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I. Introduction:
Transnational Law: “all law which regulates actions of events that transcends national” boundaries.-
Philip Jessup. Can include public international law, private international law, supernational law,
comparative law, and domestic law on international issues.
 PIL: Deals with ?s on statehood, state rights, treaty making, war and peace, diplomatic and
consular relations and maritime law. Laws between States (nations).
 Private IL: Deals with issues arising between private actors. Individuals and companies. Asks: (1)
which state has jurisdiction? (2) what law applies? (3) will one state recognize and enforce a
judgment rendered un another state. Rules come from treatises.
 Supernational Law: Law that’s takes precedence over national law. EU (European Union) is an
example. Govern and bind the nations involved.
 Domestic Law: national rules applicable to international activities or events. Does delve into
immigration, alien-tort statute, extradition agreements. Ex: Taxes, citizenship, criminal law,
export/import controls/ foreign corrupt practices/ regulations of foreign investments.
 Comparative Law: Is the comparative study of law. Marco Level Comparison delves into civil
law, common law, etc. Micro level delves intro procedures and concepts and rules. About
understanding the legal rules in various jurisdictions (such as tribal law, military law, religious
law).
A. Questions to Ask:
1. Where is this case being heard?
2. What rules apply?
o Is there a transnational component in the problem you are facing?
o Which other legal orders or actors might be involved?
o Are there transnational law rules that might apply?
o What is the force of these rules?
o How are the rules you find pertinent applied?
o Can the international rules and decisions actually be enforced?
*Broad questions are (1) what rule apply (private laws/public laws/international laws, principles, and
customs) and (2) where can the case be resolved? (arbitration, jurisdiction, mediation, courts, etc).

II. Civil Law:

 Civil Law tradition: Seen in France, Germany, Italy, and Switzerland. Developed in 450 B.C.
Dominant in Europe, Latin America, Asia, and Africa.
 Common Law tradition: A.D. 1066 via the Normans. Seen in England, US, etc.
 Both traditions have judicial review. “The condominium” has been embraced by the US even
though it is a civil law tradition. Constitution is seen more often in civil law tradition.
 Legal System: Set of legal institutions, procedures, and rules.
 Legal Tradition: Set of deeply rooted, historically conditioned attitudes about the nature of
law, its role in society and politics, and the proper organization and operation of a legal system
encompassing how law is or should be made, studied, taught, and perfected.
 Socialist law, no longer dominant, used to reign in the Soviet Empire, China, and a few other
nations. These nations reverted to the civil law tradition when the Soviet Union collapsed.

A. Civil Law Foundations:

1. Roman Civil Law: Developed in Rome and embodied in the Corpus Juris Civilis, which had the
writings of specific juriconsults. Occurred as Justinian was a reactionary and a codifier. This law
included “the law of persons, the family, inheritance, property, torts, unjust enrichment, and
contracts and the remedies by which interests falling within these categories and judicially
protected. Known as the “civil law” by civil lawyers. Translated to Greek in the Basilica. This also
influenced common law in Europe, and was called jus commune. Some also saw this as binding
law. Royal Courts.
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2. Canon Law: Developed out of the Roman Catholic Church. Complied in Decretum. Influenced the
jus commune in the areas of family law, succession, and criminal law. Applied for internal use by
the church for communicants. Ecclesiastical Courts.
3. Commercial Law: Developed around the time of the Crusades. It was a pragmatic creation by the
men engaged in commerce. These men (merchants) sat as judges. Referred to as lex mercatoria.
4. The Revolution: Spurred on by the large number of revolutions seen during the late 1770s. These
revolutions inspired an intellectual revolution that is now the major source of public law in the civil
law tradition. Spurred by the development of “natural law” which is the belief that all men are
created equal and have “natural” property rights and that the government should be carried on by
elected representatives. Also a strong belief in the separation of governmental powers. This
deprived from feudalism. Nationalism also inspired some of these ideas. Seen especially in Europe
in regards to the division between the executive and legislative vs. the judiciary. This is where we
begin to see the birth of modern legal systems. Key evolution of civil law as distinct from common
law are:
a. Secular nature of law. End of aristocrary and equality of men. However, US
(common law) put trust in judges, whereas in France trust was put in the
legislature and a distrust of the aristocratic judiciary (civil law).
b. Separation of Power: seen in both, but the difference is judiciary review exists
in the US where it does not exist (or exists minimally) in France.
c. Nationalism: both had great national pride and law was tailored to each society.
5. Legal Sciences:
** All are now embodied in the commercial code, the code of civil procedure, the penal code, and the
code of criminal procedure seen in the civil law tradition. **BOLD = the CANON.
Notes from class:
 Justinian— codified law in these areas: family, inheritance, property, torts, unjust enrichment,
contracts and remedies. We saw the Law of Persons, Law of Things, and Law of Obligations.
 Digest was created based on this. It included “church” law. Glossators and Commentators
were legal scholars who came back with the Digest in the eleventh century.
 Under Roman Law, commentators were not desired. However, in civil law today professors act in a
similar fashion and are greatly revered.

B. Sources of Law:
 Codification is an expression of state sovergeinty—legal positivism.
 Stare decisis is inconsistent with the separation of powers seen in civil law countries as judicial
decisions are not law (which is opposite of the US and common law). In civil law societies,
constitutions, statutes, regulations, and customs have the power to be law in that order. Some have
allowed for judicial review of the constitutionality of legislative action, some have not. Codified and
code must be crystal clear to support judicial rulings.
 Common law derives law from legislation, judicial decisions, regulations, etc. Judges are expected to
interpret and apply the spirit of law as enacted. Note that common law has “codes.” They are just
based on the pretext of completeness.
 German civil code was developed with the acknowledgment that lawyers would be needed. This is
opposite to the Prussian Landrecht of 1794, enacted under Frederick the Great, which sought to be
clear, complete, and coherent. Unsuccessful.
 Judges in the US are elected or appointed after service as lawyers. Judges in civil tradition typically
go through “judge” school and immediately being ascending the judicial ranks.
 Civil judges have no inherent law-making powers. Questions should be referred to the legislature or
the tribunal. In France, the Tribunal of Cassation was made as a new governmental organ to interpret
the legislature. They were not to decide the case. First, they were only to say if the DC got it
right/wrong. Later, they were allowed to say how. Still have to remand. German version allows them
to “revise” the ruling. Common law judges do.
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 Some civil states have established “constitutional courts” (including Germany), which are not apart
of the ordinary judiciary and are staffed by non-judiciary members.
 In Italy, the judge is supposed to start at the plain meaning, the legislative intent, and the natural law.
 Problem of lacunae: when no statutory provision bears precisely on point.
 New supranational courts create a more empowered view of judges. Constitutional courts have also
been established (as contrasted from ordinary civil law courts).
 In civil jurisdictions, judges can usually interpret evolutively. Judicial decisions are not a source of
law. Note that civil judges do use precedents, they just need not.
 Developed in 1804. Judges should not make law. Rejecting old rues/ destroy prior law and creating
new. Acted as a handbook for citizens. There was a fear of government of judges—strict separation
of powers. Wanted to create a law that is complete, coherent, and clear.
 German Civil Code of 1896 is historical in nature, wanted to include Roman Law. Saw studying law
as a scientific exercise—focusing on historical development—including Roman Law. Not
revolutionary—does not abolish prior law. Supporting unified nation state—and also focused on
strict separation of powers.
 United States and England codification did exist as a movement in the 19th century. UCC is a “code”
meant to harmonize state commerce—but not as complete as a civilian code.

C. Scholars: Civil law is a law of professors. Traditional Roman juriconsonsults were scholars who
founded the scholarly tradition and created the Corpus Juris Civilis. So too were creators of the
European jus commune. In both the Justinian Period and the 19th century, scholarly works were limited
so to preserve the law making power of the state. In Italy, the legislature told the judicial branch to note
cite books and articles in their opinions. All legal practitioners come under the scholars’ influence.

D. Legal Categories:
Main division in civil law tradition is public law and private law came from scholars, tradition,
ideology, and the division of jurisdiction between ordinary and administrative courts.
 Private law: “area of the law in which the sole function of the government was the recognition
and enforcement of private rights.” Tried in “ordinary” courts. Divided into civil and
commercial. Civil law is becoming synonymous with private law.
 Public law: concerns the “effectuation of the public interest by state action.” Law focused on
relationship between citizen and the state criminal law. Typically comprised of constitutional
law and administrative law, which is related to the public administration and its relation to
private individual. Criminal law is also a part of public law, but is typically tried in “ordinary”
courts. Public law is tried in “administrative courts.” Questions of civil procedure often
classified as public.
 Discussion surrounding public and private law occurs because:
1. Civil lawyers have learned a lot about common law showing them that such division is
unnecessary.
2. The division is derived from a culture of a given time and place which can change.
3. Government expansion has led “private concepts” being “socialized” to be enforced by
the government. No governments are regulating what we classically thought of as family
law.
4. Involvement of the state in economic life through its participation via state-controlled
corporations in commercial or industrial enterprise using private law has led to the
expansion of private law and a “privatization of public law.”
5. Before, only the individual and the state existed. We now have “intermediate” groups.
6. Constitutions have led to the most “private” elements of private law to public law.
7. Judicial review and the constitution itself has blurred the distinction.
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8. Administrative law has grown as the government is now subject to the law and
traditional legal science has flowed to public law fields, thereby reducing the substantive
differences.
9. Changes in law school teaching.
10. Civil law nations have seen growth of fields such as labor and agrarian law that fit into
neither category well.
** Seen specifically in Labor Law (worker’s compensation and minimum wages) and Agrarian
(agricultural) Law. Look at who are the parties and what is involved.

E. Legal Professions:
Uniformly, they will get their degrees, take entrance exams, and wait for appointments.
1. Notaries (le notaire): given extreme prestige. Few appointments. Sometimes you have to buy
the office. (1) Draft legal documents, (2) authenticate instruments, and (3) act as a kind of
public record office. Is legal professional!
2. Professors: Low pay, meaningful title. Very few positions exist; typically obtained by wealth.
3. Public Prosecutors: Seen as actors of the state. In some countries, they have been absorbed into
the judiciaries. They prosecute criminal actions and are sometimes called to represent the public
interest in private matters.
4. Government Lawyers: Civil Servants-Career
5. The advocate: Closest thing to a common-law lawyer. Sometimes found in corporate
departments, which were restricted.
6. Judges: lowest position as it lacks creativity. Low pay. Take test, wait for appointment.
Sometimes have to go to special school.

F. Contracts v. Gifts:
Contracts: More freedom to contract in common law. In civil law, more provisions.
Gifts: Under common law, there is a presumption that gifts are not enforceable because they lack
consideration- See Restatement Section 71. Under civil law in Germany, gifts should be accepted and if
no action is taken they are deemed to be accepted. Further, Section 518 says a contract which promises
a donation is valid if it is notorized. The support of enforceable gifts if written and notorized (making it
a legal obligation) is supported in France, however they must be formally accepted and the donee must
have notice of the acceptance to the donor. Essentially, the emphasis in civil law is not on
consideration, but is rather on writing and notorized. UK (common law) requires consideration and has
promissory estoppel is an option, which requires in UK: (1) a pre-existing contract or legal obligation
which is then modified, (2) an unambiguous promise, (3) change of position, and (4) must be
inequitable to allow the promisor to go back on their promise.

G. Civil Procedure:
 Civil systems have divided their procedure into administrative procedure and criminal procedure.
 An administrative (civil) case has the preliminary state (pleadings), the evidence-taking stage,
which can take weeks or months and in which a judge prepares a summary of the evidence after
having several isolated meetings with the parties and witnesses, and a decision-making stage, in
which a new judge reads the records from the previous judge, briefs from counsels, hears oral
argument, and renders a decision (NO jury). The right to a “jury trial” has not pervaded the civil
law system.
o Pleading are general and the issues are defined as the parties move forward.
o System is seen as “mediacy” while common law is seen as “immediacy.”
o Questions are put to witnesses by the judge rather than by counsel and must be submitted to
both the judge and opposing counsel before they are asked. This is seen as “inquistiroial,”
whereas the common law system is seen as “adversarial.”
o Typically, witnesses cannot be the parties, their relatives, or interested third parties.
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o Differences between common law and civil: (1) jury, (2) loser usually pays winner’s fees, (3)
no contingent feel arrangement in civil, (4) in appeals in civil, they have the right to
introduce new evidence at the appellate level. If such an appeal is based on the law only, it is
sent via a procedure called recourse in cassation (French) or revision (German) to a higher
court to rule on the issue of law. The decisions aren’t binding as they would be in common
law, but they are influential. (5) No dissenting or concurring opinions in civil. (6) Damages
are severely limited to money damages typically. The line between the civil and criminal is
more sharply drawn.
o Legal proof: “The means that were developed included a set of formal rules for weighing
testimony, a set of exclusionary rules, and the institution of the decisory oath.” In this
system, courts were required to give predetermined weight to testimony based on the
number, status, age, and sex of witnesses. Further, if a “decisory oath” was given, it was
taken as a conclusively proved in his favor. If he refused to, it was taken a conclusively
against him. Acted as an effective method fact-finding and it relieved the vulnerable judge of
dangers of party influence in deciding the facts.
 Criminal Procedure in a Civil Law Jurisdiction: Developed by Cesare Becarria via his publication
of Of Crimes and Punishments. He said “Only the laws can determine the punishment of crimes;
and the authority of making penal laws can reside only with the legislature, who represents the
whole society united by the social compact.” Judges, in his view, have no right to interpret the
penal law as that is reserved for legislators. Established the principles that (1) there should be a
proportion between crimes and punishments, so the more severe the crime the harsher the
punishment. (2) They should apply impartially to criminals, regardless to wealth of social status.
o Emphasis that every crime and every penalty shall be embodied in a state enacted by a
legislature.
o Characterized as “inquisitorial” (private accuser did not exist, rather action was brought by
public officials and the judge could seek evidence and control the nature of the inquiry-idea of
“torture”, but really the judge controls the questioning of the jury and ask not only their own
questions but also the lawyers’ questions) v. the common law characterization of “accusatorial”
(power to institute the action resides in the wronged person and their relatives-
judges/juries/prosecution/defense attorneys). Both systems are starting to merge in the middle.
o Some civil law areas called for reform wanting: (1) institution of the jury; (2) substitution of the
oral public procedure in place of secret written procedure, (3) establishment of the accused’s
right to counsel, (4) restriction of the judge’s inquisitorial powers, (5) abolition of the
requirement that the accused testify under oath, (6) abolition of torture, and (7) abolition of
arbitrary intervention by the sovereign in the criminal process, by way of either penalty or
pardon.
o Typically divided into the investigative phase, the examining phase, and the trial. If the
examining judge concluded a crime was committed, the accused would go to trial. If the
examining judge finds that no crime was committed by the defendant, the matter does not go to
trial.
o Reforms seen in Europe include (1) efforts to develop a core prosecuting attorney who act
impartially and objectively. (2) Procedural safeguards haven’t been developed to protect the
accused’s interest during the examining phase as counsel can participate and speak on behalf of
the accused.
o D’s can refuse to answer during questioning at trial. Their refusal will be taken into account.
o Criminal law in civil jurisdictions have an investigative phase (prosecutor investigates), an
examining phase (judge determines if they are going to trial), and trial (which is a longer
process).
o Guilty plea is not allowed in many jurisdictions. No contempt of court.
o Presumption of innocence exists, and there are jury trials, they just do not really look like our
jury. Sometimes the jury can be layman, sometimes other judges, etc.
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 Remember that place is not always the Courts!

 Tort law in France: legal aid/ loser pays, no private discovery, judicial fact-finding, judge
determines liability, and ten-year SOL.
Amanda Knox: Ordered to a retrial by the Supreme Court. Some argue the decision ignored reasonable
doubt and that new evidence should not be introduced at the appellate level. System is inquisitorial,
however lay judges sit with professional ones in more serious cases acting like a jury. A 1989 reform
had transferred the supervision of investigations from the police to the prosecutors. Laws can be in both
statutory form, code form, customs, and commentaries.

