International Law Outline

Judicial Decisions and Scholarly Writings Article 38(1)(d):

"subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations as a subsidiary means for the determine of the rule of law." 1. Hierarchy: cannot create IL, but engage in review of other sources and reach conclusions that the court can consider 2. Judicial Decisions a. Not limited to any particular court, but understood to embrace both decisions of courts and arbitral tribunals 3. Publicists

Legality of the Threat or Use of Nuclear Weapons

(ICJ Advisory Opinion 1996) [absence of probation thus allows for use of item] 1. The fact that states don't use them is not evidence that they believe they have legal obligation not to. They have them for deterrence purposes. 2. UN resolutions state that the use would be a violation but the language never calls them illegal. The United Nations resolutions state that the use of nuclear weapons would be a violation. However, there were many abstentions and negatives votes - therefore they fall short of establishing the existence of an opinio juris on the illegality of the use of such weapons.

ICJ Jurisdiction

- Jurisdiction in Contentious Cases -- Circumscribed Jurisdiction -- States can accept the Court's jurisdiction on an ad hoc basis for the adjudication of an existing dispute - Based on Joint Referral -- Typically done through a special agreement (compromis) in which parties specifically define the terms of the dispute and the questions they would like the Court to resolve - Based on Forum Prorogatum --If one state files a case against another state and there is no existing jurisdictional basis for the case, that other state might nevertheless consent to the court's jurisdiction --If one state files a case against another state, that other state might be regarded as consenting to the Court's jurisdiction by participating in the case w/o raising objections - Based on a Treaty -- States can accept the Court's jurisdiction by concluding a bilateral or multilateral treaty that provides for such jurisdiction over cases to the interpretation or application of the treaty - Based on Compulsory Jurisdiction -- Compulsory jurisdiction Art. 36(2) - under the "optional clause" state parties to the ICJ may make a unilateral declaration that "they recognize as compulsory ipso facto and without special agreement, in relation to any other state accepting the same obligation, the jurisdiction of the Court in all legal disputes"

i. International Law Limitations on Exercising National Jurisdiction

1. Acceptable Bases for Jurisdiction to Prescribe: a. Principle of sovereign equality b. Territorial Principle = whatever happens on the territory of a state is generally accepted as properly falling within that state's jurisdiction if it decides to regulate on the matter c. Nationality Principle = A state has a significant interest in exercising jurisdiction over persons or things that possess its nationality, even if the conduct is performed outside of its territory d. Passive Personality Principle = A state is properly interested in protecting its nationals from harm inflicted outside its territory by persons that owe the state no allegiance e. Protective Principle = A state has an evident interest in protecting itself from such harm f. Universal Jurisdiction = Certain activities are so universally condemned that any state has an interest in exercising jurisdiction to combat them. 2. Concept of "Reasonableness": Rest. 3rd § 403 Reasonableness Test even if you can regulate certain conduct, it might not be reasonable to do so.

Breach (ILC Articles 12-19)

1. Article 12: There is a breach of an obligation by a State when an act of that State is not in conformity with what is required of it by that obligation, regardless of origin or character. 2. Article 13: An act of State does not constitute a breach unless the State is bound by the obligation in question at the time the act occurs (obligation not retroactive) 3. Article 14: The breach occurs at the beginning of the moment the act occurs. If a breach continues, it is a breach over the entire time period. A breach of an obligation for a State to prevent an event occurs when the event occurs and extends over the entire time period which the event continues. 4. Article 16/17/18: A state which aids/directs/coerces another State in the commission of a wrongful act is responsible for doing so if: (a) the State knows its wrongful; and (b) the act would be wrongful if committed by the State. 5. Fault? a. No general rule requiring a state be at fault before it can be said that a breach occurs; also no strict liability rule. They are neutral on what standard of culpability must exist for a breach to occur. 6. Is Actual Injury Required? a. This is a loose end/It depends on the primary rules of conduct. b. Erga Omnes 7. Third Parties? a. Usually a third party can't complain, BUT Article 48(1) of the ILC ASR b. Obligations of Erga Omnes: obligations which a State has toward the int'l community as a whole - usually derive from human rights, like prohibiting genocide, slavery, racial discrimination. c. Barcelona Traction, Light, and Power Co., Ltd (Belgium v. Spain) ii. Rule: A state assumes an obligation concerning the treatment of foreign investments based on general international law, once the state admits foreign investments or foreign nationals into its territory / The state of the shareholders of a corporation has a right of diplomatic protection only when the state whose responsibility is invoked is the national state of the company.

Attribution of Conduct (ILC Articles 4-11)

1. Article 4: Conduct of any State organ (judicial, executive, etc.) shall be considered the act of a state. 2. Article 5: Conduct of Person/Entitled who is empowered by law of State to exercise government authority will be considered an act of a state if acting in that capacity. 3. Article 6: Conduct of an organ placed at the disposal of a State by another State shall be considered the act of the former under IL if organ is acting in exercise of the governmental authority of the State at whose disposal it was placed. 4. Article 7: #4 and 5 are still acts of state even if in excess of that authority. 5. Article 8: Conduct of person or group shall be considered an act of State if person is in fact acting on instructions of or under direction or control of that State. 6. Article 9: Act of state if a Person/group is exercising elements of governmental authority in the absence of or default of the official authorities and in circumstances such as to call for the exercise of those elements of authority. 7. Article 10: If you overthrow the government and act that is an act of the State. 8. Article 11: Conduct which is not attributable to a state under preceding articles shall nevertheless be considered an Act of State to the extent that the State acknowledges and adopts the conduct in question as its own. 9. ICJ versus ICTY Standard: ICJ, in Nicaragua v. US case states the standard should be "Effective Control Test". They decided that the paramilitary's conduct was not attributable to the United States. The International Criminal Tribunal for Yugoslavia disagreed and advocated a much lower standard. 10. Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia & Herzegovina v. Serbia & Montenegro) (ICJ)

Sovereign Immunity from National Jurisdiction Moved towards restrictive form by the first half of the 20th century, which would deny immunity when states act in a commercial capacity but retain immunity for public acts.

1. Brussels Convention on the Unification of Certain Rules Relating to Immunity of State-Owned Vessels Art. 1: state owned ships/those operating them/their cargo are subject to the same liability as private-owned ships 2. The Tate Letter: immunity should no longer be granted in certain types of cases; supports restrictive view

i. Practical Consequences of whether an instrument constitutes a treaty -

1. Can have decisive significance for establishment of ICJ jurisdiction a. Ex: Anglo-Iranian Co. - jurisdiction invoked based on Iran's acceptance of optional clause referring to disputes "relating to the application of treaties" i. Holding: Agreement b/w a State and a private co. (even multinational one, even if half owned by a gov't) cannot be considered a treaty in IL (it is a K) - in dictum therefore stated that int'l law treaties should be b/w two states 2. Agreements between States that are not likely to be treaties: a. Standard K for purchase of goods from one gov't to another b. Purchase of building or land when transaction is subject to municipal law c. Loan or guarantee agreement b/w World Bank and a State is subject to laws of NY i. In codification of VCLT add requirement that must be governed by IL - in principle, intention of the parties is controlling (implied or express); other times the nature and object of agreement leaves no choice despite intentions (i.e. cessation of land from France to Switzerland = international law) 3. In US - important b/c treaty must be submitted to Senate prior to ratification

i. Circumstances Precluding Wrongfulness (When can a State be excused?)

