International Law

Article 14 of the Declaration of Human Rights

"Everyone has the right to seek and enjoy in other countries asylum from persecution." (Asylum Case)

The Khmer Rouge Tribunal

"Extraordinary Chambers in the Courts of Cambodia for the Persecution of Crimes Committed During the Period of Democratic Kampuchea" -Ad Hoc international criminal tribunal -a hybrid UN/national court located in Cambodia (local and international judges) -to try senior members of the Khmer Rouge for serious violations of Cambodian penal law, international humanitarian law and custom, and violation of international conventions recognized by Cambodia committed during the period between April 17, 1975 and Jan. 6, 1979 -five trials so far, one conviction (life sentence for Kang Kew Iew)

Territorial Principle

(most common) jurisdiction determined based on the location of the defendant's act -conduct starts and finishes within State X -Effects doctrine: conduct starts outside State X and has effects within State X (ex. the SS Lotus Case)

ICJ judges

-15 -each from a different UN member state -serve 9 year term (5 elected every 3 years) -must be "independent" -only the ICJ can vote to dismiss a judge

Hugo Grotius

-1583-1645 -Father of international law -"The Rights of War and Peace"=cry for international justice -Proposed an international system based on "Rule of Law" (challenged God's Law=the control of the Church); would consist of two parts: -Natural law: immutable norms inherent in any ordered system (life, liberty, competition) -Positive law: man-made law based on "consent" -Enforcement would occur through mutual cooperation (no international organization contemplated)

ICC judges

-18 -elected by ICC Assembly -serve a 9 year term -must be nationals of state parties to the Rome Statute -no 2 judges can be nationals of the same state -judges must be "persons of high moral character, impartiality, and integrity who possess the qualifications required in their respective states for appointment to the highest judicial offices" -a judge may be removed from officer if he/she is found to have committed serious misconduct or a serious breach of his/her duties or is unable to exercise his/her functions -removal requires a 2/3 majority of the other judges and a 2/3 majority of the member states

The League of Nations

-1919 -the league covenant's two basic principles: 1) member states agreed to respect the "territorial integrity and political independence" of states 2) collective security: aggression by one state should be countered by all members with economic sanctions and force if necessary -the league structure: 1) the Council: consisted of the great powers, settler of disputes/enforcer of sanctions 2) the Assembly: based on universality of membership

The UN General Assmebly

-193 members (one member/one vote) -A forum for the exchange of ideas (debating chamber) -Arts. 10-17 of the Charter permit the GA to "discuss, consider, initiate studies and make recommendations" to the SC -Functions: admitting new members; electing the nonpermanent members of the SC -"Uniting for Peace" Resolution (1950): ensures a prompt GA response when SC fails to act -Certain Expenses of the United Nations Case (1962): ICJ advisory opinion questioning whether the GA can respond when the SC fails to act -GA resolutions: articulate new principles and norms

ECOSOC

-54 rotating members -purpose: to promote observance of human rights and the general welfare of the individual -conducts studies and issues reports on economic, social, cultural, educational, and health matters

SS Lotus Case (PcIJ 1927)

-A French ship (SS Lotus) collided with a Turkish ship in international waters, killing some Turkish sailors. The Lotus then docked in Turkey. Turkey attempted to try the French officer in charge of the Lotus for negligence. They found him guilty and sentenced him to 80 days in jail. -France went to the PCIJ and argued that Turkey did not have jurisdiction to try the French officers, because they were on a French boat in international waters at the time of the accident -Turkey argued that they had jurisdiction to try those responsible for the deaths of 8 Turkish nationals -France argued that as a matter of CIL, the flag of the vessel (France) has exclusive jurisdiction -The PCIJ found: Turkey did have the right to try the French sailors; since the two ships were involved in the same accident, both countries had concurrent jurisdiction

Nuremberg Charter (1945)

-An agreement between the US, France, Britain, and the Soviet Union -Purpose: to try Nazi war criminals individually for crimes against peace, crimes against humanity, and war crimes -12 trials held

Conflict resolution of treaties under US law

-Article II, section 2, clause 2: "He shall have power by and with the Advice and Consent of the Senate make Treaties, provided that two thirds of the Senators present concur..." -Article VI: treaties and statutes are on equal footing -"The last in time prevails" -Treaties and statutes are above state and municipal law but below the Constitution; treaties with Executive and Congressional agreement are above sole Executive agreement

US reservations to ICJ jurisdiction

-Cases entrusted to other tribunal via treaty provision -Cases within domestic jurisdiction of US as determined by US -Cases arising under a multilateral treaty, unless all parties to the particular treaty "affected by the dispute" are also parties to the dispute and all agreed to the submission of the dispute to the ICJ

Corporations

-Def: a business entity created for the purpose of limiting liability beyond that which is available to a person -Corporations possess nationality (like persons)

Refugees

-Def: a person fearing persecution due to race, religion, nationality, social group, or political opinion who is: 1) outside the home country, and 2) unwilling to avail themselves to the protection of that state or return to it

Dual nationality

-Def: an individual possessing the citizenship of more than one country -Types of dual nationalities: 1) person born in one country from parents of another 2) acquiring new nationality without forfeiting original -dual nationals may be subject to conflicting obligations including double taxation and military service -US does not favor dual nationality, but allows it

Sovereign Immunity

-Def: immunity from suit enjoyed by states and certain international organizations in the courts of other states -Rule: all states are entitled to equal treatment -Rule: although a state may incur state responsibility for certain conduct, its status as a sovereign entity may shield it from having to respond to suits in the courts of other states unless sovereign immunity is waived by consent -Scope of immunity: heads of state, government agencies, and state officials that are conducting state business