IV. Legal Pluralism:

 Legal Pluralism: Existence of multiple legal systems in one geographic area. Examples: Rules for
a condo, a private shopping center, clubs, private courts, and arbitration.
 Topic of legal pluralism has become a major topic in a variety of fields signaling how significant
it has become. Legal pluralism has an extensive history. Our recent view that law is unified and
uniform has erased our thought to this history, but it exists and has effects now.
o During the medieval period, there were significant jumbles of different sorts of law and
institutions that were in the same geographic space. Such forms of law include (1)
Germanic customary law, (2) Local customs, (3) the law of merchants, (4) canon law,
and (5) the revised Roman Code. The disputes between these laws in terms of
jurisdiction and boundaries were numerous. Sometimes judges would apply distinct
bodies of law to different races or religions. Not just multiple institutions, but ALSO,
multiple rules.
 Legal pluralism existed and developed along three major axes:
o “Coexisting, overlapping bodies of law with different geographical reaches”
o “Coexisting institutionalized systems” which included a vertical division between legal
system separating classes of people.
o “Conflicting legal norms within a system” usually resulting from different bodies of
legal norms, including customary law.
o Early transnational law was seen in jus commune, lex mercatoria, ecclesiastical law
coexists and local law.
 Transition away from the Medieval period of law towards the monopoly of the state required
Kings to define their territorial boundaries and to establish autonomy from the Church. This was
partly egged on by the Reformation, during which the hegemony of the Catholic Church was
broken. This resulted in the Treaty of Augsburg in 1555 (allowing royalty to decide what religion
to employ in their territory and the Treaty of Westphalia of 1648 which divided Europe into
separate, secular territories under the authority of sovereigns, which they could defend. This is
where we see a strong public and private distinction develop. Creation of nation-law reduced the
“value” of religious laws (customs). The co-equal status of the religious and state courts
disintegrated and state courts became supreme.
o To further this process, the royalty had to consolidate the law. During this time,
customary law was taken over by legal professionals who began to include it into the
state legal system. They were transformed from “law” to “norms’ that were influential,
but are now not sate law. The purpose of law was no longer seen to simply reflect
society’s customs, but were supposed to act as “instruments to achieve social
objectives.”
Legal Pluralism under Colonization:
 Overlay of civil law over the colonies’ legal system. Many countries had the issue to deal with
local “customs.” Often, judges would “created” rules in an attempt to codify customary religious
law. However, repugnancy or Supremacy clauses enacted to invalidate offensive local laws (such
as polygamy).
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 There was a reluctance to accept jurisdiction over subject people, and most “indigenous legal
institutions were mostly left alone, unless they directly affected the status of the European traders,
missionaries, settlers, or officials.”
 When they did try to expand their reach, colonizing powers would (1) codify religious laws and
customs, (2) applying unwritten customs and religious laws in such a way that they were
“analogous to the common law,” and (3) creation of “informal or customary courts run by local
leaders.” All strategies suffered from defects, including that “local norms and processes could not
be removed from their original medium without losing their integrity.” Note too, that such
customary law did not always reflect the prevailing social norms and customs of the conquered
place, as sometimes they were influenced by colonial bodies (making up the custom law). As a
result, we saw legal pluralism as a dual legal system existed.
o After colonization, the state systems were relatively weak compared to the customary/
normative systems.
 Late 20th Century Legal Pluralism: Spurred by globalization which “refers to a cluster of
characteristics that reflect an increasingly interconnected world.” States are seen as losing power
as a result as they are giving up some of their power to supernational organizations.
o Globalization speaks to (1) migration of people across borders, (2) creation of global
communication networks, transportation systems, financial markets, transnational political
organizations and regulatory regimes, (3) the consolidation of a global sales network; (4)
presence of non-governmental organizations that carry on activities and political goals
across the world; (5) global environment damage; and (6) terrorism in the global reach.
These developments have been characterized as legal pluralism in that:
Five themes from Tamanaha: (1) international legal pluralism include institutions or tribunals that can
overlap and conflict. (2) Human rights norms provide actors with the ability to challenge the authority
of the State. (3) The new lex mercatioria—the self-creating or private legal orders (business sometimes
self-create rules and norms when the law is silent and the law then follows. If a country does not obey
FIFA rules, it could be kicked out of FIFA). (4) Trans governmental networks such as Basel Committee
n Banking supervision. (5) Movement of People—Citizens bound by law of more than one state or
territory (dual nationality). Sixth by Ramasastry: The transplant effect—“new state building has led
to legal transplantation from multiple systems.”-can lead to bad laws.

The Tribunal irreversibly changed the landscape of international Human Law: Creation of the
International Criminal Tribunal for the former Yugoslovia (ICTY) concerning war crimes taking place
during the conflicts in the Balkans during the 1990s. Tribunal was formed via the UN and “has proved
that efficient and transparent international justice is possible.” Has a “completion strategy” to have
national courts in the region handle less significant crimes allowing them to strengthen their ability to
handle war crime cases. Composed of three branches: the Chambers, the Registry, and the Office of the
Prosecutor.

V. International Law:
International law: “rule of conduct that are binding on international actors in relations, transactions, and
problems that transcend national frontiers. Known as the law of nations. States were once regarded to
be the only legitimate international actors, that is not the case today. Now we see individuals,
institutions, and businesses all playing a role. International law is premised on experience and serves
the changing needs of the international community. Norms of international conduct have only
developed when there is an authentic system of States and international actors in place.
 Date of birth is 1648 after the end of the Thirty Years War via the Peace of Westphalia treaty. This
treaty led to two significant observations about the development of international law: (1)
international law needs States in order to grow and develop. States in turn need sovereignty to be
independent and autonomous and to consent to international laws. (2) Defining moments for
international law have come through periods of intense global conflict.
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 Positivism: embraces State sovereignty. Grotius (known as the father of international law and wrote
De jure belli ac pacis) and Vattell (actually the more influential-and focused on postivism, which
was the favored international interpretations seen through his treatise Le droits des gens) were seen
as two important people that attempted to blend natural and postivist law.
 Natural law: emphasizes moral imperatives of law between nations. Based on religious and
philosophical principles of good faith and good will between men and nations.
o Collision between the two arose via discussion of the slave trade in the US and Britain.
Via court cases, postivism won out, and slavery was valid unless the States explicitly
agreed that their nationals could not legally engage in it.
 Legal of Nations was the first attempt at an organization of global peace and security. It (1) set-
upon relatively ambitious program for codifying international law, systematizing the rules of
international conduct. (2) permanent international judicial tribunal was established. (3) Conference
diplomacy became more regular. (4) International institutions began to operate in the more
predictable fashion. (5) the league became concerned with issues of significance to people, not just
governments. However, they ultimately failed in a primary objective to keep the peace.
 Over 195 nations exist today.
 We are now in a period of globalization where nation states are shirking and are becoming more
interdependent. Also, UN was created which acts as a political organ of nations addressing both
positivist and naturalist legal thought. Now, we see the recognition of values separate and apart
from State sovereignty.
 Now, international law is fragmenting and we are in the age of a New World Order, focused on
Islamic extremism and global terror.
 International crimes are not the same as transnational crimes. However, international crime is larger
in scope and involve all nations, such as genocide. They are wars against humanity and war crimes.
Transnational crime: would be an American going to Mexico to have sex with a child to avoid US
law. They would still be held criminally liable under US law in US courts.
A. Dispelling Some Myths:
1. “International law is its own separate and distinct legal system.” Not true. Rather, international
law is a law of nations that exhibit many features of mature domestic legal systems, such as the
law of treatises (contact law), property law seen in the international law of territory, tort law in
the international law of State Responsibility, constitutional law in the operation of international
organizations, and civil rights law in the international law of Human Rights. Domestic law has
also been affected by international law as it has been incorporated and applied into domestic
law as a recognition of globalization. Essentially, they are separate but are not apart.
2. “International law is all theory and no practice.” Theories are the basis of legal rules and
sources of international legal obligations. Theory, however, is just a tool, not the whole body of
law.
3. “International law is not real law.” It is more appropriate to say that international law does not
have characteristics of mature domestic legal systems such as a legislature, supreme law-maker,
etc as such would be a World Government, which is the antithesis of international law. Instead,
international law makes law through a combination of consensual and coercive means and
requires self-help.
4. “No one obeys international law.” Not true. While it is true that they act in self-interest, it is
incorrect to say that their self-interest does not favor creating a ‘systemic rule of law in
international relations, a culture of law observance.’ Further, the laws and norms are well-
publicized and failure to conform requires legal and moral justification.
5. “International Law is what the US says it is.” While it is true US has a large role, that is not the
full extent. US lawyers must understand that what is good for US in terms of international
relations is not necessarily good for others.
6. “International lawyers are not real lawyers.” Usually more sophisticated than most as they
require tailoring practices to international trends, globalization, etc.
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B. War Crimes
The Yugoslav war crimes tribunal postponed Radovan Karadzic’s genocide trial for a month so the former
Bosnian Serb leader could study 14,000 pages of evidence sent to him by the prosecutors. UN said the material
contained potentially exculpatory information (information that might help him clear his name). Faces 11 war
crimes, including two genocide counts, for allegedly masterminding Serb atrocities throughout the Bosnian war.

Gen Ratko Mladic: (former colonel in the Yugoslav National Army) refused to testify in Karadzic’s trial. He is
known as the “butcher of Bosnia” and called the crimes tribunal a Satanic Court. He refused to answer cross-
examination questions from Karadzic (who was the president of the Republika Srpskap-a Serb breakaway state).
Both are also charged with the bombardment and 44-month siege of a religiously-mixed city. Borth will face life
imprisonment if found guilty. Mladic is jointly accused with Karadzic of masterminding the Srebrencia massacre
of 1995. Where 7,000 Bisnian Muslims sheltered in a UN safe haven were massacrared. Mladic continuously gave
the answer “I reserve my right not to testify because I may injure my rights in my own case.” However, the court
ruled last year that any testimony he gave would not be used in his own case.

Slobodan Milosevic: (Yogoslav leader charged with masterminding a massacre and the Sarajevo siege and also
involvement in the Srebrenica slaying of 7,000 Muslim men and boys) declined to make a formal statement during
his trial on charges of genocide and other crimes against humanity, but engaged in an exchange with judges that
ended in the rejection of his argument that the court itself was illegal. Presiding Judge, Richard May, had already
ruled on the claim finding it legal. Prosecution argues his actions were to rid the area of non-Serbian populations
and to create a “greater” Serb state. First Serbian government leader to be tried on such charges.

Justice Kwon’s Talk: (1) War crimes tribunal presents numerous interesting and challenging issues that lack
precedent as many are new. (2) Cases are highly complex and the crime base is large. This results in a large
volume of witnesses, data, and evidence. (3) Length of the trial (four years for some) is extremely long as a result
of the size and scope of the case. *However, the cases do not have a parallel in domestic jurisdictions. (4)
Different evidence rules. (5) Admission of witness’ evidence in writing, but requires witness to be available for
cross-examination. (6) Common law lawyers are weary of the degradation of the acquistorial nature of the
system. 161 people have been tried by the court. Those that aren’t are sent to their own country or others to be
tried in national courts.

C. General Principles and Customary International Law:

Article 38 of the Statute of the International Court of Justice (ICJ) that during disputes court shall apply
(1) international conventions, (2) international custom, (3) the general principle of law recognized by
civilized nations, and (4) juridical decisions and teachings of the most highly qualified publicists of the
various nations, as a subsidiary means for the determination of the rules of law. First three have the
greatest weight. The fourth are seen as secondary sources which are meant to be used “as evidence of
what is (or is not) a rule of international behavior.”
 General principles of law are the ultimate seed-bed and gap filler of international law rules.” To be
elevated to the status of international law, the ICJ suggests the principle must be recognized in
most legal systems. “In order for an international lawyer to argue that a general principle of law is
a binding rule of international law, it would be necessary to canvas all of the world’s great legal
systems for evidence of that principle, and also to reference manifestations of that principle in the
actual domestic law of as many nations as possible.” Typically, the more abstract a principle is, the
less useful it is, more likely to find consensus. Opposite is also true. Example, an international
tribunal imposed a “period of repose” or SOL (abstract), but could not determine the length
(concrete), due process. Derived from domestic legislation—typically statutes, sometimes
judicial opinions (known as municipal law) and are typically recognized by many civilized
nations. Application may occur if a treaty is silent on a subject, there is not an international
rule on something, so they go to domestic law, import a principle in, and it then its titled a
general principle. Do not require an opinio juris- do not need States to say they are bound.
 Principles imposed include SOL, estoppel, good faith exercise of international tribunals, due
process, burden of proof, and attorney-client-privilege.
Outline 10

Custom is a source of public international law. Based on what people DO. “Custom is “evidence of a
general practice accepted as law.” The “custom” must be an opinio juris which means the custom
(1) has been followed as a ‘general practice’ (acts whether international actors have followed the
rule-objective) AND (2) has been accepted as law”-via the intent of the State (whether the
practice is observed out of legal obligation or necessity, or is merely a “courtesy, neighborliness,
or expediency-asking why the law is observed-subjective)”—this is shown through opinio juris
(SUBJECTIVE BELIEF it is binding).
Customary practice are usually not formally recorded. Minor inconsistencies in regards to
uniformity and conformity to custom is acceptable. Further, there is no requirement OF TIME in
regards to the custom. Rather, you only need to prove a high degree of consistency and uniformity by
most, if not all, of the international community. In regards to global customs, a state’s silence is
deemed as acceptance.
 A party seeking to impose a custom must prove it (see Lotus-where France was given the task of
showing evidence “of State practice indicating that exercise of criminal jurisdiction over a foreign
national on a foreign-flagged vessel on the high seas was improper”).
 How do you avoid a global custom? Documented protest and affirmative steps towards blocking it.
 The Asylum Case: Columbia sought to invoke a regional custom to extradite its citizen from a
Colombian embassy in Lima. Court ruled that when the custom is regional, “silence on the part of
the State in the face of an emerging practice meant that the State objected or protested to the rule.”
This is because we favor general norms.
 Right of Passage over Indian Territory-court denied looking as to whether a custom existed in this
case, but whether a course of dealing between the two parties existed. This is local custom. It
found that it had, and that silence in the face of an emerging course of dealing or practice between
two (or few) parties is seen as acquiescence or acceptance. Affirmed in Anglo-Norwegian
Fisheries case that was regarding coastline boundaries for fishing between the two nations.
 New states are deemed to be bound by the global customs.
 Some customs of conduct have become so important that no State cannot opt out via protest or any
other means. Example: genocide, war crimes, etc. Further States cannot contract out of them by
treaty. These rules are called jus cogens norms and are peremptory norms.
 Violation of erga omnes norms are seen as SO important that any state can claim a cause of action,
not just the affected state.
The Paquete Habana: Fishing Custom. Conclusion: “This review of the precedents and authorities of
the subject appears to us abundantly to demonstrate that at the present day, by the general consent of the
civilized nations of the world, and independently of any express treaty or other public act, it is an it is
an established rule of international law, founded on considerations of humanity to a poor and
industrious order of men, and of the mutual convenience of belligerent States, that coast fishing vessels,
with their implements and supplies, cargoes and crews, unarmed, and honestly pursuing their peaceful
calling of catching and bringing in fresh fish, are exempt from capture as prize of war.” This rule is one
that prize courts administering the law of nations are bound to take judicial notice of and effect in the
absence of a treaty or public act of their own government in relation to this matter. The seizure was
unlawful and without probable cause. REVERSED.
 Court rejected that a distinct exemption was NOT needed to exempt seizure- their
justification was that statutes of one or two nations cannot create obligations for the
world. Essentially, these customs created universal obligations as they were accepted by
the public. This is not treating them as general maritime law, but rather recognizing that
mankind has acquiesced to these rules as a general obligation, which the court decides it
could take judicial notice of. Note, however, if they attempted to violate the blockade or
likely to aid the enemy, they could be seized.

Filartiga v. Pena Irala (1980): US DC-ED of NY dismissed appellants’ complaint for lack of SMJ.
Upon ratification of the Constitution, we were bound to abide by international law. Nation had control
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over foreign relations. Under the judiciary act of 1789, federal courts have OJ in all actions “where an
alien sues for a tort only in violation of the law of nations.” D was charged for torture and murder
convicted in Paraguay upon his arrival in USA. “Pena moved for SJ due to lack of SMJ and forum non
conveniens. Torture requires state action. Actor must be an agent of the State. P contends under the
Alien Tort Statute (US Law) (1350) allows for SMJ. Act requires (1) tort and (2) international law that
says “no” to tort. This is a suit gives a cause of action to foreigners for civil action for tort law only,
committed in violation of the law of nations (customary) or a US treaty. “In light of the universal
condemnation of torture in numerous international agreements, and the renunciation of torture as an
instrument of official policy by virtually all of the nations of the word, we find that an act of torture
committed by a state official against one held in detention violates established norms of the
international law of human rights, and hence the law of nations.” SC we can look to jurists, writings on
public law, general usage and practices, or judicial decisions in recognizing and enforcing the law of
nations. See Lopes. A rule must command “general assent of civilized nations” to become binding
upon all of them. As a result, “we conclude that official torture is now prohibited by the law of
nations.” We also must conclude that the dictum in Dreyfus that “’violations of international law
do not occur when the aggrieved parties are nationals of the acting state’ is clearly out of tune
with the current usage and practice of international law.”
We have jurisdiction as Pena came into our country. We have jurisdiction via the concept of a
transitory P over out-of-state torts. So long as the conduct was unlawful on the foreign soil, we can
maintain jurisdiction as torture is found transitory. D contends that the law of nations forms a part of
US law only to the extent that Congress acted to define it. We reject this. Instead, we recognize Chief
Justice Marshalls’s statement in The Nereide that “in the absence of a congressional enactment, US
courts are ‘bound by the law of nations, which is a part of the law of the land.’” Thus, whenever the
alleged torturer is found and served with process by an alien within our borders §1350 provides federal
jurisdiction. Accordingly, we REVERSE the judgment of the DC dismissing the complaint for want of
federal jurisdiction.”

