International Law

Treaties

"Covenant" or "charter" or "international convention" Treaty generally used to cover the binding agreements between subjects of international law that are governed by international law. U.S. usage In the United States "treaty" refers to an agreement that must be sent to the Senate for advice and consent pursuant to Article II of the Constitution. In concluding an international agreement, the states concerned may sometimes create only political commitments. Thus, it is necessary to consider whether a particular agreement actually contains legally binding rights and obligations.

representativeness and consistency of a state practice

"For a rule of general customary international law to come into existence, it is necessary for the state practice to be both extensive and representative. It does not, however, need to be Universal."

Vienna Convention

"Treaty" means an (1) international agreement concluded (2) between States (3) in written form and (4) governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation THIS CAN INCLUDE MINUTES WRITTEN BETWEEN STATES see Maritime Delimitation. There need not be a formal process. The Vienna Convention - the treaty on treaties - only applies to written and signed treaties between states - Recognizes that non-written treaties may have legal force and that the Convention is not retroactive - Treaties are binding on signatories but cannot bind third parties (unless elevated to custom) Those agreements that fall outside the scope of the convention are not barred, just not regulated by the Convention and are subject to customary law or other international treaties/agreements Contract law not goverened by int'l law. If agreement governed by law of state, is it int'l?

Pacquete Habana

"Where there is no treaty and no controlling executive or legislative act or judicial decision, resort must be had to these customs and usages of civilized nations, and, as evidence of these, to the works of jurists and commentators who by years of labor, research, and experience have made themselves peculiarly well-acquainted with the subjects of which they treat. "by the general consent of the civilized nations of the world, and independently of any express treaty or other public act, it is an established rule of international law . . ." When determining custom, courts consider a wide range of state practice. State practice includes "conduct of the state, whether in the exercise of its executive, legislative, judicial, or other functions." (Unless contrary domestic law or treaty, follow int'l law customs)

Soft Law

(recommendations, resolutions, declarations) According to charter, UN may make recommendations to the Members of the United Nations - Despite this, the UN often speaks as though it has the authority of law (All states shall; Each state must) - Normative value (clarify treaties or influences customary law) - While these recommendations/resolutions are not a new source of international law, it clarifies or adds to existing law, such a treaties - Is it more than just persuasive authority? Is it evidence of international law? The GA interprets its charter as well as terms and phrases in treaties (and that can certainly shape and define law) o Soft law - things that may have normative value § Could have interpretation of binding treaty or customary int'l law · Can help clarify what each of these require of states § So, non-binding declarations can still be influential

Nationality (as grounds for legislative jurisdiction)

- - also universally recognized (as is jursidction above) - has jurisdiction over nationals wherever they may be o If American travels to Italy, he is subject to Italian territorial law and American laws to the extent that America creates rules that apply to its abroad citizens (the law will sort of "follow him" around) o What if laws conflict? What law should apply? § The territory is more likely to be considered the default rule

Passive personality principle

- Passive personality principle - (inverse of nationality?) - when terrible things are done to state nationals abroad; can state have jurisdiction over other state actor? - More tentuous but some treaties provide for this, particularly if the acts are terrorism - Can't be run of the mill crime generally; to justify this under int'l law, there must be something unique such as an inability to prosecute (or something)

Structure of ICJ

- President judge of the icj can break ties . . . - Judges are appointed by governemnts? - Ad hoc judges can be appointed by parties to a dispute to allow at least one judge to have intimate familiarity of the laws of their country . . . (?) This can also serve the purpose of having biased judges on the court, but there are 15 judges (plus the additions?), so this bias may not manifest meaningfully—the parties will still have to convince the other judges

Presumption against extraterritoriality

- Presumption against extraterritoriality - generally, general statutes without an indication otherwise only apply to the territorial jurisdiction of the US

Examples of Jus Cogens

- Prohibition of aggressive use of force - Right to self defense - Prohibition of genocide - Prohibition of tortute - Crimes against humanity - Prohibition of slavery and the slave trade - The prohibition of piracy - The prohibition of racial discrimination and apartheid - The prohibition of hostilities or directed at civilian population WHAT HAPPENS WHEN JUS COGENS CONFLICT? NO HEIRARCHY

Universal Jurisdiction

- Universal Jurisdiction - The idea that states have jurisdiction over certain acts (like piracy, torture, genocide, slavery/trafficking, crimes against humanity) - can/must prosecute them or must extradite them to the state that will

Charming betsy cannon

- statutes without indication otherwise will not be interpreted to conflict with international law; presumption that congress is not trying to violate international law - OVERTIME, SCOTUS has focused more on the presumption against extraterritoriality and not the charming betsy cannon (but in an uneven manner) o Effects are not consistent (courts sometimes don't even mention the presumption against extraterritoriality) - And how does law apply in areas that are not technically within territory?

Charming Betsy canon

1804 - An act of Congress ought never to be construed to violate the law of nations, if any other possible construction remains. Domestic courts have to take into account domestic law and construe domestic laws as consistent if so possible · Act of congress ought never to be construed as violating the law of nations, if any other possible construction remains (John Marshall, 1804) · So, domestic courts have to take int'l law into account, and must avoid conflicts if possible o But still have to defer to Congress (Congress can violate int'l law if it wants to)

Obligation Types

2 Categories of Obligation o 1. Obligation of Conduct § Whether purpose achieved doesn't matter; legal norm just requires to be carried out o 2. Obligation of Result § Legal norm requires result to be achieved - Obligation helps to define when at fault o Fault doesn't matter to law of state responsibility *** Whether state is tangibly injured doesn't matter to whether there is a violation... - The violation is a foundational and separate question

Effects of Reservations on Custom Law

A state cannot reserve itself from a norm of international law via reservation in a covenant. BUT this does not mean that state cannot reserve such a clause; they will still be bound by the norm, however, even if they are not bound by the agreement

Paquete Habana (US 1900)

America will comply with domestic law if it expressly overrules (customary) international law - Customary law then is treated kind of like common law: it stands unless overruled by statute - Shift to dualism

Corporations

Belgium v. Spain: Countries cannot espouse claims of company due to shareholder nationality (only countries where company is incorporated can espouse claims) "bilateral investment treaties" · Treaties increasingly give corporations right to bring their own claims at int'l level (before int'l tribunals) - Decisions enforceable in violators' domestic courts o Also a push to hold corporations responsible through int'l law § Has been difficult to establish such norms - UN has issued guiding principles, but not binding (and don't go far enough) Unfair as this enables rich countries to push around small countries

· UN Convention on Law of the Sea

Codified customary law and has since become custom - o US not party - already sees itself as party to customary int'l law

Compliance and Effectiveness

Compliance - asking whether the conduct complies with legal norms Effectiveness - asking to what degree is the norm effective in changing the behavior (or solving the problem) o Something could be in compliance without being effective (especially if a norm is very loose, e.g., weak environmental law that people/companies comply with because it asks nothing of them but aren't enough to be effective at achieving end goal) o Could also have compliance that is effective at changing state's behavior, but that doesn't address the underlying problem

Binding Int'l Agreements that don't need senate approval

Congressional executive agreement (passed by both houses by majority vote) Sole executive agreement (passed by prez) o When using "treaty" in US law, talking about those int'l agreements that require Senate consent § Internationally, Congressional and Sole Executive Agreements qualify as treaties (but Cons. specifies that they go to Senate, so can't be under US law)

Four Main Possible Reasons for Compliance

Coordination, Reciprocity, Sanction, Right thing to Do **Don't look at IL norms in a vacuum; ask why would a state comply in this particular situation?

Countermeasures (in remedies)

Countermeasures - When can a state take actions that they are not normally allowed, but allowed in response to a violation? o When state takes actions in response to violation, what are the restraints on that state's actions? § Law of Countermeasures - P.516-517 - court says requirements for countermeasures are... 1. Must be taken in response to a previous international violation and directed against violator 2. Preceeded by efforts to get violating state to (re)comply or make amends 3. Effects of countermeasures must be commensurate with injuries suffered/actions taken by offending state - proportional § Must be some limit on countermeasure; can't go wild after a violation · Harm must be commensurate - Limits to countermeasures beyond commensurate harm/action o Ex. Iran hostage Situation § Commensurate would be holding Iranians hostages, which doesn't make sense... § Countermeasures comply with international legal norms, with human rights norms, etc. - But what about self-contained regimes? o Ex. international trade § What can a state do in response to a violation of provision spelled out in a treaty and that takes precedent over customary norms of countermeasures Additional requirements - ICJ - must be reversible

DEFENSES: Acts Precluding Wrongfulness of Breach

DEFENSES: - Consent - obvious; although a question can arise over who gave consent - Force Majeure - no choice - compliance materially impossible - Distress - breach or die (compliance = extreme peril) - Necessity - more open ended - Countermeasures Defenses often require good faith effort to try and obtain consent from other party

Governments (how to determine which government rules a state)

De facto Ask: which gov't can employ the resources and direct the people of the State in fulfillment of the obligations of membership? § So, must ask whether new gov't effectively has authority within territory and is obeyed by the people De Jure If the new government is weaker (governments generally achieved through coups), then states my emphasize de jure and hope to affect change Note: A state can deal with a government without having diplomatic ties or recognizing that a government is legitimate Tinco

Prosecutor v. Tadic

Determining General Principles of Law . . . USED SPARINGLY (often, treaties and custom cover it) - Only applies when gaps in treaties and customary int'l law After surveying the relevant laws in myriad jurisductions, it cannot be said that Duress affords a complete defense to a soldier charged with a crime against humanity and/or a war crime involving the killing of innocent beings (although he is less blameworthy - and this may be a mitigating factor and reduce sentencing) To determine, the court looks at a survey of the laws of those jurisdictions whose jurisprudence is accessible in an effort to discern a general trend, policy or principle underlying the concrete rules of that jurisdiction which comports with the object and purpose of the establishment of the int'l tribunal · If something is necessary part of law, where would it be expressed? o In every legal system of the world - so if it's not there, it's not fundamental principle of law

US v. Belomont

Does sole executive agreement have authority of treaty; that is, is it binding on state courts. Prez can settle claims without Congressional approval and once prez has done this, state law has to give way and Belmont is not protected by NY law. So yes, sole executive agreement overrides inconsistent state law (although not necessarily federal law - inconsistent federal law would probably win) · This was within President's authority (tied to power to recognize gov'ts), so could make the agreement o As long as valid use of Presidential authority, will override inconsistent state law

Case Concerning Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States) ICJ 1986

Due to reservation, America not bound by treaty. But does customary law law still apply? · In looking at state's actions, don't expect perfect compliance but breaches of customary rule should be seen as breaches, not starting of new rule o Especially if state uses defenses that rely on exceptions/justifications that are part of the rule § Take away from case - using exceptions to a customary rule is evidence of recognition of customary rule Practice does not have to completely align with a customary rule, but practice in contravention of the rule is a breach of the rule - and offered excuses for why confirms the existence of the rule despite action to the contrary rather than provides evidence that the norm is decreasing . . . Thus, actions in contravention don't necessarily add evidence that the custom is declining