Home State Rule

-Def: state of incorporation has capacity to represent corporation in international proceedings

State responsibility

-Def: the failure to observe a norm of state practice or a treaty obligation renders the state responsible under international law for its wrongful act or omission -Rule: when a state commits a wrongful act or omission against another state, it is required to make reparations for that harm -3 elements triggering state responsibility: 1) the existence of a legal obligation under international law 2) an act or omission that violates that obligation 3) loss or damage caused by the breach of the obligation

Extradition

-Def: the process whereby one nation surrenders someone accused of a crime to another nation -Rule: there is no duty to surrender an accused to another nation in the absence of an extradition treaty -Rule: extradition treaties should spell out extraditable offenses (murder, torture, kidnapping, rape, robbery, drug trafficking, piracy, money laundering, tax evasion) -Rule: international law prohibits one nation from using "irregular" alternatives to extradition ("clean hands" doctrine)

United states v. Roberts (1998)

-Defendant Roberts was indicted by a federal grand jury on December 11, 1997 and charged with one count of sexual abuse of a minor, and one count of abusive sexual contact with a minor; the crimes allegedly occurred on board a cruise ship -Crime was committed in international waters and Roberts was a national of St. Vincent and the Grenadines, but the victim was a US citizen -the US alleged that the crimes were committed "in an area within the special maritime and territorial jurisdiction of the United States"

Foreign Sovereign Immunities Act (1976)

-Exclusive means of suing foreign sovereigns in the US -Basic presumption: foreign officials are immune in US -Exceptions: 1) commercial activities: foreign sovereigns are engaged in private, commercial activity 2) real property: if foreigner owns property in the US, he is stripped of immunity 3) tort exception: if foreign official commits a tort on US soil, victim can sue in US court 4) waiver by treaty, contract, or appearance 5) "bad boys" exception: waiver for officials from blacklisted states

Norwegian Loans Case

-Facts: Proceedings between France and Norway, instituted by an Application of the French Government which requested the Court to confirm that loans issued on the French market or other foreign markets by the Kingdom of Norway, the Mortgage Bank of the Kingdom of Norway, and the Smallholding and Workers' Housing Bank, stipulated in gold the amount of the borrower's obligation and could only be paid back by Norway in gold -Holding: Norway called into effect the condition of reciprocity and invoked the reservation relating to the national jurisdiction contained in the French Declaration; Court ruled 12-3 that it was without jurisdiction to adjudicate upon the dispute

Radovan Karadzic

-Former President of the Republic of Srpska, poet and psychiatrist -Currently on trial for genocide, crimes against humanity and war crimes at the ICTY in The Hague -He is accused by the ICTY of ordering the Srebrenica massacre in 1995, directing Bosnian Serb forces to "create an unbearable situation of total insecurity with no hope of further survival of life" in the UN safe area -Also accused of ordering that UN personnel be taken hostage in May-June 1995

UN Resolutions (as a source of international law)

-General Assembly Resolutions: recommendations having no legally binding force for member states -Security Council Resolutions: reactions to violations of existing international law principles

States responsibility for acts of non-state actor

-General rule: the conduce of private individuals or entities is not attributable to the state under international law -Exception #1: requires effective state control of the private actor (Nicaragua case) -Exception #2: state subsequently acknowledges and adopts private conduct that causes harm (Iran Hostage case)

Statelessness

-Individuals who lack the legal bond of nationality with any State -1954 Convention Relating to the Status of Stateless Persons -Undocumented from birth/refugees with no proof of nationality -Original nationality stripped by the State because they fled war or persecution (Poland, Cuba, Vietnam)

Judicial decisions (as a source of international law)

-International tribunal looks to national court's decisions BUT decisions from one country can't create/modify international law -National courts look to a foreign court's decision

US Invasion of Panama (1989)

-Purpose: remove Noriega -US reasons: 1) combating drug trafficking 2) safeguarding the lives of Americans in Panama 3) defending democracy and human rights 4) protecting the panama canal

Trusteeship Council

-Purpose: the administration of territories incapable of self-government -suspended after Palau became independent in 1994 -considers a new role today (failed states)

Security Council

-Purpose: to maintain international peace and security and to act on behalf of all member states -Chapter VI: peaceful settlement of disputes -Chapter VII: authorizes enforcement measures (sanctions and force) to counter violations of the Charter -Consists of 15 states (US, UK, France, Russia, and China are permanent members; 10 non-permanent members that serve 2-year terms, 5 elected each year, need 2/3 of all the votes cast for that seat) -Any permanent member can veto a decision -SC action requires unanimity among the five permanent members and at least four nonpermanent members

Nationality rule

-Rule: everyone has a right to a nationality

Capacity to pursue a claim

-Rule: only states or international organizations have the capacity to pursue claims in international proceedings -home state may pursue a claim on behalf of an individual via diplomacy or by filing suit in an international tribunal (ex. US Secretary of State on behalf of US citizens)

Effects of succession on the successor state #2: property and debt obligations of the succeeded state

-Rule: property and debts of the extinct state become property and debts of the successor state UNLESS the obligations violate the public policy of the successor state (ex. debts for purchase of ivory or conflict diamonds) -Treaty: 1983 Vienna Convention on Succession of States in Respect of Property, Archives, and Debts-->succession does not extinguish obligations owed by the former state to public or private creditors

Effects of succession on the successor state #3: citizens and the successor state

-Rule: when a state ceases to exist, so does the citizenship previously conferred on its inhabitants -Doctrine of Habitual Residence: successor state confers its citizenship on those who were citizens of the succeeded state -The successor state may not force its citizenship on individuals, especially within an occupied state (ex. US in Iraq; Israel in the Occupied Territories)