VI. Treaties
Treaties and Treaty-Making “are gradually becoming the dominant Source of Rules for International
Conduct. Under Article I § 8 “to define and punish…offenses against the law of nations,” Article II to
make and consent to treaties. Article VI, treaties made will become part of the supreme law of the land.
A. Treaty Nomenclature
 Words conveying international agreements: treaties, pacts, protocols, conventions, covenants, and
declarations. Typically in written form, but not always.
 Treaties typically cannot simply be separated into legislation or contracts, instead most treaties have
elements of both. The distinction between codification and progressive development is equally futile.
 Sensible distinction exits between bilateral treaties (made between two nations) and multilateral
treaties (concluded between three or more countries).
 Vienna Convention on the Law of Treaties in 1969 (VCLT) is a treaty on treaties. Defines an
international agreement as “’one concluded between States in written form and governed by
international law.’” VCLT only governs treaties between States, not agreements between companies
and nations or international organizations and institutions.
o Under VCLT, all international agreements must be in writing to be covered by the default
rules of the VCLT. However, does not mean oral agreements are invalid.
o Also, unilateral declarations made by States, even without consideration can be enforceable.
“The key factor in deciding the binding character and enforceability of unilateral declarations
is whether the declaring State intended to create a legal obligation or induce reliance on the
part of other States.” Non-binding agreements are intended to not be legally obligatory.
o Under the VCLT, the agreement must be governed by international law. Absent a “specific
provision that the agreement would be governed by” something other than international law,
it will be assumed that international law governs.
Outline 12

o Jus Tertii principle that treaties should not be binding against States that do not participate.
B. The Relationship Between Treaties and Custom:
 Treaties and customs are co-equal sources of international law. Note that a state may opt out of
a treaty but still may be bound by custom.
 Typically, treaties cannot bind non-arties. They may infer benefits on a non-party, but should
not be binding or legally enforceable against States that decline to participate. This is known
was the principle of ius tertii.
 There are a few “objective regimes” which are treaties that have been understood to
bind even non-parties. Example: UN Charter, some environmental regimes.
 Tensions arise when a State refuses to sign the treaty, but it is then asserted the State is bound
by a “custom” that is found within the treaty. Sometimes, States can deflect against this by
claiming the custom is a progressive development (See North Sea Continental Shelf).
However, “even though a country rejects a treaty provision containing a rule, if it fails to
object as that same norm is renewed in State practice, it will later become bound to it as a
custom.” However, treaties and customs are co-equal sources, one does not trump the other.
 Last place for tension arises with jus cogens obligations, which are “’peremptory norms’—
rules of custom that may not be repealed by treaty. “…treaties which violate jus cogens are
void when made, or if a peremptory norm later develops in conflict, such an agreement is
subsequently voidable.” Example: Genocide.
C. The Process of Treaty-Making:
VCLT prescribes most of the rules on this. First, it must be determined and accepted that the entity
entering into the treaty has a capacity to do so, which is based on whether it is a legitimate subject of
international law. Second, negotiation happens and authority must be present by those signing and
negotiating as the State may be bound from the minute it is signed. High officials are presumed to have
authority, while lesser officials need to have the authority expressly stated. Third, for must treaties,
they must be ratified, which is the “act by which a State makes clear its intent to be legally bound by the
treaty.” Fourth, proclamation occurs—at which point the treaty is deemed binding and ratified.
 Usually, there is significant delay between signing and ratification so under the VCLT, States
cannot act in a way to defeat the object of the treaty, unless the State makes clear that they do not
intend to ratify the instrument.
 Reservations are changes made unilaterally by a party that regrets some element of a treaty and
under the VCLT are anything “that purports to change the legal effect of a treaty.” They are only a
problem for multilateral treaties as in a bilateral treaty it would have the effect of a counteroffer.
Before 1950, if a party made a reservation to a multilateral treaty, it had to be affirmatively
accepted by all parties. Now, however, nations may make reservations so long as they are not
contrary to the object and purpose of the Convention.
o Some treaties categorically bar reservations, while others allow opt-out clauses that allows
State Parties to choose to disable certain provisions of the agreement. International tribunals
and institutions address whether the reservations inhibit the treaty’s purpose and object.
o Under a treaty, a Country’s obligations may go only so far as their reservations.

The Peace of Westphalia (1648): Was a series of peace treaties between France, Spain, Holy Roman Empire,
Sweden, and the Dutch Republic formally recognizing the Dutch Republic. Treaty between France and Sweden in
1648. Agreement was for Peace. Contained a provision detailing peace, another giving amnesty from all hostility,
a liberty of conscience in regards to religion, and the re-establishment of the estate of the Empire to their ancient
rights.

Treaty of Paris (1783): Between Britain (Prince George the Third) and the United States. Article I: USA is
sovereign and Britain relinquishes all claims. Article II: Declaration of the boundaries. Article III: USA citizens
have the right to fish in any place they had previously shared the right to fish. Article IV: Debts will be paid.
Article V: USA should recommend to State legislatures to return the property of British Subjects. Article VI: Set
free prisoners. Article VII: Prisoners released, documents returned, etc. Article VIII: Navigation of Mississippi
Outline 13

River is free to both parties. Article VIIII: No further conquering between this treaty and its ratification. Article X:
Six month ratification time-frame.

Kellog-Briand Pact (1928): Treaty between USA and numerous others providing for the renunciation of war as
an instrument of national policy.

D. Treaty Application and Interpretation:

First, they are only assumed to have prospective effect. Also assumed it will apply to the full territory of
the State. Second, in regards to interpretation of ambiguous provisions, States may actively assert their
interpretation to favor their nation or their international relationships. Note that unless a state protests,
they may have letter been found to have acquiesced intro acceptance of a particular construction of the
treaty. Three schools of theory interpretation exists used in this order:
 Textualism: Examine the words of the text and how they are commonly understood, i.e, their
ordinary meaning in the light of the prevailing international aw at the time it was drafted.
 Intentionalists: Not popular in international law. Use of secondary sources, such as the
negotiating history (known as travaux) or a provision to get at the intent of the drafters.
“They can be used only where the text is ‘ambiguous or obscure,’ or the plain meaning of the
text leads to a ‘manifestly absurd or unreasonable result.’” Note that tribunals also have the
rule of interpretation against the draftsman. Downfall is it gives an advantage to the early
negotiators.
 Teleological Approach (purposivism kind of like functionalism): Seeks to identify and apply
the purpose of the treaty. Captured under the VCLT’s rule that treaties be construed in light
of their object and purpose. “The idea here is to interpret a treaty in a way that gives cope to
the fundamental reason or problem that an international agreement was supposed to address.”
The meaning will evolve.

E. Treaty Amendment, Invalidity and Termination:

Treaties can be amended through (1) express approval of all parties, AND/OR (2)
modification—when some but not all parties agree to a material change; under VCLT it can be done by
giving notice, does not affect an essential provision, and does not derogate the rights of other parties.
Under the VCLT, treaties can be invalidated if there is some defect in regards to the formation of the
treaty, such as treaties being entered intro contrary to fundamental domestic constitutional limitations,
error, fraud, or corruption. Invalid provisions can be severed to save the treaty. A State can also
acquiesce by failing to claim invalidity for a sufficient period of time.
Finally, treaties can be terminated “when one State purports to unilaterally suspend or terminate
all obligation in an international agreement.” International law recognizes the right to terminate if
another party has breached, however, it must be a materially breach, which is “’essential to the
accomplishment of the object or purpose of a treaty.’” Other ground for treaty termination is the
doctrine of fundamental change of circumstances (rebus sic stantibus). This arises “when the conditions
which led to the conclusion of a treaty change so fundamentally, then one party or another can
unilaterally terminate the agreement.” Under the VCLT, the use of rebus sic stantibus requires that “(a)
the change must be fundamental, (b) unforeseen by the drafters, (c) the assumption of current
circumstances must have been ‘an essential basis of the consent to bound by the treat,’ (d) the new
circumstance must radically transform the obligation for the party seeking termination, (e) and
obligations are not yet to be performed under the treaty (and may not involve territorial boundaries).”
“The termination of treaties by war has always been a matter of customary international law.”
The better reasoned view is that war does not terminate those agreements that can still be performed
without being incompatible with the State conflict. Think of inheritance laws or keeping in place
humanitarian laws.
 Reservation: Opting out of a specific area.
 Declaration to Treaties: A Country making a statement about the treaty.
Outline 14

 US has made a declaration in regards to torture.

 Understandings to Treaties: A Country stating its understanding of a teaty.

Vienna Convention on the Law of Treaties: Convention applies to treaties between States. Adopted in 1969 by
United Nations. Also applies to tribunals. Article I-III define the terms and limits on oral agreements.
Reservations are addressed in Articles 19-23. Reservations are defined in Article II as (d) “'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.” Under Article 19, they are allowed unless the treaty prohibits reservations, the
treaty only allows for specified reservations, or the reservation is incompatible with the object or purpose of the
treaty. Article 19: Reservations can be made when signing, ratifying, accepting, approving, or acceding to a treaty
unless “(a) the reservation is prohibited by the treaty, (b) the treaty provides that only specified reservations,
which do not include the reservation in question, may be made; or (c)…the reservation is incompatible with the
object and purpose of the treaty.” Article 20: Reservation expressly authorized does not require acceptance. When
a reservation is made by the States have found that the object and purpose of the treaty is to accept it in its
entirely, all must agree to the reservation. Article 31: Interpretation should be in good faith and in accordance with
the ordinary meaning (textualism). Next, then the context for determining the purpose (evaluate negotiations, any
agreements). Then, in regards to context, we also look at subsequent agreements and practice. Also, if the parties
intended, a special meaning will be given to a term. Article 32: Courts can also consider the negotiating history to
deal with ambiguous or obscure terms of it using Article 31 procedures leads to an absurd or unreasonable result.

ICJ (Governs Public international law among states) Opinion on Reservations to the Genocide Convention:
May 28, 1951. When some states ratified the 1948 Convention for the Prevention and Punishment of Genocide,
some made reservations. Others objected to the reservations. The UN’s General Assembly debated the validity of
the reservations, and whether the “reserving states” ratifications would count towards the twenty acceptances
needed for it to have its entire force. This also explained the legal effect of reservations. We need to consider the
objects and purpose of the convention. Under the objects, we note that States do not have any interests of their
own, they only have the common interest to accomplish the purpose of the convention. Issue One: Can the
reserving State be regarded as a party to the convention will still maintaining the reservation if the reservation is
objected one or more of the parties to the Convention but not the others? “that a State which has made and
maintained a reservation which has been objected to by one or more of the parties to the Convention but not by
others, can be regarded as being a party to the Convention if the reservation is compatible with the object and
purpose of the Convention; otherwise, that State cannot be regarded as being a party to the Convention.” The
object and purpose of the convention should govern such reservations and objections. Issue Two: If the answer to
Question I is in the affirmative, what is the effect of the reservation as between the reserving State and (a) the
parties which object to the reservation and (2) those that accept it?“(a) that if a party to the Convention objects to
a reservation which it considers to be incompatible with the object and purpose of the Convention, it can in fact
consider that the reserving State is not a party to the Convention; (b) that if, on the other hand, a party accepts the
reservation as being compatible with the object and purpose of the Convention, it can in fact consider that the
reserving State is a party to the Convention.”

United States v. Alvarez Machain (USSC, 1992): Issue: “whether a criminal defendant, adducted to the
United States from a nation with which it has an extradition treaty, thereby acquires a defense to the
jurisdiction of this country’s courts.” “We hold that he does not, and that he may be tried in federal
district court for violations of the criminal law of the United States.” The purpose of Extradition treaties
are to establish “mutual obligations to surrender individuals in certain defined sets of circumstances,
following specific procedures.” Without treaties the mechanism for extradition would not exist, thereby
not allowing the counties to extradite individuals to the other country via the procedures as defined.
Treaty says nothing about US/Mexico refraining from forcible abductions or consequences for it. D
argues that treaty requires US to (1) request him, and (2) if denied, Mexico is to submit the case to its
own courts if it has jurisdiction. We do not agree. While the treaty does allow this process, it does not
say it is the only way which a country may gain custody. There is no indication that abduction violates
the treaty when evaluating its express language, the history of negotiation, and the treaty should not be
interpreted into include an implied term prohibiting prosecution of D’s who presence was obtained by
Outline 15

means other than those established by the Treaty. Court used evidence that their was a clause
prohibiting abductions and rejected it and that Mexico was aware of history of abductions and that the
USA did not understand the treaty to mean prohibiting abductions before signing. As the treaty is silent
to it, it is deemed to be allowed by looking at negotiations, dealing, and rejection of the general
principle. Stevens Dissent: Mexico has demanded the return of the prisoner. Reading the treaty in light
of Rauscher (South Africa) and international law, it is clear that this did violate the treaty. The treaty
appears to cover the entire subject of extradition. If the Petitioner’s claim that the Treaty is not
exclusive and would allow governmental kidnapping would render the treaty and many of its provisions
are useless. “in my opinion, ‘the manifest scope and object of the treaty itself,’ plainly imply a mutual
undertaking to respect the territorial integrity of the other contracting party.” The negotiations confirm
this. **I think the purpose and scope clearly supports the defense. (Note: Justice Breyer believes we are
a part of an international law. Scalia and Thomas would disagree and would not look to Rauscher).

VII. Other Sources and Evidences:

After discussing principles, customs, and treaties, remaining is additional sources of international law.

A. Equity, Humanity and Other Values:

Previous sources discussed (principles, customs, and treaties) are positivist in that they involve
international actors who make the law. However, natural law also has a place in international law. One
such place is the principle of equity, which has been employed in international dispute settlements. One
example of its application is through the concept of “abuse of right,” which allows an international
actor to have the freedom to engage in certain conduct, “but is otherwise barred from pursuing a course
of action in certain circumstances or in a particular fashion.” Another natural law component is “unjust
enrichment,” which has been used by international tribunals to give reach even when a formal contract
is not in place. Still another is the doctrine of “clean hands” used by the World Court—meaning that a
party seeking equity must do equity. To caveats to the application of these equitable doctrines are that:
(1) “equity does not mean reaching a result that is regarded as balanced.” Under the ICJ, Courts are
expressly barred from deciding cases based on what is “good and just” unless the parties have agreed to
it. (2) “equity does not mean equality.”
 Notions of humanity, such as the protection of human rights and war laws, and focuses on
individual values and interests (instead of states) have elements of natural law. We have
seen “elements of humanity” bind actors.
 Think of natural law elements as “policy rationales.”

B. U.N. Resolutions, Judicial Decisions and Publicists:

 Under IGJ, court decisions, legislative enactments, and scholarly writings are only
“’subsidiary’ means of establishing evidence of the content of international law norms.”
 This holds true for tribunal decisions. No stare decisis—See ICJ Article 59.
 However, courts do follow their precedent in practice usually.
 Under the UN Charter, General Assembly resolutions are only “recommendations.” They
lack the opinio juris for custom. Essentially, they are persuasive. They can be made into
customs over time, but are not in and of themselves binding. The travaux preparatoires
(legislative history) is relevant here.
 Under the ICJ, “’teachings of the most highly qualified publicists of the various nations’”
can be used as evidence of rules of law. Today the most relied-upon sources are UN
International Law Commission (ILC) reports and reports from non-official groups
including the International Law Association (ILA). Some treatises have weight, as does
the Restatement Third of Foreign Relations Law.

C. An Integrated View of Sources and Methods:

Domestic law can influence international law by being imported in to settle disputes (See Trail
Outline 16

Smelter—environmental law imposed). From the general principle in that case (one State should not use
its territory in such a way that is damaging to another). From this grew norms and legal opinions.
Eventually the rule rose to the level of custom. In this way, we see general principles jump-starting the
process of the formation of environmental law.

ICJ Statute Article 38: Intentional Court of Justice was established by the Charter of the UN. It is the
“principal judicial organ” of the UN. Court is composed of a body of fifteen independent judges from
different States. Elected by the General Assembly and the Security Council based on nominations from
the Permanent Court of Arbitration and national groups that are not represented in the Permanent Court
of Arbitration. Winners must receive the absolute majority. If two from the same state receive the
majority vote, then the oldest is considered to be elected. Judges are elected for nine-year terms and
may be re-elected. No dismissal unless the others unanimously vote her/him out. The judges elect a
President and Secretary from among themselves and the Court is always in session. The Court will
make Rules of Procedure. Only States may be parties before this Court. [Article 38: The Court will
employ (1) international conventions that establish 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.” The Court can also decide based on equality if it chooses and the parties
agree.] Judgment is final and no appeal (Article 60). An application for revision can be made, but
requires that some new fact previously unknown to the Court be presented. It may give an Advisory
Opinion.

The Michael Domingues Case: He was convicted in Nevada state court for two murders when he was
sixteen years old and was sentenced to death, which was affirmed by the SC of Nevada, who affirmed
despite the D’s claim that the death penalty for juveniles violated the International Covenant on Civil
and Political Rights and customary international law. USSC denied cert. D then petitioned the Inter-
American Commission on Human Rights, which his a non-binding international body that issues
Reports and asked the USA to answer for this. USA argued that the death penalty did not violate any
treaty or any customary international law and that the USA has persistently objected to any such custom
if it exists. Further, the USA argues there is not an international jus cogens (peremptory law) on the
subject. For a jus cogens norm to exist, the international community as a whole must accept and
recognize the norm AND its peremptory character (which is a universal principle that is of such
universal concern). Opinion: However, the world community considers the execution of prisoners under
the age of eighteen at the time of the offense to be “inconsistent with prevailing standards of decency.”
“The Commission is therefore of the view that a norm of international customary law has emerged
prohibiting the execution of offenders under the age of 18 years at the time of their crime. Moreover,
the Commission is satisfied, based upon the information before it, that this rule has been recognized as
being of a sufficiently indelible nature to now constitute a norm of jus cogens.” States have adopted this
rule “through ratification if the ICCPR, U.N. Convention on the Rights of the Child, and the American
Convention on Human Rights, treaties in which this proscription is recognized as non-derogable.” This
is a jus cogens norm and the USA is held to it. Defense also argued this is a general principle. Court
said it’s a jus cogens.
 Modification Under Vienna Convention Article 41- suspension or termination can occur
as a result of a material breach or a fundamental change of circumstances (rebus sic
stantibus) and war only suspends obligations that cannot be performed because of the
combat.
 Other sources of treaty interpretation can be abuse or right, doctrine of clean hands, or
considerations of humanity.