Effects of Treaties on Customary Law

Effect of Treaties on Customary International Law three possible situations in which a treaty might relate to customary international law - where the treaty rule is declaratory of pre-existing custom - where the treaty rule is found to a crystallize customary law and process of formation - where the treaty rule influences State practice subsequent to the treaty's adoption so as to lead to formation of new customary rules. If treaties create custom law, the rules are binding on states that did not agree to the treaty

Commercial Activity (FSIA)

Either a regular course of commercial conduct or a particular commercial transaction or act. The commercial character of an activity shall be determined by reference to the nature of the course of conduct or particular transaction or act, rather than by reference to its purpose

Elements of a state

Elements of a state: (1) a permanent population, (2) a defined territory (although it seems that the frontiers of the country need not be exactly defined; or some of the borders), (3) government (stable political organization, strong enough to exert themselves), and (4) capacity to enter into relationships with other states The political existence of the state is independent of recognition by the other states. States can refuse to recognize others (i.e. Taiwan)

Establishing a custom of states (my notes)

Establishing a custom: (1) The relevant practice must be general, meaning that it must be sufficiently widespread and representative, as well as consistent. (2) Provided that the practice is general, no particular duration is required. [Look @ ways to distinguish practices that contravene the custom - X did capture fishing vessels but only because they had evidence that those vessels were harboring intelligence officers] When changing customs when states act . . . at first, the change in behavior by states will be considered a violation of international law/norms (more powerful states are advantaged by customary international law) Customary int'l law may conflict with domestic law (and that state's domestic laws do not excuse its breaching of international law). One state acting in contravention of custom does not change the custom. IF A LOF OF OTHER COUNTRIES JOIN THEM, then the law changes

· Germany v. Italy (ICJ 2012)

Even if we were to assume that prohibition of war crimes were jus cogens, there is no conflict here. There is a distinction between a law that requires or allows war crimes and laws that simply do not provide remedies for violation of the norms. o ICJ says wrong to interpret jus cogens as meaning that no non-jus cogens rule can be applied if it would hinder enforcement of a jus cogens, even with no direct conflict § Similar rulings in many national courts § So even if suits brought in Italy are about violations of jus cogens, does not affect applicability of immunity and Germany is immune from suit in Italian courts · Belgium v. Senegal and Germany v. Italy both show that jus cogens interpreted narrowly o Jus cogens consistently interpreted as being norms against certain things, not as providing remedies for violations

One w/ compulsory jurisdiction, one w/o

Exam Q: Have a dispute between two states where one has reservations to compulsory icj jurisdiction and the other does not have such reservations to compulsory jurisdiction: the reservations apply to both parties - reciprocity

Exceptions to FSIA

Exceptions to FSIA · 5 types of exception to FSIA (so, would allow P to sue a foreiegn state in US courts) o Waiver § Sovereign waives immunity (either explicitly or by implication) o Commercial activities o Expropriation of property in violation of int'l law o Rights in property in US o Noncommercial torts

Restrictive Theory of Sovereign Immunity

Foreign States will not be subject to to suit in disputes involving governmental mattes but will be subject to the court's jurisdiction in commercial matters Where is the line between governmental and commercial matters? (public v private . . . not clear)

Reservations to the Convention on Genocide

Holdings: (1) A reserving state that has been objected to by one or more parties to the convention but no others can be regarded as part of the convention as long as its reservation is compatible with the purpose of the convention (otherwise, it cannot be considered a party to the convention) The "object and purpose" test It was the compatibility of the reservation with the purpose of the convention which must furnish the criterion of the attitude of the State making the reservation, and of the State which objected thereto. (2) States objecting to the reservation could decide for themselves whether they individually recognized the reserving state as being part of the convention (that is, the state must decide if the reservation is compatible or incompatible with the purpose of the convention and then decide whether to recognize the reserving state as a party or not of the convention) - THAT SAID, a state can still object on policy grounds even if the reservation is compatible with the ends of the treaty (part of VC?) If a state is party to a convention with reservations, the state is not bound by the reserved portions of the agreement (voluntarism)

Individuals and Human Rights

Human rights law sort of pushes back on typical understanding of international laws and individuals because human rights can be recognized without espousal or the backing of your state - Human rights bodies allow humans to bring claims

ICJ decisions can be enforced

ICJ decisions can be enforced by security council, of which five powers have a veto . . .

ICJ . . . binding?

ICJ is only binding on the parties to the case and only for that case - no stare decisis - the court will often incorporate its own reasoning, though, if not the holding - ICJ opinions are "highly persuasive authority" ICJ is in a delicate positions because it has consensual jurisdiction - If nations don't like its rulings, they will refuse to recognize the jurisdiction of the ICJ

ICJ Jurisdiction

ICJ jurisdiction - (1) The parties agree the ICJ has jurisdiction (and the dispute is "real") - they can specify when and where and how the ICJ has jurisdiction with respect to the question (2) If a treaty or charter to the UN specifies that disputes arising under the treaty must be referred to the ICJ (not that many treaties require parties to use ICJ, it is just an option - and parties can reserve compulsory jurisdiction to the ICJ . . . ) (3) ICJ statute, art. 36 - Parties have recognized as compulsory the jurisdiction of the ICJ, BUT both parties have had to agree that the ICJ has compelled jurisdiction via the treaty or agreement; if one reserved, then another that recognized the compulsory jurisdiction cannot be compelled by the opposing party that is uncompelled to adjudicate in the ICJ . . .

Position of Non-Consenting States - Persistent Objectors

If whilst a practice is developing into a rule of General law, a-state persistently and openly dissents from the rule, it will not be bound by it. Two conceptually distinct situations a state or group of states which is important in a particular area of activity can, by its opposition, prevent any rule of General customary law from developing any state whatsoever can by its persistent objection, prevent an emerging rule of customary law becoming opposable to it case one is simply a manifestation of the rule that for a rule of General law to come into existence, participation in the practice must be sufficiently representative. If states of sufficient importance in the area of activity in question manifest their dissent, the requisite condition is not fulfilled case number 2 is known as the " persistent objector rule". the persistent objector rule only applies when the customary rule is in the process of emerging. The objection must be expressed, not entertained purely privately within the internal counsels of the state and it must be repeated as often as circumstances require verbal protest are sufficient there is no rule that states have to take physical action to preserve their rights

Types of customary international law

International practice Regional practice Local practice/between neighbors/two states Regional and Bilateral Customary Int'l law - Concl. 16 of the I.L.C. 1. A Rule of particular customary international law, whether regional, local or other, us a rule of customary international law that applies only among a limited number of States 2. To determine the existence and content of a rule of particular customary international law, it is necessary to ascertain whether there is a general practice among the States concerned that is accepted by them as law among themselves

Jus Cogens

Jus Cogens - Compelling law - some norms are preemptory norms that win in disputes with other laws/treaties - Some norms are so fundamental that they cannot be conflicted with - v controversial in a positive law environment; also, how can there be norms that cannot be changed? - VC: § Treaty is void if it conflicts with a peremptory norm (Art. 53) § If new peremptory norm emerges and old treaties are in conflict, the treaties terminate (Art. 64)

Kiobel

Kiobel - ATS - originally to allow federal courts to adjudicate violations of int'l law that occur on Am. soil (such as harassing a diplomat; the diplomat will have fed. recourse rather than having to rely on state courts/laws) - Corps. arguing that they are not subject to law of nations (second cir. agreed) - presumption against extraterritoriality, which applies to federal statutes, limits scope of ATS - THAT SAID, ATS is a jurisdictional statute and its cause of action stems from federal common law (thus, presumption against extraterritoriality applies to federal common law) - Jezner, you can't sue companies under the ATS either . . . Fed original jurisdiction for torts only committed in violation of the law of nations

Exhaustion of Remedies (before espousal)

Local remedies that must be exhausted must be aimed at vindicating a right not asking for a favor (begging for a favor is not necessary - no one has a right to that) You don't have to have a court at all to deal with this claims - state departmend can just proceed on espoused claims through diplomacy (when there were no courts available to ajudicate such claims) If it seems likely that your grievance will be reversed on appeal in that courts of that state, the plaintiff must appeal through the whole process. If tehre is already existing precedent on the issue, you don't have to go through all of these steps as doing so woud likely be futile - If the judicial system itself violated your rights and there is nowhere to appeal, then local remedies have been exhausted . . . but if there is an option to appeal and it seems likely that it will be reversed, then try its

Monism

Monism - int'l law and domestic law are one body of law, have same effect within country

Morrison - Presumption Against Extraterritoriality

Morrison - very strict presumption against extraterritoriality, cannot apply securities law all over the world without indication otherwise by Congress; · How are US laws applied to int'l issues? o Presume US laws only apply domestically § To rebut this, there must be clear evidence to indicate that law was intended to apply outside US o But not always applied consistently § E.g., Morrison decision, where SCOTUS said securities law could only be applied where focus was within US § Effects places under US control but not US territory are gray areas § Lack of clarity makes it hard for lower courts to apply · Some circuits always allow, some never allow

Necessity (as defense to breaches)

Necessity Gabcikovo-Nagymaros Project (Hungary v. Slovakia) - ICJ 1997 - Could Hungary changes it's mind? Was this lawful? o Necessity can be more problematic under IL as a defense because it could have a broad undermining effect - Art. 25: Necessity 1. An essential interest of state conflicting with int'l obligation 2. A grave and imminent peril to said interest 3. The only means for state to safeguard 4. Does not seriously impair essential interest of state toward which obligation exists - Hungary passes on element 1 but gets hung up on element 2 o ICJ says not convinced that there is no way avoid to environmental peril by not building dam - Art. 25 are cumulative requirements so have to meet all 4 elements o Courts generally don't like necessity as a defense

· Dakir v. Belgium (Eur. Ct. Hum. Rts. 2017)

No niqab · Here, Art. 9(1) gives freedom of religious observance · But Art. 9(2) gives gov't right to limit mainfestations of belief if o Prescribed by law o Necessary in democratic society o In the interest of public safety, public order, health or morals, or for protection of rights and freedoms of others § Must be enforcing something consistently - not just against particular group/quality · Necessary in democratic society? o Not interpreted super literally - asking is this directly related to goal and is it proportional to achieving it? o Emphasizes "margin of appreciation" for allowing states to decide what is best for them - so leaves decision to Belgium and France

Non-self executing

Non self-executing = there needs to be additional legislative action for courts to implement the treaty - "The treaty is addressed to the political branch and not the judicial branch" · For non-self-executing treaties, courts cannot implement treaty until Congress has created legislation o And then they are implementing the legislation, not really the treaty · This complicates the idea of monism o Unless self-executing, will treat as if a dualist system (Congress must create legislation before treaty is implemented)

North Sea Continental Shelf

North Sea Continental Shelf - Treaties can (1) express established custom or (2) become custom after the adoption or entry into force of the treaty by means of the subsequent practice of states . . . EVEN THOUGH the court refused to find the treaties at issue to bind Germany § Den., Neth. say this norm forming and treaty crystallized it · Also that others acting consistently with this norm, in the wake of the treaty (THESE 2 ARGUMENTS OFTEN GO TOGETHER) § ICJ finds for Germany · When the rule laid out, hesitantly proposed - so not proof of existing norm · Plus, equidistance principle only supposed to apply as default when states cannot agree or another boundary not found o If it was true norm, would be more strongly worded § Den., Neth. say a lot of states doing this now - why not enough to show norm? · Not enough to rise to level of opinio juris - just doing it because it's the easiest way § To be customary international law, the generated rule must be accepted as such by the opinio juris. In forming customary international law, the provision concerned must be of such a fundamentally norm-creating character as could be regarded as forming the basis of a general rule of law.

