International

Can you strip nationality from people?

NO- "cruel and unusual punishment"

Can individuals bring a claim against another state in the ICJ?

NO-Gov't must bring the claim on the individual's behalf

Treaty Law (general characteristics)

(1) Binding only upon parties to the treaty (those that ratified it) (2) Trumps customary int'l law unless the law is jus cogens (peremptory) • Exception: certain rules of customary law that have been regarded as so salient that you cannot contract out of it/cannot prevent application of the rule by a treaty (jus cogens) o I.e., crimes within int'l criminal law jurisdiction (3) Essentially a contract between states - 3rd parties cannot be bound • But 3rd parties can benefit from the treaty (human rights treaties allow individuals to bring suit via treaties their gov'ts signed

Article 25: Rights of protection of the coastal State

(1) Can prevent non-innocent passage (2) Can prevent entry into internal waters (3) Can temporarily suspend innocent passage if it's essential

Article 24: Duties of the coastal State

(1) Cannot impose laws that have the effect of preventing innocent passage (2) Have to give publicity to danger in their waters (3) Can't discriminate

Self-Determination: Summary of the 5 different meanings

(1) Communist invention: nation states have the right to self-determination, but they cannot fiddle with the economic communist structure (2) Peace Treaty of Versailles post-WWI: what to do with conquered world empires? • Mandate system (discussed above re: Africa): place them under the supervision of mandated states which would lead them to independence • Political independence for those states that were part of the world empires (3) Post-WWII: colonized countries are entitled to political independence from colonial rule (discussed re: Africa & decolonialization) (4) 1960s: decisions of the UN denouncing South African racial policies define self-determination as rights of peoples to participate in structures of gov't that determine their future **(5) Modern meaning: Int'l community shifted its inferences to self-determination of peoples (not necessarily groups) and the entitled peoples entitled are in 3 categories: o Ethnic (cultural) o Linguistic o Religious State must permit cultural practices, religious adherence and linguistic groups to speak their languages without undue State interference...must encourage it.

Law of the Sea: 7 Concepts

(1) Continental Shelf - extends to where the seabed is, but can extend to 2000 feet (2) Exclusive economic zone (EEZ) - extends 200 nautical miles from the baseline (low water mark at ebb tide [new moon where sea is at lowest mark]) • Largely used for fishing rights (3) Fishing Rights (4) Transit passage through straits • Borders are so close to each other that territorial sea overlaps (5) Territorial sea - sovereignty of state extends beyond coastline up to 12 nautical miles • If ship originated in your territory, you can go in hot pursuit into the high seas area as long as the ship stays in your vision • You CANNOT begin pursuit in the high seas • Reason → prevents ships from avoiding liability by going into the high seas (6) Right of landlocked states (7) Mining on seabed

De Facto Regimes (2 types of govt's)

(1) De Jure Gov't - who is legally entitled to be in control (2) De Facto Gov't - who is in fact in control → can bind the country to int'l agreements • This is what matters

Inter-American HR Systems History

(1) Declaration on the Rights and Duties of Man (1948): all American states are subject, irrespective of whether they are members of the Organization of American States • Specified certain human rights and fundamental freedoms with • The commission's findings are not binding (2) Inter-American Convention on Human Rights (1968) • Has a Commission (not binding) and a Court (binding) • Individual complaints were mandatory and interstate complaints were voluntary Thomas v. Jamaica - detention of a young kind in a prison with adults in which he was assaulted and not treated well. Jamaica withdrew from protocol and no longer accepted the individual complaint procedure when complaint was brought • US has not ratified this, but its human rights violations can be brought under the 1948 declaration

Int'l law authorizes secession in 2 cases

(1) If a referendum is held of the entire population that decides with a substantial majority that a region can secede • Secession of Quebec (1998) • Instances where only people within the region were given the vote: Southern Sudan and Scotland (2) If, after an armed conflict, national borders are redrawn as part of a peace treaty (civil war in Somalia resulted in a peace treaty)

Important Themes in International Personality

(1) Individuals have standing to bring an action against (a) other states of which they are not nationals and (b) against heir own government (2) National state is under obligation to protect individuals in other states

2 Major Limitations on State Protection and State Responsibility

(1) Individuals may only be protected by their national states (must have a genuine link between the state and the citizen) (2) National links requirements is extended to corporations-nationality of a corporation is the country in which it is registered (no other genuine link requirement)

Roman law -3 categories

(1) Jus civile: applied to Roman citizens (Latini) • Main codification - corpus juris civilis (2) Jus gentium: applied to non-Latini • Law of Nations: the laws upheld by all civilized nations of the world • Positions: o Praetor peregrinius: lay person who adjudicated disputes between foreigners o Judex: he instructed Praetor what the law is to be applied in the dispute (3) Jus natural (natural law): comprised a body of laws that were not enacted by a competent law making authority of any state, but it applied as a matter of nature • Universally recognized until 1850s when it was replaced by positivism (rules laid down by official lawmaking body of the state)...but still not completely obsolete • Applied to all members of the animal world Essence was encapsulated by classical roman tourists o Honeste viviere (live honorably) o Alterium no lauder (don't injure others) o Suum cuique tribuera (give to everyone what you ought to have)

1959 Antarctic Treaty (provisions and criticisms)

(1) No permanent residents, but people can go there (2) Region may be used for peaceful purposes only (3) Int'l cooperation is encouraged to contribute to scientific knowledge • Every nation of the world has the right to conduct scientific research there • Information emanating from this research must be shared with the whole world • All areas must be open to inspection at all times • Only allow mining of natural resources for science (4) Military personnel may be there, but cannot engage in military action (5) Strictly prohibits nuclear explosions and disposal of nuclear waste (6) All contracting parties must inform all the other contracting parties of all expeditions, stations occupied by nationals of the state, and any military personnel in the region (7) Calls for renunciation by any of the contracting parties who previously asserted certain rights over the South Pole (8) Meant to preserve and conserve the living resources of Antarctica Treaty Criticisms: • Many states are effective frozen out of meaningful participation in this treaty system • State must be a member of 12 original States or have significant interest in Antarctica by conducting substantial research there (requires $$)

ICJ Judgments (2 general characteristics)

(1) Not binding on non-parties to the particular case (2) Judgments of ICJ cannot be contested- there is no court of appeals

Vienna Convention on the Law of Treaties

(1) Regulates the law applicable to int'l treaties (2) Treaty definition: "an int'l agreement concluded between states in written form and governed by int'l law" • Does not cover agreements between states and int'l orgs or between int'l orgs These will be governed by the 1986 Vienna Convention on the Law of Treaties between States and Int'l Organizations or Between Int'l Organizations if it ever enters into force • Does apply to treaties between states within an intergovernmental organization (3) Affirms that every state possesses the capacity to conclude treaties

Legislation to compel organizations to reduce emissions

(1) Resistance: costly (2) Such legislation was adopted as soft law--not requiring states to follow sustainable development, but encouraging them • Sustainable development: idea that development must be sustainable with the view of future generations (3) Our current needs must not compromise the needs of: o Future generations o World's underdeveloped peoples (4) We need technological development to avoid escalation of environmental issues

Forms of reparation

(1) Restitution: to restore the situation • Positive - restore the situation that would have existed if the other state had complied with its obligations • Negative - restore position that existed before the violation of int'l law took place (2) Compensation: payment of $ (3) Satisfaction: apology, declaration of wrongdoing, etc. (states are reluctant to do this b/c it admits liability) • i.e. US spying on China

How does treaty become binding?

(1) Signed by appropriate authority (i.e., President) → this expresses the intention to present it to the appropriate authorities for ratification and imposes the obligation not to do anything to defeat the objectives of the treaty o Not binding on the state at this point (unless signing = ratifying) (2) Ratified by the appropriate authorities (i.e., Senate 2/3 majority)

Treaty Reservation: requirements

(1) They may not defeat the objectives of the treaty (2) Other parties must accept the reservation, and it is a complicated issue when a reservation has not been accepted (what effect does it have?) • If State A has entered into a reservation and State B is also a party and does not accept the reservation b/c B claims it contradicts the convention, then there is no contract between States A & B (3) Should be pretty precise

Treaty Sampler (6 treaties)

(1) Treaty Between the Jews and the Romans (160 BC) Mutual defense pact Modern day examples: NATO and Warsaw Pact (2) Peace of Westphalia of 1648 • Between France and Sweden to end a war • Normally cited as the origin of the concept of nation states as we know it today • Recognized the sovereignty of a gov't within a certain territory (3) Treaty of Paris (1783) • Acknowledged US to be a free, sovereign, and independent state (4) Cession of Alaska (1867) • Russia sold Alaska to the US (5) Kellogg-Briand Pact (1928) • Agreement not to use war to resolve disputes or conflicts of whatever nature or whatever origin they may be which may arise among them (6) Hull-Lothian Agreement (1940) • Agreement between US and UK that gave US right to use certain harbor facilities in Canadian territory for naval facilities

Protected persons under Geneva Conventions of 12 August 1949

(1) Wounded and sick members of armed forces in the field (2) Wounded, sick, and shipwrecked members of armed forces at sea (3) Civilians (most important) bedrock of contemporary IHL (4) Prisoners of war - Right not to be interrogated w/o consent, not to be subjected to torture/coercion to secure information, not to be subjected to any unpleasant or disadvantageous treatment of any kind for failure to answer questions -When POWs are alleged to have committed an offense, they generally have the right to be tried for an offense only by a military court offering essential guarantees of independence and impartiality -Prosecutor v. Tadic (1995) ICTY: issue of the protection afforded to a combatant if he finds himself in the hands of an enemy of a state of which he is not a national • War in Former Yugoslavia: the state broke up and became an armed conflict between factions of a then-existing state • Principle: must not apply the letter of the law but rather the spirit of the law because IHL protection must be extended as far as possible • Where you have a situation in which those in conflict are of the same nationality, they nevertheless deserve the protection b/c they are opposing forces

Variations on the Relationship between Jus Naturale and Jus Gentium (3 views)

(1) they mean they same thing (2) they are different b/c there are some rules of law that all civilized nations uphold that are not natural (i.e., slavery) (3) jus natural is not enacted by a legislature but applied as a matter of nature • God-given law

Types of Jurisdiction

(enacted according to state's int'l criminal justice system) • Territoriality- court of country can prosecute a crime within its border • Active personality -state can exercise jurisdiction if perpetrator is national of prosecuting state • Passive personality - victim of crime is national of prosecuting states • Principle of national interest - crime affects national interest of the state • Universal jurisdiction - national court can exercise jurisdiction of a crime that is so bad that it is regarded as crime against entire human race US codified principle of universal jurisdiction in US Constitution (only country to do so)

Treaty approval process

1. President enters into international treaty with approval of 2/3 of Senate 3. Signing of the treaty becomes binding on domestic law *4. If not self-executing, then US must have implementation legislation to include its provisions into domestic law (usually criminal law, taxation, or future conduct) *5: US usually enters a reservation to say the treaty will not be self-executing (esp. if treaty deals with subject matter Constitution says belongs to Congress, treaty says non self-executing, or envisioning future conduct)

2 Steps to suing a sovereign in the US

1. Does the case satisfy the FSIA? 2. If FSIA is satisfied (i.e. the case falls within an exception), does the Act of State Doctrine apply?

ICC jurisdiction only applies if:

1. National legal system does not prosecute crimes first (b/c complementary jurisdiction) 2. Crime happened after 2002 3. D is over 18 years old 4. Prosecutor has decided who to prosecute, whether to prosecute, and for what crime

Reasons why the US legal system is unique in its treatment of human rights law:

1. Only country where universal jurisdiction of federal courts to prosecute certain international crimes is DERIVED FROM CONSTITUTION (piracy clause) 2. It affords universal jurisdiction in civil actions (ATS)

Situations when armed interventions are lawful

1. When authorized under UN Charter (see below) 2. Self-defense 3. Humanitarian intervention

Jeremy Bentham

1789-first to use the term "international law" for jus gentium (no longer used "Law of Nations")

Hugo de Groot (aka Grotius)

17th century founder of contemporary int'l law (he wrote De Jure Delli ac Pacis which laid the foundation of contemporary int'l law) He changed the meaning of jus genitum - "jus gentium is the law that regulates between states" He argued that the law of nations also established legal rules that bound sovereign states of Europe

Arrival of Positivism

1830-the idea that only the law that exists is that which is enacted by lawmaking authority [mostly eliminated natural law] • John Austin (1832) - "int'l law is not actually law, although it is called law." • There was no int'l law enforcement mechanism in the 19th century

"International law has sufficient law-like characteristics to be called law"

1846- Henry Wheaton agreed that "the principle sanction in int'l law was the hazard of provoking the hostility of other communities" but contended that "experience shows that these motives, even in the worst times, do really afford considerable security for the observance of justice between States."