VIII. International Law and Domestic Law

Outline 17

Hiearchies differ. International Court of Justice sees international law as supreme, while the USSC sees
our Constitution as supreme.
A. International Law and Domestic Law:
International law’s success depends on its enforcement in national legal systems. International law’s use
of municipal law is constrained by a few basic principles:
1. “a State typically may not invoke a provision of national law as the basis for refusing to perform
an international legal obligation.” Only exceptions seen are when (A) a treaty is enacted in such
a way that violates its domestic constitutional law. In this case, the treaty is null and void. See
Article 46 of VCLT.
2. “international tribunals are free to apply and interpret national law as relevant to the international
disputes that come before them.” So they interpret domestic law.

B. International Law is Domestic Law:

“International law is indifferent to how international legal obligations are enforced in municipal law,
provided that they are effectively implemented.” Monism: Idea that “international law and domestic law
are parts of the same legal system, but that international law is higher in prescriptive value than national
law. Dualism: is the position that international law and municipal law are separate and distinct legal
systems which operate on different levels, and that international law can only be enforced in national
law if its is incorporated or transformed.” Consider what elements of international law is being
addressed (custom/treaties/etc). This is a debate carried on in domestic law arenas, as international
law does not care how it is applied in internal law.
The Netherlands is probably the closest thing to a monist country as it allows international
treaties to automatically preempt domestic statutes. However, it does not allow direct incorporation of
customary international rules. (? Does this mean that internal affairs may not be bound to the
international custom, but that external affairs are?). In this way, they are treaty monism. Some
countries are “custom monism: in that customs are automatically incorporated. Britain is clearly dualist
as an international agreement is not binding unless it is implemented into domestic law by an Act of
Parliament.
 Self-Executing Treaty: Says it is one in the treaty. The minute it is ratified, it just becomes
law.
 Non-Self-Executing Treaty: Require states to enact domestic legislation to support the
treaty (You can be monist and have a non-self-executing treaty).
If a treaty is self-executing, then it supersedes statutes based on when it is ratified (last in time rule).
However, if the treaty is non-self executing, then the statute supersedes until Congress passes specific
regulations to implement the treaty.

C. Implication of International Law on United States Law:

International law does not prevail over the Constitution (making US a dualist nation). Neither a
customary international law nor a treaty provision can repeal a right granted under the Constitution.
However, even if the US rules a part of a treaty or custom unconstitutional, it may not be relieved on an
international obligation. “The US’ international obligations will continue to persist until the custom is
changed or the treat is terminated, but the rule will have no domestic effect. That is a key aspect of
practicing international law in a dualist jurisdiction: a particular obligation may be binding on the state
in its international relations, and yet have no force in its internal law.”
Treaties are regarded as part of federal law. Customary international law is regarded as federal
law as well (at least usually). This means that such cases are to be decided by federal courts. However,
it appears that the USSC has ruled that states laws are preempted to the extent they interfere with a
foreign relations interest in the US. However, this is extremely controversial. Can Congress act beyond
its Article I powers (migratory birds) through treaties? YES, but not always.
Also, typically customary international law rules cannot “take precedence over a contrary statute or
treaty, at least in U.S. domestic law…But where there is no statute or treaty ‘on-point,’ U.S. courts are
Outline 18

obliged to follow rules of customary international law.” See The Paquete Habana.
Treaties become part of the law under Article II, Section 2 (President and 2/3 Senate Ratification) and
Article VI-Section 2, Supreme law of the land. Senate also has the power to make reservations,
understandings, and/or declarations.
Lawrence et al. v. Texas (USSC, 2003): Issue: “the validity of a Texas statute making it a crime for two
persons of the same sex to engage in certain intimate sexual conduct.” “We conclude the case should
be resolved by determining whether the petitioners were free as adults to engage in the private conduct
in the exercise of their liberty under the Due Process Clause of the Fourteenth Amendment to the
Constitution. For this inquiry we deem it necessary to reconsider the Court's holding in Bowers. [In
Bowers v. Hardwick, 478 U.S. 186 (1986), the Court had upheld the constitutionality of a Georgia
statute criminalizing sodomy.]” Court upheld its reasoning by referencing “A committee advising the
British Parliament recommended in 1957 repeal of laws punishing homosexual conduct. The
Wolfenden Report: Report of the Committee on Homosexual Offenses and Prostitution (1963).
Parliament enacted the substance of those recommendations 10 years later. Sexual Offences Act 1967,
§1.” Also, it considered the European Court of Human Rights ruling, which is authoritative in 45
nations and contradicts the Bowers holding. “The right the petitioners seek in this case has been
accepted as an integral part of human freedom in many other countries.” Court then overruled Bowers.

Note on State-Level Initiatives to Limit Use of Foreign and International Law: In 2010, Oklahoma voters
voted to amend their Constitution to makes Courts not consider international law. A constitutional challenge was
filed to the amendment saying that the law singled out Sharia Law, which conveyed a message of disproval for the
P’s faith. Tenth Circuit CoA affirmed the injunction believing P would win on his Establishment Law Claim and
that the D failed to assert a compelling state interest which would justify a facial discrimination among
regulations. Similar laws were proposed in Arizona, Texas, Wyoming, and more, however, as of 2012, none have
been adopted.
“Legislation designed to limit recourse to foreign or international law has been introduced in at least half
the states.” In Kansas, legislation was passed that forbid Kansas courts from making rulings using foreign law that
would not grant parties the same rights guaranteed by state or federal constitutions. Similar was seen in Louisiana.
Tenn. Passed a law that limited the “granting of contractual choice of law provisions incorporating foreign law.”

D. International Agreements in U.S. Law

Are now concerns for both domestic and international lawyers. Remember, a treat is “an agreement
made by the President with the advise and consent of the Senate.”

1. Treaty Power: Article II, Section II, provides the P with the power to make treaties so long as two-
thirds of the Senate concurs. If so, the President will then ratify and proclaim it. Senate can also
condition their assent on various changes. Article VI, Section II (Supremacy Clause): Treaties are
subject to the Constitution and cannot abrogate (repeal) a right granted under the Constitution. See Reid
v. Covert. Sometimes a treaty legislate in a field reserved for States. See Missouri v. Holland: “‘it is
obvious that there may be matters of the sharpest exigency for the national well being that an act of
Congress could not deal with but that a treaty followed by such an act could.’ Since ‘the treaty in
question does not contravene any prohibitory words to be found in the Constitution,’ the Court ruled
that it was not barred by the Tenth Amendment or other federalism clauses. Holmes ruled that if a
treaty was (1) motivated by exigency (an urgent need or demand) and great national interests, and (2)
did not violate an express constitutional prohibition, then it could grant to Congress law-making
authority it did not otherwise have under Article I of the Constitution.” Further, the idea that treaties
have to be limited to international concerns has been rejected. However, treaties cannot make law that
requires House approval/ House specific decision-making authority (such as spending money). In
essence, typically a treaty will not be seen as unconstitutional unless it violates an individual liberty.

U.S. Constitution – foreign affairs excerpts: Congress has power to regulate Commerce with foreign
nations, establish Rules of Naturalization, to define laws of high Seas, to declare War, to raise and
Outline 19

support Armies, to provide a Navy, to provide a Militia, to regulate the Militia, and to make laws
necessary and proper for carrying into execution the foregoing. Section X: No State shall enter into a
treaty or may lay duties on imports or exports or enter into an agreement or compact with another State,
foreign power, or engage in war. Article II, Section II: President is Commander in Chief, power to
make treaties with Consent on Senate, power to nominate and appoint Ambassadors. Article VI:
Treaties shall be supreme Law of the Land. Article X: Powers not delegated to the US by the
Constitution and not prohibited to the States are reserved for the States.

Missouri v. Holland (USSC, 1920): Holmes-Action brought by State of Missouri to prevent US from enforcing the
Migratory Bird Treaty Act of July, 3, 1918. Argument is such act (made by Treaty between US and Britain and
was entitled to prevent the killing of specific birds) is unconstitutional as it governs a power reserved for States
under the Tenth Amendment. Issue: Whether the treaty is void “as an interference with the rights reserved to the
States.” Under consideration is Article II, VI, and X. Note that if a treaty is valid, then there is not dispute as to
whether the statute is proper as it would be necessary to effectuate the treaty. Article I. “Acts of Congress are the
supreme law of the land only when made in pursuance of the Constitution, while treaties are declared to be so
when made under the authority of the United States.” “No doubt it is true that as between a State and its
inhabitants the State may regulate the killing and sale of such birds, but it does not follow that its authority is
exclusive of paramount powers.”
“Here a national interest of very nearly the first magnitude is involved. It can be protected only by national
action in concert with that of another power. The subject-matter is only transitorily within the State and has no
permanent habitat therein. But for the treaty and the statute there soon might be no birds for any
powers to deal with. We see nothing in the Constitution that compels the Government to sit by while a
food supply is cut off and the protectors of our forests and our crops are destroyed. It is not sufficient to
rely upon the States. The reliance is vain, and were it otherwise, the question is whether the United States
is forbidden to act. We are of opinion that the treaty and statute must be upheld. Carey v. South Dakota.n
Amy Howe, Treaty Power before the Court: Congress only have to power the constitution gives it. But can
Congress approve a treaty and thereby put the treaty into effect in the U.S. even if it wouldn’t have the
Constitutional Power to do so otherwise? In Bond v. United States, Bond poisoned her husband’s mistress by
putting chemicals on the mailbox. State law could have implicated her. However, she was charged under the
Chemical Weapons Convention, which is an international treaty aimed at eliminating the production and use of
chemical weapons. It was a non-self-executing treaty and required Congress to enact its own laws to make the
conduct illegal, which Congress did. The Government argues that as it has the power to enter into treaties, it
should have the power the make sure the country complies with them. This case has not been decided, but it could
limit Hollands.

E. Treaties as the Law of the Land:

Treaties are seen as part of the Law of Land. But How? Must ask: (1) the distinction between self-
executing and non-self-executing treaties, (2) the operation of the ‘last-in-time’ rule when a statute
contradicts a treaty, (3) modalities of treaty interpretation by U.S. courts, and (4) concerns arising from
the termination of treaties.”
(1) The Distinction Between Self-Executing and Non-Self-Executing Treaties: Foster and Elam v.
Neilson distinguished between self-executing and non-self-executing treaties. ONLY the signing State
can say if it is self-executing or not. Others can say so, but it is not binding.
Self-Executing Treaties: Manifests an intent by the Parties to be binding and is specific enough
in content. Ask (1) Does is establish a clear rule, right, and remedy (ideally have all three)?
Think Warsaw Convention-Luggage Rights.
Non-Self-Executing Treaties: “those agreements that needed a subsequent Act in order to have
a binding effect domestically.” (1) Does the treaty contemplate further legislative action?
*Growing speculation that US Courts are ruling a presumption against self-executing. Note that the
Courts typically evaluate clauses in a treaty and determine if they are self-executing as opposed to
looking at the entire treaty. “Some good rules of thumb are that if a treaty provision contemplates
further legislative action, then it is non-self-executing; that provision will not be ‘Law of the Law’ until
a subsequent Act of Congress.” Especially true is subsequent action requires action by the House or
Outline 20

Representatives. Also, “treaties which provide that ‘certain acts shall not be done, or that certain
limitations or restrictions shall not be disregarded or exceeded’ by the Parties, will be regarded as self-
executing.’” See Commonwealth v. Hawes. Look to whether the provisions seem specific enough to
clearly manifest an intent to be binding on U.S. law without further legislation. Typically, law of
the sea, fiscal, and criminal law are non-self-executing BUT extradition treaties are self-executing.
Question that arises is whether an individual can claim a right under a treaty. Some things court
considers (1) object and purpose of a treaty, (2) existence of alternative domestic procedures for
implementation and enforcement, and (3) whether our treaty partners recognize the private right of
action. US routinely denies self-execution of human rights treaties. IF a treaty provides a cause of
action, it gives people rights. Looks to at the negotiations if it is not clear. US Courts have a
presumption against self-execution. See Medellin v. Texas.
 Protocol: Adding something onto the end of a treaty.
(2) The Operation of the ‘Last-In-Time’ Rule When a Statute Contradicts a Treaty: If a treaty is self-
executing, it is binding and is immediately regarded as Law of the Land. If it is not, Courts look for
legislation that it had been implemented domestically. If it has not, it is not binding and not enforceable
in domestic proceedings. If there is a statute, it will be applied an interpreted to be consistent with the
original treaty. However, if a treaty conflicts with an earlier statute, the prevailer depends on whether
the treaty is self-executing. If it is, the earlier rule is repealed to the extend it conflicts. This is known as
the last-in-time rule. However, if it is not self-executing, then there is no preemption until Congress
implements the treaty through domestic legislation. What if a more recent statute contradicts with an
international treaty? Congress is seen as able to implement statutes that contradict older treaties, thereby
only impacting their impact on domestic law, not international law. Qualifications to last-in-time rule:
A. “A later statute that abrogates an earlier treaty cannot eliminate any rights that had vested
under that agreement.
B. “Notion that ‘an Act of Congress ought never to be construed to violate the law of nations if
any other possible construction’ is possible.” Known was the canon of The CHARMING BESTY
case. This means “at a minimum, that a statute will not be allowed to abrogate an earlier treaty
(or rule of custom, for that matter), unless the Congressional intent to override that obligation is
clear and manifest.”
(3) Modalities of Treaty Interpretation by U.S. Courts: Typically defer to the positions of the Executive
Branch. Courts rightly regard the interpretation as within their judicial authority. They will look to the
text, the legislative history, expectations of treaty partners, and the Senate’s understandings when it
gave its advice and consent. Follows the VCLT treaty interpretation guidelines.

(4) Concerns arising from the Termination of Treaties: Decision to terminate or violate is delegated to
the political branches. Executive Branch can decide whether an agreement is in force or whether a party
has breach it. Until the Executive Branch has taken action to terminate or suspend the agreement, U.S.
Courts are obliged to give it domestic effect as part of the Law of the Land. Who can terminate it
(President alone or joint action of Congress and the President) is unresolved as Courts have
characterized it as a political question.

F. Executive Agreements:
An alternative form of legally-binding agreements under international law. Two types: (1)
Congressional-Executive Agreements: Acts of Congress following normal procedure. Justified under
Article II. . (2) Sole Executive Agreements: Concluded by the single authority of the President.
Constitutional concerns have been raised against this. President must report it to Congress promptly.
Supposedly, Congress can then, via legislation, require Senate approval. Also, statute may authorize
Presidential action. More controversial scenario is when President acts on his/her own under Article II,
such as under the Recognition Clause (appoint ambassadors), and Commander in Chief. With these
powers, the President can enact Executive Agreements that become part of the Law of the Land under
the Constitution. USSC has interpreted these as binding for domestic law and as preempting any
Outline 21

contrary state law in certain cases, such as when President enters into agreement resolving outstanding
private claims between U.S. nationals and other foreign governments. See Dames & Moore v. Regan
(important-challenges the limits of Presidential executive authority, Court says Nope! You still
had a remedy. If however, you did not have a remedy, you might have ground here). USSC has
recently hinted that an executive agreement may have a preemptive effect whether enacted through
direct or dormant powers. However, years ago, it was held in U.S. v. Guy V. Capps, Inc., that the
President’s actions were outside his exclusive powers under the Constitution and were void in regards
to domestic law.

Foster v. Neilson (USSC, 1829): Marshall: Issue: whether the title to a tract of land “had been confirmed by a
treaty between the US and Spain, concluded in 1819.” Court decided that Article VIII of the treaty limited the
application of the treaty in this case. The treaty is not self-executing (as it looks like a contract) and treaties are not
presumed to be. If it was, it would be the Supreme law of the Land and would be equivalent to an act of the
Legislature. Until legislation is passed on this treaty, the Court cannot disregard existing laws.

Charming Betsy (USSC, 1804): An Act was passed to suspend “commercial intercourse” between France and the
US. However, the building of vessels in the US for sale in neutral lands is not something Congress could have
intended to prohibit. “It has also been observed that an act of congress out never to be construed to violate the law
of nations, if any other possible construction remains, and consequently can never be construed to violate neutral
rights, or to affect neutral commerce, further than is warranted by the laws of nations as understood in this
country.” Congress must be express words and very plain language. Charming Betsy is not forfeitable. If a later
statute is enacted and an earlier treaty, the Statute is NOT allowed to repeal a prior earlier treaty or rule of
custom unless the Congressional intent to override is clear and manifest. Reconcile the two- but read the
Statute in light of the treaty.