Obligations erga omnes

Obligations erga omnes - Owed to every other state i.e. jus cogens norms à so fundamental that they can never be violated - Owed to a group of states and established for protection of group OR owed to the international community as a whole o Ex. genocide, slavery, trafficking, etc. - How would this work in corporate setting like Barcelona Traction Case? o Where would egra omnes arise in corporate context? § Racial discrimination? § Anti-Semitism? o This is still a big question because hasn't been brought... § When is the egra omnes obligation triggered? · Allows state to bring claim even if can't show individual affected because have to show group collectively affected - States often don't raise these claims or violations because of political concerns... o Think reciprocity - don't want another country telling them what to do § Reciprocity works in more than one way... · Ex. if U.S. brings claim, then other stats can bring claims against the U.S. and the U.S. is going to consider the effect of bringing the claim - the cost-benefit analysis of it all. - Art. 48 of ARS - who EO owed to... o 1A = group of states (egra omnes to parties to the treaty) o 1B = international community as a whole (jus cogens)

Opinio Juris

Often evidenced by writings, opinions, and statutes of states Kelsen argues that opinion juris can sometimes be inferred from the constancy and uniformity of state conduct - Kelsen recognizes that this presumption is without basis in times of rapid change

Persistent objectors

Opposition to custom well known and presumably published in criminal codes Persistent objector rule . . . If a state persistently objects during the formation of a norm of international law, then that state is not bound by the custom - State must loudly object; cannot be private objections; silence implies consent (traditional approach) (creates problems for states that cannot track international law and loudly object . . . favors older, big states)

Erga Omnes . . .

Owed to everyone

Paris Agreement shenanigans

Paris looks completely different o Commits government to address climate change § Tailored to each country, but must report on its measures o Must tell other states what the commitment is and must meet the targets committed o US reduce bye 16-20% o China and India committed to reduce carbon intensity (how much industry production depends on carbon) § China: reduce by 40-45% by 2020 and by 60-65% by 2030 § India: 20-25% by 2020 and by 33-35% by 2030 o Most countries, especially in Europe, use 1990 as a baseline; we opted for 2005 because it was a worse baseline than 1990 § US - 2005, 16-20% by 2020 and 24-31% in 2025 § US - 1990, 3-8% by 2020 and 12-19% in 2025 o Three major elements § Mitigation § Adaptation § Assistance from richer to poorer countries ($100B every year as a grant) o Emissions Gap Report 2016 - current warming rate - at 1 now and will be at 1.5 by 2040 and 2 by 2060; must reduce by half by 2032 and even out by 2050 § Without Paris, we'll be at 4.5-6.0; Paris gets it to 3-3.5; and what we need is even more to get to 1.5-2.0

Practice of Non-State Actors in Creating a Custom

Practice of Non-State Actors Under the classic theory of international law, it is State practice that generates customary international law. The I.L.A. Customary International Law Report maintained traditional state-centered perspective, saying that while acts of individuals, corporations, and other non governmental bodies can contribute to practice in an extended sense (ie, by encouraging adoption of certain behavior by governments), they do not constitute State practice as such. Others have proposed conceptualising the domain of customary law formation to include non-state actors, at least in the domains in which international law has evolved to Accord rights and responsibilities to persons other than States.

· Nicaragua v. US (ICJ 1984)

Reciprocity concerns only the scope and substance of commitments entered into and not self-imposed procedure

Nuance to Opinio Juris

Remember: there is a distinction between showing that something is a practice while not being accepted that the practice is legally binding - do states comply because they think international law demands it? Or just because the state in question doesn't want to expend resources or wants to protect their own peoples in similar situations or for other selfish reasons (or just to be nice) IN THE AGE OF TECHNOLOGY (my idea) IT CAN OFTEN BE IMPORTANT JUST TO APPEAR NICE

Law of State Responsibility

Secondary Rules o Once a violation of a primary rule has been established...what happens next? LSR tells us: § When state can be held responsible § Consequences of violation § Obligations of breaching state - If there is/might be a violation of primary rule, the secondary rule lays out rights of injured state and breaching state.

Steps for ratifying a treaty

Signing does not ratify the treaty but it does show approval of the treaty . . . 1. Authority of representatives Article 7 - Full powers - President, Minister of Foreign Affairs - presumed to have authority - cannot use domestic law to get out of foreign agreements (arguing that minister did not have authority won't work - if someone acting beyond scope, that's an internal problem if they have the authority according to int'l law) 2. Means of expressing Consent -- Article 11 -- signature itself does not conclude the passing of a treaty; you can sign a treaty and not ratify it because (depending on the state) there must still be domestic ratification BUT, states can accept treaties however they want, in whatever way they lay out. AND THIS MAY DIFFER FOR BILATERAL TREATIES

Sole Exec. Agreement

Sole Executive Agreement: no Congressional approval required! - (Only for legal areas that are under the command of the executive; litigated the most, but most fail on standing)

Effects of Reservation

State cannot be bound without its consent, so no reservation can be effective against a state without its consent . . . it will either assent to reservation or object - UNLESS reservation is provided for by treaty, in that case, parties will be bound even if state reserves Reserving country bound by non-reserved articles to all those that accepted (or did not object to reservation within a reasonable time). Neither party is bound with respect to the other regarding the reserved articles. States that object to the reservation (on the basis of compatibility to the object and purpose of the treaty) can decide not to bound with respect to the treaty toward the reserving party - if so, the treaty does not exist between the parties provided the objection was communicated in a year. SILENCE will be taken as accepting the reservation. The objecting states usually decide to be bound by the treaty to the reserving state and exclude the reserved article/language - in essence the reserved article does not exist between either party

Subjects of Int'l Law

States Ppls Gov'ts Individuals Corps.

Real-world steps for conclusion of multilateral treaties:

Steps for conclusion of multilateral treaties: 1. Negotiation 2. Adoption, a step which merely signals that the negotiations are completed 3. Translation and authentication in all official language 4. Signature - (Signature does not make multilateral treaties legally binding!! Many steps left) - (AFTER SIGNING, though, nation cannot take actions contrary to object and purpose of the treaty in good faith or prevent other nations from doing so) 5. Domestic (national) internal approval 6. Ratification (deposit of the state's instrument of ratification with the depositary of the treaty - if a state amends their acceptance or want to remove itself from the treaty, it then communicates this to the depositary of the treaty) Adoption and signing are not binding (mere signatories not bound); internal adoption is for state and can be enforced by international members to the treaty upon ratification Also, a treaty often has conditions that must be satisfied before the treaty becomes binding - such as, 20 states must ratify treaty before it become binding (as such, the 19th state to ratify is not bound until the 20thstate ratifies it)

Strengths of treaties / After signing (not ratifying)

Strengths of treaties: repercussions outlined, enforcement procedure outlined, written down - easier to access than the last 500 years of custom, Signing of treaty - party cannot impede (the party must honor) the object or the purpose of the treaty, cannot make it harder for yourself or others to accept or enact the treaty, or enter other int'l treaties that frustrate or make impossible the purpose (when Bush Jr. made treaties in contravention of Clinton's signing of a specific treaty) - actions - actively working to undermine the treaty - (You can't un-sign a treaty . . ?, but Bush II admin said they did and were no longer bound?)

U.S. Treaties

Supremacy clause applies to treaties - treaties are the supreme law of the land (if ratified) - (seems like America is monist when it comes to treaties)

The Lotus Principle

THE LOTUS PRINCIPLE - "Restrictions on freedoms of states cannot be presumed" - Corollary: Int'l law permits all that it does not forbid Generally, the Lotus rule regarding ship collisions or similar incident has been overturned by treaty specifically relating to the issue of jurisdiction over ships and this overturning is considered the contemporary rule (while also demonstrating that treaty can inform custom; it not only codifies custom, it can change custom)

Sources of International Law

The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply: a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states; b. international custom, as evidence of a general practice accepted as law; c. the general principles of law recognized by civilized nations; d. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law. This provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties agree thereto.

Reservation - General, older rule

The general rule regarding reservations was that each agreeing party had to accept the reservation before the reserving party was to be considered as a member of the agreement . . . but this was altered in the case to facilitate broader acceptance of members, especially when their reservations did not defeat the purpose of the agreement · Old rule - treaties are take it or leave it package deal, can't make reservations · But modern treaties envision greater flexibility in application, e.g., UN's founding envisioned wide range in levels of participation

U.N. Charter Article 102 regarding treaty recording - REGISTRATION

U.N. Charter Article 102 Requires the registration of "[e]very treaty and every International agreement entered into by any Member of the United Nations" The consequence for not registering the agreement is that no party may invoke the agreement before any organ of the United Nations, including the International Court of Justice.

Treaty in US

U.S. Practice - The state department determines what constitutes an international agreement and further what constitutes a treaty

US v. Neil

US v. Neil - man sexually assaults minor on cruise in Mexican waters - statute specifically mentions jusrisdiction of special maritime waters (satisfying presumption against extraterrotoriality) - Next q: is this consistent with/permitted by international law (betsy cannon q) - satisfied by passive personality principle (most persuasive to Knox), where state can extend jurisdiction over national that commits heinous crime against national - also, effects test - Recent Restatement (IV) holds that passive personality principle is a thing! If crime committed in violation of a states law on a national outside the states jurisdiction, that's prosecutable - Seem far more common and increasing in frequency - Exercising jurisdiction via passive personality principle might not violate international law . . . Under R 4, this basis for legislative jurisdiction is no longer as controversial (Germany, Hungary, South Korea utilize passive personality principle for every crime, many more for a list of enumerated climb) o Knox not sure any application would be unacceptable - will likely see more cases like Neil being upheld by US courts

Understanding . . . Like a reservation (RUDs)

Understanding - The nation will be bound by the article but only in line with that nation's understanding/interpretation of the article (America uses this a lot) ("We read this statute to mean . . .) Needs to be interpretation language. § Declaration - does not alter or interpret the treaty · Is only relevant to the treaty in some way (usually discusses how the state will implement the treaty - many treaties even say that states must make declarations)

Reservations

Vienna Convention - "Reservation" means a unilateral statement, however phrased or named, made by a State, when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that State; There can be no reservations in a bilateral treaty because if there is no agreement on a provision, that provision is not a binding obligation on either party Reservations must not be at odds with the purpose of the treaty.