1. Consent (ILC ASR Art. 20): Valid consent by a State to the commission of a given act by another State precludes the wrongfulness of that act in relation to the former State to the extent that the act remains within the limits of that consent. 2. Self-Defense (ILC ASR Art. 21): The wrongfulness of an act of a State is precluded if the act constitutes a lawful measure of self-defence taken in conformity with the Charter of the United Nations. 3. Force Majeure (ILC ASR Art. 23): (1) The wrongfulness of an act of a State not in conformity with an international obligation of that State is precluded if the act is due to force majeure, that is the occurrence of an irresistible force or of an unforeseen event, beyond the control of the State, making it materially impossible in the circumstances to perform the obligation. (2) Paragraph 1 does not apply if (a) the situation of force majeure is due, either alone or in combination with other factors, to the conduct of the State invoking it; or (b) the State has assumed the risk of that situation occurring. a. Rainbow Warrior Case: 4. Distress (ILC ASR Art. 24): (1) The wrongfulness of an act of a State not in conformity with an international obligation of that State is precluded if the author of the act in question has no other reasonable way, in a situation of distress, of saving the author's life or the lives of other persons entrusted to the author's care. (2) Paragraph 1 does not apply if: (a) the situation of distress is due, either alone or in combination with other factors, to the conduct of the State invoking it; or (b) the act in question is likely to create a comparable or greater peril. a. Rainbow Warrior Case: 5. Necessity (ILC ASR Art. 25): (1) Necessity may not be invoked by a State as a ground for precluding the wrongfulness of an act not in conformity with an international obligation of that State unless the act: (a) is the only way for the State to safeguard an essential interest against a grave and imminent peril; AND (b) does not seriously impair an essential interest of the State or States towards which the obligation exists, or of the int'l community as a whole. (2) In any case, necessity may not be invoked if: (a) the int'l obligation in question excludes the possibility of invoking necessity (jus cogens or treaty excludes the possibility); or (b) the State has contributed to the situation of necessity. a. Gabcikovo/Nagymaros Project (Hungary/Slovakia) (ICJ 2007): 6. Consequences: (ILC Art. 27 Consequences of invoking a circumstance precluding wrongfulness) The invocation of a circumstance precluding wrongfulness in accordance with this chapter is without prejudice to: (a) compliance with the obligation in question, if and to the extend that the circumstance precluding wrongfulness no longer exists; (b) the question of compensation for any material loss caused by the act in question. 7. Countermeasures (i.e. "Self-Help") (ILC ASR Arts. 49-54) a. Art. 22: The wrongfulness of an act of a State not in conformity with an international obligation towards another State is precluded if and to the extent that the act constitutes a countermeasure taken against the latter State in accordance with chapter II of Part Three. b. Art. 52(1),(2): injured state may not impose countermeasures unless it has first called upon the breaching state to desist from its wrongful conduct and to make reparation. c. Art. 52(3): Injured state may not impose countermeasures (and must suspend if they've started) if the breaching state has ceased its wrongful conduct and the matter is placed before an int'l tribunal. d. Article 49(1): can only take countermeasures against the state responsible for the wrongful act. e. Article 49(2): injured state must limit the countermeasures, at least initially, to the nonperformance of its obligations to the breaching state. f. Article 49(3): Injured state must limit its countermeasures in such a way as to permit the resumption of performance of the obligations in question in the future g. Article 50: Injured state may not engage in countermeasures inconsistent with its obligations under h. Article 50(2)(a): injured state must adhere to any dispute settlement procedure existing with the breaching state and cannot suspend that procedure as par tof its countermeasures i. Article 51: Countermeasures must be proportional to the wrong committed. k. Collective Action: countermeasures may be taken through joint measures (cut off diplomatic relations, trade boycotts). States not directly injured may be involved if the violation was erga omnes.

i. Legal Nature of an IO

1. Constituent Instrument 2. Specific IO Practice (aka Practice of its Organs) 3. General IO law 4. Norms of IL broadly

Legal Personality of an IO

1. Distinct legal status separate from their members, akin to what exists for states 2. To determine, look to: a. Constitutent instrument (express powers) b. If not express, attributes may be implied from overal purpose of the organization (implied powers) c. Some tribunals/scholars assert that certain attributes are inherent in any IOs

i. Arbitration

1. Formal process for obtaining a binding decision regarding a dispute between states/IOs/non-state actors, without the greater costs, time, and formalities of judicial dispute resolution a. Unlike judicial process as well in that parties have greater control over the appointment of the adjudicator, the selection of procedural rules and applicable law, and the confidentiality of the process

Legal Responsibility of an IO

1. ILC in 2011 completed series of draft articles on the responsibility of IOs, which largely tracks articles on state responsibility; however, states that they don't have the same authority as the corresponding provisions on state responsibility 2. Core rules: a. Every internationally wrongful act entails the int'l responsibility of that organization b. International wrongful act can occur from conduct that is either an action or omission, when it is both attributable to the organization and constitutes a breach of an international obligation of that organization. c. Conduct will be attributed when it is committed by one of the org's organs or officials, or by a person entrusted with one of the functions of the org i. Attribution can still occur when organ, official, or person is acting ultra vires (outside the scope of their powers) if there is enough connection to the work of the org. d. General presumption that member states have not created an agency relations with an IO simply by ratifiying the treaty or participating in its work member states are not responsible

i. Foreign Sovereign Immunities Act of 1976: Accords federal courts jurisdiction over cases against foreign states, but Section 1604 provides those states with immunity unless one of several defined exceptions applies. [Presumption is that if you've established the entity is a state, then it's immune unless you can fit it into one of the exceptions]

1. Jurisdictional statute; many states have similar legislation 2. "States are not immune from jurisdiction of foreign courts insofar as their commercial activities are concerned, and their commercial property may be levied upon for the satisfaction of judgments rendered against them in connection with their commercial activities. 3. §1330: district courts have original jurisdiction of any non-jury civil action. Immunity is decided by §1605-07 or international agreements.c. §1603(a) includes political subdivisions of the State (like states, or agencies or instrumentality that is 51% owned by a government) 4. §1603(d): commercial activity means either a regular course of commercial conduct or a particular commercial transaction or act. Commercial character of an activity is determined by nature of conduct - NOT its purpose. 5. §1604: Foreign sovereign governments get immunity (unless otherwise noted below) a. §§ 1604 and 1330(a) work in tandem: 1604 bars federal and state courts from exercising jurisdiction when a state is entitled to immunity, but 1330(a) confers jurisdiction on district courts to hear suits brought by U.S. citizens and by aliens when a foreign state is not entitled to immunity. 6. §1607: If foreign government sues in US court, and you counterclaim, there is no immunity. 7. §1609: says there is immunity from attachment 8. §1610: says there are exceptions from immunity from attachment. You can only go after property used in commercial activities. You are supposed to go after the property involved in the suit. 9. § 1611: certain properties will always be immune Foreign central bank/monetary authority (many countries keep reserves at the NY Federal reserve Bank); Military 10. FSIA is exclusive basis for jurisdiction over foreign state in US court. a. Argentine Republic v. Amerada Hess Shipping Corp.: 2 Liberian corporations sued in US to recover damages for tort (under alien tort statute) allegedly committed by its armed forces on the high seas in violation of IL. They claim basis of jurisdiction is "universal jsd". Court says no: FSIA is the sole basis for obtaining jurisdiction over foreign state in our court. Universal jurisdiction allows you to exercise it - doesn't require jurisdiction. FSIA must be applied by the district court in every action against a foreign sovereign, since subject matter jurisdiction depends on existence of one of the specified exceptions to sovereign immunity. Acts occurring on the high seas are not captured under the Foreign Sovereign Immunities Act's (FSIA) exception for noncommercial torts; Jurisdiction over foreign states is not conferred under the Alien Tort Statute. 11. FSIA applies retroactively (Austria v. Altmann)

Limits on the Exercise of National Jurisdiction

1. National Courts frequently make reference to certain presumptions or canons of construction aimed at avoiding conflict between national law and int'l law or between the forum's national law and the legitimate interests of other states. US v. Bowman Kioebel v. Royal Dutch Petroleum Co. Al-Skeini v. Secretary of State for Defence (House of Lords, 2007)

i. Determination of Statehood

1. Requirements of a State (1933 Montevideo Convention, now regarded as CIL): a. Defined Territory: doesn't require precise boundaries, but can't just be a "disembodied sprit" b. Permanent Population: no minimum population set. c. Under Control of Its Own Government/Effective Government: emphasis on control that the government exercises over the territory at the exclusion of other entities. d. Has the Capacity to Engage in Formal Relations with Other Entities i. Possible for a State to assign some of its foreign relations capacity to another state or to an IO w/o losing its status as a state e. Other Contemporary Requirements: In some situations, willingness of other states to recognize a new state may turn on additional reqs, i.e. the Declaration after the dissolution of the USSR had general conditions for recognition:

i. Is Int'l law law?