U.S. Department of State Circular 175: This regards the negotiation and conclusion of treaties and other
international agreements. Objectives: Making of treaties and international agreements is done so in a
constitutional way and agreements are not in conflict with other international agreements. Things taken into
consideration to determine if a treat or type of executive agreement is used. Two procedures under Constitution
for how things become an international agreement: (1) via Treaties and (2) International Agreements, which may
be concluded pursuant to the constitutional bases of treaties (requires Senate Consent), legislation (treaty based on
existing legislation, or subject to legislation Congress adopted, or “upon failure of Congress to adopt a
disapproving joint or concurrent resolution within designated time periods), and the Constitutional authority of the
President (can occur so long as the agreement is not inconsistent with legislation enacted by Congress “in the
exercise of its constitutional authority.” Sources for this are the Chief Executive authority, authority to receive
ambassadors and to recognize foreign governments, Commander-in-Chief authority, and authority “to take care
that the laws be faithfully executed”). Considerations used to determine which to implement:
“(1) The extent to which the agreement involves commitments or risks affecting the nation as a whole;
(2) Whether the agreement is intended to affect state laws;
(3) Whether the agreement can be given effect without the enactment of subsequent legislation by the
Congress;
(4) Past U.S. practice as to similar agreements;
(5) The preference of the Congress as to a particular type of agreement;
(6) The degree of formality desired for an agreement;
(7) The proposed duration of the agreement, the need for prompt conclusion of an agreement, and the
desirability of concluding a routine or short-term agreement; and
(8) The general international practice as to similar agreements.”

In determining whether any international agreement should be brought into force as a treaty or as an
international agreement other than a treaty, the utmost care is to be exercised to avoid any invasion or
compromise of the constitutional powers of the President, the Senate, and the Congress as a whole.”
Outline 22

When a question arises in how to implement the treaty, (1) ask the Legal Adviser for Treaty Affairs,
who may then (2) ask for congressional consultation through the Office of the Legal Adviser who will
consult the Assistant Secretary for Legislative Affairs.

A. Analyzing a Jurisdictional Problem

1. Power of a Nation to Legislate (Known as the power to prescribe). The power to make rules
binding on persons, transactions, and relationships that have some connection with the State.
Congress and States can have this jurisdiction.
2. Power to Adjudicate: Power of a tribunal to decide a particular dispute or the hear a certain type
of case. Judiciary has this jurisdiction.
3. Power to Enforce: Enforce the rules and its judgments. Judiciary/ Executive has this jurisdiction.
Lotus Presumption: “Under this rule, States are free to assert their jurisdictional competences to the
absolute limit that international law allows.” “…everything is permitted, save that which is expressly---
and unambiguously—rejected.” French crashed into the Turkish ship killing Turkish Nationals. Three
approaches to softening the Lotus decision:
1. Comity: “nations may engage in a practice out of courtesy or respect for their neighbors or
partners in the international community.” “One aspect is that U.S. courts should not lightly
assume that Congress intends to apply legislation extra-territorially to individuals and events
occurring outside the U.S. or the matters clearly subject to international regulation.” “Comity is
also invoked when an American court decides that, even though it has jurisdiction over a
particular matter, it should instead be heard by a foreign tribunal.”
2. Interest-Balancing Test: “When a tribunal in one jurisdiction has the choice to apply its own
jurisdiction has the choice to apply its own law to a transaction or relationship, or the law of
another jurisdiction, it usually balances different considerations.”
3. Reasonableness-See 403 below.

Restatement (Third) of the Foreign Relations Law of the United States. § 403. (LIMITS ON JURISDICTIONS TO
PERSCRIBE-IT IS A BALLANCING TEST-States are t oweigh their interest against others).
(1) Even when one of the bases for jurisdiction under § 402 is present, a state may not exercise jurisdiction to
prescribe law with respect to a person or activity having connections with another state when the exercise of such
jurisdiction is unreasonable.
(2) Whether the exercise of jurisdiction over a person or activity is unreasonable is determined by evaluating all
relevant factors, including, where appropriate:
(a) the link of the activity to the territory of the regulating state, i.e., the extent to which the activity takes place
within the territory, or has substantial, direct, and foreseeable effect upon or in the territory;
(b) the connections, such as nationality, residence, or economic activity, between the regulating state and the
persons principally responsible for the activity to be regulated, or between that state and those whom the
regulation is designed to protect;
(c) the character of the activity to be regulated, the importance of regulation to the regulating state, the extent to
which other states regulate such activities, and the degree to which the desirability of such regulation is generally
accepted;
(d) the existence of justified expectations that might be protected or hurt by the regulation;
(e) the importance of the regulation to the international political, legal or economic system;
(f) the extent to which the regulation is consistent with the traditions of the international system;
(g) the extent to which another state may have an interest in regulating the activity; and
(h) the likelihood of conflict with regulation by another state.

B. Bases of Jurisdiction-LOOK AT THIS BEFORE 403 BALANCING:

For criminal cases, you do not need jurisdiction requirements for civil cases. “If comity,
reasonableness, and interest-balancing fail, that leaves the traditional international law rules that mark
the outer limits of a State’s ability to prescribe, adjudicate and enforce.” Effects doctrine can help to
gain jurisdiction as the effects of the actions impact the United States. Customary international law
can be employed-Principles found there are: (Generally for prescriptive jurisdiction, adjudicate,
Outline 23

enforce. However, main question is Prescribe “Whether Congress has the power to legislate in the
circumstance?”):
1. Territoriality (and the Effects Principle-Linking extraterritorial conduct to territorial harm):
“…the idea that a nation may exercise jurisdiction over persons, transactions and events
occurring within its territory.” “…only the territorial sovereign can decide to exercise
jurisdiction over a matter arising within its borders.” Effects Principle: When a State wants to
“exercise jurisdiction over a person or thing, located outside that nation’s territory, but that
person or thing causes effects inside that State’s borders. This is known as the ‘objective
territorial principle’ or, more descriptively, the ‘effects principle.’” Example: Antitrust law.
Alcoa bore the effects application of antitrust laws to extraterritorial actors. Exceptions:
a. States may consent to treaties to limit their territory within the State.
2. Nationality: “…a State is in large measure free to require compliance by its nationals, even when
they are living abroad.” This is in regards to taxes, laws, etc. USSC has ruled that US can try a
punish one of its nationals for a crime committed abroad, even if that individual may also be a
national of that State in which it was committed. Corporations are affected by this. However,
USSC will “interpret an ambiguous Act of Congress as not applying extraterritortorially” if it
would make businesses less competitive, UNLESS Congress has expressly called for this. Also,
some US cases recognize not holding a citizen liable if he or she had to choose between
respecting US law and the law of the nation they are in.
3. Universality: “universal jurisdiction means that any nation may prosecute or otherwise assert
jurisdiction over persons suspected of having engaged in certain crimes or offenses.”
Essentially, the crime is such that any nation has the right to assert jurisdiction over universal
offenses. Depends on a virtually universal consensus that the offense is of the kind allowed for
this. Usually exercised against state actors (Pinochet). Terrorism, Piracy, etc.
4. Protective Principle: “…a State may exercise jurisdiction over conduct that occurs beyond its
borders by non-nationals, but which nevertheless is prejudicial to the Sate’s security.” Rarely
invoked in US law (Eichmann-Israel).
5. Passive Personality-the weakest: Jurisdiction “over a crime based on the nationality of the
victim.” US courts did exercise it in US v. Yunis (D was charged with hijacking that killed
Americans). Yunis suggests that US courts “might not be prepared to impose customary
international law limits on the exercise of prescriptive and adjudicatory jurisdiction, at least as
authorized by Congress” (limited but seen in the Yunis case).
**If you list on the stock exchange, Congress may make you subject to certain acts.
C. Extradition and Mutual Assistance:
Use of mutual assistance to avoid conflict. In The ANTELOPE USSC said that “Courts of no country
execute the penal laws of another.” We see Courts refusing to enforce foreign judgments they believe
violate their own public policy. Extradition: “surrender by one State of an individual accused or
convicted of a crime in another nation.” It is a request to the Executive Branch (Secretary of State).
Usually, US Courts require that “double criminality” is present, meaning the crime is punishable in the
sending and receiving states. There is also the doctrine of specialty, “which means that a defendant may
only be tried or punished in the requesting State for those crimes for which he was extradited.” Also,
the political offense exception “indicates that the sending State is not obliged to extradite a suspect
charged with a political offense.” U.S. and U.K. “largely eliminated the political offense exception.”

United States v. Aluminum Co. (1945): Issue: Whether D had violated the Sherman Act through foreign
corporations forming a cartel on foreign soil to limit aluminum production, creating an impact for prices
worldwide. We are only concerned with whether Congress chose to attach liability to conduct outside of the US
with non-citizens. Also, does out Constitution allow for this? “it is settled law” “that any state may impose
liabilities, even upon persons not within its allegiance, for conduct outside its borders that has consequences
within its borders which the state reprehends; and these liabilities other states will ordinarily recognize.” We think
the agreement is in violation of the Sherman Act. P has to prove intent to affect US imports and an affect on price
is assumed. Burden is on Limited to prove it did not intend to affect imports. Effects doctrine stretches the
Outline 24

boundary of territoriality jurisdiction.

United States v. Yunis D.D.C. 1988: Criminal proceedings for the hijacking of a Jordanian civil aircraft. Only
connection to USA is that some USA nationals were on board. Yunis moving to dismiss for lack of jurisdiction.
Issue: whether there is a basis for jurisdiction under international law and if so, if Congress intended to and had
the constitutional authority to permit such actions. Argued that jurisdiction may be possible under Universal or
Passive personal standards. Universal principles requires the crime to be so heinous and harmful to humanity that
any country can prosecute it. “In light of the global efforts to punish aircraft piracy and hostage taking,
international legal scholars unanimously agree that these crimes fit within the category of heinous crimes for the
purposes of asserting universal jurisdiction.” As a result, this is sufficient for jurisdiction in our case. In regards to
the passive personality principle, D argues that the theory is not recognized by the international community. The
Hostage Taking Convention specifically authorizes this. Further “qualified application of the doctrine to serious
and universally condemned crimes will not raise the specter of unlimited and unexpected criminal liability.” The
combination of both makes the claim stronger, but either is sufficient. Upheld!

United States v. Yousef (Second Circuit, COA, 2003): A conspirator to bomb the World Trade Center. “We note
that, in fact, Yousef’s prosecution by the US is consistent with the protective principle of international law.” This
principle “permits a State to assume jurisdiction over non-nationals for acts done abroad that affect the security of
the State.” Typically, the principle is directed towards politically motivated acts, but is not limited to this.
Protective Principle, jurisdiction can be proper.

VIII. States: Identity, Recognition, and Succession:

Subject of international law: “entity that bears international legal rights or duties.” States, international
organizations.
Objects: “the legitimate topics of international legal regulation.” They are who, what and where
international law is acting on.
A. State Identity, Sovereignty and Legitimacy:
Sovereignty: “the principle that each nation answers only to its own domestic order and is not
accountable to larger international community, save only to the extent it has consented to do so.” States
are the only entities capable of becoming full members of international organizations, and they are the
only parties that have the right to engage in armed combat. Under the 1933 Montevideo Convention,
there are four elements of statehood: (a) a permanent population (that have a national consensus on the
status of their nation); (b) a defined territory (borders must be consistent, size is irrelevant); (c)
government; and (d) capacity to enter into relations with other states.
 Entities that are dependent on other nations (Puerto Rico) are not considered to be States.
 US has says it will not recognize States that are created in violation of legal norms.
 There are some political entities that do not want to be a State (Taiwan).
B. Recognition of States and Governments:
Sometimes thought of as the fifth element of the Montevideo Convention-that nations recognize the
State in question. Sometimes seen as a requisite (or constitutive) for statehood. “At the other extreme is
a declaratory theory of State recognition that argues that statehood is purely objective—an entity has
the criterion of being a State, or it does not. Under this theory, recognition is largely irrelevant.”
 A state’s international obligations are not changed if a new President, the government has
been overthrown, or the entire regime has been replaced by a revolution, so long as the
there has not been a State succession. Example: Tinoco Concessions: Britain had refused
to recognize the Tinoco government. IT was overthrown, but still owed debts to British
citizens. Ruled that even if Britain had not recognized him, he was the de facto ruler, and
his acts were presumptively valid and enforceable.
 De Facto Rule: “A State will thus be held to a predecessor government’s acts, unless that
regime was actually a ‘puppet’ of a foreign occupier.”
 If the US President ahs not recognized a foreign State, their access to US courts is limited
and the validity of its acts may be questioned. It cannot sue in US courts as a plaintiff
and cannot assert foreign sovereign immunity when a defendant. However, the P must
Outline 25

affirmatively bar a government it does not recognize from suing in US courts. Further, if
they are regarded as a de facto regime, then they will be given sovereign immunity.
C. State Succession:
“…occurs when there has been a fundamental transformation in the identity of the State itself, not just
its government.” The legal consequences of these changes are governed by customary international law.
The legal consequences depend on the nature of the change in State “identity as well as the type of issue
involved.” A newly-independent state begins with a clean-slate. Also international law “relieves a
successor State of liability for the tortious acts of a predecessor regime.”

CP 183-188 (Montevideo Convention)

Federal State is seen as a sole person by international law. According to Article 3, its political existence is
independent of recognition by other states. Recognition is unconditional and irrevocable. Will be open to
“adherence and accession” even of non signors.

Kosovo’ s Declaration of Independence (2008): Kosovo declared independence from Serbia on Feb. 17, 2008.
Numerous States then recognized it. However, Serbia, Russia, Romania, Moldova, and Cyprus though such
recognition would be a breach of international law. The independence can be assessed under international law of
secession. To claim legal secession, it must be shown that “(A) the secessionists are a people (in the ethnographic
sense); (B) the state from which they are seceding seriously violates their human rights; and (C) there are no other
effective remedies under either domestic law or international law.” People can mean a “complete ethnic nation” or
a “homogenous ethnic enclave within another nation.” Note international law has a bias against secession. ICJ
eventually ruled it is legal. But U.N. has still not recognized it.

Baker, Sovereignty v. Self-Rule Mar. 8, 2014: Shows the debate between self-determination (right of a people
group to choose how and who will rule them) and territorial integrity of nation-states. Discusses Crimea trying to
break from Ukraine.

Bilefsky, For Crimea, Secession is only as Good as Recognition March. 15, 2014: Russia is supporting Crimea’s
right to vote on whether it will secede from Ukraine and us using Kosovo to justify it. Declaration is necessary for
Crimea’s success. Ukraine is insisting that this violates the Constitution, but constitutional constraints may not be
“sufficient to hold a country together.” What matters more is whether a Country’s “territorial integrity was
guaranteed by an international treaty or affirmed by an international body, such as the U.N. Security Council.”

VIII. States: Identity, Recognition, and Succession:

Subjects of international law: “entity that bears international legal rights or duties.” States, international
organizations, sometimes multinational corporations. WWII changed who can be subjects and extended
to individuals.
Objects: “the legitimate topics of international legal regulation.” They are who, what and where
international law is acting on. Who do treaties apply to, people.
A. State Identity, Sovereignty and Legitimacy:
States have a bundle of rights, such as the right to enter into treaties, to form customary international
law, become members of international organizations, claim breaches of international law and seek
redress, right to engage in war or armed conflict, and the right to claim sovereign immunity.
Sovereignty: “the principle that each nation answers only to its own domestic order and is not
accountable to larger international community, save only to the extent it has consented to do so.” Under
the 1933 Montevideo Convention, there are four elements of statehood: (a) a permanent population
(that have a national consensus on the status of their nation-self determination); (b) a defined territory
(borders must be consistent, size is irrelevant); (c) government; and (d) capacity to enter into relations
with other states. Self determination does not always trump sovereignty, but can (think of a revolution).
 Entities that are dependent on other nations (Puerto Rico) are not considered to be States.
 However, Lichtenstein has delegated duties, which is OK, as they are not
dependant.
 US has says it will not recognize States that are created in violation of legal norms.
Outline 26

 There are some political entities that do not want to be a State (Taiwan).
 Puppet States exist (Manchuria and Bantustan), US has said it would not accept the
forcible creation of a nation in violation of international law.
 International Territories are when areas have disputed areas placed under sovereign of one
nation, but is supervised by international organizations (Berlin, WWII before the War
came down).

B. Recognition of States and Governments:

Sometimes thought of as the fifth element of the Montevideo Convention-that nations recognize the
State in question. Sometimes seen as a requisite (or constitutive) for statehood. “At the other extreme is
a declaratory theory of State recognition that argues that statehood is purely objective—an entity has
the criterion of being a State, or it does not. Under this theory, recognition is largely irrelevant.”
 A state’s international obligations are not changed if a new President, the government has been
overthrown, or the entire regime has been replaced by a revolution, so long as the there has not
been a State succession. Example: Tinoco Concessions: Britain had refused to recognize the
Tinoco government. IT was overthrown, but still owed debts to British citizens. Ruled that even if
Britain had not recognized him, he was the de facto ruler, and his acts were presumptively valid
and enforceable.
 De Facto Rule: “A State will thus be held to a predecessor government’s acts, unless that regime
was actually a ‘puppet’ of a foreign occupier.”
 If the US President ahs not recognized a foreign State, their access to US courts is limited and the
validity of its acts may be questioned. It cannot sue in US courts as a plaintiff and cannot assert
foreign sovereign immunity when a defendant. However, the P must affirmatively bar a
government it does not recognize from suing in US courts. Further, if they are regarded as a de
facto regime, then they will be given sovereign immunity.
 Constitutive Theory holds that recognition should be added. Objective Theory: recognition is
largely irrelevant. The four factors matter.
C. State Succession:
“…occurs when there has been a fundamental transformation in the identity of the State itself, not just
its government.” The legal consequences of these changes are governed by customary international law.
The legal consequences depend on the nature of the change in State “identity as well as the type of issue
involved.” A newly-independent state begins with a clean-slate. Also international law “relieves a
successor State of liability for the tortuous acts of a predecessor regime.” Requires: (1) That the
Secessionists are a people (in an ethnographic sense), (2) the State from which they are seceding violate
their human rights, (3) There are no other effective remedies under either domestic or international law.