Voluntarism

Voluntarism - It is only through the state's voluntary acceptance of a rule that the state becomes bound to that rule Diplomatic immunity is one of the oldest customs of international law - This is enforced by, say, America because America wants its diplomats to be treated well - RECIPROCITY - one of the main reasons governments comply with international law - This is why embasies are treated so well in foreign nations - codified in treaty in 1960s

Ware v. Hylton

Ware v. Hylton - 1796 - How do states become bound by international law? Reciprocity - States agree to be bound so that other states are bound to similar international principles. America still monist. New states want to be bound by international law · When US declared independence, bound to receive law of nations - becoming state, made US bound by int'l law o Cannot use int'l law to protect itself, if will not be bound by it - and to do that, must accept as is

General State Practice?

What constitutes State practice? - Very rarely is the practice going to be uniform, it just needs to be general (although there will be violations by states sometimes) Customary International Law Report provides that the "practice of the executive, legislative and judicial organs of the state is to be considered, according to the circumstances, as state practice." Actions of military leaders. Treatises by writers on international law are often where the litigants and the court find detailed information about State practice. State Practice: Are Verbal Statements Good Enough? Generally the government may consider verbal statements when determining the existence or non-existence of a rule through conforming physical conduct (especially since weaker states may struggle to act or enforce their customs). Inaction can sometimes count Principle 4 of the I.L.A. Customary International Law Report maintains that "verbal acts, and not only physical acts, of States count as state practice," a proposition which is found consistent with voluntarist theories of international law and with the relative frequency of verbal as contrasted to physical acts. Since not all states are in a position to register protest through physical acts, allowing verbal acts to count as state practice arguably maintains the juridicial equality of states. Stronger States continue to register protest against what they perceive as unwarranted claims by others, not only verbally but through physical manifestation of their position

Attribution

Whose conduct can be attributed to the state? Important for determining breach of obligations - MUST BE AN ORGAN OF THE STATE - Axns by organs attributed to state Bosnia v. SERBIA 1A De Jure Organ - When violator is treated as organ according to internal law § Not enough that salaries and finances of the soldiers and officers were paid by Serbia § ICJ says it's the internal law of Serbia that matters as to whether officers and VRS are an organ of state. § De Jure = very high threshold because if violating state doesn't treat actor as organ, then ICJ won't consider the actor an organ (alternatively) o 1B De Facto Organ - When actions are directed by the state - CONTROL by state § Has to have complete dependence on state to be de facto organ § If entity is under total control of state, can be de facto even if not internally recognized § ICJ says can provide financial support and still not have control - According to ICJ, effective control is a factual question

Customary Internation Law

Widely accepted custom + adherence due to belief that it is law A certain accepted custom or practice and the belief that the practice is mandated by law (the relevant actors consider it to be law) General practice + opinion juris Customary international law is derived from important statements drawn from case law and academic commentary.

Customary Int'l Law Questions

Younger, newly-emerging states may, in a sense, be bound by practices of older states. Which states matter? All of them these days I think How long must a custom exist to be "binding"? Can you have general practice that doesn't include major players (China, US, etc.)? There are a lot of arguments that there can be no customary practice without buy-in from America - At what point to countries become big enough to influence international custom- No clear answer to these questions . . .

GA of UN . . .

appoints judges for tribunals often making significant decisions. > Consider Prosecutor v. Tadic. What if the judges had decided the ICTY didn't have jurisdiction? Well, then the UN would have merely appointed new judges. "International peace and security" is determined by ICJ. > Sec. Council has an interest in making reserved decisions lest making rulings that won't be followed . . . but strategic approaches to its Article VII resolutions and otherwise can slowly create more power for the organization

· Int'l Orgs can create

both soft law and hard law

Univ. Decl. of Human Rights says

everyone has right to have nationality § Says everyone has right to nationality of state of birth IF does not have right to another nationality · So no one can be born stateless or denied nationality o Human rights bodies increasingly allows individuals to bring claims, including deprivation of nationality

Canals

generally accepted as places of international passage Thus, right of innocent passage

Protective Principle

gov'ts can take action to protect themselves from crime

Human Rights Council

main human rights body of UN o Meets 3 times/year, can make resolutions o Still comprised of gov't reps, so have to be careful of how strongly they criticize each other § Also have Special Rapporteurs, who are independent experts appointed to consult on specific issues · Can criticize gov'ts pretty freely · Can work together as working groups, issue independent reports · Can have Thematic Rapporteurs - cover specific issues · Can have Country Rapporteurs - cover human rights issues of specific country o Individual committees to address specific topics § Decisions not binding but do get attention in relevant country § Country has opportunity to respond - and committee will be very blunt about violations

Aliens =

non-nationals

· Other bases for jurisdiction

o "Effects test" (for territorial jurisdiction) § Activity in one country has effects in other(s) · Sherman Antitrust Act has been interpreted to prohibit monopolistic activity that affects US market § Has been more and more accepted as basis for jurisdiction o Passive personality principle § Applies to nationals who are victims of crimes in other countries § Int'l law does not recognize right to regulate all actions against nationals wherever they occur · Terrorism is an exception o Protective principle § Each state can protect itself against actions against its interest wherever they occur o Universal jurisdiction § Some crimes that every country should be able to prosecute, wherever they occur · Paradigmatic example is piracy - not many other things fall under (only severe things like genocide and war crimes) § Can have "prosecute or extradite" treaty - not universal jurisdiction, agreement among countries (usually for human rights abuses)

Commercial activity

o 3 kinds defined in FSIA § Foreign state carrying on commercial activity in US § Act performed in US, in connection to commercial activity elsewhere of foreign state § Act outside of US, in connection to commercial activity elsewhere of foreign state, that has direct effect in US o FSIA does not define commercial activity § But refers more to conduct than purpose

Flags

o All ships must be registered in a country and fly its flag - illegal not to be (traditionally one of the traits of piracy, which any country can stop and prosecute) § Often fly flags of convenience - known for not enforcing their registration laws o Can stop ships with no flag (no nationality), ships believed to be engaged in piracy or slave trade, ship is of same nationality as stopping ship (even though different/no flag), ship is broadcasting illegaly and flag state of warship has Art. 109 jurisdiction · Art. 94 - duties of the flag state

Be able to

o Be able to apply presumption against extraterritoriality and presumption against extrajurisdictionality § Courts cannot extend jurisdiction in violation of int'l law, don't take interpretations that would violate int'l law § Extra-jurisdictionality - presuming that jurisdiction does not extend outside of established bases for legislative jurisdiction · US does not draft statutes intending to violate accepted rules of int'l jurisdiction

· Blackmer v. US (US 1932)

o Blackmer resisted extadition for part in Teapot Dome Scandal o US tried to subpoena Blackmer to testify, questioning jurisdiction § Court says of course US can call its own citizens to testify

freedom of the high seas

o Cannot stop other states' ships o Everyone can use high seas for whatever purposes they wish

· 4 stages of int'l environmental law since late 1800s

o Conservation of exhaustible natural resources § Mostly concerned with exhausting resources, not well-being of planet (e.g., passenger pigeons - US, Canada, Mexico had treaty to preserve) o Since the 1960s, 1970s ... § First recognition that more than running out of resources - might be adversely affecting humans by doing environmental harm § In US - Cuyahoga river fire, endangerment of bald eagles, etc. § Echoed at int'l level, but focus more on transboundary harm (have to respect rights of neighbors, but can do what you want internally) o Since the 1990s § Focus shifted to sustainable development and effects on other peoples · Greater realization of how activities in one place could affect people in other places (e.g., ozone depletion) o Happening now § Human rights are violated by environmental harms

Adjudication

o Courts: ICJ, WTO Appellate Body, Int'l Tribunal for the Law of the Sea, ICC, Regional Courts for Human Rights (African, European, Inter-American) o ICJ is the only one without specific subject matter o ICJ jurisdiction § All UN members are party to ICJ § Art. 36 - Can hear all cases that parties refer to it and matters provided for in UN Charter or treaties that are in force · So can only hear the issues parties refer - so parties can limit ICJ's jurisdiction · Not a lot of treaties say only ICJ can adjudicate, usually give parties the option to take dispute to ICJ § Can also have "compulsory jurisdiction" · One country can sue another in the ICJ, but the other wouldn't be able to bring suit in the ICJ against the first (so only works on the basis of reciprocity for states that have accepted ICJ's jurisdiction) o So, can limit acceptance of ICJ's compulsory jurisdiction · ICJ only int'l court with global and general jusidiction o But doesn't actually hear that many cases (e.g., WTO Appellate Body hears a lot) o 3 ways to bring claim to ICJ § Parties themselves bring it § Treaty provides for ICJ to hear disputes arising under it § Compulsory jurisdiction

· Rio Conference in 1992

o Developed countries were the biggest emitters, so designed to help them curtail their GHG emission o None of the obligations actually required reductions § And only supposed to return to 1990 levels § Developing countries would not accept any obligations

US v. Bowman (US 1922) - Presumption Against Extraterritoriality

o Drawing line between 2 types of crime, the latter of which does not implicate presumption § Those committed against "peace and good order" of the place where they occur (presumption against extra-territoriality will apply) - locus of crime attached to territory § Crimes that are not logically dependent on locality of crime for jurisdiction, but are enacted because of right of gov't to defend itself against obstruction or fraud Statutes that regulate activity may not be bound by presumption if it makes sense that they shouldn't be, for example U.S. statutes against fraud

· Urgenda v. Netherlands

o Dutch gov't needed to reduce emissions more quickly to meet its legal obligations and protect health and safety of citizens o Didn't question measures state had said was necessary - accepted that, but said they would not meet the state's goal § Court agreed they were not on target and needed to increase efforts · First decision in which any gov't ordered to reduce emissions more quickly - significant that this is based on human rights law

Different approaches to determining whether gov't is legitimate gov't

o Effective control (de facto) - gov't that is actually running the territory § More likely if country has some significance to other countries § Also, if gov't is so strongly in control that cannot deny their being in charge § Seems like default (as seen in Tinoco case) o Legitimate control (de lure) - the gov't that was legit in power § May be more likely if legit regime has strong allies

· Regional tribunals for human rights

o European Convention - not part of EU, part of Council of Europe § Receives thousands of petitions/year - has become court of last resort, so huge backlog § Have to exhaust domestic remedies first o Decisions are binding - parties agree to before cases heard § African and Intra-American courts harder to get to than European § But all hear many cases, including very significant ones

Nationality quirks of some states

o Europeans have gone farther than OAS - European Conv. on Nationality § Every state shall give nationality to any child who has at least one parent who is a national of the state § Everyone has right to nationality of state of birth if does not have right to another nationality § Every state must provide ability to naturalize for people who lawfully live in their territory § Some countries allow jus sanguinis only for fathers - human rights law would say this gender discrimination is not allowed