Negotiation of treaties

-State representatives must meet at a conference to hash out the terms of a treaty -State reps must have authority to negotiate, or treaty is invalid

International Criminal Court (ICC)

-The Rome Statute (1998): created the first global international criminal court -121 members (as of December 2012) -7 nations voting against the treaty: China, Iraq, Israel, Libya, Qatar, US, and Yemen -Purpose: to try individuals accused of: 1) "genocide" as defined in the Genocide Convention 2) international and internal "war crimes" committed as a plan or policy or large-scale commission 3) "crimes against humanity": widespread or systematic plan/policy directed against civilians 4) aggression (jurisdiction effective in 2017) -applies only to individuals, not corporations -can only prosecute crimes after July 1, 2002 -no death penalty -primary responsibility to investigate/punish crimes is left to individual states -a case cannot be heard when a state with jurisdiction is already investigating the crime unless state is unwilling/unable to investigate the crime or to carry out the prosecution in good faith

Collective Recognition

-The UN does not recognize states-->admission into the UN does not constitute recognition -Ex. 2008 Russian-Georgian War -EU recognition requirements: 1) respect for UN charter 2) guarantee human rights protection for minorities 3) respect for inviolability of frontiers 4) acceptance of international commitments regarding disarmament and nuclear nonproliferation 5) must commit to arbitration of all disputes regarding succession issues

US position on the ICC

-US is not a party to the treaty ("unsigned" in 2002) -American Service-Members' Protection Act (2002): bans US involvement in the arrest and extradition of persons, seizure of property, and the taking of evidence; no ICC agent may conduct an investigation in the US, even if the accused is not a US citizen

Scholarly writings (as a source of international law)

-Writings memorialize historical and contemporary developments and trends in state practice -Courts usually look to the most recognized publicists, who are perceived to be neutral, to avoid bias in the authors' perspectives

The United Nations

-a "public" international organization -does not have "supranational" power -based on the principle of "sovereign equality" -based on the principle of "nonintervention" -possesses legal capacity in international law (the capacity to sue or bring a claim in court; can only bring a claim if the injury of one of its agents was in the service of the UN) -PURPOSE: to maintain international peace and security through the means of collective security

Peremptory Norms (jus cogens)

-a fundamental principle of international law which is accepted by all states as a norm from which no derogation is ever permitted (waging aggressive war, crimes against humanity, war crimes, maritime piracy, genocide, apartheid, slavery and torture) -any treaty that conflicts with a peremptory norm is invalid (Art. 53 of the VCLT)

Special Court for Sierra Leone

-a hybrid UN/national court located in Freetown, Sierra Leone (local and international judges) -to "try those who bear greatest responsibility" for the war crimes and crimes against humanity committed in Sierra Leone after November 30, 1996, during the Sierra Leone Civil War -9 conventions, 21 indictments so far (including Charles Taylor)

ICJ functions

-a trial court, not an appellate court -no judicial review of SC action -no bailiff or prison system to detain defendants

US's position on ICJ

-accepted ICJ's jurisdiction in 1946 -any withdrawal by US requires 6 months notice -withdrew its general acceptance of ICJ jurisdiction in 1985 (Nicaragua Case)

Effects of succession on the successor state #1: treaty obligations of extinct state

-bilateral treaty obligations: no general rule; political treaties generally cease to exist unless a merger (ex. alliances, neutrality or trade treaties) -multilateral treaty obligations: survive succession if rooted in CIL (ex. Genocide Convention, 1982 LOS treaty)

ICJ advisory opinions

-cases in which no state is a party -state consent not required -SC, GA, or other specialized UN agency may request an advisory opinion

Nonrefoulment

-duty of non-return: states can't forcibly return refugees to home state if their life is in danger -applies only to aliens physically present in the host country -1951 Convention relating to the Status of Refugees -1967 UN Protocol relating to the Status of Refugees

Tokyo Tribunal (1945)

-eleven nations of the Far East and the US -tried and convicted 25 Japanese war criminals

Rwanda Tribunal (ICTR) (1994)

-established by the UNSC -located in the Arusha, Tanzania -to try persons responsible for genocide, crimes against humanity and war crimes committed against Tutsi minority by the ruling Hutu majority in 1994 -crimes of genocide, rape, torture, and force explosion -impartial tribunal: not composed of victors' judges -death penalty not allowed -pace of trials is too slow -Jean Kambanda

Yugoslavia Tribunal (ICTY) (1993)

-established by the UNSC (Res. 827) -located in the Hague (next to the ICJ) -to try persons responsible for serious violations of humanitarian law committed in the FRY since 1991 -crimes of murder, rape, torture, and ethnic cleansing -impartial tribunal: not composed of victors' judges -death penalty not allowed -Milosevic

ICC jurisdiction

-in cases where the accused in a national of a state party -the alleged crime took place on the territory of a state party -a situation is referred to the court by the UNSC

Stare Decisis (ICJ)

-no stare decisis in the ICJ: decisions legally bind only the immediate parties to a dispute

Permanent Court of International Justice (PCIJ)

-predecessor to the ICJ -established by the Covenant of the League of Nations in 1922 -From 1922-1946, the PCIJ delivered 29 cases between states and 27 advisory opinions (although its activity effectively ceased in 1940 due to WWII) -seated at the Peace Palace in the Hague (like the ICJ)

UN Secretariat

-purpose: administers all UN programs -Secretary-General: appointed by the GA on SC's recommendation (cannot be a national of a Permanent Member); unlimited number of 5-year terms -SG engages in "preventative diplomacy" -SG may bring to attention of SC any matter which may threaten international peace and security