Declaratory Theory (statehood)

4 Montevideo requirements 1. Permanent population 2. Defined territory 3. A government 4. Capacity to enter into diplomatic relations (no need for actual relations)

Constitutive Theory (statehood)

4 Montevideo requirements + State Recognition • UN Membership will be sufficient proof of statehood under this theory o Member = state, but non-member could still be a state

Requirements of Statehood

4 Requirements of the Montevideo Convention: (1) Permanent population (2) Defined territory • (3) A government (4) Capacity to enter into relations with other states (no actual relations req'd)

Peremptory law on int'l law

A peremptory law of international law cannot be objected to (not even by consistent objection) -if a new peremptory law becomes recognized, then all treaties that violate it are null and void JUS COGENS

Corfu Channel case

Albania and Greece were at war. Albania made sea mines from the sea to try to get to Greek ships. British warship entered the strait, hit the mines, and was sunk GB sued Albania o Albania's defense-we are in war situation and we had every right to put bombs on the surface of the sea to get to our enemy o GB- our warship had right to free passage through the strait HELD: right of passage has been extended to warships o Albania had to compensate UK for the damage caused

Article 25 of the Int'l Law Commission Declaration on State Responsibilities

APPLICATION OF NECESSITY: (1) Stipulates that necessity must be the only way a state may safeguard an essential interest against a grave and imminent peril It must seriously impair an essential interest of the state toward which the obligation exists or of the int'l community as a whole (2) Necessity will not serve as grounds of justification or preclude wrongfulness if int'l obligation excludes possibility of invoking necessity or if the state has contributed to the state of necessity

Retorsion

Action taken during armed conflict and based on an unlawful act of another state, but the action in response is lawful i.e., terminating diplomatic relations or import/export relations (this is unfriendly, but lawful

Reprisal

Action taken would have been unlawful if it had not been in response to the intentional unlawful act of the other side (you cannot take action against civilians)

Application of equity

Applying equity could be a matter of praetor legem (not sanctioned by the law) or contra legem (prohibited by the law)

Filartiga v. Pena-Irala (1980) 2nd Circuit

Alien Tort Claims torture case → Paraguayan tortured to death in Paraguay, perpetrator came to US and relative of deceased brought suit in US (Jurisdiction typically based on territoriality principle, active personality principle, passive personality principle, or when American interests have been implicated)... 5th ground: universal jurisdiction → bring a criminal charge based on a crime not committed in US, not by a US national, not against US national • applying this to civil actions is unique Was torture was a crime under law of nations (customary law)? Held -law of nations derives from customs and usages of civilized nations Broad condemnation of torture around the world (human rights violation)-so it's a matter of customary int'l law (binds individuals) ALIEN TORT STATUTE + CUSTOMARY INTERNATIONAL LAW NOTE: this is the broadest interpretation/application of the ATS. SCOTUS has since cut the ATS way back through limiting what crimes count + extraterritoriality cannon

European extradition to the US in capital punishment crimes

All European countries cannot extradite someone who would be subject to life w/o parole b/c it is illegal in Europe and it must be a legal sentence in the sending state before it can extradite

3 Categories of Human Rights

American: rights and freedoms in bill of rights are proclaimed in absolute terms; where the limitations are not mentioned in the constitution, SC decides what they are Canadian: constitution lists the rights and freedoms and has one general limitation clause which applies to all of them German: each right and freedom has its own set of limitation provisions • Note-European Convention follows the German option- principle that the limitation must be relevant to the circumstances warranting the limitation; limitation must be proportional (do not limit it more than necessary); right can only be limited, not taken away

Soft Law

An agreement that isn't legally binding (Kellogg-Briand Pact and Rio Declaration) but implies a moral obligation to comply Common practice to precede a convention with a declaration • Not yet enforceable but countries shouldn't do anything that is contrary to the declaration • Can evolve into customary law • This puts the matter on the agenda and draws int'l attention to the issue • Opens door for negotiations • When the time is right, declaration will be converted into a binding convention EX: Rio Declaration - environmental protection

Treaty Modifications

An amendment is typically regarded as a new treaty, binding only on states that affirmatively accept it

Annulment vs. Appeal (arbitration)

Annulment occurs only if the arbitral tribunal violated basic due process guidelines

Erga omnes

Any country of the world can take action against you for not complying Example: int'l law that outlaws acts of aggression/genocide, basic rights of the human person, protection from slavery/racial discrimination Mandate system: mandatory state had a duty to its mandate and to the whole world

Doctrine of Transit Passage

Applies only in international straits - like Strait of Gibraltar Straits - (Strait of Gibraltar) ships have a right to sail within territorial waters of neighboring coastal states when distance is less than 24 nautical miles between those states and there are no high seas between the two states/land masses

Territorial sea

Article 33: A costal state may exercise the control necessary to prevent and/or punish the infringement of its customs, fiscal, immigration or sanitary laws and regulations within its territory or territorial sea

Treaty Termination: Article 54

Article 54 of the Int'l Convention on the Law of Treaties • May take place within the provisions of the treaty itself, or • At any time by consent of all the parties after consultation with the other contracting states

Obligations of the Flag State

Article 94 Duties of flag state: register ships, assume jurisdiction, ensure safety at sea, ensure masters have appropriate qualifications, ensure crew/masters are prepared to observe the applicable int'l regulations o Duty to protect the interests of its citizens (incl. crew members) that find themselves in a foreign state If a crime is committed on the ship, it is the problem of the flag state, not the coastal state in whose waters the ship has now docked o Except: if the consequences of the crime extends to the coastal state, if crime disturbs the good order of the territorial sea, if captain requests local authority's assistance, if measures are necessary to suppress drug trafficking Coastal state can take any steps authorized by its laws for the purpose of an arrest/investigation on board a foreign ship passing through the territorial sea after leaving internal waters (internal waters/lakes)

Interruptive self-defense

Attack has already begun OR you have reliable information that an attack is about to happen - This is a newer line of self-defense thought.

Anticipatory self-defense

Attack is anticipated, but not immediate. - Not supported by UN, but US doesn't make this distinction and uses this a lot (use of ASD in Syria b/c Syrians COULD use chemical weapons against US) -Nuclear issues: UN says states should try to negotiate via 2(4)

Preemptive self-defense

Attack is imminent - Caroline Case

Is customary int'l law binding?

Binding on all states (also individuals) • EXCEPT those states that have consistently & persistently denied its validity i.e. US hasn't ratified Covenant on Economic, Social, and Cultural Rights and has made it clear it does not accept it, but GWB broke chain of protest when he condemned countries that do not accept it Note: jus cogens - rules that are so fundamental will be enforced no matter what

Kadic v. Karadzic (1995)

Case brought by Croat and Muslim citizens of Bosnia-Herzegovina against Karadzic (President of self-proclaimed Bosnia-Serb Republic of Srpska) for his acts torture and execution ISSUE: int'l law is violated when a state official or state law commits such violent acts, so is the Republic considered a state? YES. Republic controlled defined territory, controlled populations w/in its power, entered into agreements with other gov'ts, and has a gov't DE FACTO GOVERNMENT

Treaty Reservations

Certain provisions in the treaty that a state does not accept

Article 21: coastal state laws

Coastal state can adopt laws and regulations relating to peaceful passage, safety of navigation, protection of cables and pipelines. These affect its contiguous zone (24 miles from shore). Laws relating to innocent passage in conformity with int'l law/provisions of the Convention: weapons, defense/security, propaganda, aircraft/military, customs, pollution, fishing, research/survey, communication

Article 27: criminal jurisdiction of coastal state in coastal waters

Coastal state may not exercise criminal jurisdiction on passing ships passing through its jurisdiction, unless consequences of crime extend to coastal state, disturbs peace of country, assistance of local authority has been requested, or it involves illicit trafficking/drugs • If crime is committed on ship within territorial seas (not High Seas), it must notify diplomatic nature and local authorities must have duty guards in interest of navigation

European Commission of Human Rights (old system)

Commission used to decide admissibility of cases...eventually the Commission became cocky and less readily accepted cases. • Decisions on cases were not binding...ECHR would hear cases de novo • Abolished b/c they just kept referring complaints to the court and the Court didn't have to consider the Commission's decision Now a 3 judge chamber decides on admissibility

Issues re: UN Membership under constitutive theory

Complicated situation: Palestine • Has territory, permanent population, and government... but what about capacity to enter into int'l relations? What about defined borders (Israel argues Palestine does NOT have defined borders)? o Territorial demarcation = VDV has reservations in saying it's a state (no defined border) • Is a non-member observer status to the UN, but is a member state of the ICC and the ICC can only admit states • Palestine also ratified Convention on the Law of the Sea

Sovereignty (general origin and meaning)

Concept originated in Westphalia Peace Treaty-"Sovereignty is the supreme power over citizens and subordinates; supreme power is not subject to the law" Definition: The gov't of a country has full power over (1) what happens within its national borders, (2) how people should be governed, and (3) how the interests of the national community are to be served

Internal self-determination

Concerns the exclusive control within a country's national borders • each state has the right to freely choose and develop its political, social, economic, and cultural systems • nation has control over its own natural resources (issue arose with tribes, colonial powers, and natural resources in Africa) • duty not to interfere in matters within the domestic jurisdiction of another state

Hierarchy of laws

Constitution > Treaty (if conflict) Conflict w/ federal law = later in date prevails Treaties > state law

If treaty provision conflicts with Constitution?

Constitution will apply. Senate cannot bind US to treaty that conflicts w/the Constitution

Contiguous Zone

Contiguous zone may extend 24 miles from the baseline

International HRs in Europe

Council of Europe: first to grant this standing (after WWII, HRs became priority in Europe) (1) Interstate Adversarial Procedure: if any member of the Council of Europe finds that another member state has not complied with its obligation under the European Convention, it may bring a claim (rare) (2) Individual Complaint Procedure: any individual who is the victim of non-compliance can lodge a complaint under the European system against his own gov't (frequent) • Facultative - state that ratifies ECHR must also submit special declaration that it also submits itself to this procedure • After demise of communism, East European countries were told that they had to accept the individual complain procedure if they wanted to be a CoE member European Commission of Human Rights (old system) European Court of Human Rights:

State protection

Counterpart of state responsibility; permits but does not obligate a state to protect its nationals

Customary int'l law & how it is formed (2 ways)

Created by the common conduct of the int'l community of states based on opinio juris ex necessatate (uphold the rule from a sense of obligation because it's necessary) (1) Must come from a geographic spread of states distributed through different regions of the world "cross section of the world" (2) If a body like security council does something it isn't authorized (but also not prohibited) to do and it is also accepted by cross section of the world → becomes a new matter of customary int'l law

Law of nations

Customary international law

2 Theories of Statehood (from Montevideo Convention)

Declarative theory Constitutive theory

Nuremburg Trials

Defendants argue that (1) int'l law applies only to states, not individuals and (2) fundamental principle of law is that there can be no punishment of crime without pre-existing law (1) Individuals can be prosecuted for international crimes...if crimes were committed under orders from officials, punishment might be mitigated. (2) Principle of justice ruled here. Plus, the crimes were so clearly abhorrent (i.e. modern protection under customary int'l law) that the individuals should have known it was wrong • Most serious humanitarian crimes: war crimes, crimes against humanity, and crime of aggressive war...[Genocide is not mentioned, but was prosecuted as another crime against humanity after WWII...becomes known as "crime of crimes", worst of all]

Gabcikovo Nagumaros Project (ICJ 1997)

Dispute between Hungary and Slovakia: • Both agreed in 1997 Treaty to build a power station on their border and take water from Rhine River to cool the plant • Agreement entered into when Slovakia was a part of Czechoslovakia, but then CZ became Slovakia and Slovenia became part of border next to Hungary • Should Slovenia be a part of the treaty that Slovakia signed onto with Hungary? • Hungary withdrew from the treaty unilaterally because concerned about tremendous damage done to the environment by contaminating the Rhine River and argued that the essential object of the treaty (joint economic venture) had disappeared HOLDINGS Held (1): ICJ found that state of necessity is not a ground for the termination of a treaty • A treaty may be suspended as long as the condition of necessity continues, but unless parties mutually agree to terminate a treaty, the treaty continues to exist- Necessity alone is not a ground for termination It may not exonerate a party that does not comply with treaty obligations A circumstance that might warrant necessity will no longer do so if that circumstance no longer exists • Impossibility of performance (Article 61 of Vienna Convention) • A party may invoke the impossibility of performing a treaty as a ground for terminating or withdrawing from it if the impossibility results from the permanent disappearance or destruction of an object indispensible for the execution of the treaty. If the impossibility is temporary, it may be invoked only as a ground for suspending the operation of the treaty. Held (2): fundamental change in circumstances can only terminate the treaty if the relevant circumstances were central to the agreement • Fundamental change of circumstances = profound change of political nature (progress of environmental knowledge) totally unforeseen at time they entered the treaty • Communism was not unforeseen nor did it relate to the central treaty issues NOTE: Also, a country cannot justify its own non-compliance by arguing that the other party has a history of non-compliance with int'l obligations • It was not clear at this time that Slovenia was not going to comply • A country can take safeguards but cannot terminate and avoid responsibilities

Draft Articles on the Responsibility of Int'l Organizations

Drafted by Int'l Law Commission - drafts int'l instruments for the UN • Called upon to look at state responsibility and responsibilities of int'l organizations • Decided conduct of an organ in the performance of its functions shall be considered an act of the organization • If the organ of one int'l organization is placed at the disposal of another int'l organization, the wrongful act is attributed to the latter

Armed conflict

Duration: initiation of hostilities --> peace Groups: 1. State v. state 2. State v. group 3. Group v. group

The Meuse Case (1937) PCIJ

Dutch accused Belgians of using some of the jointly-owned canals in a manner not in conformity with equitable arrangements Principles: • Reciprocity - you cannot complain that the other party to a treaty is not complying if you yourself have not complied • Equity - two parties must be treated equally, what applies to one must be applied to the other HELD: Belgium cannot be ordered to discontinue its use of Neerharen Lock when the Netherlands are left free to use the Bosscheveld Lock DIRTY HANDS IN EQUITY

Treaty Requirements

Equity Liberty of conscience

Modern meaning of sovereignty (and examples)

Every state has the duty to conduct its relations with other states in accordance with int'l law & with the principle that the sovereignty of each state is subject to rules of international law (Draft declaration of rights and duties of states) The way in which a state treats its own nationals is a matter of int'l law o Gives state A the right to intervene in state B to protect the citizens in state B from atrocities committed by their own gov't Examples where state treatment of its own nationals is a concept of int'l law: (1) Zimbabwe: Mugabe took the farms of white farmers in Zimbabwe and destroyed the country's economy • Tribunal of the Southern African Development Community: Taking property w/o compensation is int'l law violation Denying farmers access to courts of law for contesting Racist in that only the white farmers' land was taken • Mugabe said the power to take white farms is authorized by the Zimbabwe Constitution and so didn't comply with judgment although it was compelled to do so by statute in SADC (2) 52 Mexicans who received death penalty in US w/o being advised of their right to consular assistance in Vienna Convention • GWB ordered TX courts to comply but they didn't even though US voluntarily submitted itself to ICJ jurisdiction

CMS Gas v. Argentina (2007)