· Declaration of Independence of Kosovo (ICJ 2010)

o Even if asked to issue advisory opinion, ICJ does not have to § But should only refuse for "compelling reasons" - and will assume requesting body had only the stated reason for asking o Declaration didn't violate int'l law, since no law against declaring independence § Really supposed to have been saying whether Kosovo could secede

· When analyzing treaty obligations,

o First, ask whether even a party o Then look for reservations, understanding, or declaration

· So, can we sue governments?

o Foreign Sovereign Immunities Act (1976)

· Foreign Sovereign Immunities Act (1976)

o Foreign states immune from suit in US courts, unless case falls within an exception

Forum prorogatum

o Forum prorogatum § One party has not accepted jurisdiction, but other party files suit anyway hoping that first party will accept jurisdiction · Any decision issued will only be binding on that particular issue § A lot like personal jurisdiction where the non-accepting party has basically waived right to object to jurisdiction, but only on this particular issue

· Schooner Exchange v. McFadden (US 1812)

o French allegedly seized ship owned by US, brought ship into US port during storm § So can Americans bring claim - no, because French military property, so has sovereign immunity o Marshall notes that jurisdiction within territory is absolute - so, why can US courts not make determination under US law? § We can do whatever we want within our territory § But that jurisdiction will not extend to foreign war ships - military property is under the immediate control of the sovereign, so carries sovereign immunity (because sovereigns not able to be controlled by other jurisdictions) o To reconcile these, Marshall says must be implied license - assumption that port will not exercise juridiction over sovereign's property, otherwise ship would never have entered port § US wants its ships to be able to do the same in other waters o This immunity does not apply to merchant ships (continues to be running debate) § This is most at tension when sovereign acting as the merchant

General Principles of Law, Judicial Decisions, "Publicists" (the third source for int'l law)

o General principles are so fundamental that would not expect them to change over time § Is principle so basic that every legal system must include it? § Used as gap fillers because treaties, customary law don't address o Schachter - Int'l Law in Theory and Practice § 5 types of general principles invoked and applied in int'l law · Principles of municipal law "recognized by civilized nations" · General legal principles "derived from the specific nature of the int'l community" · Principles "intrinsic to the idea of law and basic to all legal systems" · Principles "valid through all kinds of societies in relationships of hierarchy and coordination" · Principles of justice founded on "the very nature of man as a rational and social being" § Derive from natural law or the logic of law (e.g., res judicata, more specific law governs over broader law, need to make reparations, should be bound by agreements) · Principles are extremely general, not helpful in resolving disputes · Can also usually make argument that treaty and/or customary law covers it General principles of Law only become relevant if there is a gap in the treaties

· Exclusive economic zone

o Gives country control over resources within EEZ o If countries territories' overlap, generally split the difference - but can agree to whatever they want o Can leave your own EEZ if pursuing someone who is fleeing arrest - Right to hot pursuit - cease pursuing if enter another state's territorial waters - Conservation of living resources

Hard Law

o Hard law - "law," binding stuff § What can UN do that's binding? · Create budget, bind members to pay dues o Int'l orgs can do internally binding things · Other than that, everything is recommendation - not legally binding o UN often phrases things as if they are binding UN GA approves the budget and has binding power over how much each state must pay for membership dues (hard law)

· What do states get for being states?

o Have legal personalities, have sovereigty over their people, can enter into agreements, can appear before int'l tribunals and join int'l orgs o Also have clearest duties under int'l law § Unusual for individuals to be tried under int'l law

· 3rd stage

o How do we reconcile need for environmental protection with need for people to have products, energy, etc. - especially when regular economic activity contributes to the problem? § No great answer, but some possible · Stop focusing on expanding economy o Political non-starter o Also not something global north can say to global south o Sustainable development emerged in effort to answer this § We're going to continue to develop, but will do it in way that does not make it harder for future generations to do the same · Debate exists over whether this is possible (but not amond politicians)

legislative jurisdiction

o How far does it extend? § Congress cannot legislate for the world o Territory § Can obviously bind people within territory § But what about things outside US that effect the US? · Use effects test - substantial effect o Nationality § Living outside US does not exempt Americans from authority of US law (e.g., paying taxes) § Not all laws construed to apply to US nationals outside US (e.g., still have to adhere to local criminal laws and other country will prosecute if don't)

Belgium v. Senegal (ICJ 2012)

o ICJ says treaty that conflicts with jus cogens is void, but there's no conflict here § Senegal not torturing or condoning torture, just not prosecuting § Treaty and norm are directed at different things - not having remedy is not conflict with norm against torture

Missouri v. Holland (US 1920)

o If US can enter treaty, "Necessary and Proper" says it must be able to enact legislation to enforce o Treaty Power separate from other powers in the Cons § Pres/Senate can adopt whatever treaties they want and enact relevant legislation to enforce, even if would otherwise be illegal to create that legislation

· What if treaties are inconsistent with US law?

o If treaty self-executing, later in time rule applies (whichever came later wins) § This applies to federal statutes - if self-executing, Supremacy Clause means they trump state laws · How US implements treaties within does not affect its int'l law obligations under treaty · Even if self-executing, does not necessarily give individuals ability to directly enforce o This would be separate legal question

Expropriation

o In the past, Latin America felt no grounds for int'l claim unless discriminatory o Res. § 712 prohibits taking of private property unless public purpose and pay for it - and not allowed if discriminatory § Usually included in bilateral investment treaties (BITs) o Historically, Global South resistant to idea that should not be able to expropriate property of Global North since vestiges of colonialism § Idea that being friendly to private industry was beneficial meant had to stop expropriating private property · Hence including it in BITs Provision against expropriation is in most bilateral investment treaties and now super common, so no taking without compensation - not quite uniform, but almost uniform, started in 80s (countries, in order to grow, had to be friendlier to the private market in order to attract foreign investment)

Trial of Gideon Henfield (US Cir. Ct. Pa. Dist. 1793)

o Law of nations part of US law § US still very weak at this time, so want to stay in line with int'l law (and not attract the ire of any greater power) · For smaller states, int'l law is a shield - but must be able to comply domestically § So Jay wants int'l law to be part of US law to aid in compliance Seems to suggest that America is a monist country

Trail Smelter Arbitration

o Lays out nuisance standard that must be applied internationally (do no harm rule) · Also not really "do no harm" - it's do no significant damage o Also only have to take all reasonable steps to avoid activities that cause harm · "Do no harm" comes from Columbia River Basin/Trail Smelter case o Int'l arbitration tribunal had found that Canada causing harm in the US o Court creates revolutionary principle that states must take all reasonable steps to prevent trans-border environmental harm · Air pollution is greatest environmental problem in the world today - many deaths attributable to it As long as you're not causing transboundary harm to your neighbors, you can destroy your own environment domestically (Smelter case)

Legality of the Threat or Use of Nuclear Weapons

o Legality of the Threat or Use of Nuclear Weapons § No treaty against using, threatening to use nuclear weapons § There are UN Gen. Ass. resolutions against doing so · But resolutions are not binding because there is no opinio juris o A lot of abstentions or negative votes § There is custom of not using nuclear weapons since 1945 · And still customs that are applicable - e.g., on not using weapons that cannot discriminate between civilian and military targets § Court does say nuclear weapons could be acceptable for existential level threat

o Dual nationals

o Must have dominant and effective nationality for espousing country to bring claim. Factors § Habitual residence § Family ties § Participation in public life § Other evidence of attachment

· Two approaches to human rights on environment

o New Right - Everyone should have right to live in clean environment o Greening Human Rights - Could make current human rights include environment (i.e., "greening" human rights) · Universal Declaration adopted before modern environmental movement, so does not include environmental rights o But many countries have added it to their own constitutions since realization of environmental issues § Not adopted in US, but adopted by several states in their constitutions o About 2/3 of constitutions refer to health, others refer to "ecologically balanced environment" o Also regional human rights agreements o Countries with Anglo-American judicial systems have not really adopted, nor have China and Japan - so global recognition has not happened § Stockholm agreeement was closest UN got to global recognition

· Human rights bodies have developed 3 types of obligations states have in relation to attaining these rights

o Obligation to refrain from interfering with people's rights to attain human rights (negative) o Obligation to individuals and groups against human rights abuses (prevent abuses by private entities) o Obligation to take positive action to facilitate enjoyment of basic human rights (positive)

Obligations of human rights law on states

o Obligations of human rights law are mainly on states - but gives individuals rights § Obligations of states are to · Respect - just adhere to/not engage in · Protect - have to protect even from non-state/private actors · Fulfill - should work toward everyone having access o Often relates to access to food and water

· Arbitration

o Party control is biggest difference between adjudication § Determine arbitrators on ad hoc basis o Can have established arbitration process, but terms still decided by parties o UN has Permanent Court of Abritration, other courts also exist o General rule is that number of arbitrators is odd, usually each country chooses some and then the arbitrators themselves appoint the rest o Decisions can be taken to domestic courts and enforced § If losing party doesn't pay, can go to country where their assets are to have enforced - and domestic courts cannot make more difficult to recover than if it were domestic award § But there is dispute over whether these should be enforceable · Domestic courts can refuse to enforce but only if procedures were not followed (e.g., corruption) or if their domestic law would not allow arbitration for that issue (or if it contravenes their public policy)

· 3 main types of right to self determination claims

o Post-colonial, non-self-governing territories want to determine political status o Claims regarding foreign occupation o Claims that a people have been so denied political rights within an existing state, that they should be allowed to secede

· Paris Agreement in 2015

o Potentially most important int'l environmental agreement o First actual commitment to reductions - but each country can determine its own reductions o Chinese emissions have grown enormously as its economy has grown

Cases in which environmental wrongs were fought through human rights arenas by violating right to life

o SERAC v. Nigeria (Af. Commission 2001) § Serious oil pollution caused by state of Nigeria and Royal Dutch Shell · Contaminated water and soil - very unhealthy to live there § Violated right to acceptable place to live and right to health o Oneryildiz v. Turkey (Eur. Commission on Human Rights 2004) § Dangerous trash pile, exploded due to methane buildup § Disregard for concern violated right to life o Saramaka People v. Suriname (Inter-American Crt. 2007) § Rights of indigenous people (right to culture) § Had close relationship with land - so have to protect their right to nature and to the land, must have their consent in taking the land o Mossville Environmental Action v. US (Inter-Am. Commission 2010) § Putting oil refineries in Af-Am communities § Can't discriminate in envrionmental harm

conservation of living resources

o Supposed to monitor and combat over-fishing

· Reservations to Convention on Genocide

o Traditional rule - not a party unless everyone accepts the reservation § Don't want to allow reservation over other states' objections because have already negotiated treaty as is (have made compromises to get to that treaty) § But limiting reservations makes it harder to get parties to sign on o So, ICJ makes compromise - reservations can only be made if they do not contradict the "object and purpose" of the treaty § This makes sense, but creates new question of whether each particular reservation is against object and purpose of treaty