Optional Clause ("Noncompulsory Jurisdiction")

-states must consent to ICJ jurisdiction -states may consent at any time -a "national declaration" to accept ICJ's jurisdiction: a) unconditionally, b) for a limited time, or c) on the condition of "reciprocity" (ex. Norwegian Loans case)

SC actions from 1945-1990

1) Condemned the North Korean invasion of the Republic of South Korea (ROK) with UNSC Resolution 82 in 1950 (despite USSR boycotting the meetings because Taiwan, not China, was holding the permanent seat); Truman ordered US air and sea forces to help the South Korean regime. SC passed Resolution 83 recommending member-state military assistance to ROK 2) Resolution 143 in 1960 called upon Belgium to withdraw its troops from the Republic of the Congo and authorized the Secretary-General to provide the Congo gov't with military assistance to protect its territory 3) Resolution 221 in 1966 called upon all states to ensure the diversion of vessels reasonably believed to be carrying oil destined for Southern Rhodesia and upon the UK to prevent, by force if necessary, the arrival at Beira of vessels believed to be carrying oil destined for Southern Rhodesia

Treaty termination

1) Express consent: treaties often terminate or expire on their own terms 2) Implied consent: If a later treaty is silent about the continued validity of a previous treaty on the same subject, then the earlier treaty is terminated by implied consent. If the parties ignore the treaty it is terminated. 3) Material breach: A material breach of a treaty by one party may allow the other parties to consider the treaty suspended or terminated 4) Impossibility: a treaty may be terminated if there is a permanent disappearance or destruction of an object indispensable for the treaty's execution 5) Conflict with a peremptory norm: a treaty is void if it conflicts with a peremptory norm (ex. jus cogens, a fundamental UN Charter article)

The ICC has opened investigations into 8 situations

1) Northern Uganda (referred by state party) 2) Democratic Republic of the Congo (referred by state party) 3) Central African Republic (referred by state party) 4) Darfur (SC) 5) Kenya (ICC prosecutor) 6) Libya (SC) 7) Cote d'Ivoire (ICC prosecutor) 8) Mali (referred by state party) -has indicted 30 people, 10 of whom remain at large as fugitives, 5 are in custody, 4 have been dismissed, proceedings against 6 have been completed

Acquiring Nationality

1) Parents (just sanguinis or "blood rule") (passive) 2) Birth (jus soli or "soil rule") (passive) 3) Naturalization (active)

Exceptions to Jurisdiction under US Law

1) Political Question Doctrine -the judicial branch of government should not resolve controversies that fall within the province of the political branches of government (executive and legislative branches) 2) Art of State Doctrine -avoids the judicial resolution of challenges to the conduct of foreign leaders or governments within their own territory (Sabbatino case) -Hickenlooper Amendment (courts are not to apply the act of state doctrine as a bar against hearing cases of expropriation by a foreign sovereign)

ICC investigation may be commenced by...

1) SC resolution 2) a state party to the Rome Statute 3) the ICC Prosecutor

Organs of the UN

1) Security Council 2) General Assembly 3) Economic and Social Council 4) Secretariat 5) ICJ 6) Trusteeship Council

Nuremberg Principles

1) a state who wages "aggressive" war commits the supreme international crime 2) the crime of aggression is punishable by any nation who is able to bring the perpetrators to justice 3) the responsible leaders incur "individual" criminal liability directly under international law

Reasons of the League of Nation's failure

1) failure of collective security outside Europe -Japan's invasion of Manchuria in 1931 -Italy's invasion of Ethiopia in 1935 2) US refusal to join the league due to "isolationism"

The "Duty to Remain Neutral"

1) not taking sides or assisting either party to a conflict (ex. French troops in Mali in 2013) 2) not allowing its territory to be used as a base for hostilities by either side to a conflict 3) not acquiescing to restrictions imposed by the parties (ex. Switzerland complying with Nazis during WWII) 4) accepting responsibility under international law for any violation of its duty of neutrality

Extraterritorial Jurisdiction

1) the state's legal capacity to prohibit or regulate conduct beyond its national borders 2) a state's illegal exercise of sovereign power beyond internationally recognized limits

Sources of international law

1. International conventions and treaties 2. International custom 3. General Principles 4. Judicial Decisions 5. Scholarly Writings 6. UN Resolutions Note: Art. 38.1 of the Statute of the ICJ incorporates sources 1-5

Thirty Years War

1618-1648 -France emerged as a great power in Europe -Monarchies replaced the Holy Roman Empire -Ended in the Peace of Westphalia

Peace of Westphalia

1648 -Formal establishment of the nation-state system -Established right of states to choose their own religion -Enshrined the concepts of "state sovereignty" and "territorial integrity" -Established the right of noninterference by other states

The Concert of Europe

1815-1878 -European powers met to settle problems -Shift from bilateral to multilateral diplomacy -Introduced concepts of collective action and special status for "great powers"

The Hague Conferences

1899 and 1907 -Created first international legal mechanisms: Convention for the Pacific Settlement of Disputes Permanent Court of Arbitration Commissions of inquiry to handle international claims -Established the principle of "universality"

Entry into force

A provision in a multilateral treaty to ensure that an agreed minimum number of states ratify it before it's activated

Good faith performance (pacta sunt servanda) of treaties

A state must not act in a way that would frustrate the purpose of the treaty (tardiness in asserting objections; inconsistent international legislation)

Reservations to a treaty

A state's unilateral variation from the language of a general term contained in the text -no reservations in bilateral treaties -1951 ICJ Reservations Case (Genocide Convention): reservations must be compatible with the objects and purpose of the treaty