1. There is an inability to enforce it and there is no world legislature to promulgate the rules of law to govern the international community a. Austin - this is not law because to have law one needs (1) A sovereign (2) Who prescribes the law and issues orders (3) Who then enforces those laws or orders b. Hart - Law is neutral and not always a reflection of morality, reciprocity exists on both sides that encourages each state to comply with their international obligations ex: territorial sea rules would not offend morality if that were amended to 6 given that it is an arbitrary number that is not representing moral codes. c. Henkin - IL as the normative expression of the international political system. Politics float around in law making. Analogous to domestic law in the construct of norms, standards, principles, institutions, procedures - the "persons" constituting int'l society are political entities, "states"

i. International Organizations (non-traditional source)

1. Viewed as new law...potentially an extension of treaty law? 2. Decisions of IO Plenary Organs Generally a. EU "Legislation" b. UNSecurityCouncil as binding

Arbitration Choice of Procedural, Substantive Law and Forum

4. Choice of Procedural Law a. The compromis or compromissory clause is critical b. More common to set forth an "off the shelf" set of procedural arbitration rules, such as the Permanent Court of Arbitration's Optional Rules for Arbitrating Disputes between Two States or the UN Conference on Int'l Trade Law's Arbitration Rules. 5. Choice of Substantive Law a. Refer to compromis or compromissory clause b. Blanket reference might be made to all int'l law (treaties, custom, general principles, and so on) c. Or might be directed to a particular area of int'l law (such as trade law) 6. Choice of Forum a. No specific venue; the parties are free to choose forum of preference b. But certain centers emerged to cater to international arbitrations (often selected in the compromissory clause) - i. Permanent Court of Arbitration (PCA) ii. International Center for Settlement of Investment Disputes (ICSID) iii. Iran-US Claims Tribunal c. Mass-Claims i. Emergence of new venues for addressing these; sometimes pursuant to treaties ii. Issues: whether comparable types of claims can be grouped together; what evidentiary standards shall apply to different groups

Ancillary Issues, Intervention

A state may intervene in a contentious case between two other states under either ICJ statute art. 62 (permissible intervention) or Art. 63 (intervention as of right).

i. What is Meant by an Internationally Wrongful Act?

A. The 2001 International Law Commission Articles on State Responsibility 1. Article 1: Every internationally wrongful act of a State entails the international responsibility of the State 2. Article 2: There is a wrongful act of State when conduct consisting of an action or omission (a) is attributable to the State under IL; or (b) Constitutes a breach of an international obligation of the State. 3. Article 3: The characterization of an act of State as internationally wrongful is governed by IL. Doesn't matter what national law says.

a. Treaties can be reflective of CIL

a. Specific prevails over general (lex specialis derogat generali) b. New customary rule might overtake an older treaty c. Jus cogens will trump an inconsistent treaty

Derogations in Emergencies: In crisis mode, states can derogate these human rights obligations obligations.

Article 4: in times of public emergency, which threatens the life of the nations, the existence of which is officially claimed, may take measures that derogate. Certain articles cannot be derogated from: torture, servitude, right to life, etc. Any states who derogate must notify other states. Further, they cannot derogate from other obligations from IL, and not based solely on race. Lawless Case: first case in European Court of Human Rights: Lawless was held in detention. It was in Ireland, Ireland claimed it was in emergency, because of the IRA causing destabilization. -- Definition of emergency: (1) exceptional situation of crisis or emergency which affects the whole population and constitutes a threat to the organized life of the community which the State is composed. (2) the measures "are strictly required by the exigencies of the situation. Court said it was ok. Why? Ireland said that if you proclaim that you will not break the Constitution, they will let them go. These people refused, so it was ok to detain them.

ICJ can also issue advisory opinions on legal questions

i. May only be invoked by UN organs and specialized agencies of the UN authorized to do so ii. Are non-binding, but have judicial authority - can legitimate state conduct i.e.

Terrorism-Related Exceptions:

Terrorism State Exception § 1605 (a): Money damages for US nationals for personal injury or death that was caused by act or torture, extrajudicial killing, aircraft sabotage, hostage taking or provision of material support or resources and it must be an act of state. Must occur outside the foreign state. If it happens within you have to give them opportunity to arbitrate. Three states are currently terrorist states: Iran, Sudan, Libya (Murphy's Law) Terrorism Acts in United States § 1605 (b):

Ancillary Issues Provisional Measures of Protection

The Court has the "power to indicate, if it considers that circumstances so require, any provisional measures which ought to be taken to preserve the respective rights of the parties." ICJ Statute, Art. 41 → analogous to injunctive relief. i. Requirements: (1) Urgency (2) Irreparable Harm and (3) a prima facie basis for jurisdiction. ii. Application of the International Convention on the Elimination of All Forms of Racial Discrimination

Reparation

Art. 31: (1) The responsible State is under an obligation to make full reparation for the injury caused by the internationally wrongful act. (2) Injury includes any damage, whether material or moral, caused by the internationally wrongful act of a State. Art. 34: Full reparation for the injury caused by the internationally wrongful act shall take the form of restitution, compensation and satisfaction, either singly or in combination, in accordance with the provisions of this chapter. 3. Restitution (Art. 35): A State responsible for an int'l wrongful act is under an obligation to make restitution = to re-establish the situation which existed before the wrongful act provided that the restitution is (a) not materially impossible and (b) does not involve a burden out of all proportion to the benefit deriving from restitution instead of compensation. 4. Compensation (Art. 36): (1) The State responsible for an int'l wrongful act is under an obligation to compensate for the damage caused thereby, insofar as such damage is not made good by restitution* (2) The compensation shall cover any financially accessible damage including loss of profits insofar as it is established. 5. Satisfaction (Art. 37): (1) The State responsible for an internationally wrongful act is under an obligation to give satisfaction for the injury caused by that act insofar as it cannot be made good by restitution or compensation. (2) Satisfaction may consist in an acknowledgement of the breach, an expression of regret, a formal apology or another appropriate modality. (3) Satisfaction shall not be out of proportion to the injury and may not take a form humiliating to the responsible State. 6. Interest: Interest is paid on reparation beginning on date of harm until amount is paid.

ICJ, Finality of Judgements

Art. 60: Courts judgments are final and without appeal but in the event of a dispute as to the meaning or scope of the judgment, the Court shall hear the question.

i. General Principles - Article 38(1)(c): "the general principles of law recognized by civilized nations" *today all states are relevant in this determination

Article 38(1)(c) is not limited to national legal systems. Schachter categories a. Municipal law "recognized by civilized nations" b. Principles of law "derived from the specific nature of the int'l community" Necessary principles of coexistence, like pacta sunt servanda, non-intervention, territorial integrity, self-defense, and the legal equality of States. c. Intrinsic to the idea of law and basic to all legal systems pacta sunt servanda, res judicata, lex posterior derogat prior (later supersedes earlier) d. Jus rationale: principles valid through all kinds of societies in relationships of hierarchy and coordination. Related to natural law principles that transcend countries, like non-discrimination. e. "Natural Justice": principles of justice founded on the nature of men as a social being.