· 3 paths to int'l agreements in US law

o Treaties § Requires 2/3 of Senate to ratify o Congressional-Executive Agreements § Require approval by both houses, by majority vote § Can approve agreement after negotiated § Can give pre-approval for President to go out and negotiate something § Or both - Can give approval to negotiate something, then will approve yes/no without changing anything ("fast track agreement") · Other countries know whole thing will hopefully be approved, so makes easier to do multi-lateral negotiations (used mostly for trade agreements) o Sole Executive Agreements § No Congressional approval needed § SCOTUS has made clear that President can enter these, as long as subject matter is something that Cons. reserves to President exclusively · No firm rules on which type of agreement used - very political choice o Usually, once a type of agreement treated one way, assume it will be treated the same (e.g., human rights agreements always go to Senate, trade agreements usually go to both)

Piracy and Presumption Against Extra. . .

o Treatment of piracy § Pirates (by definition) operate on the high seas, outside of territorial jurisdiction § Strict interpretation of presumption against extraterritoriality would prohibit applying it to piracy, so have to adapt more flexible interpretation for rest of opinion

UN Basic

o UN Charter adopted in 1945 § Aims for universal membership (which it is now very close to) § Has several subparts · Security Council is most important body, comprised of victors of WWII o Still shapes world order (as influenced by UN) o Can bind countries even if they don't agree to decision · General Assembly (every member-state belongs to it) · UN Secretariat · ICJ (in the Hague) · Many others - "ecosystem" of organizations § Do all UN subparts have distinct legal personality? · No - UN's is based on its charter · Sub-orgs have their own charters o Can have their own legal personalities if meet certain requirements

· Advisory Opinions

o UN Charter, Art. 96 § Gen. Ass. or Sec. Council can request one from ICJ on any legal question § So can other UN agencies - but their questions must be within their scopes of activity o Advisory opinions binding, but only to the extent that they're accepted § If ICJ issued opinion on customary law, the customary law would be binding - not the opinion itself o UN itself is not party to ICJ - so if country ever had dispute with UN, could ask for advisory opinion to determine how to handle dispute

Security Council (can make hard law)

o UN Security Council can make binding decisions, even on states that have not agreed § Ch. 7, Art. 39 of UN Charter says council will determine if there has been breach of peace and what to do § Art. 41 says council can determine non-force options to use, and Art. 42 says can use force if these don't work (or if non-force would be inadequate) Article VII is used for international conflicts between states but cannot be used within a state - no authority of sec. council to solve domestic disputes/issues

Provisional Measures

o When are "provisional measures" available? § Allowed by ICJ Statute, Art. 41 · Injunctive relief while merits of case are being ruled on § Must meet certain requirements for court to issue them · Plausible claim · Prima facie jurisdiction - (there has to be a link between the case and the rights to be protected and also be the type of relief the court could grant) · Irreparable harm without provisional measures · Urgency in issuing provisional measures

· US v. Vasquez-Velasco (9th Cir. 1994)

o Writer tortured and killed by cartel members (mistook for DEA agent) o Statute doesn't specify whether the US law against racqueteering applies outside US § Is congressional intent of this statute enough to overcome presumption against extraterritoriality? § Would construing it this way violate int'l law? o Congressional intent § Prohibits conduct that interferes with functioning of US gov't, so reasonable to presume intended to apply abroad (similar to US v. Bowman) § So have to have reason to overcome presumption, but does not have to be textual (e.g., nature of the crime or situation) o Violate int'l law? § Court says no, relying on protective principle · Victims were US citizens, but not actually carrying out US policy · But killers thought they were DEA agents - and US has interest in protecting its ability to enforce its policy harming US interests grants jurisdiction via protective principle

Governments

o ask: which gov't can employ the resources and direct the people of the State in fulfillment of the obligations of membership? § So, must ask whether new gov't effectively has authority within territory and is obeyed by the people · Determining if gov't is legitimate arises when o Coup or other change of gov't - some internal dispute about which gov't has claim to power § Usually one gov't has better claim to legitimacy than other o Disagreements about succession · Different approaches to determining whether gov't is legitimate gov't o Effective control - gov't that is actually running the territory § More likely if country has some significance to other countries § Also, if gov't is so strongly in control that cannot deny their being in charge § Seems like default (as seen in Tinoco case) o Legitimate control - the gov't that was legit in power § May be more likely if legit regime has strong allies

evironmental impact assessment

o evironmental impact assessment - widely accepted norm in int'l environmental law § How can you know you won't do harm if you don't assess possible harm? Nicaragua v. Costa Rica (ICJ 2015) · Costa Rica should have done environmental impact but Nicaragua only able to show sediment in the river will increase - not significant harm, so most ICJ can do is tell Costa Rica to do assessments in the future o If it had been significant, could have enjoined continued construction

Effect Test

o when your actions in one state effect another state - (when someone standing in Canada but shoots someone in America; or in antitrust, where actions of some affects markets and entities in other states) o Generally, most states accept effects test if effect is "substantial" under the Restatement

Reparations

part of CIL that exist regardless of a treaty - Forms of Reparations o 1. Restitution § Putting you back in same form as before breach o 2. Compensation § Because sometimes impossible to put back in the same form o 3. Satisfaction § Acknowledgment of breach by country and that is enough - The 3 forms apply to all violations of primary rule violations o And sometimes, it's enough for satisfaction or harm is so large that restitution is impossible

o If norms conflict . . .

use the more specific § Treat it as exception to more general rule

Customary Law . . . states can't

withdraw from customary int'l law

o What happens when a party doesn't appear?

§ Appearing party can ask ICJ to decide claim anyway, but ICJ has to determine that claim is well founded in fact and law

o Enforcement of ICJ decisions

§ Art. 59, 60 § Art. 60 says judgments are final and have no appeal (but court will clarify, as in Temple of Preah Vihear case) § Art. 94 of UN Charter · If party fails to comply, can take claim to Sec. Council § ICJ has about 70% compliance rate

o Temple of Preah Vihear

§ Art. 60 (ICJ Statute) says court will construe a previous decision if parties are so unclear about its meaning that they cannot apply it · 2 parties have opposite views of meaning or scope of opinion · Does not mean parties can reargue - does not matter if don't agree with reasoning (so, dispute must be over an operative provision) § Used provisional measures to have troops withdrawn

o Intervening parties

§ Art. 62 - ICJ can allow 3rd parties to intervene · 3rd parties not bound by decision § Art. 63 - if multilateral conventions, other parties to convention can intervene (but they will be bound by the decision, which they would not be if did not join)

o International Legal Personality

§ Assigning a legal personality gives capacity to perform legal acts, make treaties, etc.

o Counter-claims (ICJ Rules of Court, Rule 80)

§ Can allow, if meets jurisdictional requirement and is directly connected to subject of initial claim

If norm is forming, why worry about creating treaty?

§ Can bring it into existence much more quickly § May facilitate more widely accepted language § Treaty may shapes a practice that becomes customary norm

o Lopez Ostra v. Spain

§ European Convention, Art. 8 right to privacy and family life used to say that gov'ts cannot interfere with people's privacy on environmental grounds · Did not have to show that pollution endangered people's health/lives - interference with right to enjoy home · Also didn't matter whether pollution was coming from public or private facility - state had obligation to protect from pollution o But still defer to state on how much protection is warranted · Several claims have used since then - will find against state if not following their own procedures

o Nottebohm Case

§ ICJ assessing whether Liechtenstein can bring his claim · Court says if anything, he's citizen of Guatemala o But Guatemala not claiming him · No real ties to Liechtenstein (only lived there while getting citizenship) o Must be genuine conncection to state of nationality to espouse claim on behalf of individual

Indirect Expropriation

§ Indirect expropriation - didn't actually take property but caused it to lose value o Indirect expropriation much more controversial than direct § Asking int'l court to pass judgment on legitimacy of local laws - even laws on health, safety, environment o Tribunal says must consider (see below) § Even if legitimate public purpose, still balancing test to determine whether must compensate for taking · Makes harder for countries to create and enforce public health and safety legislation Tribunals measure the legitimacy of domestic laws regarding indirect expropriation - - - - and even if laws are legitimate (in aim), states may still have to pay for the harm lost to the investors if the affect on the investment is disproportional to the legitimate purpose of the regulations/domestic laws Is measure appropriate for achieving aim? (Must be related to public good, i.e. human health of environment, not merely caving to political public pressure. Social emergency situation, social crisis, public unrest.) Is it disproportionate?

Principle of Proportionality in Sec. Council decisions

§ Principle of Proportionality · Sec. Council legislation must be necessary to maintain int'l peace and security - so the usual methods (i.e., treaties, custom) must be insufficient · Charter gives Sec. Council broad discretion in what constitutes proportionality, so principle has little effect in practice o No procedure for reviewing legality of its legislation

CEDAW

§ States cannot dicriminate against women AND need to take steps to eliminate discrimination against women by people/orgs/enterprises · Second part falls into duty to protect § Violence against women very prevalent - probably most common human rights abuse § So long-time question about what human rights law would do to address · CEDAW Committee issued Recommendation No. 19 in 1992 - brought violence against women into definition of discrimination against women o Included both violence directed against women because they're women OR that affects women disproportionately · This created greater obligation for states to more actively protect women o Decl. on the Elimination of Violence Against Women (1993) - gave greater support to what CEDAW had done o In 2017, CEDAW Committee issued Recommendation No. 35 - said that prohibition on gender-based violence had evolved into customary int'l law

o Vienna Conv. on Law of Treaties Art. 31 says take into account treaty terms but also

§ Subsequent agreements regarding interpretation of treaty or application of its provisions § Subsequent practices in application of treaty which establish agreement regarding interpretation § Relevant rules of int'l law applicable to relations of party IN OTHER WORDS, the ICJ could have interpreted Vienna Convention in tandem with resolutions to outlaw nuclear weapons (or other stuff). Remember: ICJ can interpret preexisting treaties. CONSIDER Ramifications; countries might pull out, interpretation could be ignored and make the ICJ look weak, etc. ON exam: consider resolutions and "custom" to interpret preexisting treaties

When conflict of legislative jurisdiction, which one wins?