Montevideo Convention: Federal State is seen as a sole person by international law. According to Article 3, its
political existence is independent of recognition by other states. Recognition is unconditional and irrevocable.
Will be open to “adherence and accession” even of non signors.

Kosovo’ s Declaration of Independence (2008): Kosovo declared independence from Serbia on Feb. 17, 2008.
Numerous States then recognized it. However, Serbia, Russia, Romania, Moldova, and Cyprus though such
recognition would be a breach of international law. The independence can be assessed under international law of
secession. To claim legal secession, it must be shown that “(A) the secessionists are a people (in the
ethnographic sense); (B) the state from which they are seceding seriously violates their human rights; and
(C) there are no other effective remedies under either domestic law or international law.” People can mean a
“complete ethnic nation” or a “homogenous ethnic enclave within another nation.” Note international law has a
bias against secession. ICJ eventually ruled it is legal. But U.N. has still not recognized it.

Baker, Sovereignty v. Self-Rule Mar. 8, 2014: Shows the debate between self-determination (right of a people
group to choose how and who will rule them) and territorial integrity of nation-states. Discusses Crimea trying to
break from Ukraine.
Outline 27

Bilefsky, For Crimea, Secession is only as Good as Recognition March. 15, 2014: Russia is supporting Crimea’s
right to vote on whether it will secede from Ukraine and us using Kosovo to justify it. Declaration is necessary for
Crimea’s success. Ukraine is insisting that this violates the Constitution, but constitutional constraints may not be
“sufficient to hold a country together.” What matters more is whether a Country’s “territorial integrity was
guaranteed by an international treaty or affirmed by an international body, such as the U.N. Security Council.”

D. International Organizations:
Are now seen as subjects of international law. The league of nations inspired the institutional structures
for subsequent international organizations. Three different types:
1. International Public Organizations: Only States can be members.
2. Non-Governmental Organizations: (NGOs)-Some have international legal status, like the Red
Cross.
3. Multinational Public Enterprises: (MPEs): Run by a combination of Governments, like regional
airlines.
International Organizations are subjects of international law. They can be crated by treatises. It is a
combination of constituent texts (charters?), organs, and international law governance. Reparation for
Injuries Suffered… recognized the international legal personality of international organizations. In it,
the U.N.’s power to sue was declared and it was recognized as having an international legal personality.
This was recognized through a teleological interpretation of its Charter. Court recognized that U.N. has
an “objective” character that is binding even on nonmembers. From this, international institutions can
conclude binding treaties with States and each other, and have standing before international tribunals,
and have “organic jurisdiction over internal maters that may not be interfered with by States.” Also, you
cannot pierce the organizational veil, and hold the States who a member organizations responsible for
their agent’s actions. See International Tin Council.

UN Charter: Purpose is to maintain international peace and security. Organization “is based on the principle of the
sovereign equality of all its Members.” Chapter 2: Article 4: “The admission of any such state to membership in
the United Nations will be effected by a decision of the General Assembly upon the recommendation of the
Security Council.”

UN Organizational chart: Principal Organs: General Assembly, Security Council, Economic and Social Council
(composed of Specialized Agencies), Secretariat, International Court of Justice, and Trusteeship Council.

Security Council Resolution 1950: UN Security Council condemns the acts of piracy and armed robbery off the
Coast of Somalia, “recognizes that the ongoing instability in Somalia is one of the underlying causes of the
problem of piracy,” calls upon nations to help, “acknowledges Somalia’s rights with respect to offshore natural
resources, including fisheries, in accordance with international law,” affirms this is only in regards to Somalia and
should not be construed as any type of customary international law, “calls upon all States to criminalize piracy
under their domestic law and to favourably consider the prosecution of suspected, and imprisonment of convicted,
pirates apprehended off the coast of Somalia, consistent with applicable international law including international
human rights law.”

Report of the Secretary General 2010: Response to the 1950 call for a resolution of the Somalia piracy matter.
“Somali piracy has evolved into a sophisticated organized crime.” “Somali authorities have stressed that only a
comprehensive approach of the Transitional Federal Government and the regions that addresses instability, lack of
governance and law enforcement would be successful in eliminating piracy in Somalia.” On Feb. 3 rd, 2011, an
anti-piracy action plan was launched. “Its prime objectives aim at increasing pressure at the political level to
secure the release of all hostages being held by pirates; review, improve and promote IMO guidelines; promote
greater levels of support and coordination with navies; promote coordination and cooperation between States,
regions, organizations and industry; assist in capacity-building in piracy-infested regions of the world, and provide
care for those attacked or hijacked by pirates and for their families.” Also a call for an increased focus on pirate
negotiators. Also the continuation of The Monitoring Group, which began on September 2011 and will continue
investigating and reporting pirate militia acts.
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VIIII. State Territory and Common Areas:

State Territory (and its acquisition and disposition) is an object of international law.

A. Territory:
“Territory is, in a sense, the ultimate object of international law.” Originally, it was acquired through
conquest as Europe defined areas as res nullius (no-man’s land). This created the discovery doctrine,
which said that whomever discovered it, owned it. However, now the dominant principle is effective
occupation, which requires States to “exercise effective control of a land territory in order to maintain a
claim of title; symbolic discovery, without more,” is insufficient. We saw this emerge in the Isle of
Palmas Case where the effective occupation doctrine was applied looking at the critical date.
 International law recognizes a form of adverse possession. “If a State fails to make an effective
protest of another nation’s assertion of sovereignty over disputed territory, title in that territory
will vest and may not later be challenged.
 Doctrine of uti possidetis, colonial legacy is accepted, resulting in the artificial boundaries made
by the colonizers dominant today. This is justified by the goals of stability and security.
 Condominia regimes are those where more than one State exercise control over the same territory
 Air space is part of State territory.

B. International Common Space:

Known as “global commons” and have the goal to manage the common resources effectively.
International Law relies on partition and management strategies, but still has difficulties as the “tragedy
of the commons” persists.
 Under the principle of cabotage, A State may limit commercial traffic between “two points on the
river located within the same territory to the nationals of that State.” Otherwise, “international
law generally recognizes that rights of riparian States and non-riparian nations alike to use a river
for commerce.”
 Via the Antarctic Treaty of 1959, no claims can be made to the continent.
 Outer Space is a common area. A State’s air space ends “at the lowest altitude where a satellite
can continually remain in orbit without disintegrating.” (Goals of minimizing risk and
promoting opportunity).
o Geostationary orbit slots are governed by the ITU- (International Telecommunications
Union) and some have been set aside for developing nations.
o Moon and celestial bodies are “common heritage of mankind.”
o Absolute liability is imposed on a State that launches an object in space. Any damage to the
earth is that State’s responsibility.

VanderZwaag, The Arctic Council at 15 Years:

A. Originally called the Arctic Environmental Protection Strategy (AEOPS) of 1991. Arctic Council stemmed
from this in 1996. Canada, Denmark/Greenland, Finland, Iceland, Norway, the Russian Federation, Sweden, and
the USA and indigenous groups. No security focus. Has a “soft law” regional forum to monitor the Arctic
environment. Composed of six groups (1) Arctic Monitoring and Assessment Programme (AMAP), (2) The Arctic
Contaminants Action Program (ACAP-pollution), (3) Conservation of Arctic Flora and Fauna (CAFF), (4)
Emergency Prevention, Preparedness and Response (EPPR-Oil Spills), (5) Protection of the Arctic Marine
Environment (PAME), and (6) Sustainable Development Working Group (SWDG-looked at indigenous
perspectives on ecosystem-based management of the Arctic). Arctic contains a quarter of the world’s
undiscovered gas.
B. Ministerial Meetings: Now taking a more policy-shaping role. Created the short-lived climate forcers (SLCF)
task force to indentify measures to reduce emissions. Key challenges are (1) Fully implementing exists
commitments and recommendations; (2) Completing the Arctic Council’s restructuring; (3) addressing future
governance of Arctic areas beyond national jurisdiction; (4) and strengthening the ‘Arctic voice’ in international
fora. The council has moved, in the last fifteen years, from talking to policy and even law making.
Outline 29

X. Individuals in International Law:

Persons are no longer simply objects, but can also be subjects.

A. Nationality
“The essential relationship of loyalty and protection between a person and a State.” Two Types:
 Ius sanguinis: Nationality based on blood. Transmitted by parents.
 ius soli: Depends on where you are born.
Nationality can arise in other ways and can be involuntary. Nationality creates an affiliation with a
state.
However, sometimes you can be left stateless, which is where no country recognizes you as a national.
This can occur due to migrations of people, State succession. Now, nationality is considered to be a
fundamental right and States are now prohibited from revoking nationality if it would leave the person
stateless.
 Dual Nationality: Have two nationalities. Can lead to complications such as dual
allegiance, dual taxes, etc. The tensions were seen in the Nottebohm Case (Guatemala
resident, not a citizen, lost land because of war).
 Real and Effective Link is required for citizenship. AKA a “genuine link.”

B. Duties of Persons Under International Law:

Have obligations such as NO piracy, which are considered to be beyond protection by any nation and to
be hostis humanis generis (the enemy of all mankind). The crime is said to be an international crime
and can result in universal jurisdiction. Duty to punish individuals has been seen in the Nuremberg
Trials (WWII trials of Germany), which was subject to the London Charter, which specified particular
international crimes subject to the jurisdiction of any subsequently-created International Military
Tribunal: (1) Crimes against peace, (2) War crimes, and (3) Crimes against humanity. Defenses raised
by the Ds were: (1) immunity because of official protection (such a defense was disallowed by the
Charter), (2) they were taking superior orders (also disallowed and NOW, “A subordinate is thus under
a legal duty to refuse an order if he reasonably believes it is unlawful), and (3) that it is ex post facto
criminalization (rejected on theory that German’s had sufficient notice that waging “aggressive war
would be punished).
 “Nuremberg and Tokyo set an important precedent in demanding individual responsibility for
violations of international norms.”
 The ex dedere aux judicare principle requires States to “hand-over or prosecute” those who have
committed international crimes.
 Ad hoc tribunals, such as those for the Yugoslavia crimes, have jurisdiction for a specific purpose.
 A permanent international criminal court was created in 1998 and is known as the International
Criminal Court (ICC). U.S. openly says NO to its jurisdiction. The court’s jurisdiction is triggered
if a State refuses to prosecute a national.
C. Rights of Individuals:
People do not have the same rights as States in international law. They cannot make treaties, acquire
territory, or wage war. (1) They can be given rights under treaties, but the be enforced, their State must
raise a claim in an international tribunal. In this way States can exercise diplomatic protection. (2) The
other way a person has rights is through the international law of human rights, which has a vast body of
standards and enforcement principles.

The Refugee Convention – read Articles 1, 31-33, 35: Refugee: well founded fear of being prosecuted for race,
religion, nationality membership of a social or political group, etc who is unable to avail himself of protection
from his country of nationality. –Events must have occurred prior to Jan 1. Of 1951. Refugee has access to
international courts just as a national would through the state harboring him/her. Article 31: States will not impose
penalties for illegal entry so long as they present themselves promptly to the authorities. Article 32: No expelling
a refugee who is lawfully in the territory unless national security is at issue. Due process is required for such
Outline 30

explusion. Article 33: No expelling or returning (refouler) a refugee to the territory he or she fleed from. UNLESS
they committed a serious crime and national security is at risk. Article 35: States are to proved the UN with the
condition of the refugees, the implementation of the Convention, and laws and regulations that are in force
relating to refugees. Executive branch is trying to “resettle” them by secretly moving them to host countries.

Durkee, Beyond the Guantanamo Bind: Hold suspects arrested in connection with the Afghanistan conflict. Many
held captive are not terrorists, but are refugees who fled to Afghan territories and are undocumented. The
prohibition of refoulement requires the refugee to prove that he or she “fears persecution in his or her home state
due to his or her race, religion, nationality, membership of a particular social group, or political opinion.” If the
person is “excludable” from the Convention due to a criminal history OR is “expellable” based on national
security risks, then the State must not remove them from its territory. Other treaties prohibit signors from holding
refugees in detention for a long period of time. USA has rejected asylum grounds for Guantanamo detainees by
saying they are not in U.S. territory and the agreement does not apply extraterritorially.

U.S. State Department Report on Protracted Refugee Situations: Protracted Refugee Situations exist where
25,000+ from the same country have sought asylum in another country for at least five consecutive years. They
often face restricted movement and are in a state of limbo, not being given the opportunity to truly integrate into
the countries they have sought asylum in. Solutions (1) voluntary return to home countries, (2) local integration
into country of asylum, and (3) third country resettlement. Sic focus situations are: (1) Afghans in Pakistan; (2)
Bhutanese in Nepal; (3) Burmese in Thailand; (4) Croatians and Bosnians in Serbia; (5) Liberians in West Africa;
and (6) Somalis in Kenya.

XI. Human Rights

Difference between (A) Universal and regional standards in the treatment of citizens and (B)
enforcement mechanisms for international rights.

A. Substantive Aspects of Human Rights Law:

The first “authentic human rights regime” developed out of the Treaty of Versailles, (end of WW I).
End of WWII “marked the ultimate transition of international law from a system dedicated to State
sovereignty to one also devoted to the protection of human dignity.” The UN created the 1948
Universal Declaration of Human Rights, but it was not legally binding. First generation rights were civil
and political rights, whereas second generation rights were economic and social rights. Note however
that almost all of the provisions in the UD concerning civil and political rights are now seen as
customary international law. Further, they became binding through global treatises establishing
universal norms and through “narrower regional regimes.” There was the ICCPR (International
Covenant on Civil and Political Rights of 1967- which the US did not rule to be self-executing) and the
ICESCR (International Covenant on Economic, Social and Cultural Rights). Some of these rights have
also become jus cogens. There are also regional standards, which complicate the idea that human rights
is a universal standard, BUT Nations that “adhere to a regional system are more likely to ratify
universal instruments.”
Third generation rights are the right to peace, development, and environment. Note, however, that
under the ICCPR (Article 4) and other treaties, there are “derogation” provisions that allow States to
disregard certain types of obligations when the Nation is faced with a public emergency.

B. Enforcement of Human Rights Norm

Harder area. Model 1 was seen in the Slavery Conventions, which gave universal jurisdiction allowing
any State to prosecute any individual engaging in that activity. Model 2 was seen in The Genocide
Convention, which was a multilateral human rights treaty allowing referral of suspicions of genocide to
the U.N. Security Council. Also allowed for the ICJ to have jurisdiction over any cases brought which
involve the responsibility of a State for genocide. These are erga omnes violations, which mean they are
an insult to the entire international community. Model 3: ICCPR, calls for regular reports from Member
nations on how they are complying with the treaty and allow States to invoke an “interstate complaint
process,” which would initiate an investigation. Also allows for individuals to directly file human rights
Outline 31

complaints with the U.N. Human Rights Committee. Model 4: Seen in the European Convention on
Human Rights which allows certain institutions to hear inter-state complaints brought by individuals,
and these decisions are seen as self-executing. Model 5 is domestic legal institutions enforcing human
rights norms. US is the leading venue for private human rights litigation. Think of the Alien Tort
Statute, which grants jurisdiction of any civil action by an alien for a tort committed in violation of “the
laws of nations” or a US treaty. Model 6: Direct action by States, such as :humanitarian intervention”
which is when one or more nations invades another to alleviate or stop human rights abuses.

Universal Declaration of Human Rights: “The General Assembly, Proclaims this Universal Declaration of Human
Rights as a common standard of achievement for all peoples and all nations, to the end that every individual and
every organ of society, keeping this Declaration constantly in mind, shall strive by teaching and education to
promote respect for these rights and freedoms and by progressive measures, national and international, to secure
their universal and effective recognition and observance, both among the peoples of Member States themselves
and among the peoples of territories under their jurisdiction.” Binds UN Member States. Right to life, liberty,
and security of persons regardless of race, color, sex, birth place, political affiliation, language, or religion. No
slavery. No torture, or cruel and inhuman punishment. Presumed innocent until proven guilty and right to fair
trial. Offense must exist at the time it was committed. Right to seek asylum. Right to a nationality. Right to
marriage—need full consent of spouses. Right to religion, freedom of opinion and expression, and to peacefully
assemble. Right for equal pay for equal work. Right to reasonable working hours. Right to education. NO
destruction of these rights. NOT binding.

European Convention on Human Rights – read Articles 1 to 14: Right to life, Obligation against torture,
prohibition of slavery and forced labor, right to liberty and security, right to a fair trial, no punishment without
law, right to respect private and family life, freedom of thought, conscience, and religion, freedom of expression,
freedom of assembly and association, right to marry, right to an effective remedy, prohibition against
discrimination. Binding? I think so, BUT it gives substantial discretion to governments.

