territorial integrity to great and small States alike  President Woodrow Wilsons last of the 14 points o Treaty of Versailles established o The US Senate refused to consent and stayed out of its own plan to keep the peace o Organs  Assembly General policy and budgets  Council Great powers (Germany, France, Italy, and Japan) had permanent seats and four rotating members y Executive organ, responsibility for resolving international disputes y Unanimous vote recipe for paralysis  Secretariat  Permanent Court of International Justice United Nations (1945) o Majority or supermajority voting o Security Council can act more quickly

o o

o o

Permanent armed force All members would contribute, but was never really created Charter of the United Nations New Era in International Law Super Treaty  (1) To maintain international peace and security, and suppression of act of aggression, adjustment or settlement of international disputes  (2) To develop friendly relations  (3) To achieve international cooperation  (4) To become a center for harmonizing the actions of nations in the attainment of these ends  Possible to amend through consistent practice  Non-state actors can be responsibility for international crimes such as terrorism  Responsibility may be attributable to a State if the State fails to provide security for victims  Responsibility can be even greater if a state gives safe haven to terrorists Six principal organs  The Security Council y 15 members: 5 permanent & 10 temporary, elected for two year terms y 3/5ths supermajority vote  The General Assembly  The Secretariat  The International Court of Justice  The Economic & Social Council Social progress, development, human rights issues y 54 members, all 5 permanent members  (Now dormant) Trusteeship Council The network of specialized agencies ITU, UPU, ILO, IAEA, WB, IMF, FAO, WHO The International Law Commission (ILC) helps to codify IL

The Reparations Case o Count Bernadotte was appointed as the mediator. Bernadotte and Colonel Serot of France were assassinated in the Jerusalem by men in Israeli uniform (Stern Gang) o The UN possess international personality because of the functions and rights accorded by the UN Charter and can bring a claim for reparations because it has a right of functional protection for its agents against even de facto or de jure governments  The UN can bring a claim for an agent acting pursuant to its duties with the UN y 58 or more states cannot efficiently discharge duties o Powers Implied by the Charter  The UN must have the powers which are conferred upon it by necessary implication as being essential to the performance of its duties Living constitution  To ensure the efficient and independent performance of the missions and to afford effective support to its agents, the Organization must provide them with adequate protection an agent needs to know he is protected  Can bring a claim even when a state is not a member of the UN Charter y The UN has objective personality even with respect to nonmembers y A treaty may be binding with respect to a State that is not party to the treaty. o Break from positivist approach (Law of Nations) o Rejecting a formalistic approach in favor of a functionalistic approach  Any entity, thing or person bound by international legal rules was an international legal person distinction between active subjects and passive objects of the law are no longer relevant o Dissent - Implied powers flow from a grant of expressed powers, and are limited to those that are necessary to the exercise of powers expressly granted y No necessity (read: indispensable) exists (McCulloch v. Maryland) o Strict constructionist approach  The employees are still nationals of their respective countries and the customary methods of handling such claims are still available in full vigor MBf Capital Bhd. V. Cumarasamy o Named as a special reporter, Malaysias agreement to be bound by the ICJs advisory opinion required that the defendant be accorded immunity from all legal process.

UN Peacekeeping Responsibility for wrongdoing? o European Court of Human Rights Court Test = Ultimate Control (rather than Effective Control)  Behrami Case Children were killed and injured when they played with undetonated cluster bombs  Saramati Case An individual was detained by the KFOR o The UN is responsible because it has ultimate authority and only delegated operational command to the States involved o Report of the International Law Commission on Its Sixty-First Session  Test = Effective Control y Entity that has effective control that should bear responsibility  Art. 4 Elements of an internationally wrongful act of an international organization y (1) Attributable to the international organization y (2) Constitutes a breach of an international obligation y Conduct of military forces of States is not attributable when the measures taken are outside the chain of command linking those forces to the UN  Art. 6 Conduct of organs or agents at the disposal of an international organization y The conduct of an organ of a State at the disposal of an international organization is under international law an act if the organization exercises effective control Chapter 9 International Law and The Use of Force Jus in Bello o Once youve gone to war, what methods are permissible?  How to treaty combatants, civilians, and prisoners? Jus ad bellum o Under what circumstances is the resort to force legal  When is it legal to go to War? A. Jus in Bello o o o Laws of War were originally governed by chivalry and restraint French Revolution have a return to total war United States Civil War Shermans march to the sea scorched earth  Lieber Code governs the conduct of troops on land and inspires a movement to codify the laws of war on an international level through treaties