FACTS (1) AR was in extreme financial difficulties and so adopted an economic recovery plan that included a privatization program (public utilities become privatized) o 2002 - public emergency declared in AR Created law that terminated the licenses granted to holders of public utilities to adjust tariffs and their right to convert dollars to pesos CMS claimed that the law amounted to an expropriation or a taking (2) Arbitrators decided that it was not a taking but that AR did breach its obligations to a treaty that required them to offer investors fair and equitable treatment • Arbs rejected AR's reasoning that it acted on necessity as justification for not complying (3) AR filed claim before ICJ to overrule the finding of the arbitrators • ISSUE: Was this was an act of necessity? Analyze these 2 provisions to establish what constitutes necessity that warrants non-compliance with a treaty obligation: (1) Article 25 of the Int'l Law Commission Declaration on State Responsibilities o ICJ decided this article is in conformity with customary int'l law o Stipulates that necessity must be the only way a state may safeguard an essential interest against a grave and imminent peril It must seriously impair an essential interest of the state toward which the obligation exists or of the int'l community as a whole o Necessity will not serve as grounds of justification or preclude wrongfulness if int'l obligation excludes possibility of invoking necessity or if the state has contributed to the state of necessity (2) Article 11 of this particular treaty o Treaty shall not preclude the application by either party of measures taken for the maintenance of public order, the fulfillment of its obligations with respect to the maintenance or restoration of int'l peace or security, or the protection of its own essential security interests o If you have to take measures for security reasons → permissible HELD: AR crisis was severe but did not result in a total economic or social collapse • Treaty must prevail over claim of necessity • Also AR gov't policies and their shortcomings contributed to the crisis NECESSITY AS DEFENSE (arbitration)

The Lotus Case (1927) PCIJ

FACTS Collision between Turkish ship and French ship on the high seas French ship docked in Turkey and master of the ship was arrested and brought to trial in Turkey for having caused the collision French claimed that Turkey had to prove it had jurisdiction ISSUE: Did Turkey have jurisdiction to bring this suit? HELD: a country does not have to prove it has jurisdiction, the individual and his country must cite the rule of public int'l law that doesn't grant jurisdiction TAKEAWAY: It is assumed that national court can exercise jurisdiction unless a rule of int'l law prohibits it

The Eastern Greenland Case (1933) PCIJ

FACTS Dispute between Norway and Denmark over right to sovereignty over Greenland An agreement re: Danish sovereignty but the language of the Norwegian minister's declaration was so general and uncommitted • US stated "US would not object to Danish gov't having sovereignty" • Norwegian minister declared it would raise no objections over Denmark's claim over one part and they would entertain it later HELD: despite the general language, Norway cannot contest the sovereignty of Denmark over entirety of Greenland b/c the declaration (unilateral act) is legally binding here SIGNIFICANCE (1) Must int'l treaties be in writing? • A transfer of land must be in writing but otherwise no writing requirement (2) Are int'l treaties self-executing in a particular country? • UK says no b/c parliament is sovereign so that body must authorize it • US - Constitution Article 6 ¶ 2: treaties entered into by the US shall be the supreme law of the land [Question is whether President can decide that it will not be self-executing during ratification with 2/3 of Congress]

The Asylum Case (1950) ICJ

FACTS Man attempted a coup d'etat in Peru and sought asylum in Colombian embassy in Lima Peru refused to give him safe passage out of the country → violation of regional customary law? ISSUE: Can Colombia define the crime that was committed by the Peruvian in Peru? RULE: no, a country cannot unilaterally create a rule of customary law o A country is not bound by a rule that it has not accepted unless it is customary international law and it has not objected to the implementation of the rule WHAT CONSTITUTES CUSTOMARY INTL LAW, REGIONAL CUSTOMARY INTL LAW

Dames & Moore v. Reagan (1981)

FACTS: After Iranian Hostage Crisis, Reagan made deals (through Executive Actions) that implicated private business interests in Iran. The Iran-US peace agreement provided that Iranian property would be returned to Iran and if there were any disputes, they would be subject to arbitration HOLDING: new cases couldn't be instituted to claim/maintain Iranian property, but pending cases were not effected PRINCIPLE: Prez has power to make this agreement, but NOT to interfere with due process of law (so international law < Constitution)

Barcelona Traction Case

FACTS: Company was registered in Canada but the real essence of its existence was in Belgium (many shareholders lived in Belgium)... but this doesn't matter o Spanish gov't refused to permit the transfer of shares so Belgium brought suit on behalf of Belgian shareholders against Spain • Canada had not consented to ICJ jurisdiction, so it could not bring suit...so Belgium did (or tried) ISSUES: (1) Was harm done to company or shareholders? (2) Who can bring suit for the harm? Shareholders and the corporation are separate entities, but sometimes their interests are identical (also sometimes separate) o Wrongdoing to the company frequently does harm to its shareholders but this doesn't imply that both may have compensation HELD: (1) relation between Spain and BT was inter partes - only the company of the state of its nationality could bring suit, since BT was disabled, Canada had to do it but Canada couldn't b/c it did not consent to ICJ jurisdiction; (2) Harm was done to the company and NOT individual shareholders, so only the company or company's state of nationality could bring suit TAKEAWAY: o BT's corporate entity still exists but its capacity to function has been deprived, so company can call upon a state to act on its behalf → Canada to the rescue (although it couldn't help here)

Tinoco Agreement (1924)

FACTS: Costa Rican gov't overthrown and Tinoco assumed power, when Tinoco retired, restored gov't established in Costa Rica • Tinoco gov't granted Canadian companies certain benefits (colones currency notes) that were nullified by law in restored gov't (Great Brtain sued on Canadians' behalf) ISSUE: what is the criterion of binding a state to the decrees of a particular government? HELD: because Tinoco was in de facto control, he could bind the country in international agreements so the now government of Costa Rica had to honor the agreements that Tinoco entered into with Great Britain. BUT Great Britain actually never recognized the Tinoco government, which was a big deal for the court, and they ultimately found that while a successor government is responsible for the acts of its predecessor, GB is estopped from bringing these claims and from claiming what government said that they did DE FACTO GOV + RECOGNITION OF GOVs

Republic v. De Longchamps

FACTS: D indicted for threatening and committing violence and bodily harm to consular general of France. He had to be punished in the state where he did the offense (not in France), pay a fine, and be imprisoned for some time. Principle: respect for foreign diplomats as a principle of customary international law - Foreign diplomats receive special protection (no insulting language/assault).

Texaco/Libya Arbitration (1977)

FACTS: Libya executed deeds with American oil companies, and then enacted decrees nationalizing the companies without compensation. The companies believed this was a breach of the deeds and an illegal seizure. In arbitration if any of the 2 countries do not want to nominate an arbitrator, then one can be nominated by the President of ICJ...so that is what happened here. ISSUE: did Libya breach the terms of the deeds? [analysis of resolutions] Which resolution reflects customary int'l law? • Factors: (1) How many states voted for it/against it/abstained? (2) Do they represent all the regions of the world? (3) Paid special attention to support/non-support of countries with developed economic orders HELD: Arbiter found that Resolution 1803 reflected customary int'l law b/c it had a lot of support...and Libya had breached int'l law so it had to pay compensation. ANALYSIS/APPLICATION OF CUSTOMARY INTERNATIONAL LAW FROM GENERAL ACCEPTANCE OF UN ACTIONS

Sunday Times Case

FACTS: Thalidomide causes birth defects • Case brought for distributing the drug before it was tested on humans • While pending, the ST published a series of articles identifying the corporation and the fact that they didn't properly test it • Sub judice rule (only in English legal system) that a judge must give a verdict based on the evidence produced in court and not what he reads in the newspaper - so while a case is pending, you may not publish commentary/opinion on the facts (just the facts and law) • So British gov't prohibited the articles HELD: violation of Article 10 - overstepped margin of appreciation • Margin of Appreciation: Court emphasized that justice must be done and judge/jury must not be influenced by what they read. UK is in the best position to decide what sub judice entails and how it is to be applied..... • BUT, Court can decide in the final analysis whether the state has acted within the bounds of its margin of appreciation and whether the state has upheld the principle that the limitation be relevant to the circumstances, etc.

The Paquete Habana (1900) Supreme Court

FACTS: War between Spain and US, US forces took Cuban fishing ships and sold them as prizes of war ISSUE: whether fishing boats can be seized in an armed conflict situation as prizes of war TAKEAWAY: shows the extent courts go to establish whether a rule has matured into customary int'l law- court goes back in history to find a rule that says ships can't be taken • Proclamation of King Henry IV, 1521 Treaty, 1675 agreement between France and Holland, 1779 Louis XVI instruction to protect them, 1785 treaty between US and Prussia, and 1846 War in which they were protected Found uniform protection • No single state can change customary int'l law or law of nations → it develops over time and must be accepted by cross section of the nations of the world

Reparations Case (1949) ICJ

FACTS: World empires defeated in WWI so its nation states were to be covered by the mandate system (Peace Treaty of Versailles) • Mandatory state demarked borders w/o sensitivity to cultural differences and put hostile groups within the same country and divided cultural groups. GB drew borders between Israel and Palestine ("Green line" established in 1949) • Israel accepted independence in 1948 • Palestine did not • Jerusalem was administered under int'l supervision (problematic) General Assembly called for a two-state solution, cease fire in Palestine, and establishment of a truce commission (appointed mediator and UN observer, both of whom were assassinated by persons in Israeli military uniforms) ISSUE: does the UN have standing to bring an action and claim compensation for reparations due to damage caused to UN and to family of victims? • At the time, strong body of opinion that only states have standing in int'l law HELD: Yes, it can bring an int'l claim for compensation: • Purpose and function-UN has organs and a very special task (affording legal capacity/privileges & immunities to each member state) • Obligation to protect agents of the organization- UN has an existence and identity separate from those of its members Can bring a claim against any one of its members • Has rights and duties - the members states have conferred on the UN the capacity to bring int'l claims DISSENT said that the power to do so wasn't expressly granted and so must not be freely implied (VC doesn't include treaties made by int'l orgs)

Victory Transparent v. Comisaria General

FACTS: ship transported surplus wheat from AL to Spain b/c famine in Spain. Spanish citizens purchased wheat from Spanish government. ♣ Distinguish the use of a vessel for commercial or state purposes HOLDING: Where a gov't wants to provide food for its people who are suffering a shortage of food this could be a political act under sovereign immunities, but citizens had to pay for the wheat and didn't receive it for free therefore, commercial transaction ♣ Tate letter SI is quite often to the detriment of the rights of the citizen and should be constrained; introduced idea that SI is subject to some constraints i.e., not absolute • SI shouldn't protect commercial transactions (examples: purchasing bullets/shoes for army/building fortifications for defense/rendering a house for an embassy) • Dispute is whether you look at the purpose or the nature of the act ♣ State department's list of governmental acts: • Internal administrative acts (ex: expulsion of an alien) • Legislative acts (ex: nationalization) • Acts concerning the armed forces • Acts concerning diplomatic activity • Public loans GOVERNMENTAL ACTS, SOVEREIGN IMMUNITY

Armed intervention in the Korean War

First SC authorization of AI it was authorized b/c Russia was not there to veto it b/c it was objecting at that time that Taiwan was representing China, not mainland China

Kellogg-Briand Pact

First effort to get nations to resolve international disputes by peaceful means - Didn't last long...brought to end by Germany, Italy in 1930s

1977 Protocol I to GC of UN

GC announced support of wars of liberation by saying such wars would be governed by int'l humanitarian laws that apply to int'l armed conflict

The Soering Case

German man and his American girlfriend killed her parents in VA → he fled to UK and was arrested on another charge and UK informed the US that they got him • US applied for his extradition to stand trial in VA for murder • Germany intervened and brought suit against UK to preclude them from extraditing him to the US b/c conditions he would suffer on death row (not the death penalty itself b/c it had not yet been completely prohibited in Europe) were cruel and inhuman punishment: court agreed → no extradition He was extradited though b/c US promised it wouldn't seek death penalty REGIONAL HUMAN RIGHTS

Nottebohm Case

German who took nationality of Lichtenstein but has lived, worked, and had a family in Guatemala HELD: ICJ decided that although he is a citizen of Lichtenstein technically, Lichtenstein cannot act on his behalf b/c no genuine link exists with the state Genuine link? Consider- habitual residence, center of his interests, family ties, participation in public life, attachment shown by him for a given country and instilled in his children

Group rights

Group rights: (1) Institutional group rights vest in a legal entity/group and legal person (2) Collective group rights vest in an individual as a member of a particular group

Saiga case

Guinea patrol craft attacked, arrested, brought to port a SVG flag ship supplying fuel to fishing boats inside Guinea's 200 mile EEZ but outside 24 mile contiguous zone (claimed it violated Guinea customs law) Article 91: there must exist a genuine link between the ship and the state and genuine link means the state must effectively assert its jurisdiction over the ship (does not mean link is necessary for nationality) HELD: Guinea did not have power to regulate provision of oil in ships outside its contiguous zone...can only enforce within 24 miles of baseline (in contiguous zone). Also, genuine link is NOT required to obtain nationality of the flag state.