Korobov v. Ukraine 2011: Case lodged my Korobox (a Ukrainian National) against Ukraine under Article 34 of
the Convention for the Protection of Human Rights and Fundamental Freedoms. European Court of Human
Rights presided. P alleges that he was ill-treated by police officers and that the State failed to investigate into
these events properly. Also said that the principle of “equality of arms” was breached during the consideration of
his criminal case as the Supreme Court of Ukraine examined his cassation (appeal of law) appeal in the presence
of the prosecutor but in his and his lawyer’s absence. Had been sentenced to prison for threatening behavior
made with the aim of securing the repayment of a debt. Said police beat him and hit him with an electric current.
Originally, it took months for criminal proceedings to be instituted against the police officers, as the prosecution
quashed the charges for lack of evidence. Once they were finally initiated, they were squashed months later for
lack of evidence. The prosecutor determined that the applicant should be given victim status. The District Court
affirmed the decision that nothing had happened of consequence. That was affirmed by the Regional Court of
Appeals and the Supreme Court. The district court had found for him in part in relation to the seizure of his
personal belongings. Code of Criminal Procedure 1960, Article 383 and 392- cassation appeals are to be
examined by a court composed of three judges. Applicant complains under Article 3 and Article 13 of the ECHR
(above). Article 3 says no torture. Article 13 says that everyone whose rights are violated will have an effective
remedy before a national authority. Thorough scrutiny is to be employed when an Article 3 challenge is made,
however we are conscious that we are not to be the finder of fact.
We initially find that the injuries were sufficiently serious to be evaluated under Article 3. “The Court
reiterates that where an individual is taken into police custody in good health but is found to be injured at the time
of release, it is incumbent on the State to provide a plausible explanation of the cause of the injury. See Tomasi v.
France. Gov. cannot rely on their failure to medically examine him when taking him into custody as a defense and
claims the injuries predated custody. See Turkan. Right to a lawyer, a medical examination, and the right to
inform a third party of detention are fundamental safe-guards against “ill-treatment.” Further, Gov. as not given
sufficient details as to why force was needed. This is sufficient for the Court to assume that the “applicant’s
injuries were not inflicted exclusively at the moment of his arrest.” Further, the injuries were sufficiently serious
to amount to torture under Article 3.
Outline 32

Gov. argues its investigation was sufficient. Considering the investigation’s length, the failure to conduct
“important investigatory steps”, the “persistent inability of the national authorities to correct the revealed flaws,
the Court concludes that in the present case there is a violation of the procedural limb of Article 3.”
Applicant also alleges an Article 6 violation as he was not present at the Ukrainian Supreme Court
hearing. If the issue is solely one of law, Article 6 can be complied with even if the applicant were not present, so
long as the higher courts were not to rule on facts and that a public hearing had been held down below.
HOWEVER, the prosecution was present, so for equality of arms to be satisfied, D must have been present. SO
Article 6 was violated. Under Article 41, we can provide a remedy.

XII. Law of the Sea:

A. Ocean Resources and Law:
Grtious’ Position in the 1600s was “freedom of the Sea.” However, today the Sea is governed by the
UNCLOS III, which was enacted in 1982. From it was the production of the Law of the Sea Treaty
(LOST). US has signed, but has not completely ratified the provisions.

B. Maritime Zones:
1. Internal Waters (IW): Bodies of water “so closely connected with a costal State’s land territory that
they are assimilated to that nation’s full territorial sovereignty.” Anything landward of the
established baselines are internal waters. The internal waters are treated likely land territory, except
(A) for any servitudes created by treaty allowing a State to have preferential rights of the internal
waters of another. (B) In times of peace, ports are left open pursuant to customary international law.
Unless murder or the peace of the port is in jeopardy, then “costal nations defer to the flag State to
exercise control over all aspects of life onboard the ship, including enforcing law and order.”
2. Territorial Seas (TS): Within 12 nautical miles of the cost. Costal Sate has sovereignty subject to
the doctrine of transit passage, which applies to international straits or channels used for
international passage. Under the doctrine, the coastal State has no right to interfere with civilian or
military traffic, and cannot suspend their passage.
3. Contiguous Zones (CZ): Allows Sates to prevent “infringement of certain kinds of law within its
territory or territorial waters.” Can extend 12 to 24 nautical miles from shore. Coastal Sates can
only exercise customs, fiscal, immigration, or sanitary regulations in these zones.
4. Continental Shelves (CS): Deals with activities affecting the seabed and subsoil under the ocean.
Can extend 200 nautical miles from shore. Same jurisdictional limits as found under (EEZ).
5. Exclusive Economic Zones (EEZ): Governs resources and activities in the water column and ocean
surface. Can extend 200 nautical miles from shore. Coastal states have authority over (A) sovereign
rights over the natural resources and (B) jurisdiction over activities affecting such resources.
6. High Seas (HS): All oceans beyond national jurisdiction. No longer freedom of the seas. Now we
see (A) requirements to register under your “flag State.” This State is charged with regulating and
overseeing all aspects of the ship’s construction, design, equipment, and manning and ensuring
compliance with international standards. (B) Right to Visit can be exercised by warships when it is
believed that others are engaging in prohibited activities such as piracy, slave trading, etc. Warship
may stop and prosecute those engaged in such activities. They can also stop a stateless vessel, a
vessel engaging in unauthorized broadcasting, and sometimes even narcotics trafficking. (C) Issues
are arising on areas claimed by no one, but that have rich international resources. Usually, there is
some element of “profit sharing” required.

Article 121 of the UN Convention on the Law of the Sea (UNCLOS): Island “is a naturally formed area of land,
surrounded by water, which is above water at high tide.” Rocks that cannot sustain human habitation or economic
life do not have economic zones or continental shelf. Also, the territorial sea, contiguous zone, exclusive
economic zone, and continental shelf of an island are “to be determined in accordance with the provisions of this
Convention applicable to other land territory.”

Haberman, Japanese Fight Invading Sea: Japan is spending money to keep Okinotorishima (in the Pacific Island)
Outline 33

from becoming swallowed up. This is seen as the southernmost point of Japan, and if it is swallowed up they will
lose 163,000 square miles of ocean as the exclusive economic zone would be pushed significantly back. Falls
under the jurisdiction of the Tokyo Metropolitan Government. They are putting steel and concrete blocks
surrounding the rocks.
Santos, UNCLOS explained 2014: Philippines’ enacted a suit against China for China’s claim to almost the entire
South China/ West Philippine Sea. Philippines claim that China’s claim is invalid under the UNCLOS, which both
have ratified. Under the UNCLOS, there are three types of maritime features that allow waters to be claimed as
part of its territory:
1. Islands: Allows for a 12 nautical mile zone where the country has full sovereignty. Also gives the country a
200 nm exclusive economic zone (EEZ) giving the country sole rights to exploit the resources in the area.
2. Rocks or Reefs: Mostly below water but have rocky protrusions. Cannot sustain human habitation or
economic life on its own. They get only a 12 nm territorial sea and NO EEZ. Example: A shoal, which is a
submerged coral reef with a rocky protrusion.
3. Low Tide Elevation: Submerged rocks and reefs that are not visible above water and are not entitled to any
territorial sea or EEZ.
Two island groups and one shoal exist in the South China Sea/West Philippine Sea. The shoal is within the
Philippines EEZ but is under the exclusive control of China since 2012. One group of Islands is claimed by six
nations. However, of the features of the island, only 40 are above water at some time, and only 20 at high tide.
Philippines claim that none of the features that China controls entitles it to a 200 nm EEZ. Case was submitted the
International Tribunal on the Law of the Sea (ITLOS) and disputes eight features under Chinese control. Four are
completely submerged (fall under category (3)). The others are entitled to only 12 nm at most.

XIII. International Economic Law:

1. International Commercial Law:
Derived from lex mercatoria. Today, it is developed through public institutions, including the U.N.
Commission on International Trade Law (UNCITRAL). Also the ICC (International Chamber of
Commerce) is another. The CISG (UN Convention on Contracts for the International Sale of Goods)
dominates the forum today. Based on UCC Article II. Prevails in international disputes with a US party
and an foreign party.
Dispute resolution typically occurs in the context of international commercial arbitration.
Contracts should (A) select the institution governing and (B) select the applicable law. This type of
resolution depends on uniformity and predictability of produces used and the availability of a certain
means of enforcing the award. These concerns are addressed in the UNCITRAL Model Arbitration
Rules, which addresses the uniform and predictable elements and then the enforcement element is
addressed in the NY Convention on the Recognition and Enforcement of Foreign Arbitral Awards
(1958).

2. International Trade and Monetary Law:

Global system of trade and monetary liberalization makes the growth of private commercial relations
across national boundaries possible. Competition in the global marketplace has been in regards to tariffs
and quotas. The US has a Friendship, Commerce, and Navigation (FCN) Treaties, that extend favorable
trade terms based on mutuality and reciprocity. Most Favored Nation (MFN) clauses extend similar
protection to other parties as would be given to our favorite trade partners. Key organizations to world
economic order are:
(A) International Monetary Fund (IMF): Goal is to provide structure to the world economy by
providing “a multilateral system of payments between member nations and to eliminate currency
controls and exchange rate regulations.” Ensures monetary liquidity and can provide loans, but
does so through a thing known as “conditionality,” meaning it may insist on a currency
devaluation.
(B) World Bank:
(C) World Trade Organization (WTO): Provide substantive trade equality and dispute settlement
mechanisms. Quotas are banned. Has a number of provisions to encourage developing nations.
Does not regulate commodity agreements (importers and exporters consult and influence price).
Outline 34

Also allows States to exercise discretion for trade restrictions in accordance with special domestic
legislation. Further, does not regulate special trade regimes so long as they do not interfere with
global goals of trade liberalization (EU and NAFTA). Goal is to fairly resolve trade disputes.
Has dispute settlement panels whose judgments are self-executing. Goals arisen are to address
global trade related to services (GATS-General Agreement on Trade in Services), IP law (TRIPS-
Trade Related Aspects of IP Rights), and questions of agricultural support to protect domestic
farmers in North America, Europe, and North Pacific Countries.

3. International Development and Investment:

The ultimate goal of international economic law is raising the standard of living for all peoples.
Accomplished in part through the World Bank, which has three separate entities: (A) World Bank
Proper (makes loans to countries in good debt standing, (B) The International Finance Corporation IFC
(provides venture capital to private businesses), and (C) the International Development Association
(DA (which gives loans to the world’s poorest countries.” Also, there are private and public entities
giving investment guarantees to tackle the risk of investing in “political developments.” Also, the
International Centre for the Settlement of Investment Disputes (ICSID) was created by the World Bank
in 1965 and is a favorite place for investment dispute resolutions for host nations and foreign investors.

Convention on the International Sale of Goods – Review Table of Contents, Read Articles 1 to 13, 29 and 96:
Applies to contracts for sale of goods between parties who place of business are in different States when the their
States have ratified this OR when the rules of private international law lead to the application of the law of a
Contracting State. The fact that the parties are in different States is to be disregarded if it appears unknown by the
parties prior to contracting. Convention does not apply to sales of goods bought for personal use, by auction, on
execution or by authority of law, of stocks, of vessels, of electricity. This applies to the formation of the contract
and the rights and obligations of the seller and buyer, NOT to the validity of the contract of the effect which the
contract has on the property of the goods sold. Does not cover the liability of the seller for death or personal injury
caused by the goods. Parties can contract around the application of the Convention (Article 6). Questions
regarding Convention should be settled by the conformity with international laws. Must consider the subjective
intent of the parties (or a reasonable person) and can evaluate negotiations, etc. If a party has more than one place
of business, we look to the place where the contract is mostly being performed. Need not be in writing. Can be
proven by witnesses or any other means. However, writing is required for contract and modification is a State has
made a declaration under Article 96 (which says that a Contracting State who legislation required writing for a
contract may make a declaration that requires writing under the CISG). Contract can be modified or terminated by
the agreement of the parties. Can contain a provision requiring modification to be in writing.

CP 455-468 (Forestal Guarani v. Daros Int’l, 2010 US Court of Appeals): Issue is the interpretation of the CISG
to a contract dispute between a US and Argentina corporation. US has not made a declaration opting out of the
provision allowing for contracts to not be in writing. Argentina has. DC ruled the declaration imposed a
requirement for a written contract and in the case absent of one, the P’s claim is precluded. “We conclude that
where, as here, one party’s country of incorporation has made a declaration while the other’s has not, a court must
first decide, based on the forum state’s choice-of-law rules, which forum’s law applies, and then apply the aw of
the forum designated by the choice-of-law analysis. “We cannot decide on this record whether New Jersey or
Argentine law applies here. Furthermore, because the parties have not briefed the issue and the District Court did
not address it, we are reluctant to determine whether the claim asserted here would survive under either
jurisdiction's laws. Accordingly, we will vacate the District Court's grant of summary judgment for the defendant
and remand for further proceedings.” Parties had entered into an oral agreement for the buyer (NJ corp) to buy
wooden finger-joint from seller. When one State has made an Article 96 declaration and the other has not, the
majority view is to do a choice-of-law analysis, find which law governs, and apply that law to the party’s claim.
The minority view is simply to view that no contract exists (as it fails the CISG requirements… Is this not
right?!!!!). As the Convention does not expressly settle the issue, Article 7(2) tells us to look to general
principles/ rules of private international law to fill the gap. To determine which law applies, NJ has adopted the
Restatement Second of Conflicts of Law: Section 188 directs courts to consider, among other things:
Outline 35

(a) the place of contracting, (b) the place of negotiation of the contract, (c) the place of performance, (d) the
location of the subject matter of the contract, and (e) the domicile, residence, nationality, place of incorporation
and place of business of the parties.
Restatement (Second) of Conflicts of Laws § 188(2) (1971).
461Section 6 lists the following nonexclusive factors relevant to a choice-of-law analysis:
(a) the needs of the interstate and international systems, (b) the relevant policies of the forum, (c) the relevant
policies of other interested states and the relative interests of those states in the determination of the particular
issue, (d) the protection of justified expectations, (e) the basic policies underlying the particular field of law, (f)
certainty, predictability and uniformity of result, and (g) ease in the determination and application of the law to be
applied. Dissent: Majority overreached as its decision is not based on briefed materials. Instead, it identified the
majority and minority approaches and applied them.

XIV. Peaceful Settlement of Disputes:

A. Negotiation, Conciliation, and Arbitration:
A new affirmative obligation has been placed upon States to resolve international disputes peacefully.
A dispute is an “authentic disagreement between nations that has risen to a level that requires peaceful
adjustment.” A dispute must be concrete, specific, and contested in order to invoke an obligation for
peaceful settlement under the UN Charter. Types of Dispute-Resolution from least to most invasive:
1. Bilateral negotiation and Adjustment.
2. Mediation: Not binding
3. Conciliation: Commissioners are drawn for uninvolved States to make recommendations to the
parties in the dispute. They fact-find and issue non-binding opinions.
4. Commissions of Inquiry: Fact-finding bodies that are supposed to collect information about
incidents (think of Russia bombing British fishermen thinking they were Japanese).
5. UN Nations Charter- requires disputes to be resolved by peaceful means to not endanger
international peace and security. The UN Secretary General often engages in mediation (think
the Rainbow Warrior-French agents blowing up a New Zealand organization’s ship just
outside France’s territorial waters—binding arbitration was initiated via the Secretary-
General’s agreed settlement after France breached it).
6. Arbitration: can be established by treaty or agreement. The Permanent Court of Arbitration
(PCA) provided facilities for international arbitration. Agreements can have a compromis
which details the arbitration procedures. Commercial arbitration is growing as well. Effective
enforcement of arbitration awards are a concern (helped by 1958 New York Convention).
B. World Court:
First world court was the Permanent Court of International Justice (PCIJ). Was transformed into the
ICJ. Has fifteen members serving nine year terms. A state may appoint an ad hoc judge if they are not
represented by a national. By tradition, five of the seats are held by those Nations who are permanent
members of the Security Council. Judges are elected by a majority vote in the UN Security Council and
General Assembly. A majority vote determines the case with the President casting the deciding ballot if
necessary. No strict stare decisis. Jurisdiction requires the consent of the parties. Can be aquired by:
1. Consent of the parties. Only States may be parties before the Court.
2. Special agreement of the parties to submit it specially by compromis.
3. Infer consent based on the acts of the parties—known as forum prorogatum.
4. Through a compromissory clause that is included in conventions and are unambiguously written.
If a respondent rejects the jurisdiction, the Court must determine whether the clause is clear and
if the issue falls under the scope of the treaty.
5. Matters on appeal, in exceptional cases. This is seen when treaties give the Court to power to
review decisions made by other bodies.
6. Compulsory Jurisdiction: Based on Article 36. Has caused States to create optional clauses. This
is basically a State giving blanket assent in certain areas. US has had the Connally Reservation,
allowing the US to consent to all matters, BUT if the US determines the issue is covered by its
domestic law, the jurisdiction does not hold. However, this backfired as the Court permits
Outline 36

respondent States to invoke the reservation against an applicant, so any State the US sues can
invoke the Connally Reservation. US abandoned this resolution and moved to the Vandenbrug
Amendment which requires that all parties to the treaty affected y the decision be parties before
the Court and that the US must agree to the jurisdiction. CJ is regarded as a failure.
Even if the Court deems it has jurisdiction, it might rule the case inadmissible for (1) mootness, (2) lack
of ripeness, (3) lack of standing, (4) failure to exhaust local remedies, or (5) issues of political
questions.