Alien Torts Claim Act (1789)

Allows a civil suit in US court between foreign citizens for human rights violations committed abroad -"The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States" -Defendant must be served in the US -Parties must be aliens -Must be a violation of a "well-established, universally recognized norm of international law," such as piracy, genocide, torture, war crimes, crimes against humanity, and extrajudicial killing

Restrictive Immunity

An entity owned or operated by the state in a "commercial" or "private" capacity is not immune

The G4 Nations

Brazil, Germany, India, Japan Bidding for permanent seats on the Security Council

UN Charter Chapter VII

Chapter VII: Procedure for authorizing the use of force 1) Article 39: SC determines the existence of any threat to the peace, breach of the peace, or act of aggression 2) Article 41: SC authorizes the use of nonmilitary measures to restore international peace and security (economic sanctions, sever diplomatic ties) 3) Article 42: If SC determines Art. 41 measures to be inadequate, it may authorize the use of military force to restore international peace and security

Augusto Pinochet

Chile -1970: Salvador Allende elected President -1970-73: US-owned copper mines were nationalized -1973 military coup (Allende overthrown by Pinochet) -1973-1980: human rights violations -1988: Pinochet voted out of office -1999: extradited from UK to Spain and then Chile -2006: Pinochet dies in custody before trial

Invalidity of a treaty

Coercion or unequal bargaining power in the treaty process invalidates the legality of the treaty (VCLT Article 53: a treaty is void if it has been procured by the threat or use of force)

Asylum Case (ICJ 1950)

Columbia granted asylum to a Peruvian, accused of taking part in a military rebellion in Peru. Was Columbia entitled to make a unilateral and definitive qualification of the offence (as a political offence) in a manner binding on Peru and was Peru was under a legal obligation to provide safe passage for the Peruvian to leave Peru?https://ruwanthikagunaratne.wordpress.com/2014/03/02/asylum-case-summary/

State

Def: a "person" of international law that enjoys special rights and obligations in international relations 4 elements of statehood: 1) a permanent population -can be small and transient -an express grant of nationality not required 2) a defined territory -need not be fixed by definite boundaries (ex. the US during the 1800's) 3) an effective government -civil authorities must be able to assert control over the population/territory without foreign assistance (ex. responsibility for external security, control over airspace, security responsibility at all border crossings and terminals) 4) a capacity to enter into relations with other states -the most important criterion for statehood -only the "national" government has the capacity to engage in foreign relations (ex. Massachusetts Burma Law Case)

International custom (as a source of international law)

Def: an established practice accepted by many nations; can be regional or universal 4 elements to establish CIL: 1) duration or passage of time 2) substantial uniformity or consistency of usage by states 3) generality of the practice, or degree of abstention 4) opinio juris: international recognition that the custom is binding (most important)

Treaty

Def: an international agreement in writing and governed by international law -made between states and international organizations -bilateral treaty: establishes mutual rights and obligations between two states affecting only them (ex. extradition) -multilateral treaty: international agreement among three or more states (ex. UN Charter, GATT, OAS treaty)

Self-executing treaty

Def: an international agreement requiring no further action to impose binding obligations on its signatories -Instantly incorporated into both international law and the internal law of each treaty member by the express terms -Bilateral treaties are usually self-executing -No individual state can enact conflicting legislation (ex. Asakura v. City of Seattle)

Declaration of intent

Def: an international agreement that sets forth a standard of achievement for all parties -requires individual state action after signing treaty -Multilateral treaties aren't self-executing (ex. UN Charter)

International conventions and treaties (as a source of international law)

Def: an international written agreement of rights and obligations concluded between states and governed by international law (ex. The UN Law of the Sea; the OAS Charter) -a treaty may bind nonparties as a matter of CIL if it codifies the general practice of many nations

Succession

Def: one state takes over the territory or government of another state, which ceases to exist Methods of succession: 1) Conquest (Iraq's invasion of Kuwait, 1990) 2) Merger (East and West Germany in 1990) 3) Occupation -US invasion of Iraq (2003) -Turkish occupation of Northern Cyprus (36 years) 4) Independence and partition (India/Pakistan, 1947)

Recognition

Def: one state's willingness to establish official relations with another State or government Three types of recognition: 1) the decision to recognize another "state" -recognized state fulfills the criteria for statehood (de facto) -states recognize "equality" or international legal personality of another state (de jure) note: recognition by other states plays no role in whether an entity is, in fact, a state 2) the decision to recognize the new government of another state (China v. Taiwan; Palestinian Authority) 3) the decision to recognize a condition of belligerency or rebellion in another state (Syrian rebels?); third-party state must remain neutral

General Principles (as a source of international law)

Def: principles of national law that are generally applied by many nations -serve as stopgaps for judges where treaties/CIL fail (ex. equity, good faith, judicial independence)

Secession

Def: the break-up of a state to achieve independence Rule: states that have seceded from others enjoy a "clean slate" except for certain treaties that embody CIL

Sovereignty

Def: the exclusive right of a state to govern the affairs of its citizens and to be free from external control -each state should render and receive equality and respect

Jurisdiction

Def: the legal capacity of a state to make, adjudicate and enforce the law when there are violations within its boundaries

Self-determination

Def: the right of an indigenous population to choose self-governance or some form of autonomy (ex. decolonization in Africa in the 1960's)