Secession of Quebec (1998) Supreme Court of Canada:

HELD that if all the people of Canada decide with a substantial majority that Quebec can secede, then the gov't must seriously consider it (but don't have to grant it! It should be a decision of all Canadians, not just Quebec people) ANALYSIS: (1) External self-determination: secession o VDV has an issue with this b/c secession is not encouraged due to principle of territorial integrity and self-determination is the right of a group to promote itself w/o undue state interference (2) Internal self-determination: Quebec people are entitled to right of cultural, religious, and linguistic freedoms

Sovereign Immunity

Head of state and certain other officials of State A cannot be prosecuted in court of State A or of State B while they are still in office EXCEPTION: SI doesn't apply to prosecutions in an int'l tribunal b/c they are not the courts of any particular state and they represent many states

Treaties: Statute of the Int'l Court of Justice

History: post-WWI int'l community created the League of Nations and the Permanent Court of Int'l Justice (US never became a member state) • After WWII → created UN and ICJ to replace LoN and PCIJ Supreme tribunal for the interpretation and enforcement of int'l law Applies: int'l conventions, int'l custom, general law recognized by civilized nations, judicial writings by publicists • Article 38 - most authoritative source in international law Note: ICJ may also decide based on equity...although this provision has NEVER been applied

Literalist approach to humanitarian intervention

Humanitarian intervention doesn't challenge the territorial integrity or political independence of a country (prohibited by article 2(4)) b/c a state topples the gov't then goes home again (didn't take territory or colonize) • HI therefore doesn't violate the UN Charter

Arrest Warrant Case

ICJ: SI does not only vest in the head of state but also in the minister of foreign affairs because exercise of his functions would be jeopardized if he cannot travel for threat of arrest in a foreign country

Fishing Rights: UK v. Iceland

Iceland established fishing zone for itself within 12 miles, UK agreed that it would give Icelandic fishing boats priority, but Iceland has to give it 6 months notice if it decides to extend the zone. • Iceland extended the exclusive zone to 50 miles so UK complained to ICJ ICJ: high seas are open to all states and Iceland cannot put a constraint on fishing in the high seas in the larger fishing region it established HELD: Customary int'l law gives an exclusive fishing right for 12 miles and a preferential fishing right beyond 12 mile territorial waters → UK and Iceland have to come to an agreement • Preferential right will be in favor of a country that is dependent on fishing, but other countries have a right to also fish in those waters o States must take full cognizance of the rights of other states in those waters for which it has preferential rights

"Congress shall define and punish piracy and felony on the high seas and offenses against the law of nations" (i.e., int'l law crimes) Article 1 Section 8 Clause 10

If crime is well defined under law of nations: Congress doesn't need to define If crime is not well-defined: Congress must define before it can punish it Example: piracy is well defined, everyone knows what it is

Continental Shelf (Articles 77 and 78)

If extends to other states or is shared by other states, must be shared equitably Article 77: "Coastal states exercise sovereign rights over the continental shelf for the purpose of exploring and exploiting its natural resources..." • Natural resources = confined to minerals and other non-living resources of the seabed and its subsoil • "If state does not exploit natural resources then other states cannot do so without the consent of the state owner" Article 78: Right of a coastal state to the continental shelf does not affect the legal status of the sub-adjacent waters/over flight rights beyond those waters • Even if a state's continental shelf exceeds the 12 mile zone of territorial waters, it still counts as the high seas Rights in respect of the continental shelf extend at least to 200 miles; where the continental shelf exceeds that distance, then it is 350 miles (max.) or 100 miles beyond the point at which the ocean depth reaches 2500 meters, measured from low water mark

Remedial secession

If the right to self-determination has been violated, then the right to secede emerges to remedy the violation • Comes from Congo case ¬which implies in its dictum that if the Congo peoples' rights had been violated, they would have had the right to secede

Republic of Croatia v. Girocredit Bank (1997)

If there is a change of gov't, the successor gov't is still responsible for the deeds of the pre-existing gov't (i.e. Mandela gov't in SA responsible for apartheid acts of former gov't) UN recognized Bosnia-Herzegovina as successor so other states had to apply for membership to the UN ISSUE: How to divvy up assets of former Yugoslavia invested in an Austrian bank? o The new states must negotiate and come to an agreement amongst themselves o Advised that it be done on the basis of equity See Breakup of the Soviet Union: Yugoslavia case.

What is a self-executing treaty?

If treaty is not self-executing→ the treaty is only executed through legislation • i.e. the US may be bound by a treaty, but a US citizen's right as an individual to depend on the treaty to enforce something is dependent on self-executing nature: If implementation legislation is necessary, Congress must legislate in order for it to be part of US law

Treaty termination & impossibility of performance (Article 61 of Vienna Convention)

Impossibility of performance may not be invoked by a party as a ground for terminating, withdrawing from, or suspending the operation of at treaty if the impossibility is the result of a breach by that party either of an obligation under the treaty or of any other int'l obligation owed to any other party to the treaty (dirty hands means no defense)

Goldberg Case

In 1974, Turkish Cypriots plundered the Church and sold works of art on the int'l market ISSUE: does the sale to Goldberg divest the Church if its title to the art? • Goldberg argued that since they were sold to her by Turkish Republic of Cyprus (in effective control), they had the right to take possession and sell the art Rule of property: if A obtains property from B that didn't belong to B then A cannot become owner of it HELD: Since art was taken from church property w/o permission, gov't couldn't transfer ownership though it may have been de facto gov't at that time

External self-determination

In the context of the relationship between states, sovereignty designates the independence of State A vis-à-vis other States → principle of political independence

Law of Nations (Jus Gentium) in the US

Inconsistent jurisprudence in US: int'l law in a broad sense or only customary int'l law? Examples of inconsistencies: (1) Article I § 8 of US Constitution: "to define and punish piracies and felonies committed on the high seas, and offenses against the law of nations"-Customary int'l law (2) Alien Tort Claims Act - affords jurisdiction to federal courts on any civil action by an alien for a tort only committed in violation of the law of nations or a treaty entered into by the US -Exists alongside customary law

Individual Complaint Procedure: Europe

Individual Complaint Procedure: any individual who is the victim of non-compliance can lodge a complaint under the European system against his own gov't (frequent) • Facultative - state that ratifies ECHR must also submit special declaration that it also submits itself to this procedure • After demise of communism, East European countries were told that they had to accept the individual complaint procedure if they wanted to be a CoE member

Individual Complaint Procedure: Americas

Individual complaints are not facultative (if you are a member of the Commission, you must accept individual complaints; if you are not a member, you do not have to accept ICs to become a member) ...whereas adversarial proceedings are facultative (optional) (this is the opposite from Europe)

Who are the beneficiaries of international human rights?

Individuals. Individuals have been given standing to take action against their gov't for non-compliance with these human rights obligations

Retroactive secession

Int'l recognition does not relate back to the date of secession to serve retroactively as a source of a "legal" right to secede in the first place

Inter-American HR Systems (2 bodies)

Inter-American Commission of Human Rights Inter-American Court of Human Rights

2 types of rights/obligations in a treaty

Interpartes (between the parties) and erga omnes (against the world)

ICJ Jurisdiction

Jurisdiction is 100% dependent on consent (both states must consent) Ways to Consent: (1) State can sign declaration that all int'l disputes can be tried by ICJ submitting oneself to exto facto jurisdiction of the court (GENERAL J) (2) State can agree to be subject to ICJ jurisdiction in particular case on ad hoc basis (AD HOC J)

Equity v. justice

Justice does not mean you have to treat everyone equally

Kosovo Independence (2010) ICJ Advisory Opinion

Kosovo unilaterally declared itself an independent and sovereign state General int'l law contains no applicable prohibition of declarations of independence → but it doesn't mean Kosovo is now independent VDV contests ICJ allegation that int'l law upholds territorial integrity only if State A invades State B i.e., that it's not hostile to secession of a group within a State ICJ said that nothing in int'l law prohibits secession, which is absolute nonsense, int'l law emphasizes territorial integrity of states and that means not only (as court decided in Kosovo case) in relation of states, but also about a part of State A breaking away

Exclusive Economic Zone

Largely concerned with fishing rights EEZ goes 200 nautical miles giving sovereign rights over resources and jurisdiction over activities affecting those resources Protection of Marine Life (for high seas fisheries) • 1992 Rio Conference on the Environment and Development (only est. soft law)- appealed to states to take certain precautions for environmental protection

Piracy

Law of Nations Article 1, 8, 10 - Congress shall find and punish piracies and felonies on the High Seas in defense of the Law of Nations (gives federal courts, not really Congress, the power to impose punishment on pirates) Must treat pirates as prisoners of war if you take military action against them

World Law

Laws that are applied by all states, mostly as a matter of practicality, Not compelled by treaties or other states

Margin of Appreciation

Limitations on human rights must be 1. relevant to circumstance warranting a limitation, 2. proportional (can't limit more than necessary), and 3. can't take the right away. The state is the institution that is best equipped to decide whether the circumstance prompting the limitation exists Given the large national interest, you must weigh that against the possibility that judge/jury might be influenced by media...the chances that the newspaper reports will influence the judgments exists, but it doesn't weight up against public interest in being informed of what is going on Court will respect the state's decision o In Sunday Times case, Court emphasized that justice must be done and judge/jury must not be influenced by what they read and UK is in the best position to decide what sub judice entails and how it is to be applied BUT, Court can decide in the final analysis whether the state has acted within the bounds of its margin of appreciation and whether the state has upheld the principle that the limitation be relevant to the circumstances, etc

In re: Duchy of Sealand (1978)

Manmade anti-aircraft weapons platform in the ocean used • Located outside the territorial waters of England • Wealthy man took possession of it (gambling facilities/other luxuries) & 30-40 permanent residents lived on it. TAKEAWAY: Territorial requirement can extend to the sea, but only to natural, undersea islands (needs something that is part of the earth) HELD: Sealand doesn't comply Another issue - the permanent residents weren't actually permanent residents... DEFINED TERRITORY AS A REQUIREMENT OF STATEHOOD

The Break Up of the Soviet Union: Yugoslavia

Many ethnic and religious communities in its fold... FACTS:Successor state claimed it was entitled to all assets of former Yugoslavia bank. Bosnia and Herzegovina retained UN membership without having to re-apply so they regarded that part of Yugoslavia as successor state and other regions had to reapply for UN membership again. o B-H did not automatically step into shoes of former Yugoslavia ISSUES: who is successor state of former Yugoslavia? Big question because if there is a change of government, successor government is still responsible for deeds of pre-existing government HELD: money should be divided on equitable basis...ICJ did not say how, just that the regions needed to come to an agreement. See Republic of Croatia v. Girocredit Bank case.

Bases for wars of liberation

May take up arms to topple: 1. A colonial government 2. Foreign occupation 3. A racist regime

Treaty Understandings

Meaning attributed to the provision "I will ratify this provided that this means that" Example: int'l law prohibits cruel and inhuman treatment/punishment and US has an understanding that this phrase is interpreted how it is interpreted by the Supreme Court

Conventions

Multi-lateral treaties • Open for ratification by a large number of states • Covenants - greatly important conventions Covenant on Economic, Social, and Cultural Rights Covenant on Civil and Political Rights (US ratified)

Cases that illustrate ship's rights from its flag state

Muscat Dhows Saiga case

Muscat Dhows case

Muscat quarantined 5 Muscat subjects for medical reasons ISSUE: was France allowed to let the Muscat ship fly its flag? Yes! o France said b/c they were flying French flag they should let them go o Granting of French flag to Muscat subjects constitutes no attack on independence of Muscat Right to fly flag will be given to native vessels who satisfy the following 3 things: • (1) Owner of ship must be subject of Power whose flag it flies • (2) Owner must prove he has real estate in the district of the authority to whom the application is addressed and • (3) Owner and captain must prove enjoy good reputation (and have never been condemned for acts of slave trade) TAKEAWAY: states are at liberty to allow ship owners to fly the flag of that state and thereby assume the nationality of that state

Statehood: definitions based on purpose

Must distinguish "statehood" based on purposes: (1) purpose for int'l relations or (2) int'l community of states Statehood for Purposes of Inter-Individual Relations • Creating a relationship of rights and obligations valid to the 2 parties to the contract Statehood for Purposes of Community Relations • If you're not a member of that int'l community, your views and conduct will not count toward the development of customary int'l law

Did the US ratify the Convention on the Law of the Sea (1982)?

NO-it was concerned about scientific restraint in paying a lot of money to explore the mineral wealth of the seabed and then having to share the knowledge/resources with everyone BUT the US upholds the Convention's principles - US accepted the 1994 addendum so it qualifies to be part of the governing body of the Law of the Sea

Principle of the continuity of states

New gov't is generally bound by the legal commitments of the old gov'ts

Universal Declaration of Human Rights (1948) & implications

Not binding b/c declaration • UN didn't want to compel states to comply but wanted to encourage and persuade them to do so 1960s - principle of promotion was converted into protection • 2 conventions based on human rights bind the states • Human Rights Committee oversees the implementation of the 1966 Convention of Civil and Political Rights 1965 - many int'l conventions put an obligation on states to afford certain basic rights and freedoms to people within their jurisdictions → individuals now have standing as beneficiaries • Some are applied across the globe, some applied regionally, some are thematic

Issue of peacekeeping forces

Nothing in UN charter allows for the deployment of peacekeeping missions Relies on Article 24 of UN Charter: in order to ensure prompt an effective action by the UN, its members confer on the SC primary responsibility for the maintenance of int'l peace and security and agree that in carrying out its duties under this responsibility the SC acts of their behalf Wrongdoings by peacekeeping members: if any soldier from a particular country commits any offense in the receiving state he can only be prosecuted in the sending state (NOT receiving state) → obligation of sending state to actually prosecute Requirements for using peacekeeping forces: • (1) Hostilities have become to an end, (2) peace treaty has already been reached, and (3) the state concerned asks for the peacekeeping forces Security forces may use weapons but only for self defense Example: Misconduct of troops of UK committed in Kosovo • Criterion is who has ultimate command/control over the troops (home country or UN)

Distinction: Sovereign immunity v. Act of state

Sovereign immunity: jurisdictional issue, but no discussion of merits of the case Act of state: merits of the case (judicial rule of self-restraint based on merits of the case)...court will apply the laws of the foreign state respecting an act made by the foreign government in its own territory

European Court of Human Rights

Organ of the CoE • Principle of positive obligation: European Convention Article 1 provides that member states shall secure the rights/freedoms specified in the convention to all people within its jurisdiction and this obligation applies to (1) violations by the state and (2) violations by non-state perpetrators) i.e. if your rights/freedoms are violated by another person/organization, the matter can come before the European Court of Human Rights Structure -3 channels: (1) When matter is brought before the Court, admissibility of complaint is first considered by a Committee of the Court, consisting of 3 judges [this stage is same for individual and interstate adversarial cases] (2) If Comm. finds it is admissible, the matter is referred to a Chamber consisting of 7 judges [these judges are not part of Grand Chamber] (3) There is a Grand Chamber consisting of 17 judges • Decision of the Chamber can be taken on appeal to the Grand Chamber if it is an individual complaint case • An interstate adversarial case goes straight to the Grand Chamber

The Moon, Celestial Bodies, and Outer Space (uses)

Outer space is used for broadcasting, telephones, and spying

High Seas

Part of the oceans of the world beyond the territorial jurisdiction/borders of States o Open to all states, are for peaceful purposes, and are not subject to sovereignty o High seas and sea bed (and subsoil) are common territory - any developed technology that can explore the deep seas must be shared by all countries What is included? • Territory beyond territorial sea and EEZ Freedoms: navigation, overflight, to lay submarine cables/pipeline, to construct artificial islands and other installations, certain fishing rights, scientific research

Common heritage of mankind (definition)

Part of the universe over which no state can claim sovereignty b/c it must be used in the interests of and shared with the whole human race

Article 18: meaning of passage

Passage includes stopping and anchoring

Article 19: meaning of Innocent Passage

Passage is innocent so long as it is not prejudicial to the peace, good order or security of the coastal state Passage of foreign ship considered prejudicial to peace, good order, or security of the coastal State if in the territorial sea it engages in: o Threat or use of force against sovereignty, territorial integrity, or political independence of the coastal state, o Exercise or practice with weapons o Spying o Propaganda o Launching, landing taking on board of aircraft o " " of a military device o Loading or unloading commodity, currency, or anything contrary to customs law of the coastal state o Wilful and serious pollution o Fishing activities o Research or survey activities o Tampering with systems of communication

Treaty Declarations

Political statements, with no particular binding effect, made by ratifying state Mainly exists just to compliment those who have brought this to the table and got the world to agree to it

Prosecutor v. Taylor

Special Court for Sierra Leone: Taylor had been president of Liberia but he was arrested in Sierra Leone and argued that he was immune as a head of state, but Sierra Leone said it doesn't count b/c it's an int'l tribunal PRINCIPLE THAT SI DOESN'T APPLY IN INTL TRIBUNALS

Declaration on the Rights of Indigenous People (Canada, NZ, Australia, and US)

Proclaims right to self-determination of indigenous peoples and defines it as the right to establish its own economic and political structures (means it is actually independent) Nothing in this declaration may be interpreted to mean that they can be politically independent

Countermeasures

Reprisal that occurs during peacetime. International lawyers often use the term rather than referring to reprisals or retorsions.