A. Sovereign Immunity from National Jurisdiction

From Absolute to Restrictive Immunity

International Organizations as International Law Actors:

Generally refer to organizations composed of entirely or mainly of states and usually established by a treaty serving as the organization's constituent instrument

A. Sources of International Law - ICJ Statute Art. 38(1)

Customary International Law Law of Treaties General Principles of Law Judicial Decisions and Scholarly Writings International Organizations (non-traditional source)

UN Charter Article 1(3) did not impose any concrete human rights obligations on UN member states

Despite vagueness, UN membership came to accept that the Charter has internationalized the concept of human rights states could no longer claim that human rights were essentially domestic in character Human rights v. Int'l Humanitarian law: humanitarian law is applied during armed conflict. Defining human rights: not authoritatively defined, but said to include those moral-political claims which every human being has or is deemed to have upon his society or government.

Human Rights, Global Institutions

Human Rights Council Created in 2006 Reports to UNGA, which elects 47 government members for 3-year terms Elected by majority vote (US wanted ⅔) from members upholding high human rights standards Special Procedures -- independent experts/commissions Currently 43 thematic and 14 country mandates (e.g. on N. Korea) Criticized as being political Conducts the "Universal Periodic Review" of all States human rights records (completed all 193 in 2011 and now is doing second round) Operates a "Complaints Procedure" for individual or groups regarding gross human rights violations High Commissioners Human Rights Refugees Treaty Committees

Extraterritorial Application, Human Rights Application

ICCPR Article 2: "each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Convention..." Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (ICJ Advisory Opinion, 2004) Main Point: ICCPR is applicable in respect of acts done by a State in the exercise of its jurisdiction outside its own jurisdiction outside its own territory. Dennis, Application of Human Rights Treaties Extraterritorially During Times of Armed Conflict U.S. Adherence? Mixed story. US has joined some of the major instruments. Why does the US resist? Conflicts with US law/constitution and federalism issues.

Counter-claims

ICJ Statute does not directly address the issue of the respondent state filing a counterclaim against the applicant state. Article 80 provides that the Court may entertain such a counterclaim if two reqs are met: (1) when the counterclaim "comes within the jurisdiction of the court" and (2) when the counterclaim is directly connected with the subject matter of the claim of the other party.

Ancillary Issues, Non-Appearance

ICJ Statute doesn't provide for entry of default judgment if a State doesn't show up Art. 53: requires the Court to satisfy itself that it has jurisdiction and, if so, that the claim of the applicant is well-founded in fact and in law. If so, case goes forward and the non-appearing state is bound anyway.

A. NGOs: are not states but formed by individuals or private groups sharing common goal.

IL actors

Structures and Powers of an IO

IOs generally have "organs" created pursuant to its treaty and the treaty also sets forth the powers of those organs (UN Charter Art. 7: establishses its organs): typically - plenary organ - executive organ - secretariat - judicial organ - expert commission or commitee - directly elected parliament

Law of State Responsibility

If a state by its act or omission breaches an international obligation, it incurs what is referred to as "international responsibility" i. General Principles: 1. A breach by a state of an int'l obligation engages the "responsibility" of the state for consequence of that breach. b. Generates a new legal relationship if you violate a treaty (primary relation), then it triggers this secondary legal relationship that can involve things not expressed in the treaty itself. 2. If the breach results in an injury to another state, the injured state is entitled to reparation. 3. Responsibility arises whenever there is a breach of an int'l obligation, whatever its origin. ii. These are "secondary" rules 1. They support "primary" rules in specialized areas 2. They don't indicate when a breach has occurred 3. They serve as default rules 4. Primary rules v. Secondary rules a. Primary Rules: come from things like a treaty. They are explicitly stated. They can also be in CIL as well. They are very issue specific. The instrument creating the obligation. b. Secondary Rules: come from CIL, judicial decisions. They are basic rudimentary rules. i. The general rules on state responsibility are secondary rules ii.

Human Rights, Promoting Compliance

Inherent weakness: unlike classic rules of int'l law, where the notions of reciprocity help bring compliance. Global Courts - ICJ Regional Courts - European Court of HR: - OAS: - Inter-American HR Court: Diplomacy/Mobilization of Shame: Economic/Military Sanctions: Monitoring by Global Institutions -- UN Monitoring ---- UN Human Rights Council (but also UNGA/UNSC) ---- UN High Commissioner for Human Rights: -- Treaty-Body Monitoring: Certain treaty regimes establish committees that receive state reports and monitor state compliance. However, many delinquent reports by states. Committees issue "comments" on compliance. -- NGOs National Laws/Courts Alien Tort Statute Torture Victim Prevention Act § 2(a); 28 U.S.C. § 1350: "An individual who, under actual or apparent authority, or color of law, of any foreign nation - (1) subjects an individual to torture shall in a civil action be liable for damages to that individual (2) subjects an individual to extrajudicial killing shall, in a civil action, be liable for damages to the individual's legal representative or to any person who many be a claimant in an action for wrongful death Sosa Case: U.S. Supreme Court found the Universal Declaration on HR unhelpful in determining whether an "arbitrary arrest" violated IL. Int'l Criminal Prosecution: If you are serious about enforcing HR treaties you can enforce HR against people rather than states. You can do this to deter culpable behavior through criminal sanctions, like war crimes tribunals and ICC.

Two International Covenants was 1, split into 2

International Covenant on Civil and Political Rights (ICCPR) - 167 states have adhered to it (as of 2013) - Generally follows the first 21 articles of the Universal Declaration but more detailed - Separate protocol allows states to submit complaints to the Committee lodged against them or on behalf of private persons claiming to be victims of a violation - A second optional protocol obliges parties to abolish the death penalty (78 states as of 2013) -- US adheres to neither optional protocol International Covenant on Economic, Social, and Cultural Rights (ICESCR) - 161 States as of 2013 - Right to work (art. 6), to just and favorable working conditions (7), to form and join trade unions (8), social security (9), protection of and assistance to the family, mothers, and children (10), to adequate food, clothing, and housing (11), to highest attainable standard of physical and mental health (12), education, (13) and the right to take part in cultural life, to enjoy the benefits of scientific progress and its applications, and to benefit from the protection of the moral and material interests resulting from any scientific, literary, or artistic production of which a person is the author (15) - UN GA adopted a Declaration on the Right to Development, which recognized in Art. 1 the "right of development" as "an inalienable human right." (passed 146-1 (US) with 8 abstentions)

Getting Out of A Treaty

Invalidity, Termination/Suspension,

UN Charter Art. 2(7) was regularly cited by human rights violators as an impediment to UN action.

Many argue that the provisions of the Charter can now be interpreted together with later developments, notably the 1948 Universal Declaration of Human Rights. On this view, all UN members are legally bound to at least respect those rights which aren't disputed like freedom from slavery, genocide, racial discrimination, systematic patters of torture and arbitrary detention.

Non-adjudicatory Procedures

Negotiation Meditation Conciliation

Formation: [Common approach for multilateral treaties is

Negotiation --> Adoption --> Translation/Authentication --> Signature Period --> Deposit of Ratifications/Accessions --> EIF (after agreed upon # achieved)]

*ONCE TREATY IS IN FORCE =

OBSERVANCE, APPLICATION, INTERPRETATION*

Overview of Jurisdiction Three Forms of Jurisdiction, BUT

Three Forms of Jurisdiction - Traditionally: Legislative, Judicial, Executive; but Restatement Third uses different terms...= Jurisdiction to Prescribe, Adjudicate, and Enforce i. Jurisdiction to Prescribe. Jurisdiction to create rules of general import may be formulated not only by legislatures, but also by other institutions of government like admin agencies and even courts. This jurisdiction can be further broken down based on the relationship to the regulating state of the person or activity that is being regulated. ii. Jurisdiction to Adjudicate. The authority of a state to subject particular persons or things to its judicial process. Chose this term because adjudicatory functions may be exercised not only by the judiciary, but also by other governmental institutions (e.g. administrative tribunals). iii. Jurisdiction to Enforce. Authority of a state to use the resources of government to induce or compel compliance with its law.