Hague Peace Conferences (First codified treaties of the laws of war) o 1899 Codification of the laws and customs on the laws of war o 1907 Hague Regulations Respecting the Laws and Customs of War on Land  Hague Law Unnecessary suffering and indiscriminate suffering should be avoided y Non-combatants should be spared o Third Planned, but prevent by the outbreak of WW1 Four Geneva Conventions (1949) / International Humanitarian Law o (1) Wounded and Sick in Armed Forces in the Field (1864) o (2) Wounded, Sick, and Shipwrecked in Armed Forces at Sea (1906) o (3) (POW convention) Treatment of Prisoners of War (1929) o (4) Protection of Civilian Persons in Time of War (1949) o The Common Articles  Common Art. I Parties agree to comply regardless if the other part is violating the convention and does not depend on reciprocity  Common Art. II  Common Art. III (Most important) Protections to non-combatants y Not just civilians, also prisoners of war, those not able to engage in conduct

Right to be free from cruel and degrading treatment, taking hostages, outrages against personal dignity

Prosecutor v Tadic o Tadic is a Bosnian-Serb leader, arrested in Germany for war crimes and crimes against humanity o For purposes of intl. humanitarian law the scope of armed conflict extends beyond the time and place of hostilities  Tadic activities fall within the scope of international law  Rule: Geneva Conventions apply to internal conflicts o For purpose of IL an armed conflict exists whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a State  Traditional distinction between international & internal conflicts is breaking down Enemy Combatants o Not explicitly defined o Combatants have certain rights under intl law. o If you are unsure, automatically assume they are a civilians Lawful vs. Unlawful Combatants o Lawful combatant  Part of a regular armed force, once captured, must be treated as a POW and entitled to the protections of the laws of war o Unlawful combatant  Do not respect the laws of war, Entitled to certain minimum protections (Art. III) y No torture, etc. President Bush unilaterally determined that Guantanamo detainees are not entitled to POW status o Art. 5 provides should any doubt arise whether person having committed a belligerent act (lawful or unlawful combatant) he must be treated as a POW until his status is determined by a competent tribunal o Initially no Art. 5 Tribunals were provided Guantanamo outside sovereign US territory and the reaches of the law  Common Art III does not apply to prisoners at Guantanamo Rasul v. Bush Courts can now consider whether the detainees are properly considered enemy combatants. Since American officers are the ones doing the detaining, the prisoners have a right to habeas. Rejected the claim that Guantanamo was outside US jurisdiction and that the court actually does have jurisdiction to hear habeas petitions Hamdi v Rumsfeld US citizen of Saudi origin Congress has impliedly authorized detention in narrow circumstances, but must provide due process when a US citizen held in the US as an enemy combatant. o OConnor, Rehnquist, Kennedy, Breyer  Balancing test - Detention of citizen authorized by law and what process is due? y Due process requires notice and a fair opportunity to rebut the charges y Dont get all the rights of a US citizen o Scalia + Stevens  Habeas has not been suspended, so constitution requires that he be charged and give all the right a citizen o Souter + Ginsberg  AUMF did not authorize the detention of Hamdi, did not address due process o Thomas  The process to which Hamdi is entitled is whatever the Executive decides to give him and should not be subject to judicial second guessing Bush Administration announced the creation of the Combatant Status Review Tribunals (CSRTs) in 2004 to ensure that individuals were enemy combatants  Many discrepancies with the Geneva Conventions / Geneva Lite

Detainee Treatment Act (2005) passed in response to detainees habeas petitions  Ban torture in the treatment of those held in Guantanamo  Bush signed but said that he reserved the right not to abide by this statute because he has the executive power y (1) Stripped jurisdiction from all courts except the DC Circuit; and y (2) No juris to hear arguments conditions of their treatment & habeas petitions.