Latin terms (re: common heritage of mankind)

Res communes: common things Res alicuius: corporal things that are being owned Res nullius: corporal things that aren't being owned Res extra commercio: those things which cannot be privately owned Res publicae: things whose use/enjoyment are available too entire political community

Reservations in Statute of Int'l Criminal Court

Reservations are NOT allowed → states must take it all

Equity

Restoration of justice in a situation where applying the rule would lead to an injustice ICJ statute provides that if parties agree they can adjudicate on basis of equity Equity has long been considered to constitute a part of int'l law

Natural Law

Rules of law that apply to our conduct as a matter of nature (1) Not enacted by a state legislature but apply to all people Predominated Western thinking for a long time • Then replaced (but not completely eliminated) around 1830 by positivism (2) Positivism: no such thing as natural law → the only law that exists is that which is created by a law creating agency • But int'l law doesn't have law creating agencies so it looks like law but isn't • Opponent of this, Henry Wheaton, says int'l law has all the makings of law and therefore is legally binding and can be enforced

Un Charter Article 42

SC Action: SC can authorize the taking up of arms to counteract a breach of or threat to the int'l peace or an act of aggression

Cayuga Indians Case (1926) American and British Claims Arbitration

SIGNIFICANCE: application of equity to serve justice FACTS:Indian tribe sided with British forces during American War of Independence, and so the tribe was oppressed by the US & majority fled to Canada post-war • US felt bad and came to an agreement with the tribe to pay them an annual amount, but over time, the US stopped paying the tribe in Canada & only paid the tribe in NY HELD: on basis of equity, it was decided that the Canadian Indians had right to share in the compensation as members of the tribe and they are entitled to a proportional amount • Arbitral panel looked behind the legal person of the tribe so it could protect the individuals who were the real beneficiaries of the agreement [collective group rights]

When do we need a genuine link between ship and flag state?

Saiga case-Genuine link with flag state is mentioned but is NOT a requirement for obtaining the nationality of that state A state can offer its nationality to any ship, but in doing so it creates an essential link with the ship that includes the obligation to ensure it is seaworthy Link is only required for flag state to impose its laws on a ship that flies its flag

Security Council Powers (Ch.7 of UN Charter)

Security Council Chapter VII powers are focused on taking action if it finds a situation is breaching the peace, threatening the peace, or is an act of aggression: (1) call upon state to stop (Article 40) (2) issue economic sanctions & isolate the state by interrupting communication means (Article 41) (3) If these don't work, then SC can authorize an armed intervention (though very rare) (Article 42)

UN Charter Article 51

Self-Defense: a state can take up arms in individual or collective self-defense if it has been attacked

History of Self-Determination

Self-Determination in Africa (1) Woodrow Wilson made a speech after WWII saying that States would have a right to self-determination o States conquered in WWI were to be placed under mandate of mandatory State and led to political independence "A" mandatory States were developed sufficiently & all the State had to was go through proceedings to make it a mandatory State "B" mandatory States were less developed countries & mandatory States had to lead them to development so that the State would be ready for independence sometime in the future "C" mandatory States will NOT become independent, but will be incorporated into the mandatory State [Only ex: South West Africa was to become part of South Africa...however it actually became Namibia (an independent state NOT part of South Africa)] (2) Decolonization brought strong national movement to redraw national borders to conform to tribal varieties ¬South Africa wanted to enact policy of political independence of black regions o UN rejected this saying the people did NOT ask for this division...if they had, maybe it would have been ok. o UN General Assembly said self-determination requires the people request and/or opt for the separation or division Modern meaning (most important) (1) Int'l community shifted its inferences to self-determination of peoples (not necessarily groups) and the entitled peoples entitled are in 3 categories: o Ethnic (cultural) o Linguistic o Religious (2) State must permit cultural practices, religious adherence and linguistic groups to speak their languages without undue State interference...must encourage it.

Treaty v. Federal Law

Self-executing treaties are equal in statute w/federal law • Conflict between? The one w/later date will apply.

Shetland Island case

Ship crashed on SI and spilled oil o Duty of the flag state to lay down/enforce regulations upon ship owners to make sure ships that fly its flag are seaworthy o When a ship docks in a port, the port state can also investigate seaworthiness May detain substandard ships until repairs are made In an ideal world, flag states would always police its fleet Note: coastal and port states must detect unseaworthy ships because flag states cannot/do not monitor their entire fleets

When ship flies a flag...

Ships have the nationality of the flag it flies (many ships fly the flag of countries with fewer restrictions b/c it costs them less to keep it in ship shape → open registry) Flag state has full jurisdiction and control of actions/activities on board on high seas

Article 17: Right of Innocent Passage

Ships of all States, whether coastal or land-locked, enjoy the right of innocent passage through the territorial sea

Territorial integrity

States should not attempt to promote secessionist movements, forceful acquisitions of a territory, or border changes in other States (strong universal principle)

Alien Tort Statute

Statute granting right to civil action for damages given to foreigners in American courts for crimes that are in violation of the law of nations Standing: both parties must be in the US (can abduct a party into the US if a case is brought) Jurisdictional basis: universal in civil cases (different b/c usually confined to criminal)

Article 20: Submarines in territorial seas

Submarines and other underwater vehicles must surface and show their flag when in the territorial sea

Monistic system

System in which international law is fully incorporated into municipal (domestic) law. The US is a monistic system b/c international treaties are self-executing.

Pacta sunt servanda

The rule that treaties are binding on the parties and must be carried out in good faith

Treaty v. State Law

Treaty applies.

Eastern Airlines, Inc. v. Floyd (1991) Supreme Court

Treaty interpretation case! In flight to Bahamas, flight engines malfunctioned and temporarily cut off. The engines ended up restarting...no passengers were physical injured, but some were mentally affected. ISSUE: whether Article 17 of the Warsaw Convention allows recovery for mental or psychic injuries unaccompanied by physical injury or physical manifestation of injury • Traumatic flight → damages solely for mental distress HELD: it does not. • Among other things, parties to the Convention were more concerned w/protecting air carriers and fostering new industries than providing full recovery to injured passengers

"International treaties entered into by the US shall be the supreme law of the land" (supremacy clause)

Treaty law + customary international law are part of the municipal law of the US Treaties are self-executing unless specified otherwise

Alabama Claims Case

U.S v. U.K o prompted the establishment of a Permanent Court of Arbitration theme is the tendency in int'l law to avoid armed conflicts ♣ These wars could have been avoided if arbitrated: 1812, Mexican, & Spanish-American ♣ Arbitrators from US, GB, Italy, Switzerland, and Brazil ♣ Whether GB had violated its obligations as a neutral state by providing confederate forces with weapons during the US Civil War: yes If you are neutral in an armed conflict, you mustn't support one side in a conflict, but the principle that emerged was powerful states could settle their disputes through arbitration ARBITRATION

South Africa & Succession

U.S. decided to implement arms embargo in S. Africa, so SA started producing arms. SA secret agents infiltrated US and UK arms plants to steal technology to develop high quality arms manufacture. This led to a dispute between SA and US, who wanted to be compensated for SA infiltration. Conflict was not settled before political change in 1994, when Mandela became president. Even though change was radical--from racist regime to model democracy--Mandela government was responsible for acts of apartheid government and settled it by paying a sum of money to US.

UN Charter Article 2(4)

UN article prohibiting states from settling disputes through armed conflict EXCEPT as per Articles 51 and 42

Reservations to the Genocide Convention Case (1951)

US Reservation excluding jurisdiction of the ICJ to adjudicate disputes that may emerge from the convention ISSUE: whether reserving states' ratifications or accessions count toward the 20 acceptances needed for the Genocide Convention to enter into force No reservation is valid unless accepted by all the contracting parties w/o exception • Reciprocity-you can't force the other country to abide by a provision for which you have submitted a reservation • Silence/failure to object to reservation = implicit acceptance Want as many states as possible to participate HELD: if you make a reservation that has been objected to by one or more but not by others, you can be regarded as being a party as long as the reservation is compatible with the object and purpose of the Convention

Passive personality (basis of jurisdiction)

US criminal courts can prosecute crimes outside the US with an impact on a US national (to protect US nationals when they are abroad)

Active personality/nationality (basis of jurisdiction)

US criminal courts can prosecute crimes that occur outside the US but are committed by a US national ♣ Blackmer: American citizen living in France was summonsed to give evidence in a US case he declined to do so • American courts have in personam jurisdiction b/c he is an American national American Consul served the summons on him in Paris should it have been served through French actors? Sidestepped the issue by saying that he didn't serve the papers in his capacity as Consul, he only had to pass it on

US v. Dire (2013)

US ship, disguised as a merchant vessel to combat piracy, viewed Somalian ship, saw behavior that was typical of piracy: attacked, arrested, and brought them to trial in US • Old definition: pirates come on board to steal, but these people were brought on board under detainment • US v. Smith: if defense is adequately defined in international law, there is no need for Congress to define "piracy" in order for Congress to punish pirates • SC applied int'l law development to accommodate future instances by not confining piracy only to those instances where things have been stolen (Doesn't stick to an old definition) HELD: when a vessel is suspect of piracy, a warship may do more than merely board and inspect documents. State may capture & bring to justice → universal jurisdiction over pirates

Medellin v. Texas

Vienna Convention provides that if a foreigner is arrested on serious charges then the authorities of the arresting state must inform him of his right to contact the consulate of his home country and for the consulate to provide him with whatever assistance he might need: • Breard v. Greene: doesn't matter if foreigner didn't know of this right, still may not appeal on basis that the law wasn't complied with • LaGrand Brothers: US decided this isn't binding, even though ICJ did o GWB promised that this wouldn't happen again and policemen would be trained as to what their duties are when the arrest a foreigner • Avena (ICJ case): GWB ordered attorneys general to comply with ICJ judgment but also announced that US is cancelling its ratification of ICJ jurisdiction • Statutory provisions considered: o UN Charter Article 94(1): ICJ is highest court of authority under int'l law ♣ UN member states must undertake to comply with ICJ judgments • Envisions future conduct not self-executing o UN Charter Article 94(2): SC decides what action to take against non-compliance SC decisions are subject to US veto and Senate wouldn't have agreed to this otherwise so do not have to follow it now (VDV does not approve of this) o ICJ Statute Article 35(1): ICJ will only have jurisdiction in disputes between States TX is not a State and not bound by the decision o ICJ Statute Article 59: ICJ judgments have no binding force except between the parties to the dispute and in respect of that particular case ♣ TX is not a party to the dispute judgment isn't binding on it • SCOTUS said that there has been no case in which the president has interfered with criminal justice system of a state

Do warships have right to innocent passage?

Warships have the right to innocent passage subject to restriction that they don't engage in warlike activity while passing through territorial seas 1958 Convention on Territorial Sea did not address warship innocent right of passage (see Corfu Channel case)

Status of Forces Agreements

When UN deploys a peacekeeping force, these agreements are entered with the receiving state to provide that if any soldier from the peacekeeping force commits any offense in the receiving state, he can only prosecuted in the sending state. The sending state has a duty to prosecute the offender.

How to interpret a treaty?

When interpreting a treaty, begin with the text of the treaty and the context in which the written words are used • Treaties are construed more liberally than private agreements Also look to the history of the treaty, the negotiations, and the practical construction see Eastern Airlines case.

Texaco/Libya Arbitration (1977) - in depth analysis

Which legal analysis do we use? 3 possible arguments: (1) Type of contract used • Administrative contract -int'l law is admin law that can only be aside by appeal If this was an admin power, then Libyan gov't could say they "considered the acts" and "applied mind to the matter" and used their discretion to determine the issue • Concession contract - not just a matter within discretion of Libyan gov't (2) State sovereignty • Any dispute emerging would be adjudicated under Libyan law provided that law is in conformity with int'l law standards (3) Current rules of int'l law • Decisions of the General Assembly are not binding on members states but can culminate in customary int'l law • Decisions of Security Council are binding on members states (Ch. 7, Article 39 of UN Charter) ANALYSIS: Under int'l law, expropriation can only be exercised in the national interest and against the payment of appropriate compensation But Libya asserted various resolutions of the GA to justify the nationalizations: (1) Resolution 1803: Expropriation shall be based on public utility and national interests or security; and IF you expropriate, the owner is entitled to appropriate compensation o Adopted by large majority o Conforms to customary int'l law (2) Resolution 3201: proclaimed full sovereignty of states over their natural resources o Adopted without a vote...commentary shows that many states had reservations about this resolution o As part of state sovereignty, State has right to nationalize privately owned or state owned property (3) Resolution 3171: state can determine possible amount of compensation and if in dispute, must be settled in conformity with the national law (4) Resolution 3281: taking of property is governed by national laws where property is located; and compensation should be paid. o Proclaims the full permanent state sovereignty over all its wealth, resources, and economic activities o Each state has the right to nationalize or transfer ownership of foreign property o Many developed states did NOT support this resolution Note: 1803 wins because it was adopted by largest majority...should have compensated

How international law treats seccession

With hostility.