Getting out of a Treaty, Invalidity

VCLT Arts. 42-53 a. Art. 42: Validity can only be addressed by applying the VCLT → If you are challenging a treaty as being invalid the day it was adopted, you have to use the VCLT b. Art. 43: When a state withdraws from a treaty, they are still bound by CIL rules independent of the treaty c. Art. 44: Separability - some provisions may be struck w/o invalidating the entire treaty so long as it doesn't defeat the object and purpose d. Art. 44: States may not invoke internal law as a basis for not adhering to obligations of a treaty, unless that violation was manifest e. Art. 48: A party may invoke error in treaty as invalidating its consent to be bound if the error relates to a fact or situation which was assumed by that state to exist at the time when the treaty was concluded and formed an essential basis of its consent to be bound by the treaty f. Art. 49: Fraud can invalidate if it led to the State consenting to be bound to the treaty g. Art. 50: If consent is found to be based on corruption of the State's representative by another negotiating state, state may invoke such corruption as invalidating its consent to be bound. h. Arts. 51 & 52: Consent to be bound by a treaty may not be procured through coercion or threat of use of force. A State's consent to be bound is w/o legal effect in this situation. VOID, not just voidable.

Exceptions to Immunity Waiver

Waiver of immunity from jurisdiction - § 1605(a)(1) Waiver of immunity from attachment in aid of execution or from execution - § 1605(a)-(c) Waiver of immunity from attachment prior to the entry of judgment - § 1605(d) Also, counterclaims may be regarded as a kind of waiver - § 1607 Siderman de Blake v. Republic of Argentina: Argentina implicitly waived immunity defense by requesting assistance of CA courts.

UN Declaration of Human Rights (not a treaty!)

Was originally not intended to be binding law, but efforts have been made to make it such U.S. Courts have declined to accord the Declaration the status of treaty Some courts regard it as CIL

Paquette Habana Case

[establishing custom] (SCOTUS 1900) 1. Facts: U.S. captures fishing vessels sailing under Spanish flag during war w/ Spain. No arms/ammunition in cargo. 2. Issue: whether the fishing vessels were subject to capture by armed vessels of the U.S. during the war? 3. Reasoning: court surveys countries throughout history (really only looks at French, German, Argentinian, Dutch, English, Spanish, Italian) and range of evidence like national laws, executive decrees, acts of commanders, national tribunal opinions to find a rule of CIL: under CIL, it is established that historically coast fishing vessels are exempt from capture as prize of war. 4. Note: SCOTUS looks to IL b/c "part of US law" but only looks to CIL "where there is no treaty and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations."

North Sea Continental Shelf Cases (Germany v. Denmark, Germany v. Netherlands)

[not bound by custom bc no sense of obligation adhered to under sense of legal obligation] 1. Facts: dispute over the delimitation of the Continental Shelf shared by Denmark, Netherlands and Germany. Denmark and Netherlands claimed that the dispute should be decided in accordance w/ the principle of equidistance under the Geneva Convention. Court rejects the application of the Convention, to which Germany was not a party. Court rejects that this method, Art. 6, is CIL because no proof that states viewed it as a legal obligation.

S.S. Lotus Case (France v. Turkey) (PCIJ 1927):

[presumption that sovereigns can prosecute foreign nationals in its state in the absence of law prohibiting it] 1. Lotus principle: international law permits what it doesn't prohibit 2. Facts: French Lotus collides with Turkish Steamer resulting in sinking of Turkish vessel and deaths of 8 Turkish nationals. 3. Issue: whether, according to IL, Turkey has jurisdiction to prosecute this case. 4. Reasoning: There is no rule of international law in regard to collision cases to the effect that criminal proceedings are exclusively within the jurisdiction of the State whose flag is flown. therefore, each should be able to exercise jurisdiction as to incident as a whole - concurrent jurisdiction 5. National law as evidence of state practice: States have claimed rights to prosecute for offenses on board of a foreign ship under its own legislation - nationality of the victim 6. * Criticism of this outcome led many states to adopt treaty provisions rejecting this. LOSC Art. 97(1) now governs: "in event of a collision...concerning ship on the high seas...no penal or disciplinary proceedings may be instituted against such person except before the judicial or administrative authorities either of the flag State or of the State of which such person is a national." Now largely viewed as CIL (aka custom changes over time, sometimes b/c of treaties)

1. Reservations*, Understandings, Declarations (RUDs) VCLT Art. 2(1)(d) reservation

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 modify the legal effect of certain provisions of the treaty in their application to the State. Traditional rule was that all the states had to accept the reservation before the state was bound. Now more flexibility allowed depending on object/purpose of the treaty (see below

CIL 2) Opinio Juris

a. (the psychological element) i. Found where a state takes an act, because it thinks it is required by international law; where they adhere to the usage because they think they are bound by it. ii. Some scholars don't view this as a separate element, more just that opinio juris serves to reinforce state practice

Arbtitration commences in 2 way

a. Ad hoc arbitration - parties agree to take dispute to international arbitration after a dispute has arisen i. Resort to arbitration is accepted only as to specific dispute; usually conclude a compromis which sets forth the basic terms of arbitration b. Parties may also agree before a dispute has arisen that if a dispute does arise, either party may compel international arbitration i. Parties would generally within treaty or K, include a compromissory clause providing for international arbitration whenever a dispute arises ii. Used for disputes between - 1. Two states (with compromissory clause usually in treaty) 2. A state and a foreign person or company

Treaty, Application

a. Art. 28: Normally obligations are prospective, not retroactive unless treaty states otherwise b. Art. 29: Territorial Scope. Treaty is binding upon a party with respect to its entire territory unless treaty indicates otherwise c. Art. 30: Successive Treaties. Later in time treaty normally supersedes earlier treaty where they address the same subject matter, conflict on a particular issue, and the relevant states are party to both treaties. i. Treaty can be written so it supersedes even later-in-time treaties

1. Interpretation of Treaties

a. Basic Rules i. Art. 31: interpreted in good faith, w/ ordinary meaning given to terms of the treaty in their context, in accordance with object and purpose 1. Context includes text, preamble, annexes, agreements relating to treaty, etc. 2. Special meaning should be given to a term if established that the parties intended to do so 3. Vienna Convention adopts textual interpretation: Ordinary meaning must be obscure or unreasonable before interpreting body may look to supplementary means; look to context of text, purpose of the treaty. P508 vi. Travaux preparatoires: Preparatory work used only to confirm meaning when meaning is ambiguous or unreasonable (Art. 32) 4. Account should be taken of any subsequent agreement reached by the parties re: interpretation of the treaty, any subsequent practice of the parties regarding its interpretation and any relevant rules of IL applicable to the relations btw the parties c. Bosnia v. Serbia, Application of the Convention on Prevention & Punishment of Genocide (ICJ 2007) ii. Rule: Court looks to ordinary meaning of the terms read in their context and in light of the object and purpose of Convention; also references prep work.