§ Territory is more likely to be default rule

Some treaties prohibit reservations

§ This means fewer states will sign but those that do are fully bound § With reservations allowed, may have more states sign on but may also be watered down by reservations

Int'l trade agreements

§ Trade agreements usually get both house approval · Usually need legislation to be implemented to enforce, so should be sure both houses approve · But does require Senate to acquiese to idea that do not need 2/3 vote of Senate o But once done, if challenged in court, challenge will fail

Medellin v. Texas (US 2008)

§ Whole treaties can be self-executing or not, but also have to look at whether individual articles are self-executing (or not) o Also agrees with state courts that President cannot compel state courts to follow ICJ decisions § Congress must enact legislation for them to be binding § If non-self-executing, President cannot compel, Congress must pass legislation o Can president make a non-self-executing treaty self-executing? § I.e., can exec branch execute it itself? § An executive cannot make self-executing, forcing states to comply o SCOTUS does not address that whether treaty is self-executing is dependent in part on ICJ's own decision - must be clear enough for state courts to apply w/o Congressional action, the president cannot make a non-executing treaty executing -

Three types of jurisdiction

· 3 types of jurisdiction o Legislative § Also called "jurisdiction to prescribe" - jurisdiction to enact legislation that binds people within the jurisdiction · Includes prescriptive rule from agencies o Executive § Jurisdiction to enforce laws · Cannot use authority outside one's own territory o Judicial § Jurisdiction to adjudicate cases (even when not within the territory)

· 3 ways to become national of state

· 3 ways to become national of state o Jus sanguinis - national of state parents were citizens of o Jus soli - citizenship in place of birth o Naturalization · For jus sanguinis and jus soli, it is accepted that there must be a genuine connection to country of nationality in order to claim o Not true for naturalization

4 categories of compliance in international law

· 4 categories of compliance in international law o Coordination § Once reach agreements on the rules, every country has an incentive to comply with it because they cannot achieve that particular goal on their own o Reciprocity § You comply because you want other countries to comply § In order to make it work you need to figure out what the other country is doing o Sanctions § Make it worth the while for other countries to comply or take something away from them o Shaming § Hurt non-complying countries' reputations (This is often true if the law is seen as "the right thing to do")

Argentina v. Weltover, Inc. (US 1992)

· Argentina v. Weltover, Inc. (US 1992) o Argentina defaulted on loan repayments (committed to repay Arg. citizens' loans) § Couldn't repay, so issued bonds promising to pay - not able to pay later § Argentina unilaterally extended time to repay, so creditors brought suit seeking repayment o Can creditors (not all American) sue Argentina in US for breach of K? § Looking at effects of Argentinian activities § Clearly actions was outside US - was it in connection to Arg. commercial activity? § SCOTUS says that private entities could do this, so not exclusive to sovereigns - should be asking whether activity is something only a sovereign could do? · If had been some sort of regulatory action, would be within role as sovereign (since private entities do not have control over economies) § Looking at "nature of the course of conduct," not its purpose § Also have to ask whether direct effect in US · Here, yes - money supposed to be delivered to bank in NY, which didn't happen · Seems minor, but law does not specify has to be significant effect

Bases for legislative Jurisdiction under int'l law

· Bases for legislative jurisdiction under int'l law o Major 2 § Territory · May include "effects test" § Nationality (over the person that commits the crime) o Other 3 less commonly used, more controversial (accepted but line on when they apply is less clearly) § Passive personality principle · Nationality of victim is nationality of regulating state (e.g., robbing US citizen anywhere can be enforced by US) § Protective principle § Universal jurisdiction § Terrorism states can only exercise jusridiction if there is a rule authorizing such jurisdiction (largely under customary law)

Case Concerning Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. US) (ICJ 1986)

· Case Concerning Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. US) (ICJ 1986) o If state uses defenses that rely on exceptions/justifications that are part of the rule, it is evidence of recognition of customary rule

Compulsory jurisdiction

· Compulsory jurisdiction (allowed by ICJ Statute, Art. 36(2)) o States grant ICJ jurisdiction in all matters with states that have also accepted it § States can make reservations, so that only some claims/types of claims can be heard by ICJ o Drafters probably wanted every country to accept (and without reservations), but majority have not § Most common is to accept with reservations o Reciprocity means either party to a dispute can take advantage of other party's reservations (e.g., if Mexico had dispute with US and thought dispute was in realm of Mexican domestic affairs, could take advantage of US's reservation on determining its own domestic affairs and apply Mexican law)

Am. Const. & Int'l L.

· Cons. has provision on treaties, but does not say anything about how int'l law fits into US law o So has been left up to courts - much like common law § But Erie says no federal common law § There can be up to 50 different common laws · SCOTUS has been clear that there are still some areas that have federal CL Federal common law governs international law

High Sea Regions

· Countries able to control the waters near their own territory - but open ocean not anybody's territory o Area closest to land is "territorial sea" (12 naut. Miles) o Area next to that is "exclusive economic zone" (200 NM, includes the first 12) After that is "high seas o If within baseline, within internal waters of the state - cannot be there without state's permission o If within territorial sea, have right of "innocent passage" to transit safely § Innocent passage has definition though (Art. 17, 18) - does not include something like sending war ships to just outside country § No threats or use of force, no pollution, no fishing, etc. - Traditionally as far as a cannonball could shoot

o Reparation for Injuries Suffered in the Service of the United Nations (ICJ Adv. Op. 1949)

· Court concludes UN is international person - so, it's capable of possessing int'l rights and duties, including bringing int'l claims UN impliedly has powers to seek damages from any state (even nonmember states) that damage the UN or its agents for damages caused to the UN and to the victim or persons entitled through him. Without such authority, the UN would be unable to discharge the duties of its charter.

Sosa v. Alvarez-Machain (US 2004)

· Customary int'l law can be treated by federal courts as federal common law o So federal statutes and common law override inconsistent state statutes or common law

Declaratory and constitutive theories of state recognition

· Declaratory and constitutive theories of state recognition o Declaratory - if state meets the Montevideo requirements, it's a state § Legalist approach - int'l law is law like any other body of law · As opposed to basically describing what states do and calling it law § Declaratory approach is in line with this o Constitutive - states decide who other states are § Can recognize a state (or not), whether it meets the 4 criteria

Dualism

· Dualism - int'l law and domestic law are separate spheres o For something to become int'l law, something must happen at domestic level (e.g., domestic courts cannot apply int'l law within their jurisdictions)

· Expropriation (FSIA)

· Expropriation o Included in FSIA as basis for suit because had happened to US citizens fairly often o Still restrictions on bringing suit § Rights in property taken in violation of int'l law § Property is in US in connection with commercial activity in US carried on by foreign state § Property is owned by foreign state and foreign state engages in commercial activity in US o Austria v. Altmann (US 2004) § Altmann says Nazis seized her family's art collection when he fled Austria · Uncle left them to her, so she's trying to reclaim them § Austria says it's immune under FSIA and that FSIA does not apply retroactively (at time statute passed, US subscribed to absolute sovereign immunity) § Court rejects and says FSIA applies to all current claims brought § Case added pressure to Austria, which agreed to arbitration (ultimately found for her)

· External self-determination

· External self-determination - right to form a people's own state (can be right of secession) o Decolonization is paradigmatic example § Still included protests that arise today - separations will lead to strife, chaos o Could cut down on problems associated with separation by establishing clear standards for how peoples can gain self-determination (including succession) § Still practical difficulties and would not be easy to achieve § Failures of established to recognize the rights of internal self-determination, have created question of whether external self-determination is warranted (External self-determination last resort and allowed if people are oppressed)

Individuals

· Individuals increasingly have rights and duties under int'l law Individuals often need espousal · States have total control of claims for individuals o Not required to take up claims or to pay out any damages to individuals (usually do pass along damages recovered) o Requirements for state to take up claims § Exhaustion of local remedies (i.e., individual must show they have pursued local remedies or doing so would be fruitless) + Nationality

· Other Int'l Orgs as Creators of Hard Law

· Int'l Orgs as Creators of Hard Law o EU is able to make some binding decisions on its member states § E.g., monetary policy for Euro zone, EU's common commercial policy o EU can issue "secondary legislation" § Primary legislation is the treaties that founded EU § Includes regulations, directives, decisions, recommendations, opinions · Regulations - directly binding on members without need to be implemented nationally · Directives - bind member states to objectives that must be achieved within certain time limit but let members decide how to achieve o Do require national legislation but in accordance with each state's procedures · Decisions - binding on entities to whom they're addressed (can be person, state, company), so don't require implementation · Recommendations and opinions not binding

Regarding monism and dualism

· Int'l law does not care how countries think of their legal systems o Vienna Conv. on Law of Treaties, Art. 27 § Party cannot invoke its domestic law to justify failure to perform treaty § Art. 46(1) - state cannot avoid treaty obligations by saying it was entered into illegally by its domestic law, unless violation of its domestic law was manifest and concerned rule that was of fundamental importance · Art. 46(2) - violation is manifest if would be objectively evident to state conducting itself in matter in accordance with normal practice and good faith

Internal Self Determination

· Internal self-determination - right to control group's destiny as part of a state o No agreement on what level of denial of this warrants secession (some countries would say it's never warranted) (Internal self-determination = having a lot of freedom within state, ability to have own schools, etc., "control your own destiny" within the state, self-governance, schools, cultural issues - in US consider Native American tribes)

· International organizations

· International organizations - usually refers to organizations made up of states o Int'l Law Commission defined "international organization" as "organization established by a treaty or other instrument governed by international law and possessing its own international legal personality"

· Methods of resolving disuptes

· Methods of resolving disuptes o Negotiation - only parties involved o Mediation - mediator helps parties find solution (but can't mandate anything) o Conciliation - more formal offering of advice on solution, but still not binding o Arbitration - binding outcome, but parties control the process o Adjudication - dispute taken to a standing court

Approaches to National Treatment of Aliens

· National treatment o Can't treat non-nationals differently than treat nationals · Most-favored-nation standard o Have to treat all nationals as well as they would treat their most-favored nation o Particularly important in trade agreements · Minimum standard of treatment o Can't drop treatment below certain minimums o Most common examples § Denial of procedural justice · Has to be something close to shocking the conscious (e.g., denied right to bring a claim) § Failure to protect · Failure to provide reasonable police protection (cannot claim that that's normal in the country) § Fair and equitable treatment · Lack of adherence to objective standard

Nationality of Individuals

· Nationality significant because only individual's state can take up their claim o Nationality - used more in int'l law § Relationship individual has with a particular state (o Citizenship - used more in domestic law § Some states define more narrowly than nationality (e.g., Puerto Ricans were not always US citizens even though US nationals))

· Nicaragua v. US (ICJ 1984)

· Nicaragua v. US (ICJ 1984) o Original US declaration gave 6 month withdrawal window - but now trying to get out of that by issuing new letter saying doesn't recognize compulsory jurisdiction in Central America § US says trying to modify, not get out of it - but really is trying to get out of it with respect to specific part of the world o US also says Nicaragua has to have accepted same jurisdiction (including reservations) and Nicaragua has never said anything about compulsory jurisdiction - so cannot invoke against US § Nicaragua joined League of Nations's PCIJ, should carry over to ICJ membership · But Nicaragua never ratified PCIJ treaty § ICJ says does not matter, PCIJ statute still in force, so carries over to ICJ o US says it should be able to rely on Nicaragua's 1929 acceptance, which has no 6 month limit, so US should be able to withdraw § ICJ says not the kind of reciprocity talking about · Reciprocity is about scope and duration... · Reciprocity does not apply to exclusions · Reservations are reciprocal § Also, probably would not have allowed Nicaragua to withdraw so promptly - so won't let US do it either o Case caused US to withdraw compulsory jurisdiction § Also created impression that ICJ cut corners to find jurisdiction o Just because ICJ has jurisdiction does not mean that claim is actually admissable § US says parties essential to the case are not party to the suit · ICJ says this is not a requirement - ICJ does not have power to compel party to join, which it would need for this to be a requirement § US says allegations on armed force can only be entertained by Security Council · Claims it is mixed question of law and policy - Sec Council gets to decide whether there is a threat to security, which Nicaragua is asking ICJ to answer o No ultimate decision maker if both bodies address and find different answers - another reason this case was controversial, since could be step toward ICJ assuming more authority

Self-determination

· One element of statehood is whether people in a territory want to be constituted as a state Self-determination - People have the right to self determination What counts as a people? - (What doesn't count as a people is a better way to determine definition; can't be a small group of people that simply decide to have right for determination, also can't just be the entire people of a nation because requiring a whole nation would be unworkable . . ?) (Indigenous peoples?) - Has to be locateable on a map . . . If they're so diffuse in the population, then its hard for the people to declare their right of self determination - Ethnically/culturally similar, common language, etc.