Hamdan v. Rumsfeld o Hamdan was taken to Guantanamo in 2002 charge unspecified, then Specified in 2004 Conspiracy to commit offenses triable by military commission o DTA did not deprive the USSC of juris, there was no congressional act that explicitly authorized it, and procedures violated uniform code of military justice, and the military commissions did not satisfy the requirements of the Geneva Convention.  Cant try the prisoner under this tribunal as currently constituted. You can continue to detain o Plurality (Part V) Conspiracy is not a war crime, not recognized in the major international treaties the idea of conspiracy is vague o Part VI Procedures to try Hamdan are illegal  Source of the international law protections is Common Art. 3 - applies in situations not of international character  Any sentences must be pursuant to a regular constituted court affording all the judicial guarantees which are recognized as indispensible by civilized peoples y US v. al Qaeda is not a conflict between nations (nation v. non-nation) y International law is incorporated through the UCMJ Military Commissions Act Amends the habeas statute to eliminate court juris over all pending or future petitions but allows for court review (for petitions already permitted by the DTA) Boudmediene v. Bush Struck down the provisions of the MCA purporting to strip the courts of statutory jurisdiction over habeas claims arising in Guantanamo. Petitioners have a constitutional right to habeas despite the MCA. Three factors to determine if habeas can be stripped:  (1) Is he really an enemy combatant?  (2) The nature of the site where he was seized and where he was detained?  (3) Practical obstacles inherent in his entitlement to habeas (anything needed)? o Habeas entitles a detainee to a meaningful opportunity to prove that he is being held to an erroneous application of law. Courts also have the power to order conditional release. B. Jus Ad Bellum: Traditional Limits on Resort to Force Just War Doctrine = War pursued to avenge an enemy who has neglected either to punish wrongs committed by its own citizens or to restore what has been unjustly taken from it o (1) Just cause, and  e.g. protection of innocent life o (2) Proper authority; and  Only duly constituted public authorities may wage war o (3) Right intention; and  Just cause has to be the real cause, not a pretext o (4) Reasonable hope for success; and  Must be reasonable prospect that the war will achieve its reasonably stated goal o (5) Proportionality; and  Always harms, and the anticipated benefit must outweigh the expected harms Naulilaa Case o Misunderstanding that lead to Portugal killing of three Germans and German retaliation o The German aggressions cannot be considered as legal reprisals for the Naulilaa incident or for the subsequent acts of the Portuguese authorities because the lack of a prior demand and acceptable proportionality between the alleged offense and the reprisals taken.

Reprisal An act that would otherwise be internationally unlawful but for the prior offending act that gave rise to it. Legitimate when:  (1) Prior illegal act on the part of the other state y No initial wrongful act by Portugal it was a misunderstanding  (2) Unsatisfied demand y No request by the German government before the resort to force  (3) Proportionality y The acts of reprisal were not proportional to the initial incident Use of force as a reprisal are increasingly suspect - Peaceful reprisals may be legitimate  Retorsion act that while unfriendly, is perfectly legal  Sanctions, cutting off aid