1. Termination/Suspension of a Treaty

a. By Terms/Consent - Art. 54 - Parties can get out of the treaty by the provisions of that treaty or by consent of all the parties. Even if there are no provisions which allow withdrawal, Art. 56 allows denunciation if such a right "may be implied by the nature of the treaty." (Ex. Alliances/commercial) (Some treaties, like human/political/civil rights do not allow for denunciation) b. Breach - Art. 60: i. Material breach = (a) repudiation of the treaty not sanctioned by the present convention; or (b) the violation of a provision essential to the accomplishment of the object or purpose of the treaty. ii. If Bilateral: a material breach by one party entitles other party to invoke the breach as a ground for terminating; NOT automatic right to terminate. The non-breaching party has to go through certain procedures first. iii. If multilateral: a material breach by one party entitles 1. (a) the other parties by unanimous agreement to suspend the operation of the treaty in whole or in party to terminate it either (i) in the relations btw themselves and the defaulting state, or (ii) as between all the parties 2. (b) a party specially affected by the breach to invoke it as a ground for suspending the operation of the treaty in whole or in part in the relation btw itself and the defaulting state 3. (c) any party other than the defaulting state to invoke the breach as a ground for suspending operation of the treaty in whole or in part w/ respect to itself if the treaty is of such a character that a material breach of its provisions by one party radically changed the position of every party w/ respect to the further performance of its obligations under the treaty. iv. Application of the Interim Accord Case: c. Impossibility - Art. 61 - State may invoke impossibility if the cannot perform; must actually be impossible, not just inconvenient. d. Changed Circumstances - Art. 62

ICJ Advisory Opinions

a. Commences when UN Secretary General, acting on behalf of an authorized body, files written request with the court i. Who can ask for them? (Must be authorized to do so) (UN Charter Art. 96) 1. UN Organs a. General Assembly b. Security Council c. Economic and Social Council d. Trusteeship Council 2. Specialized Agencies (the opinion sought must be in the scope of that agency's work and must be a legal question) ILO, FAO, UNESCO, WHO (ex: could ask about health/effects of nuclear weapons, but not about the legality of their use), IBRID, IFC, IDA, IMF, ICAO, ITU, IFAD, WMO, IMO, WIPO, UNIDO b. Court then draws up a list of states and IOs that likely have information on the question, which includes all the member states of the organization requesting the opinion. Those states and organizations may file written statements and, if held, present at oral proceedings. c. Has no binding effect itself, but some international agreements provide that disputes relating to the interpretation and application of the agreement shall be submitted to the Court for an opinion that will be accepted as binding. d. ICJ has discretion whether to advise i. Kosovo DOI Advisory Opinion: Court has discretion; a lot of arguments made against the Court's ability to hear it even though requested by the General Assembly. e. Jurisdiction? i. Court must satisfy itself that is has jurisdiction ii. Legality of the Use by a State of Nuclear Weapons in Armed Conflict: 3 conditions to find jurisdiction when a request for an advisory opinion is made by a specialized agency: (1) the agency requesting the opinion must be duly authorized, under the Charter, to request opinions; (2) the opinion requested must be on a legal question; and (3) the legal question must be one arising with the scope of the activities of the requesting agency. 1. In this case, no jurisdiction because it was the WHO asking and they didn't satisfy (3)

1. Recognition of a State

a. Constitutive View: only when other states decides that such conditions have been met, and acknowledge the legal capacity of the new gov't, is a new state constituted; Might look past the missing of one factor or might look to more criteria b. Declaratory View: contends that an entity is ipso facto a state once these conditions are met, regardless of what other states do or say (other states are only declaring something that already exists) 3. Case Study: Dissolution of Former Yugoslavia 4. Prohibitions on Recognizing Statehood a. Duty not to recognize an entity as a new state may be applicable when: i. The entity failed to satisfy traditional criteria ii. Entity has come into existence in violation of fundamental principles of IL

1. Jus Cogens

a. Do not appear from normal CIL processes - less emphasis on consensual state practice and more on notions of universal morality/justice/public policy objectives b. VCLT Art. 53 - peremptory norm - "accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general IL having the same character" i. VCLT Art. 64 - "If a new peremptory norm of general IL emerges, any existing treaty which is in conflict with that norm becomes void and terminates." Belgium v. Senegal, Questions Relating to the Obligation to Prosectute or Extradite 1. Rule: Despite the fact that has violated jus cogens, does not confer jurisdiction on the ICJ; nor does Senegal have an obligation to prosecute him prior to joining the Torture Convention 2. Holding: Prohibition of torture is part of CIL and has become a peremptory norm (jus cogens) as evidenced by widespread international practice and the opinio juris of States i. Germany v. Italy (Greece Intervening), Jurisdictional Immunities of the State (ICJ) - Rule: immunity rules are procedural and confined to determining whether or not courts of one state may exercise jurisdiction, do not bear on whether conduct on which the proceedings are brought was lawful or not.

Negotiation

a. Dominant mode for settling disputes/keeping them from arising in the first place b. Completely within control of the parties c. Must be exercised before other options d. Sometimes a state is obligated to negotiate i. Gabcikovo-Nagymaros Project (Hungary/Slovakia) ICJ found the parties to be under a legal obligation to negotiate on how to fulfil the multiple objectives of their bilateral treaty. ii. North Sea Continental Shelf Cases (Germany/Denmark; Germany/Nethlerands), there was no treaty regime among all three. But, court said they were under an obligation to enter into negotiations with a view to arriving at an agreement. iv. What must a state do if it is under an obligation to negotiate? 1. To enter into negotiations and to pursue them as far as possible with a view to concluding agreements → "an obligation to reach an agreement" 2. Meaningful negotiation = cannot insist on one position and not even consider changing it, cannot obstruct them (delays, interrupting communications) 3. Good faith

ICJ Admissibility

a. Even if the ICJ has jurisdiction, the claim might be inadmissible b. Example: the Court has invoked the rule of customary international law on "exhaustion of local remedies" to find that a claim is not admissible until such time as remedies have been exhausted by that national in the local courts of the respondent state. Military and Paramilitary Activities in and Against Nicaragua

1. Pursuing an ICJ Case

a. File an application or Joint Compromise b. Request for Provisional Measures of Protection c. Need Jurisdiction i. Reciprocity: where there is compulsory jurisdiction, you must give reciprocity to states that have same compulsory jurisdiction on substantial (not procedural) issues. d. Merits phase e. Damages/Enforcement

is international law binding?

a. In voluntarism system, where states elect to accept upon themselves varying responsibilities, it makes it as if the system is not binding and states can opt in or out at will. b. Self-Interest - States believe that if they follow the laws then reciprocally other states will act as if they need to follow the law as well (also see below re: compliance) - i. Creates certainty, predictability, efficiency in following one set of rules - ii. Issue of power dynamics/unequal systems which can influence the way/what is binding (i.e. UNSC may give certain states powers and not to others)

Conciliation

a. Involves a third party but is much more formal than mediation, often involving the parties submitting written and oral pleadings to the conciliator or conciliation commission. Conciliator charged with issuing a decision recommending a specific way of resolving the dispute, but it is not legally binding. c. 33 States of the Organisation for Security and Cooperation in Europe (OSCE) have adhered to a Convention on Conciliation, which establishes a Court of Conciliation and Arbitration in Geneva Switzerland. d. The Court = list of persons available to serve ad hoc to address a particular dispute with the main focus being conciliation.

International Law Compliance

a. Kohl - Transnational compliance states will comply because their domestic systems will hold them accountable for not honoring its own obligations, also domestic agencies will be pressured by different NGOs to honor a treaty and thus if the state does not comply its political figures at the domestic level will face a backlash from society in the next elections b. States will comply for reasons of in'tl reputation, reciprocity, participation in global organizations c. Nature of the laws will affect compliance - if too ambiguous and states aren't aware, likely won't be complied with d. Deviation doesn't mean the law isn't binding, but it might need to be fixed. e. Lack of enforcement mechanism is a fundamental weakness/frequent criticism; but - i. Fear of Reciprocity 1. Horizontal system (decentralized, therefore states can only be exposed to restrictions that they have affirmatively accepted - usually occurs when advances their own national interest) 2. If one side misbehaves, other side will also - both will lose partner/benefit (retaliation) 3. Weakness: a. Reciprocity is not always existent; i.e. in human rights ii. Counter-measures - violate own international obligations to bring other side into compliance 1. Allowed with some limitations (*self-defense) 2. Can be a collective response 3. Security Council

Validity and Enforcement of Arbitral Awards

a. Often recognized and enforced in large number of countries b. Sometimes arbitral awards b/w state and non-state actor (i.e. corporation) might not be complied with; especially if state has refused to acknowledge its obligation to arbitrate the dispute in the first place i. As a consequence, various international agreements provide for the recognition and enforcement of foreign or non-domestic arbitral awards

a. Priority given to treaties, then we look at customs

a. Priority does not mean a treaty will always prevail over CIL

Mediation

a. Similar to negotiation but with presence of a third party as an active participant in the negotiations; mediator is not expected to issue a decision on either facts or the law but facilitates communications between the two states and may make informal proposals to assist the parties in their negotiations b. Mediator has no power to issue a binding decision c. Parties still retain control over whether to reach a settlement d. Mediators can be individuals, committees, or institutional bodies i. Conflict between Georgia and Russia erupted into war in 2008. President Nicolas Sarkozy met with both/discussed a set of principles he formulated. Led to cessation of hostilities, disengagement of forces, and access to humanitarian assistance.