Ozone Regime

World became aware using chlorofluorocarbons causes detrimental effect of ozone depletion Demand that developed states assist in ozone's protection and reduce by 2040 Protocol in 1989, but must be continuously revised as scientific knowledge increases • Even a high percentage of reduction would still leave US polluting a lot • Tried to develop incentives for developing countries to participate Enforcement procedures aren't particularly developed (mediation or conciliation) • Constraints on int'l trade that could lead to ozone depletion created black market • Int'l organizations and NGOs help create awareness/action

Does UN have powers not mentioned in UN Charter?

YES (see Reparations case) If it does something that isn't authorized, must meet 2 conditions: • (1) Act must not be expressly forbidden; and • (2) Must receive the general approval of the int'l community of states → not necessarily all states Justified also by looking at UN function/purpose: o Entrust its organs with important missions o Provide these agents with adequate protection o Call upon responsible states to remedy their defaults NOTE- UN is not permitted to be a party in contentious cases before the ICJ

Truman Proclamation of 1945

[continental shelf] Truman Proclamation of 1945 - "Government of the US regards resources of subsoil and seabed of the continental shelf beneath high seas but contiguous to the coasts of the US as appertaining to the US, subject to its jurisdiction and control" • Emphasized need for new resources of petroleum and other minerals which can probably be found in many parts of the US continental shelf • US exercise of jurisdiction over natural resources of seabed is "natural and just"

Haradinaj Case

armed conflict can only exist between parties that are sufficiently organized to confront each other with military means

Ulpianus (contribution to development of intl law)

certain rules/institutions in jus gentium are not natural; such as marriage, education of children

Human rights and freedoms are subject to _____ NOT ______

limitations; NOT elmination

Four categories of international armed conflicts

o 1) armed conflict between states with armed forces of a state o (2) armed conflict between a state and an insurgent group when the insurgent group acts as servants of another state o (3) armed conflict between a state and an insurgent group if the latter received military support from another state o (4) armed resistance to foreign occupation (Palestinian/Israeli dispute)

Schooner Exchange v. McFaddon

o American owned ship was taken by French forces as part of war efforts; later it was docked in Philadelphia ♣ Whether an American citizen can assert in an American court the title of an armed foreign national vessel found within US waters American courts can't take this case ♣ Exemption of the person of the sovereign from arrest/detention within a foreign territory is a basic rule of int'l law ♣ Armed ship being used for military purposes vests within the sovereignty of the state and cannot take possession of what is part of the armed fleet of another state • Military action/war is considered an act of state, but commercial actions are not SOVEREIGN IMMUNITY b/c they were going act France and discussing extending jurisdiction over France. Purposes analysis was to determine if sovereign immunity applied.

Human rights conference in Tehran (1968)

o Expressed great sympathy for freedom fighters (armed resistance to colonial rule, foreign occupation, or a racist regime) and allowed them to use terrorism to achieve their noble cause supported by many GA decisions ♣ Before 9/11, the UN had sympathy for this view b/c freedom fighters cannot achieve their cause through the ballot box or on the battle field ♣ Post 9/11, the UN has consistently condemned terrorism unconditionally • GA/SC resolutions clearly state there can be no justification for terrorism under any circumstances

Rainbow Warrior Case

o France was conducting nuclear weapons tests within Australian and NZ region. These countries were angry about this and brought it to ICJ, but France stopped action so the matter was declared moot. France terminated ICJ jurisdiction and resumed testing so they couldn't be tried except as an extension of the earlier ICJ case. France also sabotaged Australian and NZ trade with Europe during the conflict. ♣ ICJ said that b/c France was running different types of tests there wasn't a continuing claim of action ♣ Mafart and Prieur were arrested and prosecuted in NZ. France wanted their release. • Conflict submitted to Secretary General to give an opinion • Agreed that they would be delivered to France, to be kept under house arrest on French island of Hao for 3 years. If they must leave, the two countries should come to an agreement about it. ♣ Mafart became ill and went to France for medical treatment, but French didn't give NZ an opportunity to verify M's condition • Decided that allowing M to go to Paris was not a violation b/c it was a question of necessity, but France did violate its obligations by not sending M back after his treatment ♣ Prieur was allowed to leave b/c her father was dying • Decided this was a violation b/c NZ didn't have an opportunity to verify the facts and give their consent and b/c France didn't send P back after she attended her father's funeral ♣ Issue of remedy b/c in the meantime, the three years had expired • Restoration - restore the situation either as it was before the violation or as it would have been if the violation had not taken place • Compensation - payment of the sum of money • Satisfaction - apologizing (this is serious thing in int'l law b/c a country is also admitting wrongdoing) ♣ Ordered satisfaction (not compensation b/c it wasn't asked for) and France was condemned for violating this agreement • Set up a fund to promote the close and friendly relations between citizens of the two countries • France reprimanded for interfering with NZ trade relations ARBITRATION - REMEDY

Subjects of ICC Jurisdiction

o Genocide o Long list of crimes against humanity o Longer list of war crimes o Crime of aggression but competence of the court to prosecute aggression is put on hold

ICJ Advisory Opinion Rules

o ICJ may give an AO but doesn't have to (may decline if there are compelling reasons) o AOs are not dependent on state consent (but this could mean that the opinion is impractical and difficult to impose) o AOs are not binding so states cannot be compelled to comply with them

Legal Consequences on the Construction of a Wall in the Occupied Palestinian Territory

o Israel opted for independence in 1948, but Palestine didn't ♣ GB drew a borderline between Israel and Palestine o After 6 day war, Israel occupied Palestine after Syria withdrew (occupation = when a state is actually placed under the authority of a hostile army) ♣ (1) biblical grounds God gave this territory to us ♣ (2) vacant territory b/c Syrians had abandoned it and it has the right to lay claim to this territory which has no gov't/owner ♣ (3) security reasons Israel is subject to terrorist attacks on a large scale from Palestine and they wanted Jews to live among the Palestinians to warn Israel of pending attacks • under rules of int'l law Israel must safeguard nationals living in other countries o the wall they built did not follow the established border o whether construction of this wall on Palestinian territory is lawful under rules of int'l law ♣ Israel strayed from borderline b/c it wouldn't always be an effective local for protection • They located it exclusively on the basis on what would be most effective in protecting Israel from Palestinian terrorism ♣ ICJ decided it is lawful for Israel to protect itself but disagree that the building of the wall serves this purpose and having located the wall within Palestinian territory could later result in a land grab (strictly prohibited by int'l law; territorial integrity) • So construction of the wall is not supported by int'l law and Israel cannot rely on self-defense or necessity to justify its actions ♣ AO was based on the UN obligation to resolve questions relating to int'l peace/security o When border changes are authorized by int'l law: ♣ Secession if all citizens of the state by a vast majority would decide that it is ok for that part of the land to secede and become a separate state ♣ If after armed conflict, national borders are redrawn after peace treaty is enacted ♣ (interesting b/c Kosovo AO said that there is no int'l that precludes secession, but this isn't true) o ICJ decision based on documentary evidence from three sources (document of SG of UN, special rapporteur, and rights of the child) and dealt with the wall on general terms, not section by section o Israel questioned the ICJ's jurisdiction b/c there were so many complicated factual issues that would not be before the court but ICJ said that they could give an AO on the basis of general principles non-annexation/territorial integrity • Israel Supreme Court: dealt with the wall section by section and considered the security needs which prompted the building of the particular section of the wall weighed against hardships against the local community if not proportional, the court ordered the wall torn down o Heard oral evidence from members of the Israeli defense force who had to justify the wall o Heard testimony from those local Palestinians affected about hardships they faced EXAMPLE OF ICJ'S ADVISORY OPINION

Relationship between IHL and the law of human rights

o Often argued that you must uphold the principles of human rights protection in armed conflict ♣ VDV disagrees b/c to make IHL subject to the rules of human rights protection is a conflict of terms b/c armed conflict is designed for the killing of people and this is as un-human rights-like as it gets ♣ VDV also argues that there is often an overlap between the two

American interests (basis of jurisdiction)

o whenever national interests are implicated ♣ US v. Aluminum Company: imposing US anti-trust laws on a Canadian company that operated outside the US should there be extraterritorial application? • Acts would clearly be unlawful if committed in the US or if they were committed abroad but intended to affect imports in the US • Although they probably intended to restrict the imports they didn't actually do so (not enough effect) American interests are not involved no jurisdiction

Dogger Bank Affair

o Russia had expanded into Manchuria in China and this led to dispute with Japan and Russians were on particular alert to prevent attacks from superior Japanese Navy ♣ Russians received word that there were Japanese ships disguised as peaceful ships and so when they saw some British fishing boats they attacked them even though fishing boats had put out signs they were not military 2 dead, 6 seriously wounded ♣ This news was not received well in London ♣ Russians said it was a mistake, but British wanted more serious action ♣ British demanded an inquiry in which British officers would participate, but Russians saw this as humiliating so they submitted it to arbitration ♣ 5 admirals constituted the arbitrators (France, Britain, US, Austria, and Russia) • found that the fishing fleet didn't commit any hostile act and went out of its way to indicate to the Russians that they weren't military targets found that the opening of fire by the Russian captain was not warranted DEVELOPMENT OF ARBITRATION AS AN INTL DISPUTE RESOLUTION MECHANISM

How claims can be brought before ICC

o Security Council or a State Party can only refer a situation to the court (prosecutor investigates and decides who/what/which crime) o Propio motu (of his own accord) can only be done with the consent of one of the states and the authorization of a three man panel (pre-trial chamber)

Characteristics of Treaty based regimes re: int'l environment vary significantly

o Some seek to impose liability o Some seek to prevent harm o Degrees of flexibility in defining commitments o Whether states or private actors are bound by obligations

The Shrimp-Turtle Case

o World Trade Organization (WTO) and General Agreement on Tariffs and Trade (GATT) deal with int'l trade and protection of the environment o US had a problem with the importation of shrimps from several countries that apply a method of catching shrimp that endangers sea turtles so US placed an embargo on this trade ♣ Endangered Species Act of 1973 - instructs US shrimp trawls to use an approved turtle exclusion device and places an obligation on Secretary of State to enter treaties with other countries for the sea turtles protection o Whether a ban on the importation of shrimp and shrimp products based on the ESA can be justified under GATT rules for purposes of trade that prohibit arbitrary or unjustified discrimination against countries where the same conditions prevail o Certain exceptions to GATT apply if measures are taken to save animal/plant/human life ♣ Applying to exhaustible natural resources • Can this also include living creatures? This rule was formulated a long time ago and the circumstances have since changed b/c the world is more conscious of the legitimacy of protection and so this meaning is not static and can be applied to living natural resources ♣ But the restriction must also be in compliance with the introductory chapeau of this article that such measures are not imposed arbitrarily or unjustifiably (i.e., it must not be an abusive exercise of a state's right and must be in good faith) • US didn't apply this restriction equally to countries where the same conditions prevail (principle that if you do something that is authorized but you do it for an unacceptable objective, then what would otherwise be lawful becomes unlawful) o "we believe that discrimination results not only when countries in which the same conditions prevail are differently treated but also when the application of the measure at issue does not allow for any inquiry into the appropriateness of the regulatory program for the conditions prevailing in those exporting countries" ♣ the US failed to actually negotiate so its restriction was arbitrary

Universal jurisdiction (basis of jurisdiction)

o crimes within the jurisdiction of the ICC ♣ American courts/everyone has jurisdiction over these crimes

Territoriality (basis of jurisdiction)

o criminal courts in the US can prosecute crimes committed in the US ♣ strongest jurisdiction ♣ Characterization of an act as lawful or unlawful may be determined only by the law of the state where the act was committed. There is a strong presumption in US against extra-territorial application of laws. • American Banana v. United Fruit (1909) o Defendant was deprived of the use of his Costa Rican banana plantation by the acts of the NJ corporation o CR is not part of the US and the acts were done in a foreign state so it's not the business of the US courts • Kilpatrick - anti-trust laws of the US have no extra-territorial application

Nicaragua v. US

o f State A is under threat by an insurgent attack, it may invite other states to come to its assistance, but other states may not support the insurgents ♣ ISIS: Iraq invited US, UK, et. al to come to its assistance so the airstrikes are lawful, but Syria has not done so yet • Under US Constitution, Congress must authorize the president to go to war, but Congress hasn't authorized airstrikes in Iraq or in Syria • Obama argues that airstrikes are authorized by Congress under its decision that authorized the War in Afghanistan and the 2002 armed intervention in Iraq: calls it ISIL (b/c Al Qaeda was then a part) and are sure to also target Al Qaeda • Unwilling and Unable Paradigm: if a terrorist group operates from within the territory of State A and the gov't of State A is either unwilling or unable to counteract and bring to an end the terrorists, then other states can take military action against the terrorists in the territory of State A o Does not make a provision for POW protection not of an int'l character

Argentina v. Amerada Hess

o ship was attacked while transporting fuel and had to be blown up b/c bomb landed in the oil tank ♣ whether the commercial exception can be applied in this regard no b/c war activity ♣ FSIA is the only source of jurisdiction over a foreign state since it doesn't repeal the Alien Tort Statute to the extent that it may not confer jurisdiction over a foreign state • Cannot bring an ATS claim to override SI unless action falls within FSIA exception (below) ♣ US was not involved in any way (effect, but not a direct effect) action cannot be entertained

Sovereign immunity

protects heads of state/other officials for actions undertaken within the scope of their duties • Purpose: suing foreign sovereigns in local courts could upset friendly relations between states • Sovereign Immunity only applies to the relations between states Does not apply to prosecutions in an int'l tribunal • When the head of state is no longer in office he can then be prosecuted for crimes committed while in office unless those crimes were part of his official duties o Crimes that are offenses under customary int'l law can never be part of an official duty of a head of state • All states in int'l law enjoy perfect equality and absolute independence as sovereigns