Nottebohm Case

Does a state have to recognize other state's nationality?Nottebohm, born September 16, 1881, in Hamburg, Germany, possessed German citizenship. Although he lived in Guatemala from 1905 until 1943 he never became a citizen of Guatemala. On October 9, 1939, Nottebohm applied to become a naturalized citizen of Liechtenstein. The application was approved and he became a citizen of Liechtenstein. He then returned to Guatemala on his Liechtenstein passport and informed the local government of his change of nationality. When he tried to return to Guatemala once again in 1943 he was refused entry as an enemy alien since the Guatemalan authorities did not recognise his naturalisation and regarded him as still German. It has been suggested that the timing of the event was due to the recent entry of the United States and Guatemala into the Second World War. He was later extradited to the United States, where he was held at an internment camp until the end of the war. All his possessions in Guatemala were confiscated. After his release, he lived out the rest of his life in Liechtenstein. The Government of Liechtenstein granted Nottebohm protection against unjust treatment by the government of Guatemala and petitioned the International Court of Justice. Although the Court stated that it is the sovereign right of all states to determine its own citizens and criteria for becoming one in municipal law, such a process would have to be scrutinized on the international plane where the question is of diplomatic protection. The Court upheld the principle of effective nationality, (the Nottebohm principle) where the national must prove a meaningful connection to the state in question.

North Sea Continental Shelf Case

Facts: Denmark and the Netherlands argued that the method of equidistance should be implemented. This is that each State claimed all areas that are closer to itself than any other state. They claimed that the Geneva Convention supported this method. Moreover, it was alleged to have been an a priori rule of law, a rule of customary international law, and a general rule of conventional practicality.Germany, who had not ratified the Geneva Convention, claimed that the rule of equidistance was unfair. The State also argued for an apportionment of the shelf that was proportional to the size of each state's adjacent land. Holding: The use of the equidistance method had not crystallised into customary law and was is not obligatory for the delimitation of the areas in the North Sea related to the present proceedings. Holding: Delimitation was to be effected by agreement in accordance with equitable principles and taking account of all relevant circumstances

Corfu Channel Case (ICJ 1949)

Facts: October 22nd, 1946: two British cruisers and two destroyers entered the North Corfu Strait; one struck a mine and was gravely damaged; the other destroyer was sent to her aid and, while towing her, struck another mine and was seriously damaged. After the explosions of October 22nd, the UK sent a note to Tirana announcing its intention to sweep the Corfu Channel; the reply was that consent would not be give unless the operation took place outside Albanian territorial waters. The sweep took place on November 12th/13th 1946 in Albanian territorial waters; 22 moored mines were cut Holdings: Albania was responsible for the explosions and must pay compensation. The UK did not violate Albania's sovereignty on the day of the explosions, but it did violate Albania's sovereignty on November 12th/13th

The Rainbow Warrior Affair

France admitted responsibility for the bombing by some of its agents of a Greenpeace ship in a harbor in Auckland, New Zealand

The Elian Gonzalez Affair

González's mother drowned in November 1999 while attempting to leave Cuba with her son and her boyfriend to get to the United States. The U.S. Immigration and Naturalization Service (INS) initially placed González with maternal relatives in Miami, who sought to keep him in the United States against his father's demands that González be returned to Cuba. A federal district court's ruling that only González's father, and not his extended relatives, could petition for asylum on the boy's behalf was upheld by the 11th Circuit Court of Appeals. After the U.S. Supreme Court declined to hear the case, federal agents seized González from his relatives and returned him to Cuba in June 2000.

Fisheries Jurisdiction Case (ICJ 1973)

Iceland's (D) claim to a 12-mile fisheries limit was recognized by the United Kingdom (P) in 1961 in return for Iceland's (D) agreement that any dispute concerning Icelandic fisheries jurisdiction beyond the 12-mile limit be referred to the International Court of Justice. An application was filed before the I.C.J. when Iceland (D) proposed to extend its exclusive fisheries jurisdiction from 12 to 50 miles around its shores in 1972. By postulating that changes in circumstances (rebus sic stantibus) since the 12-mile limit was now generally recognized was the ground upon which Iceland (D) stood to argue that the agreement was no longer valid. Iceland (D) also asserted that there would be a failure of consideration for the 1961 agreement. Holding: In order that a change of circumstances may give rise to the premise calling for the termination of a treaty, it is necessary that it has resulted in a radical transformation of the extent of the obligations still to be performed. The change of circumstances alleged by Iceland (D) cannot be said to have transformed radically the extent of the jurisdictional obligation that was imposed in the 1961 Exchange of Notes.

Individuals pre-WWII

Individuals had rights and obligations arising only under national law

Universality Principle

Jurisdiction based solely on the nature of the crime, covering those crimes considered to be committed against all nations (genocide, torture, piracy, slavery, war crimes) -Israel v. Eichmann

Protective Principle

Jurisdiction if conduct threatens the security, territorial integrity, or political independence of the State -permits prosecution of citizens and non citizens outside State -there need not be any actual "effect" within the state -most states do not use this basis of jurisdiction unless accompanied by another principle

Does international law have teeth?

No enforcement mechanism other than the will of the states; BUT observance is in every state's interest to avoid chaos

Omar Hassan Ahmad al-Bashir

On July 14, 2008, the prosecutor of the ICC, Luis Moreno-Ocampo, asked for an arrest warrant for Sudanese President, Omar Hassan Ahmad al-Bashir, for the crimes of genocide, crimes against humanity, and war crimes in Darfur. The motives of the Sudanese head of state were "above all, political," the prosecutor declared. He used the "alibi" of counterinsurgency in order to try "to end the history of the Fur, Masalit, and Zaghawa people." In fact, "his intent was genocide."