CIL 1) State Practice

a. State practice: a relatively uniform and consistent state practice re: a particular matter i. How much practice is required? 1. Probably a majority of states, but you don't need all 193 2. Worldwide representation/geographic diversity 3. Maybe the most important/wealthiest/biggest countries must be represented? 4. Need widespread compliance, not perfect compliance i. Period of Time 1. Length can help prove a rule exists i. Role of Non-State Actors: acts of individuals, corporations, and other NGOs can contribute to practice in an extended sense (encourage state to adopt) but don't constitute state practice.

1. Definition of "Treaty"

a. UN Vienna Convention on the Law of Treaties (VCLT): "treaty on treaties" - principle authoritative source of the law of treaties; provides the comprehensive set of rules about how treaties are formed, how they operate, and how they may be terminated or suspended" i. Directly applies to relations btw two VCLT parties (only states - treaties between States and IOs not covered), but only for treaties concluded after it entered force for those parties. ii. For treaties concluded prior to that date (non-retroactive, so only post-1969 treaties are covered), and for treaties by states that haven't ratified the VCLT, go to CIL analysis iii. However, many states and int'l tribunals find that the VCLT reflects CIL 1. Per provision analysis* b. Article 2: a treaty is an (i) international agreement (ii) concluded between States (iii) in written form (iv) governed by in'tl law (v) whether embodied in a single or two or more related instruments (vi) whatever its particular designation i. General IL accepts oral treaties as binding, but these are rare, as well as treaties between state and IO or btw two or more IOs ii. Must be governed by IL: if an instrument calls for the application of a state's national law, it's not a treaty; does not need to expressly state that it's governed by IL if the intention to be so governed can be determined by the language and context of the instrument iii. Does not require a particular method or level of formality and does not necessarily require signature. iv. Agreement, protocol, etc. v. In the U.S., a treaty must be approved by the Senate vi. U.S. is NOT a party to the VCLT, but insofar as it's CIL it's bound anyway c. UN Charter Art. 102 requires registration of every treaty and agreement entered into by any member of the UN; or else may not invoke agreement before any organ of the UN (i.e. ICJ)

1. Observance

a. VCLT Art. 26: once a treaty EIF, principle of pacta sunt servanda provides each party to the treaty must perform obligations in good faith b. Art. 27: Party cannot invoke provisions of its national law as grounds for not performing those obligations (if there was a conflict, State should seek to alter its law prior to joining the treaty) i. Policy: would put treaties in jeopardy because nations could just change their national law to get out of a treaty

ICJ Judges

b. Judges i. Consists of 15 highly regarded jurists from across the globe 1. Elected for 9 years with renewable terms by the UNGA and UNSC ii. To promote separation of judges and gov'ts, candidates are not nominated directly by gov'ts - iii. Are nominated by "national groups" formed in accordance with the procedures of the PCA iv. National group in turn decides whether to nominate a person for the ICJ and if so whom v. From slate of nominees, 5 judges of the ICJ are elected every 3 years for 9 year terms, thus allowing continuity of membership even amidst change vi. Once elected, judges take no instructions from their gov'ts

States: primary example of int'l actors; most IL is

created/interpreted/complied with or enforced by gov'ts of states i. Main methods of creation: dissolution, secession, decolonization, union

A. Dispute Settlement Meaning of "Dispute

for purposes of jurisdiction before an int'l court or tribunal, a "dispute" requires a degree of specificity and contestation. Does not refer to all disagreements between states to protect int'l court's/tribunal's judicial functions. 1. Mavrommatis Palestine Concessions (Greece v. Great Britain): Permanent Court defined dispute as "a disagreement on a point of law or fact, a conflict of legal views or interests between two persons." 2. Further, there is authority that a disagreement is not a dispute if its resolution would not have any practical effect on the relations of the parties.

Rights in Property in the Forum State (Inheritance & Immovable): § 1605(a)(4): When inheritance of property in US by

foreign government. No immunity of foreign government.

Expropriation Exception: §1605(a)(3):If you are taking property in violation of IL (where you didn't pay compensation) it is an exception of sovereign immunity (and act of state) so that

foreign governments can be sued.

e. Procedures for Conciliation:

i. Any state party may request creation of a conciliation commission for a dispute between it and one or more other state parties. ii. Each party appoints from the list one conciliator to sit on the commission. iii. After consulting the parties, the Bureau of the Court appoints the other members of the commission. iv. Confidential proceedings v. Result in a report containing proposals for the peaceful settlement of the dispute vi. Parties have 30 days to examine the report and inform the commission whether they are willing to accept the settlement. vii. Proposed solution becomes binding only if accepted by all the parties to the dispute. viii. Not commonly invoked 1. As of 2013, no dispute had been brought before the OSCE Court of Conciliation and Arbitration 2. Only 9 of 409 disputes submitted to World Bank's International Centre for Settlement of Investment Disputes (ICSID) used conciliation facility ix. Conciliator may be charged with independent fact-finding ("inquiry") leading to conclusions by the conciliator as to disputed facts.

a. Expression of Consent to be Bound - VCLT Arts. 11-14

i. Art. 11: expressed by signature, ratification, or by any other means so agreed ii. Art. 12: Signature = you intend to take the steps needed to bind yourself to the treaty iii. The President of the U.S. ratifies treaties w/ consent of Senate

ICJ Compliance

i. Art. 94(1) of the UN Charter: each UN member "undertakes to comply with the decision" of the Court "in any case to which it is a party" ii. ICJ Statute 59 indicates that the decision of the Court has no binding force except between the parties and in respect of that particular case. iii. If a party does not comply, the prevailing party may have recourse under U.N. Charter Article 94(2) to the Security Council which may "make recommendations or decide upon measures to be taken to give effect to the judgment. 1. Hasn't done this before though!

If state files a reservation to a multilateral treaty and the treaty expressly authorizes such a reservation, then

i. Article 20(1). ...then no acceptance by other parties is necessary (unless treaty so provides); reserving state becomes a party to the treaty w/ the reservation in force

Customary International Law and 2 Core requirements

i. Article 38(1)(b): "international conventions, as evidence of a general practice accepted as law" 1. Results from a general and consistent practice of states followed by them from a sense of legal obligation 2. 2 Core Requirements: (1) State Practice and (2) Opinio Juris

Procedural Rules When Bringing a Claim (ILC Articles 42-48)

i. Article 44: Can only bring a claim for your own nationals. Also, first there must be exhaustion of local remedies ii. Article 45: Can't bring a claim if it's been waived. iv. Notice/Waiver/Laches: Sort of like statute of limitations. Can't wait too long to bring claim. v. Standing: State must have been injured and must give notice to other State. vi. Admissibility - Article 44

If claim is brought on behalf of a person who is not a national of the injured state, the injured state cannot maintain the claim (ILC Art. 44(a)

i. Continuous nationality rule - even if the person is a national of the espousing state at the time the claim is filed, the state may not espouse her claim against another state if she was not a national of the espousing state when the alleged injury occurred or at any point prior to resolution of the claim ii. Local remedies rule - where the claim is brought on behalf of persons, those persons must first exhaust all reasonably available remedies in the national system of the breaching state (ILC Art. 44(b)) iii. Injured state may not pursue a claim if it has waived that claim or acquiesced in the wrongful conduct (Art. 45)