Property rights (FSIA)

· Property rights o No immunity if "rights in property in the United States acquired by succession or gift or rights in immovable property situated in the United States are in issue" o Mission of India to UN v. City of New York (US 2007) § NYC says missions of India and Mongolia not paying their property taxes § Int'l law says diplomats cannot be taxed - but only applies to countries' embassies/missions or the residences of the highest ranking diplomat(s) § India and Mongolia using their missions as residences as well, but only for lower ranking diplomats · They say FSIA exception is limited to ownership rights § Court looks at whether the lien (which will occur if taxes not paid) runs with the property · NYC has a lien against the property - which is an interest in the property and can be enforced against whoever buys it · The lien does run with the property, so the property right is properly in the US § But US courts cannot enforce the judgment against India or Mongolia

· Prosecutor v. Erdemovic

· Prosecutor v. Erdemovic o To be a fundamental principle of int'l law, should be found in practically every legal system in the world

Ratification terminology/ Am. to Int.

· Ratification - send agreement to depositary o Senate consent/approval is only internal to US o Treaties not ratified until President sends on to the int'l depositary

· Reparation for Injuries Suffered in the Service of the United Nations (ICJ Adv. Op. 1949)

· Reparation for Injuries Suffered in the Service of the United Nations (ICJ Adv. Op. 1949) o Can UN bring claim against responsible gov't (Israel)? And can it claim reparations for victim/victim's relatives? o Court concludes UN is international person - so, it's capable of possessing int'l rights and duties, including bringing int'l claims § This case is big step in int'l law - means UN can be treated the same as states are § Also created precedent for other int'l orgs to act on their own behalf, not just have member-states act for them

Siderman de Blake v. Republic of Argentina (9th Cir. 1992) - Implicit Waivers to Sovereign Immunity

· Siderman de Blake v. Republic of Argentina (9th Cir. 1992) o Argentina falsely claimed jurisdiction over Siderman o By sending letter to US courts, implicitly waived immunity from suit by bringing US courts into effort to harass Siderman (can't complain when you use courts to harass and they turn around and use courts to fight back) · Other implicit waivers include showing up to litigate o States more often go to State Dept. and ask to tell court why they're not going to show up o Could also make special appearance to plea sovereign immunity (by not showing up, some courts have entered default judgments) § Need to be careful not to argue anything else at the same time

Immigration Generally

· States can restrict immigration and stays of aliens o Cannot prevent entry of diplomats or refugees § Cannot prevent diplomats of country that you have diplomatic relations with because you don't like those specific diplomat § Cannot prevent people because you think they will request refugee status Economics is not enough to be a refugee

How States Affect International Compliance

· States do make efforts to increase others' compliance, even without going to court o Make statements o Condemn inappropriate behavior (reputational effects) § Based on reciprocity - everyone benefits from complaince o Trade sanctions § But can only be used by the powerful o Reciprocal non-compliance § Can stop complying if other country does (easier in bilateral situation than multilateral) · Compliance mechanisms have developed o Cooperation o Reciprocity o Sanctions o Sense that should comply because right thing to do · Law is politics - they are intertwined and should not be distinguished

Territory (as grounds for legislative jurisdiction)

· Territory state has jurisdiction over entities in it bounds o Modern presumption of SCOTUS is presumption against extra-territoriality - so, read statutes with general language as having implicit territorial limit § Only read otherwise, if reason to (rebuttable presumption)

Terrorism (FSIA)

· Terrorism o Only applies to states that are designated as "state sponsors of terrorism" o New provision (28 U.S. Code § 1605B) specifically to make easier to bring 9/11 suits against Saudi Arabia

Tinoco Claims Arbitration -

· Tinoco Claims Arbitration o Not recognized by US (or others) o But SCOTUS still found that new regime had to abide by past gov'ts commitments § Seems real politik, but actually consistent with int'l law - if gov't in power, even if not recognized, still expected to uphold obligations · Soviet case o Decided similarly to Tinoco o Again, this is in line with recognizing that gov't exists without having diplomatic relations or recognizing gov't as legit

Noncommercial Torts

· Torts o Seems broader than it really is - language is very broad, but only applies to torts that occur only in the US and caused by tortious acts or omissions of foreign state o 28 USC § 1605(a)(5) § in which money damages are sought against a foreign state for personal injury or death, or damage to or loss of property, occurring in the United States and caused by the tortious act or omission of that foreign state or of any official or employee of that foreign state while acting within the scope of his office or employment; except this paragraph shall not apply to o Doe v. Ethiopia (DC Cir 2017) § Doe fears Ethiopian gov't because they planted malware on his computer § US courts have consistently said entire tort must occur in US to be covered · Ethiopia's actions did not, so Doe's tort does not meet exception § Court says that Congress had traffic accidents in mind when drafting o Discretionary exception to exception § 28 USC § 1605(a)(5)(A) any claim based upon the exercise or performance or the failure to exercise or perform a discretionary function regardless of whether the discretion be abused o Do not want to allow other states to violate US law and hide behind discretionary function exemption o Argentina v. Amerada Hess § Had to fit within FSIA to be brought at all § Also looked at whether fit within tort exception - did not occur within US, so does not apply · If it had been within US territorial waters, would meet exception · If occurred in EEZ, would not meet exception because not actually US territory

Dispute Resolution

· UN Charter does provide general obligation to resolve disputes peacefully · No mandatory, binding system of dispute settlement o So, many disputes may go unresolved o No one can make states take dispute to court § And UN Charter only addresses disputes that endanger peace · Dispute o Must be disagreement on fact or rule of law, conflict of legal views or interests between two persons AND int'l court's ruling on it must have practical effect

UN Council on Human Rights created new

· UN Council on Human Rights created new Independent Expert to o Study human rights obligations on safe, clean, healthy, sustanable environment o Knox was on this - then renewed as Special Rapporteur (acknowledgment that obligations clear enough to encourage compliance) § Looked for everything human rights bodies had said about enivronment Also, it sucks to be an environmental rights activist o Knox's replacement trying to have Gen Ass recognize human right to clean environment

US v. Dire (4th Cir. 2012)

· US court says "law of nations" can be evolving concept o "Law of nations" means the law of nations, as it has evolved Law of nations is an evolving construct, when Congress refers to Law of Nations, it means the law of nations as it's evolved (it can make international law part of domestic law through interpretation) Definition of piracy

Universal Declaration of Human Rights

· Universal Declaration of Human Rights includes rights to o Life, liberty, security in person, freedom of expression and religion, participation in gov't § Familiar to Americans (look like American rights) o Social security, equal pay for equal work, adequate standard of living, highest attainable standard of health § Many Americans would debate whether these are rights o Difference in rights reflects different perspectives on what human rights means § E.g., right to dignity, human freedom · Difference on expectations in states' obligations led to additional binding treaties because Univ. Decl. not binding · Some human rights (e.g., rights against torture) not at all in debate in human rights law o Even though some rights have been limited

· Universal jurisdiction

· Universal jurisdiction o If breach, any country whose jurisdiction criminal is within can arrest and prosecute § Paradigmatic example is piracy § Only a few things have been added over time - slavery/human trafficking, genocide, war crimes, some forms of terrorism o Under customary int'l law, not usually required to exercise jurisdiction - states have discretion to do so (or not) § But there are specific treaties that can require it (e.g., prosecute or extradite treaty) · Can create new norms - e.g., torture was not part of universal jurisdiction but Convention Against Torture requires prosecute or extradite so can argue has created new norm o No general US statute to create jurisdiction for prosecuting war crimes or genocide But do create it for terrorism, slavery, torture, narcotics trafficking

· What does right of self-determination get a people?

· What does right of self-determination get a people? o Historically, relevant in context of decolonization § So, about colonized countries being able to govern themselves - but this is no longer very relevant o In more modern context can be § External self-determination - a people are so oppressed, so should be allowed to declare independence and have it recognized by other countries § Internal self-determination - people's pursuit of economic, social, cultural, political development and recognition within an existing country - pursued through internal processes

Peoples (Subjects of Int'l Law)

· What is a people? o Could have extremes - everyone who says they're a people is OR everyone in a country is a people § Neither really makes sense, would be impractical to implement o No clear definition in int'l law § Shared culture, language, history, religion, etc. § Indigenous groups (sometimes contested) § To some extent, must be territory associated with the group

When does the issue of statehood have to be resolved?

· When does the issue of statehood have to be resolved? o When trying to join int'l org (most important example) § To join UN, Sec Council and Gen Assembly have to approve, so need enough states to recognize to get necessary votes o When there are significant changes in int'l system (e.g., break ups of USSR and Yugoslavia)

Soft law as evidence of customary law where

· Where resolution is declaratory of pre-existing custom · Where adoption of resolution is seen as evidence of state practice and opinio juris

Foster v. Neilson (US 1829) - Self Executing

· Whether treaty becomes embedded in US law depends on whether it's self-executing (so does not require any additional legislation to imply) "A treaty is to be regarded by courts as self executing" as long as it does not need legislative support to enact If the treaty is self-executing, courts act monist Also, even if treaties are self-executing that does not mean that citizens can bring a private action to enforce the treaty . . . The more treaty looks like a statute (and has less reliance on additional negotiations) the more courts will find it to be self-executing Only slef-executing treaties apply as a statute that is the law of the land, non-self-executing requires Congress to enact legislation to affect treaty

States enforce nationals' rights

· long-standing idea that states can protect their own nationals from mistreatment by other states, even when they are in those states o To espouse individual's claim, must § Be national (requires genuine connection to espousing state) § Have exhausted local remedies (or pursuing them would be futile) o And state still has discretion on espousing claim (or settling it) o Often settled without going to court § May set up tribunals to hear (e.g., claims from Iranian Revolution), but no other court can hear these claims

Defenses

à Circumstances Precluding Wrongfulness = Defenses (i.e. Affirmative Defenses) - 1st - had to be a violation to begin with; the first defense to make against a claim is that this wasn't a violation - If court says that this IS a violation, then go to affirmative defenses