Barcelona Traction, Light, and Power Case (1970)

On behalf of Belgian nationals (P) who had invested in a Canadian corporation, Belgium (P) sued Spain (D) on the premise that Spain (D) was responsible for acts in violation of international law that had caused injury to the Canadian corporation and its Belgian shareholders (P). Belgium (P) claimed Spain (D) should be held accountable for the injury to a Canadian corporation operating in Spain. The International Court of Justice held that Belgium had no legal interest in the matter to justify it bringing a claim (no jus standi). Although Belgian shareholders suffered if a wrong was done to the company, it was only the company's rights that could have been infringed by Spain's actions. It would only be if direct shareholder rights (such as to dividends) were affected, that the state of the shareholders would have an independent right of action. It was a general rule of international law that when an unlawful act was committed against a company, only the state of incorporation of the company could sue, and because Canada had chosen not to, this was the end.

Asakura v. City of Seattle

Plaintiff is a Japanese citizen living in Seattle and working as a pawnbroker. Seattle passed an ordinance which took effect July 2, 1921 making it unlawful for anyone without a license to be a pawnbroker, and to get a license you have to be a US citizen. Plaintiff attacked the ordinance on the grounds that it violates the treaty between the US and Japan, proclaimed April 5, 1911, violates the constitution of the state of Washington, and also the due process and equal protection clauses of the 14th amendment of the US constitution (treaty grants Japanese citizens in the US the right to carry on trade) Holding: Superior Court of King County rules that the ordinance violates the treaty. Supreme Court later reverses this decree.

International Court of Justice

Purpose: to resolve disputes and give advisory opinions that arise under International Law ("to substitute the courtroom for the battlefield") -Noncompulsory jurisdiction: states must consent -UN Charter (Arts. 92-96) 1) all UN members are automatically parties to the statute of the ICJ (Art 93.1) 2) members must comply with ICJ decisions in which it consents to be a party (Art 94.1) 3) SC may undertake enforcement measures if a state fails to comply with an ICJ decision

Kiobel v. Royal Dutch Petroleum (US 2012)

Question Presented: whether a corporation can be held liable for violations of the law of nations such as torture, extrajudicial executions or genocide in the same manner as a private party defendant under the ATS for such egregious violations? -Esther Kiobel (a US resident) and other Ogoni asylees sued Shell corporation under the Alien Tort Statute (ATS; interpreted by the Supreme Court to allow federal lawsuits for modern-day egregious international law violations); alleged that Shell planned, conspired, and facilitated the Nigerian government's extrajudicial executions, crimes against humanity, and torture against the Ogoni people -Supreme Court decided against the Plaintiffs, finding: 1) that it would be implausible to suppose that the First Congress wanted to make the US a "uniquely hospitable forum for the enforcement of international norms" 2) the presumption against extraterritoriality applies to claims under the ATS

"Wet Foot, Dry Foot" policy

Rule: a Cuban caught in the waters between the two nations (i.e., with "wet feet") would summarily be sent home or to a third country unless there is a genuine fear of persecution. One who makes it to the shore ("dry feet") gets a chance to remain in the US and may qualify for expedited "legal permanent resident" status and eventually US citizenship

Effects of succession on successor states #4: succession of governments

Rule: a new government may not claim a "clean state" (governments are not international persons)

Julian Assange

Since December 2010, Assange has been subject to a European Arrest Warrant in response to a Swedish police request for questioning in relation to a sexual assault investigation. In June 2012, following final dismissal by the Supreme Court of the UK of his appeal against enforcement of the European Arrest Warrant, Assange has failed to surrender to his bail, and has been treated by the UK authorities as having absconded. Since June 19, 2012, he has been inside the Ecuadorian embassy in London, where he has since been granted diplomatic asylum. The British government intends to extradite Assange to Sweden under that arrest warrant once he leaves the embassy, which Assange says he fears may result in his subsequent extradition to the United States to face charges over the diplomatic cables case. UK V. ECUADOR?

Signature of a treaty

State rep. who signs a multilateral treaty agrees in principle to the general wording of the articles in the text on behalf of the state or international organization

ICJ Reservations Case

The Convention on Genocide was unanimously adopted by the United Nations in 1951. Several states, including the U.S., made reservations to one or more of its provisions. An opinion as to whether a party could express reservations and still be considered a signatory was laid before the International Court of Justice. Holding: A reservation to the UN Convention on Genocide may be effected by a state and still be considered a signatory thereto.

Case Concerning the Military and Paramilitary Activities In and Against Nicaragua: US v. Nicaragua (ICJ 1985-86)

The ICJ ruled in favor of Nicaragua and against the United States and awarded reparations to Nicaragua. The ICJ held that the U.S. had violated international law by supporting the Contras in their rebellion against the Nicaraguan government and by mining Nicaragua's harbors. The United States refused to participate in the proceedings after the Court rejected its argument that the ICJ lacked jurisdiction to hear the case.

The Eastern Greenland Case

The Ihlen Declaration was a statement made on July 22, 1919 by the Norwegian Foreign Minister, Nils Claus Ihlen, on the topic of Denmark's sovereignty over Greenland, in which Mr. Ihlen declared verbally to the Danish Minister that "...the plans of the Royal [Danish] Government respecting Danish sovereignty over the whole of Greenland ... would be met with no difficulties on the part of Norway." The declaration became an issue when the question was raised whether or not the statement was binding on Norway. The question eventually went all the way to the Permanent Court of International Justice in the form of the Eastern Greenland Case in 1933. The Court declared that the Ihlen declaration constituted an unconditional and definitive promise.