Gaius (contribution to development of intl law)

substance is exactly the same between jus gentium and jus naturale

Underhill v. Hernandez

• American national prevented from leaving by new Venezuelan gov't o Underhill claimed damages for the detrimental effect o What constitutes the gov't of a country for the purposes of the AOSD is not determined by likes/dislikes ♣ Fact that US didn't recognize Hernandez gov't is irrelevant ♣ Fact that Hernandez assumed power not by constitutional means is irrelevant • It matters that he is in de facto control at that time he is the gov't o Principle that foreign nations should not assume the right to judge the merits of the quarrel between rival political groups. Every sovereign state is bound to respect the independence of every other sovereign state and courts of one country will not sit in judgment on the acts of another gov't. o Recognition of foreign gov't turns on whether you will engage in diplomacy and trade o Since Hernandez was carrying on military operations in support of a revolutionary power, his acts were the acts of a military commander representing the authority of the revolutionary party as a gov't. His acts were acts of Venezuela and as such not subject to adjudication by an American court, even though US gov't didn't recognize his gov't at the time. (he was acting for the benefit of the community and revolutionary forces) ACT OF STATE DOCTRINE

Ware v. Hylton

• Article in Treaty of Paris (GB recognizes US independence) provided that creditors on both sides should meet no lawful impediment when recovering bona fide debts vs. VA that that nullified such debts o State law that is in conflict with a treaty is null and void HIERARCHY OF SOURCES OF LAW

3 issues re: state responsbility

• Attribution - for whose acts is a state responsible? • Due Diligence- failure to prevent individuals from harming foreign nationals, of for failing to apprehend or punish the perpetrators • Reparation- every breach of state's legal obligations gives rise to a duty to make full reparation

McCann v. UK (1995) European Court of Human Rights

• Basic rules of human rights that must be observed by all member states of the Council of Europe (countries that have ratified the European Convention) • English courts said it was ok for police to just shoot the IRA members b/c they thought she was going to set off a bomb • European system → must first exhaust domestic remedies and seek justice in the municipal courts of your own country • UK violated right to life of the deceased (was not a necessity) and is condemned • Illustrates binding effect of a treaty/convention on the high contracting parties UK consented to the ECHR jurisdiction so it is binding OVERVIEW OF INTERNATIONAL LAW IN PRACTICE -- TREATY OBLIGATION, INTERNATIONAL TRIBUNAL, REGIONAL IMPLEMENTATION

Banco Nacional de Cuba v. Sabbatino

• Castro gov't decided to nationalize all companies/corporations in which Americans held interests o Whether action can be taken against the Cuban authorities for depriving Americans of their property rights and financial interests in those corporations o Nationalization under Cuban law cannot be questioned by American court b/c it was an AOS o AOS doctrine has constitutional underpinnings separation of powers issue ♣ Arises out of the basic relationships between branches of gov't in a system of separation of powers binding on federal/state courts but not compelled by either int'l law or the Constitution judicial branch will not decide the validity of a taking of property by a foreign sovereign gov't within its own territory o Int'l law requires that taking of property must be warranted by national interest and accompanied by just compensation for those who lose their property rights Cuban gov't didn't offer any compensation to the American shareholders o Hickenlooper Amendment halt aid to any country expropriating US property, but before they can apply it to award damages, court must find that the taking was in violation of int'l law. Court can't decline to make a decision in these cases. ACT OF STATE DOCTRINE

ICC Complementary Jurisdiction

• Complementary jurisdiction with national jurisdiction: first right and duty to prosecute these crimes vests in the national court and ICC will only step in: o if the national court declines to investigate/prosecute; or o if it appears that the proceedings in the national court are frustrated by the total or partial breakdown of the justice system o if nation state has taken action but that action can be proven as a sham geared toward preventing int'l prosecution • ICC doesn't have its own police force so it is completely dependent on state parties to conduct investigations, collect evidence, find proof, and make arrests

Naulilaa case

• Germans crossed border into Portuguese colony of Angola and tried to explain themselves, but the interpreter thought they were attacking them, so the Portuguese killed 3 and confined 2 Germans, then Germany sent its troops into the region as a matter of retaliation. Native population used the opportunity to wreak havoc in Angola. o If in int'l relations, state A were to conduct unlawful acts, then state B can take retaliatory action provided: ♣ (1) it first called upon them to stop their unlawful acts, and ♣ (2) their action is proportional to the unlawful act of the opposing party o Judgment against Germany b/c the Portuguese actions were deliberate unlawful acts (there was no deliberate violation of an int'l obligation) but were instead based on a misunderstanding reprisals were not appropriate REPRISALS

International Court of Justice

• ICJ can hear contentious cases (cases between two or more states) • ICJ only has jurisdiction of disputes between states, individuals must convince their gov't to act on their behalf in bringing a claim before the ICJ • ICJ can give an Advisory Opinion which are requested either by the GA or the SC

State department list of governmental acts

• Internal administrative acts (ex: expulsion of an alien) • Legislative acts (ex: nationalization) • Acts concerning the armed forces • Acts concerning diplomatic activity • Public loans

Armed intervention in the First Iraqi War

• Iraq had invaded Kuwait and tried to convince the world that Kuwait wanted to be a part of Iraq GHB called for military intervention b/c annexing another country is totally prohibited o GHB brought it before the SC SC authorized it under article 42 "authorize all reasonable steps to be taken to bring an end to the situation that constitutes TBP/AA" ♣ In this case it was a breach of the peace ♣ Normal pattern of dealing with such a situation occurs in three stages: • (1) call upon the culprit state to desist from the act that constitutes a TBP/AA • (2) impose sanctions under article 41 • (3) authorize an armed intervention ♣ but this situation was urgent so they skipped to step three o did not use this situation to get rid of Hussein b/c the instruction was to restore the sovereignty of Kuwait and when that objective was achieved, there was no reason for further action o Hussein put anti-aircraft missiles on mosques and were legally a target but US didn't target them b/c they weren't really a threat and it would have been bad publicity to bomb a religious building

The Moon, Celestial Bodies, and Outer Space (treaty provisions)

• Outer space is not subject to national appropriation • Exploration and use must be carried out for the benefit and interest of all countries • Free for exploration by all countries (freedom of scientific research/investigation) • Scientific research must be shared with entire world • States must inform all nations of their activities in the region • Right of inspection, as long as it is used for scientific and peaceful purposes Moon - equitable sharing by all states parties of resources deriving from the moon

PLO Case

• PLO received UN observer status and PLO delegation came to NY and occupied certain premises, but US adopted the Anti-Terrorism Act that designated PLO as a terrorist organization o Issue is whether PLO can be allowed to occupy premises in NY o Headquarters Agreement between the US and the UN - US is obligated not to interfere with anyone who is delegated to the UN and cannot hinder them in occupying premises, attending UN meeting, and traveling to and from the airport to UN buildings o ATA did not mention the Headquarters Agreement, nor the specific PLO office in New York ♣ Therefore, there was no clear intent on the part of Congress to violate the treaty ♣ Statute can only supersede a treaty if it is very clear that Congress intended to supersede the treaty by enacting the Statute ♣ General rule is that when a treaty conflicts with a Federal Statute, then the one that was executed last is the one that governs. • But you can't infer a conflict it has to be explicit TREATY v. FEDERAL, LATEST IN DATE CONTROLS

Creation of International Criminal Court

• Post-WWII: attempts made to create a permanent int'l criminal court (not initially successful) • Violence in former Yugoslavia and in Rwanda in 1990s sparked int'l interest again o Int'l Law Commission was given the task of drafting a statute for a more permanent court o Rome Conference (1998): culminated in the adoption of the Statute of the Int'l Criminal Court ♣ Came together in a very short amount of time (6 weeks) ♣ Negative votes from US, Israel, and 5 Arab States • Although it made great contribution to the proceedings, US wanted a clause that exempted Americans from jurisdiction, but this was rejected by the convention • GHB - hostile position toward ICC b/c of American Exceptionalism • Obama - reengaged with the ICC and participated fully with the court (US is a cooperating non-party state)

US v. Curtiss-Wright

• Senate/House resolution prohibiting Americans from exporting arms to sparring factions in Latin America o Federal gov't has derogative powers over foreign relations o President is the sole organ of the US in external relations o Prohibition can remain in place but can be repealed by the President o State law that authorizes selling weapons is in violation of the federal decree not to export arms FEDERAL > STATE

UN Delegation of Zaire

• UN Delegation of Zaire leased premises for its mission in NYC but fell behind on payment of rent o Judgments ordered Zaire to pay the rent so they did for a while and then stopped again ♣ Their rent was renewed on a month to month basis provided they paid o More judgments ordered them to pay damages for the late rents o Zaire was in serious financial situation and couldn't pay o Court authorized law enforcement to enter the premises and remove the occupants and their property from the premises if Zaire doesn't pay the rent by a certain date ♣ US gov't intervened to avoid Zaire's eviction and tried to convince them to pay rent o Lower court: "the inviolability of the UN missions under int'l law and US law precludes the forceful eviction of the mission from these premises which they occupied in their capacity as delegates to the UN" ♣ Based judgment almost exclusively on FSIA and brought it within the confines of the commercial transaction exception • but ignored the provision that said that FSIA provisions are subject to existing int'l agreements to which the US is a party (HQA, UN Charter, Convention on the Privileges and Immunities of the UN "the premises of the mission shall be inviolable, immune from search, requisition, attach, or execution", Vienna Conv. on Diplomatic Relations) o Federal Court: overturned lower court and largely based its judgment on the Vienna Convention on Diplomatic Relations inviolability makes no provisions for exceptions whatsoever. FSIA is subject to the obligations of the US under int'l law (obligation clearly focused on the sanctity of persons and property on missions to the UN) ♣ US in the past has consistently upheld inviolability of diplomatic premises and persons...endangers US diplomats abroad to change policy now ♣ Lessor can still claim damages but cannot evict them OR lessor can put a clause in the rental contract that waives the immunity question (this is commonly done in NY now) FSIA, SOVEREIGN IMMUNITY, JUS COGENS/CUSTOMARY LAW > FEDERAL LAW

Iranian Hostage Crisis

• US had provided a safe haven to the ousted Shah so Iranians attacked the American embassy in Tehran o US brought suit against Iran in the ICJ, but Iran refused to appear in the case o Iran argued that ICJ doesn't have jurisdiction on the single incident b/c it is just a small component of a larger dispute and the judgment wouldn't be fair w/o considering the larger dispute between the US and Iran o ICJ said that the case is based on Iran's obligation under int'l law to protect the diplomatic staff and premises of foreign countries in Iran doesn't matter why they didn't do it (don't need to consider larger context) o (1) whether the Iranian gov't can be held responsible for the invasion by the students ♣ no b/c the students didn't act on Iran gov't's behalf even though Imam made public statements that praised the students for their actions and encouraged them to retain their occupation of the embassy o (2) whether the Iranian gov't complied with its obligation under int'l law to afford protection to diplomatic premises and diplomatic personnel within it ♣ sanctity of diplomatic personnel has been established for over 1000 years ♣ US appealed to the Iranian gov't to intervene • It didn't do so immediately and when the police did arrive they protected the students rather than the diplomatic property and personnel ♣ Iran didn't comply with its obligations • Civilians were in the diplomatic premises so they were entitled to protected also o Property aspect rather than personnel aspect o Vienna Convention on Consulate Relations: endorsement of the sanctity of diplomatic personnel, premises, and properties o Court decided that Iranian gov't must take immediate steps to terminate the unlawful detention, provide them with necessary means to leave the country, and return the property they had taken o ICJ was critical of President Carter's attempts to free the people and chase the occupants out of the consulate b/c case and negotiations were pending when operation occurred o Enforcement of ICJ judgments = Security Council can impose sanctions PROTECTION OF DIPLOMATIC PERSONNEL, RESPONSIBILITY OF STATE FOR CITIZEN ACTIONS

Forster & Elam v. Neilson

• US-Spain Treaty of Amity ceded property eastward of the MI River ownership of land will be transferred if it is ratified and confirmed by the persons in possession (i.e., something still has to be done) o this is not self-executing b/c it requires future ratification and confirmation ♣ agreement to enter into a contract EX OF NON-SELF-EXECUTING TREATY

Forster & Elam v. Neilson

• US-Spain Treaty of Amity ceded property eastward of the MI River. Ownership of land will be transferred if it is ratified and confirmed by the persons in possession (i.e., something still has to be done). o this is not self-executing b/c it requires future ratification and confirmation ♣ agreement to enter into a contract NON-SELF-EXECUTING TREATY

Stateless vessels

• Vessels w/o flag state are int'l pariahs and aren't subject to the laws of any particular state • Port states may detain stateless ships

Common Article 3 of the four Geneva Conventions

• armed conflicts not of an int'l character are defined as armed conflicts between the military forces of a state and an insurgent group or between two or more insurgent groups within the borders of a state (there is a gap between common articles 2 and 3, see Hamdi v. Rumsfeld) o UN Protocol II to GB (1977): deals with armed conflicts not of an int'l character; protections extended o Important for armed forces to distinguish themselves from civilians (distinctive emblem)

Act of state doctrine

• choice of law issue what law is to be applied in that particular case • instructs a court to apply the law of a foreign state respecting the act of a foreign gov't in its own territory (American court will apply law of country where transaction took place) • Policies underlying AOSD: o As a matter of int'l comity (good relations between states) o The respect for the foreign sovereign of a foreign nation on their own territory o Avoidance of embarrassment to executive branch

Jus ad bellum

• circumstances in which it would be lawful or unlawful to take up arms/go to war o Now it's more like jus contra bellum - rules against armed conflict

Kirkpatrick v. Environmental Tectonics

• competition for a contract to build an aeromedical center went to the company that paid bribe money to Nigeria bribery is prohibited by Nigerian law o Company that lost out brought suit in American court o President said applying the AOSD would not jeopardize foreign relations b/c it wouldn't constitute embarrassment o AOS doctrine went through evolution over the years: some judges have argued that AOSD cannot be applied to commercial transactions and awarding a contract for construction is in the nature of a commercial transaction o So if the AOSD is inapplicable, then the US courts may declare the act of a foreign sovereign performed in its own territory invalid (accepting bribery) o Acts of state of a foreign gov't will be deemed valid, but it doesn't apply to the facts of this case b/c there wasn't an act by a foreign sovereign here in issue (bribe was not taken by gov't of Nigeria, but by company that could contract) o Courts in the US are obligated to decide cases and controversies presented to them, but the AOSD doesn't create an exception for cases/controversies that may embarrass foreign gov'ts it merely requires that, in the process of deciding, the acts of foreign sovereigns taken within their own jurisdictions be deemed valid ACT OF STATE DOCTRINE