National Law and International Law

i. Legislative, judicial, or executive powers of particular institutions are established under national law. ii. In parallel to the analysis of jurisdiction under national law, the propriety of such jurisdiction can be addressed on the level of international law. -- 1. CIL (and sometimes a treaty) sets limits on the exercise of jurisdiction by states and other int'l legal persons; if those limited are transgressed, then int'l law is violated (even if national law is not). -- 2. Some treaty regimes require a state to exercise jurisdiction over a person present in its territory accused of a specific offense, so as either to submit the offender to nat'l prosecution or to extradite the person to another state's prosecutorial authorities. (ex: Questions Relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal)) iii. So far IL has concerned itself mainly with limiting the national jurisdiction of states. iv. Criminal tribunals now adjudicate crimes committed across the globe, well outside the territory where they sit; justified in some instances on the authority of the Security Council and in other instances on the ground that the tribunals are applying the rules of CIL and therefore applicable to all states in all places at all times. v. Burden of Establishing Whether Jurisdiction is Permissible or Impermissible -- 1. IL hasn't yet developed a comprehensive set of rules defining with precision all forms of jurisdiction that may be exercised by states and other IL legal persons. -- 2. Lotus case remains the classic IL decision addressing the exercise of extraterritorial prescriptive jurisdiction. a. This classic view asserts that IL allows the exercise of national jurisdiction unless a specific prohibition on doing so is identified in IL; hence, the burden of establishing that an exercise of national jurisdiction violates IL rests upon the state or person asserting that no jurisdiction is permitted.

a. Deposit of Ratifications/Accessions

i. Most treaties allow states to accede to the treaty after the end of the signature period by filing an instrument of accession ii. Often treaties are written so that a further step is required by the state after signature, so signature alone ≠ consent to be bound. iii. State can sign and not ratify iv. Obligation not to defeat object and purpose of treaty: Art. 18: in period between signature and ratification, a state is "obliged to refrain from acts which would defeat the object and purpose" of the treaty. This obligation continues until the state makes clear they are not going to become a party to the treaty.

a. Signature Period

i. Once adopted and translated, the manner in which a state consents to be bound is indicated in the treaty itself ii. May provide that signature = consent; multilateral treaties usually open for signature for a discrete period of time, during which an authorized representative of a state may sign the treaty

Even if both CIL requirements are met, a state may not be bound by CIL in two situations:

i. Specially affected states: a state/ground of states, which is important to a particular area of activity, by its opposition, prevent any rule of general (as opposed to particular) customary law from developing 1. This reflects manifestation of a rule - for a general rule of law to come into existence, participation must be sufficiently representative 2. Difficult to find rules that do not impact all states in some way (i.e. landlocked states are still affected by LOSC equidistant rule) 3. Ex: Nuclear Weapons case - if all states except those with nuclear weapons say they are unlawful, then states with them will argue that because they're the ones with them, they should rest on those specially affected states to determine what the law its. Others say the non-nuclear states have the consequences to deal with! 4. Ex: S.S. Lotus: Court mentions that protests/acquiescence are critical factors 5. Ex: Fisheries Case: Judge regarded existence of protests as refuting the claim of Iceland's EEZ exceeding 12 miles; others noted that many interested states had not protested. ii. Persistent objector rule 1. Persistent objector rule: p 100 - as customary law is emerging and you don't like it, you need to persistently object, so that if it becomes law it won't apply to you. You can only be bound to things which you consent to. Silence is considered acceptance. AFFIRMATIVELY object - press conferences, act contrary to the emerging rule. (voluntarism) 2. If you're a new state and the law has already emerged, you're out of luck/bound 3. Object too late? You're bound anyway 4. Jus Cogens (Peremptory Norms) p 105: You can't be an objector to peremtory norms (norms as accepted by the international community as a whole, which you cannot get out of. Ex: prohibition on genocide). Jus cogens are the most important rules in the hierarchy of CIL.

b. Art. 19: A State may file a reservation unless

i. The treaty prohibits reservations ii. The treaty specifically provides for allowable reservations, and the one in question is not included iii. Reservation is incompatible with the object and purpose of the treaty iv. Impermissibility v. Unacceptability 1. VCLT 19(c): reservations that are incompatible with object and purpose of treaty are impermissible 2. Even if permissible, other states may find the reservation unacceptable

Capacity to Conclude Treaties

i. VCLT Art. 6: every nation-state has capacity to conclude international agreements. iii. Art. 7: The first step in treaty process is to establish the authority of the representatives negotiating. Representative shows authority by: 1. Producing "full powers" - a document which designates named individuals to represent the state for purposes of negotiating/concluding the treaty (usually not needed for bilateral treaties unless explicitly asked for) 2. Appears from the practice of the States concerned; Heads of State, Heads of Gov and Ministers for Foreign Affairs are considered as representing their state. Heads of diplomatic missions are representing their State, but only for purpose of adopting treaty between the State and the state in which he is a diplomat. 3. According to 2 decisions by ICJ, a state can be bound by an agreement, even when person exceeded his authority in making the agreement, when the other state does not know that person has exceeded his authority. a. Article 8: if the person who tries to enter the treaty on behalf of the state has no authority, then act is w/o legal effect unless confirmed by the State later. iv. Art. 9: Adoption of the Text. 1. Unanimity required for "restricted multilateral treaties" 2. Adoption of a treaty at an int'l conference takes place by a 2/3 vote of States present and voting unless they apply a different rule

UN Security Council, Veto Power

ii. Art. 27(3): "veto" power 1. Members can abstain from vote 2. Concurring as different from affirmative yes (IO practice: can still carry forward if member abstains) 3. Differences between procedural and nonprocedural matters a. Procedural matters need nine votes b. Non-procedural matters need nine votes + the concurring votes of the permanent members (double veto c. If still uncertain whether decision is procedural or not - decision is substantive - meaning have double veto d. Looking at the text it seems like an abstention would block the measure BUT IT DOESN'T; an abstention = a pass 4. If don't show up, GA can act on some things when SC cannot

IL creates rights and obligations for private individual, but individuals can not bring actions for enforcement

ii. Individual has legally protected interests, can perform acts, can enjoy rights and be the subject of duties under municipal law deriving from IL, however his capacities are less than a State. iii. Individuals/corporations need a State to interview in order to bring claims under IL.

IOs and their officials must have certain privileges and immunities

in order to undertake their work w/o interference by the states in which they are operation - however uneven law 2. Relevant laws largely arise from w/e agreement has been negotiated relating to a particular organization, including any agreement b/w the organization and its "host state" as well as the national laws of that state 3. IO Status in National Law (different status than in IL) - a. Art. 104 of Charter: "Organization shall enjoy in the territory of each of its Members such legal capacity as may be necessary for the exercise of its functions and the fulfillment of its purposes 4. EC Court of Justice - Community authority excludes possibility of a concurrent authority on the part of member states

Law of Treaties - Article 38(1)(a):

international conventions, whether general or particular, establishing rules expressly recognized by the contesting states"

Enforcement of Arbitral Agreements: § 1605 (a)(6): if you have agreement w/ foreign government to arbitrate, you can come into US Court and get Court to

order government to arbitrate.

As agreed upon in the treaty; only once treaty enters into force does it bind those states that have

ratified it

Definition: International Law (p. 1-4): Restatement §101

rules and principles of general application dealing with the conduct of states and of international organizations and with their relations inter se, as well as with some of their relations with persons, whether natural or juridical.

Non-Commercial Tort Exception: § 1605 (a)(5): Seeking damages for personal injury, death, or damage to or loss of property occurring in US and caused by

tortuous act/omission of foreign state or employee of foreign state. Applies only to compensation from the STATE, not talking about suing diplomat himself. Only applies to Torts INSIDE the US.

Commercial Activity Exception - § 1605(a)(2)

yes