The Cod Wars (1950s and 1970s)

The conflict ended in 1976, when the UK accepted a 200-nautical mile Icelandic exclusive fishery zone. An agreement was reached between the UK and Iceland where the UK would accept the Icelandic annexation while receiving a temporary allowable catch for its fishing fleet. Iceland achieved its overall aims, to the detriment of the already declining British fisheries, severely affecting the economies of northern fishing ports in the UK

Ratification of a treaty

The final step in the multilateral treaty process whereby an individual state or international organization expressly accepts all or a portion of a draft treaty

Public international law

The law of nations; a body of rules that nations consider to be binding in their mutual relations; based on the "consent" of the nation-state

World Court Draws New Peru-Chile Maritime Border (ICJ 2014)

The line drawn by the ICJ ended decades of debate about how to carve up some 38,000 square kilometers of fish-rich waters off the coasts of the neighbors

Myanmar Sanctions Case WTO Case WT/DS88

The state of Massachusetts passed a government purchasing law in 1996 barring companies doing business with Myanmar from bidding for major public contracts. The military government of Myanmar (formerly Burma) has been recognized by many human-rights groups and the U.S. State Department as an egregious violator of basic human rights. In 1997, The European Community and Japan initiated dispute-settlement consultations with the U.S., arguing that the Massachusetts legislation violated provisions of the WTO Agreement on Government Purchasing (AGP). They also argued that it was unfair to foreign investors under the WTO Agreement on Trade-Related Investment Measures (TRIMS) The WTO challenge was allowed to lapse in 2000 because two U.S. courts had struck down the Massachusetts law as an unconstitutional restriction by a state of federal foreign-policy prerogatives. The courts also cited the WTO challenge in their rulings. The two cases were filed by the National Foreign Trade Council, a private-sector body which represents many of the most important U.S. multinational businesses.

Registration of a treaty

Treaty is sent to UN Secretariat or appropriate international organization for public dissemination (to avoid secret treaties)

Sale v. Haitian Centers Council, Inc. (US 1993)

U.S. Law - INA § 243(h)(1) provides that "[t]he Attorney General shall not deport or return any alien . . . to a country if the Attorney General determines that such alien's life or freedom would be threatened in such country . . ." ● Article 33 of the United Nations Convention Relating to the Status of Refugees provides that "[n]o . . . State shall expel or return ('refouler') a refugee . . . to . . . territories where his life or freedom would be threatened . . . and that [t]he benefit of the present provision may not . . . be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is [located]" ● Neither 243(h) nor Article 33 limits the President's power to order the Coast Guard to repatriate undocumented aliens intercepted on the high seas. ● Asylum seekers must arrive in territorial waters of U.S. and request asylum to avoid return

Special Maritime and Territorial Jurisdiction (SMTJ)

Under this statute, the US has jurisdiction over crimes committed on a ship if: 1) the ship, regardless of flag, is a US-owned vessel, either whole or in part, regardless of the nationality of the victim or the perp 2) the crime occurs in the US territorial sea (within 12 miles of the coast), regardless of the nationality of the vessel, the victim, or the perp 3) the victim or perp is a US national on any vessel that departed from or will arrive in a US port

Exceptions to Extradition

Valid reasons why states refuse to honor an extradition request: 1) political offense exception: extradition can be denied when requested state classifies the crime as a political offense ("ambigious) 2) human rights exception: extradition can be denied where the laws of the requesting state are perceived to violate human rights (ex. death penalty in the US)

Charles Taylor

Was elected president of Liberia in 1997. Taylor's rebel army played a major role in Liberia's bloody civil war of 1989 to 1996. Taylor also reportedly aided a rebel movement in neighboring Sierra Leone beginning in the 1990s. In 2006 Taylor was arrested and faced an international tribunal on 11 counts of war crimes for his role in aiding the Sierra Leone rebels. He went on trial at The Hague in June 2007. He was found guilty in April 2012 of all 11 charges levied by the Special Court, including terror, murder and rape. In May he was sentenced to 50 years in prison.

Change in circumstances (rebus sic stantibus)

When circumstances beyond the control of the parties necessitate the suspension or termination of a treaty (ex. Fisheries Jurisdiction Case) Test: 1) Change must be unforeseeable at time treaty is signed 2) Must involve a radical change in obligation for the party seeking to suspend the treaty 3) There must still be obligations to perform 4) Does not involve land boundaries

Private international law

a body of substantive law that a nation applies to private transactions that involve two different states (ex. breach of contract suit between corporations or individuals from different countries) NOTE: states are not required to defend the interests of their citizens in private international disputes

Principle of Effective Nationality

a legal bond having as its basis a social fact of attachment, a genuine connection of existence, interests and sentiments, together with the existence of reciprocal rights and duties

Nationality Principle

a state may regulate the conduct of its citizens, even if conduct occurs outside the state (ex. Americans traveling to Cuba prohibited)

1969 Vienna Convention on the Law of Treaties (VCLT)

deals only with written state treaties

1986 Vienna Convention on the Law of Treaties Between States and International Organizations

deals with states and international organizations

Individuals post-WWII

individuals had rights and obligations arising under international law (ex. Nuremburg & Tokyo War Crimes Tribunals)

"Persons" with standing

international organizations, nations, NGOs, corporations, and individuals

Passive personality principle

jurisdiction based on the nationality of the victim when the crime occurs outside the prosecuting state's territory -results in the potential prosecution of anyone, anywhere in the world, who harms citizens of the prosecuting state -the least applied jurisdictional principle (Lockerbie bombing)

Absolute immunity

total immunity from suit in other states -heads of state not subject to any civil or criminal prosecution during and after leaving office for acts while in office (exceptions: Noriega, Pinochet, Milosevic, Omar al-Bashir, Charles Taylor)