Missouri v. Holland

• concerning the catching of wild birds that migrate between US and Canada o US-Canada treaty for protection of these wild birds o MO argues that this is within the jurisdiction of states and treaty is in conflict with powers given to the states by the constitution o Held that state law in conflict with a treaty is null and void o Subject matter is only transitorily within the state and has no permanent habitat there o Issue whether federal authorities in exercising treaty powers can derogate from the constitutional rights of states? US is different in that powers of central gov't are defined and residual powers to go the states TREATY > STATE LAW

Jus in bello

• defines the protections afforded in time of war; what kinds of weapons can be used; who are protected persons; who can be targets o Basic Principle stated in the Declaration of St. Petersburg (1868): the only legitimate thing to be done in an armed conflict is to weaken the military power of the enemy o Prohibited: weapons that have an indiscriminate effect, those that will not only kill the enemy target but also could have some further effects on the natural environment, on civilians, etc. ♣ But ICJ also doesn't want to rule out the use of nuclear weapons in all circumstances

Foreign Sovereign Immunities Act of 1976

• gives American courts jurisdiction over sovereigns for certain matters specified in the acts (NOTE: shift from analysis based on purpose of action to analysis based on nature of the action) o Defines commercial activity: a regular course of commercial conduct or a particular commercial transaction or act; commercial character of an activity shall be determined by reference to the nature of the course of conduct or particular transaction/act, rather than by its purpose. ♣ Must have substantial contact with the US for courts to have jurisdiction ♣ Texas Trading & Milling v. Nigeria (1982): Nigerian harbors became blocked with huge imports of cement so gov't put an embargo on the importation of cement • Whether this is a commercial transaction yes • It is a commercial transaction if a gov't enters into a contract to purchase goods or services and it avails itself of the ordinary contract machinery (it bargains, negotiates, or accepts an offer) o FSIA applies retroactively: Austria v. Altmann for recovery of paintings which the Austrian gov't had expropriated back in 1948 o Argentina v. Amerada Hess (1989): ship was attacked while transporting fuel and had to be blown up b/c bomb landed in the oil tank ♣ whether the commercial exception can be applied in this regard no b/c war activity ♣ FSIA is the only source of jurisdiction over a foreign state since it doesn't repeal the Alien Tort Statute to the extent that it may not confer jurisdiction over a foreign state • Cannot bring an ATS claim to override SI unless action falls within FSIA exception (below) ♣ US was not involved in any way (effect, but not a direct effect) action cannot be entertained o Seven Instances Where American Courts Can Exercise Jurisdiction Over Acts of a Foreign State: ♣ (1) if a foreign state has waived its immunity ♣ (2) if it is based on a commercial activity, carried on in the US by the foreign state or outside the borders with a direct effect in the US ♣ (3) if a right in property is taken in violation of int'l law & the property is present in the US in connection with a commercial activity or it is owned/operated by an agency or instrumentality of the foreign state which is engaged in commercial activity in the US ♣ (4) if rights in property in the US acquired by succession or gifts or rights in immovable property situated in the US are in issue ♣ (5) where money damages are sought against a foreign state for personal injury/death or damage to or loss of property in the US caused by a tort • 2 exceptions where no jurisdiction: o if this violation stems from a discretionary power of the foreign state or o if the claim arises out of malicious prosecution ♣ (6) if you have agreed to arbitration and arbitration is allowed by American law ♣ (7) terrorism; claimant must be a US citizen, part of the military, or gov't employee • foreign state must be designated as a state sponsor of terrorism at the time the act occurred (Iran, Sudan, and Syria)

Common Article 2 of the four Geneva Conventions

• int'l armed conflict is defined as one between two or more states o UN Protocol I to GC (1977): deals with int'l armed conflicts; protections extended ♣ Since 1949, new forms of armed conflict emerged and became popular (Guerrilla War) ♣ If militants cannot be expected to wear a distinctive emblem they will nevertheless be protected provided IF they carry their arms openly, while visible in combat or while preparing for combat while visible to the enemy ♣ signed by US but not ratified

Permanent Court of International Justice

• jurisdiction was based exclusively on consent and consent could be given in general o General - all int'l cases in which this particular country would be involved could be heard o Ad hoc - this particular case can be heard - States that signed on to PICJ were automatically enrolled in ICJ consent

Armed intervention in the 2003 War in Iraq

• not authorized by the UN Security Council o Bush offered three different reasons for why he went to war ♣ (1) First Gulf War in 1991 was authorized by the SC and was terminated by a peace agreement under strict conditions. Iraq knowingly violated these conditions by saying it didn't destroy all its WMDs and not allowing weapons inspectors to have free access to places that could possibly contain WMDs. The war can thus resume b/c of this breach. (Bush ditched this but Blair maintains it to this day) • SC Res. 1441 - emphasized that Iraq didn't comply with the conditions o Issue whether 1441 therefore sanctioned participants in the First Gulf War to continue with it • question whether he actually destroyed the WMDs didn't want Iran to know • VDV: peace treaty was an agreement between the UN and Iraq so it is for the SC to decide how to respond. 1441 didn't authorize a presumption of AI, it was merely condemning the act and calling upon Iraq to desist, offering a threat of action should they not comply ♣ (2) Self-Defense: Iraq was in possession of WMDs b/c Pres. Carter gave them to Iraq during the war between Iraq and Iran. These weapons could possibly fall into the hands of US enemies and be used against the US. (anticipated self-defense) • Congress authorized this reason should Congress have gone back once it was discovered that the basis for its authorization is false and reconsider? ♣ (3) humanitarian intervention: protect people of Iraq against Hussein's repressive regime • After Hussein was ousted, internal civil war between Muslim factions erupted. Hussein was able to repress this b/c he wouldn't tolerate any aggressive resistance against the political system and the people in gov't.

Caroline Case

• rebel group in Canada wanted to terminate British rule took refuge in Niagara Falls and the Caroline brought assistance to them o British arrested its crew and destroyed the Caroline, which was owned by an American national o British said they acted in self-defense o American Secretary of State said preemptive self-defense is only feasible if the attack is imminent, overwhelming, leaving no choice of means and no moment of deliberation (no chance to negotiate)

Terrorism

♣ (1) committed by a group of people who have an obsessive dedication to a particular ideal (economic, religious, or political) ♣ (2) they cannot achieve their objective through the ballot box or even through a conventional armed conflict ♣ (3) they commit acts of terror against the civilian population ♣ (4) for the purpose of enticing people in authority to give in to their demands

Seven Instances Where American Courts Can Exercise Jurisdiction Over Acts of a Foreign State

♣ (1) if a foreign state has waived its immunity ♣ (2) if it is based on a commercial activity, carried on in the US by the foreign state or outside the borders with a direct effect in the US ♣ (3) property present in the US for a commercial activity - if a right in property is taken in violation of int'l law & the property is present in the US in connection with a commercial activity or it is owned/operated by an agency or instrumentality of the foreign state which is engaged in commercial activity in the US ♣ (4) if rights in property in the US acquired by succession or gifts or rights in immovable property situated in the US are in issue ♣ (5) where money damages are sought against a foreign state for personal injury/death or damage to or loss of property in the US caused by a tort • 2 exceptions where no jurisdiction: o if this violation stems from a discretionary power of the foreign state or o if the claim arises out of malicious prosecution ♣ (6) if you have agreed to arbitration and arbitration is allowed by American law ♣ (7) terrorism; claimant must be a US citizen, part of the military, or gov't employee • foreign state must be designated as a state sponsor of terrorism at the time the act occurred (Iran, Sudan, and Syria)

Hamdi v. Rumsfeld

♣ Bin Laden's chauffeur captured and brought to Guantanamo • Supreme Court only looked at Common Article 2 and said that since the armed conflict was not between states, Hamdan cannot claim protection under the GC b/c it doesn't comply with protocol II o SC didn't look at CA3 b/c the fight with Al Qaeda was not confined to borders within one state • But the argument could be made that the Taliban, not being soldiers of the state, they could just carry arms openly and that would give them POW status • Military Commissions Act provided that if you are a member of Al Qaeda or the Taliban, you are automatically an unlawful enemy combatant and that the mere taking of arms against the US or its allies is a criminal offense o If you don't uphold IHL rules, you still have POW status but you can still be tried and punished for the wrongful acts

Sosa v. Alvarez-Machain

♣ Doctor who kept people alive while they were being tortured so they could be tortured longer was kidnapped and brought to US for trial, in violation of extradition treaty between US-Mexico. He sued Mexican nationals who kidnapped him. • Argued that the abduction was a violation of the ATS • The abduction is not going to prevent the court from having jurisdiction even though the abduction was a crime o Int'l Criminal Court - you cannot abduct someone into its jurisdiction ♣ Domestic police must pick up the int'l war crime perpetrator, arrest him, and send him to the ICC (Hague) for prosecution • Argued that it violated US-Mexico extradition treaty (if country A has a person that country B wants to prosecute, then country A has to surrender the individual to country B) no violation • Held that we have to limit the implementation of the ATS o Issue whether ATS only applies to the three crimes that were considered crimes against the law of nations in 1789 (violations of safe conduct, infringement of the rights of ambassadors, and piracy) ♣ Following crimes have been listed as violations of the law of nations: piracy, torture, violations of the law of war, slave trade, arbitrary detention, acts/decisions to intimidate, coerce, or harass a foreign rep., counterfeiting notes of foreign countries) ♣ ATS of the past included torture, genocide, war crimes, summary executions, forced labor, and grave human rights abuses o May go beyond 1789 but only in specific circumstances ♣ Must be defined with same specificity as 1789 three ♣ Must be accepted as customary int'l law crimes on a large scale throughout the world ♣ Must be as generally deplorable as 1789 three (includes torture) o If we want to extend the crimes, the legislature should decide LIMITATIONS ON REACH OF ATS

Texas Trading & Milling v. Nigeria

♣ Nigerian harbors became blocked with huge imports of cement so gov't put an embargo on the importation of cement • Whether this is a commercial transaction yes • It is a commercial transaction if a gov't enters into a contract to purchase goods or services and it avails itself of the ordinary contract machinery (it bargains, negotiates, or accepts an offer) FSIA GIVES JURISDICTION OVER COMMERCIAL ACTVITIY

Kiobel v. Royal Dutch Petroleum Co.

♣ Officials of the Nigerian gov't killed and tortured civilian protesters of the mining operations for oil companies ♣ Nigerian nationals residing in the US brought ATS case in US against oil companies (had sister offices in the US) ♣ Claim was rejected b/c presumption that American law only applies in the US and must have a strong case to rebut that presumption (canon against extraterritorial application) • No reason to extend the ATS beyond US borders to action that took place in a foreign country ♣ National interest of the US was not implicated by the offenses in Nigeria + No American victims + oil companies are foreign companies that operated in other countries, even though one company has an office in US and is traded on NYSE not enough to invoke American interest to extend the ATS to this foreign incident ♣ Result: further restricts ATS cases (VDV sympathetic b/c ATS is an embarrassment b/c:) • Separation of powers issues - executive usually has foreign affairs powers, legislature responsible for defining crimes • Foreign affairs - complicates diplomatic relations

Jurisdictional bases for international cases

♣ Territoriality: if the crime is committed in the US, the court of that state can prosecute it ♣ Active Personality: if the crime is committed by a national of the state even in another country, courts of the state will have jurisdiction ♣ Passive Personality: if the victim of the crime is an American national • But must first find the perpetrator in the jurisdiction to bring them to trial ♣ National Interest: where the crime committed affects a national interest of the US ♣ **Universal Jurisdiction: depends on if it regards crimes against the whole human race (i.e., customary int'l law crimes) (originated with piracy and extended with the Nuremberg Trials) • This principle derives from the Constitution

Humanitarian intervention

♣ When State A takes military action against State B to protect citizens of State B against atrocities committed by State B against its own citizens which are of a severe, current, and ongoing kind ♣ (1) Literalist Approach: humanitarian intervention doesn't challenge the territorial integrity or political independence of a country (prohibited by article 2(4)) b/c a state topples the gov't then goes home again (didn't take territory or colonize) • therefore it doesn't violate the UN Charter ♣ (2) Flexible (Teleological) Approach: foundation of UN is the protection of human rights and where humanitarian interveners want to restore those rights to the repressed citizens, they act in conformity with the purpose of the UN • no conflict ♣ (3) Emergency Mechanism Approach: where the SC is immobilized through veto powers of five permanent members, HI remains viable • Uniting for Peace Resolution of 1950: backdrop was the Korean War (which was sanctioned by SC under article 42) a.k.a. Acheson Plan o Provides that, due to the veto powers of the permanent members the SC is immobilized in using its UN Charter Chapter VII powers to deal with a TBP/AA, then the GA can sanction an armed intervention if it is a BP/AA ♣ If it's a TP, GA can only order means other than AI

Certain expenses case

♣ Whether expenses incurred by the UN for peacekeeping missions can be recovered by member states of the UN? Must member states contribute? ♣ UN can deploy peacekeeping troops to uphold peace after a peace treaty, but can only use their arms for self-defense in case of an outbreak of violence between two parties ♣ Costs lawfully brought up by the UN member states must pay for it ♣ Turns on how such expenses relate to the purposes of the UN • Expenses incurred on peacekeeping missions are expenses of the UN and in conformity with the purposes of the UN in maintaining int'l peace and security o Member states have to contribute

Flexible (teleological) approach to humanitarian intervention

♣ foundation of UN is the protection of human rights and where humanitarian interveners want to restore those rights to the repressed citizens, they act in conformity with the purpose of the UN • no conflict

Emergency mechanism approach to humanitarian intervention

♣ where the SC is immobilized through veto powers of five permanent members, HI remains viable • Uniting for Peace Resolution of 1950: backdrop was the Korean War (which was sanctioned by SC under article 42) a.k.a. Acheson Plan o Provides that, due to the veto powers of the permanent members the SC is immobilized in using its UN Charter Chapter VII powers to deal with a TBP/AA, then the GA can sanction an armed intervention if it is a BP/AA ♣ If it's a TP, GA can only order means other than AI