Court’s procedural phases are: (1) an order about provisional measures (such as cease fire), (2)
jurisdiction, and (3) a judgment on the merits. Court has traditionally been unwilling to allow leave for
third-party intervention, but has been doing so more frequently under the authority of Article 62 and 63.
Advisory Opinions: Will answer them if requested by the UN General Assembly, Security Council,
and/or Economic and Social Council. WON’T answer them if from an inappropriate body, such as
parties in an actual legal dispute where one party has declined jurisdiction (Eastern Carelia Opinion).

In today’s world, we are seeing inter-State public arbitrations, commercial arbitration, investment
dispute resolutions, tribunals for vindicating individual responsibility, the ICC, other international
tribunals, and domestic courts all aiding in recognizing and enforcing international law.

ICJ: Statute – read Articles 1-4, 34-36, 38 & 65, skim the rest: Can request information from a public international
organization. If a dispute arises as to whether the court has jurisdiction, the Court will settle it.

UN Charter – read Article 96 & Chapter VI: General Assembly and Security Council can request an advisory
opinion for any legal question from the ICJ. Other specialized agencies may also request such opinions within the
scope of their activities when authorized by the General Assembly. Article 33: Peaceful means first for dispute
resolution. Article 34: Security Council (SC) can investigate any dispute to determine if it could threaten national
security. Article 36: SC can recommend dispute-resolution options. Article 37: If parties fail to resolve the dispute
on their own, they should refer it to the security council.

United States v. Iran 1980 ICJ: US initiated proceeding against Iran for disputes concerning the seizure and
holding of hostages, who were members of the US diplomatic and consular staff and other US nationals. Iran
refused to plead or argue before the ICJ. ICJ issued order to release hostages, Iran did not comply, and the case
went forward. Iran submitted a letter saying the ICJ lacked jurisdiction AND that it cannot evaluate just the
treaties in this case, but also the 2 (twenty-five) year relationship between Iran and the US. First we ask if we
should take recognition of the claim. “It follows that the considerations and arguments put forward in the
Iranian Government’s letters….do not, in the opinion of the Court, disclose any ground on which it should
conclude that it cannot or ought not to take cognizance of the present case.” Next, we ask if we have jurisdiction
under Article 36 and 37. US invoked the suit under settlement resolutions found in a treaty signed by Iran and
the US. The Optional Protocols under the Vienna Convention provide a basis for jurisdiction. The protocols say
that disputes can lie within the compulsory jurisdiction of the ICJ and may be brought by any party. Other claims
arise from the Treaty of Amity, Economic Relations, and Consular Rights of 1955 between the US and Iran.
However, some of the US claims require the militants to be actors for Iran. The initial raid cannot be regarded as
such based on the evidence we currently have. While Iran cannot be deemed responsible for the initial militant
action, they can be responsible for failing to protect the embassy, the staff, their archives, their means of
communication, and their freedom of movement, as stated in the Vienna Conventions of 1961 an 1963. Iranian
gov failed to take appropriate steps to honor its duties under the convention and international law. Iran broke its
duty to bring the harm to a speedy end, to re-establish status quo, and offer reparation for the damage. Iran is in
clear breach. Iran owes US reparation for the injury caused. NOTE the US military movement into Iran to regain
the hostages is NOT justified, but the issue has not been brought before us, so it does not weigh on the present
case. Iran has violated international obligations owed to the US, and that Iran must take steps to redress the
situation by terminating the detention, release them to the protecting Power, ensure they have the necessary means
to leave the Iranian territory, place them n the hands of the protecting power the premises, property, archives, and
documents of the US Embassy, and no US diplomat may be kept for proceeding, Iran must make reparation, and
that the form of the reparation is to be settled by the ICJ.
Outline 37

CP 489-500 (Buergenthal, Proliferation (rapid growth) of Int’l Courts and Tribunals 2000), by Thomas
Buergenthal (ICJ Justice). SO MANY. Apart from the typical, there are international administrative tribunals,
which enable employees of inter-governmental agencies to sue their employers, which they cannot do in national
courts. Also popping up are international judicial and quasi-judicial institutions, such as international arbitral
tribunals. Also, there are ad hoc arbitration tribunals. Final type of arbitral mechanisms are those international
arbitral institutions used to provide forums for and resolve disputes between States and private people (ICSID-
International Centre for Settlement of Investment Disputes). The more forums that exist, the more judgments on
law, which gives more precedent. They also “socialize States…to the idea of international adjudication.” Make
States more agreeable to settling disputes by arbitration or adjudication. This leads to further development of
international law. Which then leads to an increase in relevance for international law. “That is why I believe that in
general the proliferation of international tribunals has been beneficial. It has contributed to the development of
international law and increased its relevance to the conduct of contemporary international relations to a much
greater extent than in the past, and that is certainly a welcome development.” HOWEVER, the downside is that
the having distinct tribunals can “erode the unity of international law,” which can lead to conflicting doctrines and
threaten the universality of international law. “The vitality and creativity of contemporary international law can be
greatly enhanced, I believe, if international courts and judges recog- nize that they are part of the same legal
system. This means, among other things, that they should look to the jurisprudence of their sister institutions as
sources from which to draw judicial inspiration and not to view the other institutions as competitors to be treated
with disdain or to act as if they did not exist.” More tribunals can be established if necessary . If States are truly
being socialized, they may seek the ICJ instead of creating new forums.

Enforcement: Found in forcible Counter- Measures and non-forcible counter-measures. Distinction is in

the use of military forces. Use of forcible means to get a State to comply with international law is
governed by the UN Charter. The charter specifically repeals the right of States to engage in unilateral
use of force or threat of force as a means to compel specific actions. Non-forcible counter-measures can
be divided into:
1. Reprisals: Illegal act made in response to another State’s illegal act. This could be an eye-for-
an-eye such as banning the Paris-L.A. route after France banned Pan Am (think Air Services
Agreement Arbitration of 1978 between US and France). Ruled legal by arbitration in Air
Services. Noted that once an effective dispute-settlement was triggered, then counter-measures
should cease. Another example could be freezing assets (Iranian-US dispute). States may
proportionally seek to punish the offender. Can only happen where there is a material breach.
a. More difficult issue is when a reprisal is taken against the citizens of the offending
nation within the acting State’s territory. Think of US and Cuba issues. They could run
contrary to human right norms.
2. Retorsions: An unfriendly, but legal response made to another nation’s illegal act. This could
be withdrawal of diplomats or termination of voluntary aid, economic sanctions (which toe the
line of being illegal via international norms), and technology bans.
Remedies:
 Satisfaction: Malefactor (criminally-acting) State admits they were wrong. Like a
declaratory judgment.
 Restitution: Specific performance, procedural changes, etc.
 Cash Awards: Typical form of remedy. May be done without admitting liability or fault
(known as ex gratia payments). Usually paid as lump sums to the State, who then
distributes it accordingly to its damaged nationals. Punitive damages and awarding
attorney’s fees almost never occurs.

XV. Control of Armed Conflict:

Ius ad bellum: How hostilities between Nations are managed and the prohibition on the use of force in
international relations.
A. Limiting War Before the U.N. Charter:
Outline 38

Just War Theory has been connected to natural law principles. Effort to impose legal restrictions on
international conflict began in 1907. Armed force recourse to recover contract debts was outlawed
under The Hague Convention II. Exempted were situations where arbitration was declined or State
refused to pay the award. Next was the Covenant of the League of Nations (1919) under the Treaty of
Versailles which requires States to submit to a dispute settlement mechanism before “initiating
hostilities.” If they did not, the League could recommend action against them. This “collective security”
collapsed with WWII. Self-Defense has always been recognized as a customary basis for using war. US
has conceded that anticipatory reaction “is permissible in those situations where the ‘necessity of that
self-defense is instant, overwhelming, and leaving no choice of means and no moment for
deliberation.’” (See CARO-LINE incident). Still need proportional action. The Kellogg-Briand Pact of
1928 condemned war as a solution of international controversies.

B. The Law of the U.N. Charter:

1. Force and Aggression: Article 2, Paragraph 4: Holds the prime directive of modern international aw.
Says: “All Members shall refrain in their international relations from the threat or use of force against
the territorial integrity or political independence of any state, or in any other manner inconsistent with
the Purposes of the United Nations.” Force refers to armed or military force. Economic force is not
prohibited under this Article. Territorial integrity and political independence covers military action
“that interferes with a nation’s political autonomy or practical sovereignty.” A temporary occupation or
quick raid is not ok. No use of threat of force either. Goal is to prevent aggressive war for any reason.
Aggression is assumed in military occupations, bombardments or blockades, and direct attacks. Sending
armed bans or groups that produce grave effects can be aggression. Exceptions:
 Enforcement by the U.N. Security Council
 Invitation as Justification. Aid can only be offered to the legitimate government in a civil war
(think of the problems in the Spanish Civil War and the Vietnam War).
 ONLY international conflicts are covered by the Article. However, internal conflicts can have
grave international effects.
 Humanitarian Intervention: use of force against a State charged with causing or perpetrating
grave human rights abuses against its nationals. This is distinct from when a State is
intervening to protect its own nationals (which is more self-defense).
 Self-Defense: Is an inherent right. A part of customary international law. States are only
restricted by necessity, proportionality, and the laws of war. U.S. invasion of Afghanistan was
ratified by the U.N. Security Council Pre-emptive self-defense can be recognized. You can
also seek help from neighboring nations. Addressed by ICJ in Military and Paramilitary
Activities in and against Nicaragua. US had tried to destabilize and topple the Nicaragua
government in the 1980s. US funded guerrillas (contras). ICJ said it had jurisdiction. US then
pulled from the Court and the Court assumed facts. US argument was that it was engaged in
self-defense on the behalf of El Salvador. Court said El Salvador had not made a formal
request for collective self-defense, and therefore collective self-defense could not be invoked.
Court also held that Nicaragua’s aid to the armed rebels in El Salvador did not rise to the level
of an armed attack. US was found to be the aggressor.
 Decided on customary international laws, suggesting that customs exists not
requiring collective self-defense exclusively in response to a “raise of arms.” Such a
customary rule would be based on The CAROLINE incident, where neither party was
responding to a useful force, but were justified on the grounds of anticipatory
repudiation.

C. Collective Security, Peacekeeping, and Enforcement:

U.N’s legal control of members is only as successful “as the underlying collective security regime that
the U.N. manages.” States will only abstain from aggression if there is a threat of economic sanctions,
military responses, or wider responses from the international community. Key to U.N. security regime
Outline 39

is the Security Council (15 members, 5 from the permanent members, 10 from non-permanent members
that serve a 2-year rotating term). Permanent members have veto power of any substantive action.
Response to a breach of peace requires 9 votes, and the concurrences (or abstention) of the permanent
members. Under Article 39, the Security Council can order all Member States to impose economic
sanctions that are to be followed unquestionably. Can also modify or adapt the treaty obligations of
Member States to achieve piece. Under Article 42, can also order mobilization of military forces and
oblige Member States to not give any support to outlaw nations.
Due to the gridlock caused by the cold war in the Security Council, the U.N. General Assembly
asserted authority to order actions without Security Council approval. Such actions were the U.N.
peacekeeping forces, which a consensual (with the permission of the host State) and can thereby be
funded and established by the General Assembly. World Court upheld the right to create these and
ordered that all Member States share in their expenses. Used to monitor elections, promote negotiations,
and nation building. The Security Council deadlock was absolved with Iraq’s invasion of Kuwait in
1990. It authorized Resolution 678, allowing Member Nations to use any force necessary to kick Iraq
out. This led the Gulf War. Otherwise, the Security Council has been slow to act and has deferred to
regional security organizations (such as NATO). Some have called for judicial review of the decisions
of the Security Council, and the ICJ almost ruled as to whether it had it when the SC ordered Libya to
extradite certain criminals after Libya had exercised the right to try them in domestic courts. ICJ
ultimately did not rule as to whether there are any legal limits to the Council’s exercise of power under
the UN Charter.

UN Charter – read Chapter VII: Action with Respect to Threats to the Peace, Breaches of the Peace, and Acts of
Aggression: Article 39: Security Council (SC) will determine if there is a threat to the peace, a breach of peace, of
act of aggression and will make recommendations or decide measures to maintain or restore peace. Article 40:
Before doing anything, it can call upon the parties to abide by provisional measures (similar to the ICJ). Article
41: SC can decide what measures are to be taken to give effect to its decisions (save force) and can call upon the
Members to apply the measures. Article 42: Can take action by force if necessary to maintain or restore
international peace and if other actions are inadequate. Article 43: Members of the UN are to provide forces,
assistance, and facilities, including right of passage, necessary to maintain international peace and security. States
ratify the agreements. Article 44: When calling on a Member not on the SC to provide armed forces, the SC will
invite the Member to participate in the decision concerning this issue. Article 46: SC and the Military Staff
Committee will make the application for armed forces. Article 47: Military Staff Committee to advise and assists
SC. Responsible for the strategic direction of any armed forces placed at the disposal of the SC. Can establish
regional subcommittees. Article 48: Actions required by the SC will be preformed by Member States. Article 50:
Members can consult SC if economic problems arise in carrying out the SC’s orders. Article 51: States can still
act in self-defense or collective self-defense so long as they report their actions to the SC.

Articles on legality of proposed intervention in Syria, 2013: US threat or actual force of against Syria can be legal
when a nation is doing so for humanitarian purposes, even in the absent of authorization from the SC. Argues this
is an international gray zone, and US action may be justified as necessary for a true humanitarian concern being
locked in a SC deadlock. Some see SC as a last resort, NOT the first option.
International Law and the US Military Strikes on Syria: US strikes would not be lawful. UN Charter governs
except for a collective self-defense or individual self-defense or as authorized by the SC. “It is being argued that
the principles of Responsibility to Protect (R2P) and humanitarian intervention provide a legal justification for
intervention without U.N. authority. U.S. policy makers and other supporters of the strikes have advanced the
NATO air campaign in Kosovo in 1999, undertaken to prevent a potential Serb slaughter of ethnic Albanians, as a
precedent that would justify intervention in Syria under that principle. But the principle of humanitarian
intervention and R2P are not yet established law, and the Kosovo intervention is generally recognized as having
been unlawful.” Humanitarian Intervention is emerging as a norm of customary international law. While it would
be basis, it is not established law.

ALSO, Congress has the exclusive power under Article I, Section 8, Clause II to authorize the use of
the military. US action would also be a crime of aggression.
Outline 40

XVI. Laws of War (ius in bello):

Divided into Laws of Sea-Warfare and Laws of Land-Warfare.
Sea-Warfare: Through customary law, we saw that vessels of the enemy could be captured and would
be prize. However, as seen in The PAQUETE HARBANA, small coastal fishing boats are exempt from
capture. The norms of naval captures were subject to the 1856 Paris Treaty.

Land-Warfare: Has not been so nicely codified. First attempt was the 1862 Code of Francis Lieber.
However, the first major multilateral treaty was the Hague Peace Conference of 1899. It discussed new
dispute-settlement institutions and the codification of the laws of war. Created six instruments. Some
abolished use of certain dangerous weapons, some means of warfare, and the creation of the Laws and
Customs of War of Land. Second Hague Convention was held in 1907. The combined product of the
two Conferences is known was Hague Law. It regularized expectations for “belligerent States (those
waging war),” how to treat prisoners of war, and what weapons and tactics were not to be employed at
wartime. Military Necessity was seen as the benchmark for determining “proper restraints on
hostilities.” Each also had a Martens Clause, which incorporated customary norms into the treaties. The
third Conference was scheduled for 1915 and did not meet. However, three initiatives were spurred on
by the Hague Laws:
1. Use of international law to control land reduce “dangerous or indiscriminate armaments and modes
of warfare, and particularly abolishing weapons of mass destructions.” The 1997 Ottawa
Convention called for the disarming of anti-personnel land-mines. US has not ratified it. The
Comprehensive Nuclear Test Ban Treaty is now pending, and there are numerous bilateral treaties
(think US and Russia!-2010 New Start Treaty) that attempt to decrease the numbers of nuclear
warheads deployed. The UN General Assembly has declared nuclear weapons as unlawful, but their
decision is not binding and has little weight. The ICJ came to a deadlocked decision in 1996, saying
that the use of nuclear weapons could be justified for self-defense if necessary for the very survival
of the State. The ruling has created a “non-liquet,” a deliberate gap in international law. Court also
found that the threats or use of nuclear weapons were governed by background rules of
international conflict.
2. To protect civilians, prisoners of war, and individuals who are non-combatants. Spurred on by the
1949 Geneva Conventions for the Protection of War Victims. Considered wounded and sick
soldiers, wounded and shipwrecked sailors at sea, POWs, and civilians. The “Geneva Law” is
known as international humanitarian law. Remains unclear if it governs internal conflicts, but it is
believed to be so as evidenced by the ICTFY (International Criminal Tribunal for the Former
Yugoslavia) ruling that they had jurisdiction over internal conflict.
3. Clarification of Issues of Treatment of Enemy Nationals and Their Property in Time of War. US
still reserves the right to register and control property of enemy aliens. When occupying the
territory of another, however, the Hague Law details rules for occupation, calling for respect of the
local law and to consider the population and economic assets of the territory as a trust (a usufruct).
**Also a focus on avoiding widespread, severe environmental damages. See 1977 Additional Geneva
Protocol I. Also, an increased focus on protecting the cultural heritage and property during wartime.
NOW, both land and sea rules support protecting art works and not destroying them. Seen under the
1954 Hague Convention and Protocol for the Protection of Cultural Property in the Event of Armed
Conflict. Less followed on land.