Air Services Agreement Arbitration o A countermeasure must be proportionate to the prior illegal act, both in terms of the damages it causes and in terms of the importance of the principle at stake The Caroline Dispute o Carolina was a privately owned American ship that was used to supply the Canadian forces. British attack the ship at night, in a US port. o Establishes customary international law regarding the resort to force and self-defense o Webster says that you may resort to force:  (1) Only when absolutely necessary, and  (2) The actions taken in self-defense must be proportional to the necessity and involve nothing unreasonable or excessive o Ashburn agrees on the principals, but disagree whether the facts justify the use of self-deserve and whether those principals are applicable Covenant of the League of Nations (1919) o Members of the league must exhaust dispute resolution mechanisms before resorting to war. Can do so by:  (1) Submitting the matter to arbitration; or  (2) Submit the matter to the PCIJ, or  (3) Submit the matter to the League Council o Could impose sanctions if these mechanism didnt work Kellogg-Briand Pact (1928) o Renounced the use of war as an instrument of national policy  You are still permitted to resort to war in self-defense or collective self-defense  Might be able to engage in armed reprisals o Customary International Law binding on all states  Reflected in the Nuremburg Charter no ex post facto because of this treaty. UN Charter (1945) Modern law on the use of force o Article 2(4)  General prohibition on the use of force customary international law o Art. 51  Right of individual or collective self-defense o Art. 39  The Security Council may take non-forcible measures (art. 41). Measures not involving the use of force, or forcible measures (art. 42)  Decisions or the SC are binding and members agree to carry out (art. 25) y Decides = SC is creating law, legal obligations o Art. 43-46 Collective security mechanism as originally contemplated  All members must make available armed forces for maintaining international peace and security Unilateral Use of Force Permitted Under the Charter

Henkin Conventional view  Most important value of the UN Charter is peace more important than progress and justice because war destroys all values all other values.  The use of force is be construed strictly. Exceptions: y (1) Principal of humanitarian intervention = Responsibility to Protect (R2P) y (2) Must be limited to what is strictly necessary to save lives  Self-defense is limited to necessity and proportionality  Art. 51: if an armed attack occurs y Anticipatory self-defense may be legitimate y Preemptive or Preventive self-defense is much more questionable Riesman Modern view  Most importance value = maintenance of world value and world peace the ongoing right of people to determine their own destinies  Art. 2(4) protects the political independence of states so that people can organize their govt as they see fit  Broader scope on the unilateral right to use force  Does is serve the right of people to enhance their self-determination?

The Nicaragua Case o 1979 the leftist party overthrew the dictator and seized power/ US supported the Dictator, but eventually cut ties. Carter authorized the CIA to assist/fund the contras (allegedly committed various human rights violations_ o Connelly amendment Self-judging domestic jurisdiction reservation o Vandenberg Amendment Rejects compulsory jurisdiction arising out of a multilateral treaty unless all parties are present in Court  US invokes, but cant rely on Art. 2 because all UN members would have to be present  Court gets around this by stating that Art. 2 and Art. 51 have passed into customary international law opinio juris and is a customary norm. o Here the US is coming to the assistance of El Salvador and there was an intermittent flow of arms, but not enough for an armed attacked and self-defense is not triggered.  Only El Salvador could take countermeasures and must request assistance  US action did not meet necessity and proportionality and was an unlawful intervention y The use of coercion of one state by another state to adopt a system  Here armed force was an unlawful intervention y Illegal interference by one State with the political independence of another Lawful Self-Defense to Terrorism o Four conditions to engage in lawful self-defense  (1) The defending state must be the victim of a significant armed attack y Security Counsel resolutions recognize that there were attacks  (2) The armed attack must be either underway or the victim of an attack must have at least clear and convincing evidence that more attacks are planned y Use of an armed force to send a message is unlawful y This is not an isolated attack (First World Trade Center, USS Cole, Kenya)  (3) The defending states target must be responsible for the significant armed attack in progress or planned Most difficult Al Qaeda, not the ruling Taliban govt y Can be imputed because of the close link, armed and funded, sheltered, but not the same thing as control y State Responsibility o Effective Control in Nicaragua no responsibility o Tadic the control required may exist when a State has a role in organizing, coordinating or planning the military actions of the military group, in addition to financing, training and equipping or providing operational support to that group  Easier test to meet o He the standards are being relaxed even further  Need a better definition of terrorism

o o

(4) The force used by the defending state must be necessary for the purpose of defense and it must be proportional to the injury threatened y Caroline Case US initial use of force satisfied these principals, but would not be legal to intervene for the purpose of toppling the Taliban government (Henkin) The continued bombing was not proportional