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Public International Law: Keitner, Fall 2011

Brittany Stonesifer


Sources and Methods of International Law

1. Nature and History: a. Natural v. positive law: Argue both sides of the question does the slave trade violate international law in early 1800s when the northern US states and the UK had outlawed slavery but other countries continues to engage in the slave trade History: Creation and structure of League of Nations and UN, PCIJ, ICJ, GA, SC International law used to be law of nations, but has diversified because of incorporation of organizations and individuals Most growth in international law has come after periods of intense global conflict 1. Differentiation: 2. Codification: 3. Institutionalization: 4. Globalization: Nature specificity, enforceability, role of CONSENT Theory: 2. Realists Liberals International relations theory Institutionalists


c. d.

Sources ICJ Article 38: o A. Treaties: International conventions, whether general or particular, establishing rules expressly recognized by contesting states o B. Customary International Law (CIL): International custom, as evidence of general practice accepted as law o C. General Principles General principles of law recognized by civilized nations o D. Subsidiary Sources:

Judicial decisions and the teachings of the most highly qualified publicist on the various nations as a subsidiary means for the determination of the rules of law a. Treaties 1. Treaty nomenclature: o No legal difference between various kinds of international instruments based on name; treaties, pacts, protocols, conventions, covenants and declarations are all the same o Bilateral treaties: Between two nations o Multilateral treaties: Between three or more nations o Vienna Convention on the Law of Treaties (VCLT) of 1969: An international agreement is one concluded between States in written form and governed by international law; US not a party but sees some provisions as CIL A. Between states: VCLT governs only nations, not international orgs, individuals or companies (governed by other agreements or CIL) B. In written form: VCLT governs only written agreements, but other agreements may still be enforceable: Eastern Greenland (PCIJ; 1933): enforced oral promise to renounce Norw. claims to Greenland Unilateral declarations can also be enforceable K law: Key factor in determining binding and enforceable character is whether State in tended to create a legal obligation or induce reliance Gentlemans agreements/ aspirational texts: Not intended to be binding, but may eventually be state practice that could contribute to CIL C. Governed by international law: controlled by intent 2. Treaties and CIL: o Jus tertii: treaties can never bind non-parties or take something away from non-parties that they are entitled to under CIL (though they may confer benefits upon them, which may potentially later claim reliance through possible treaty arbitration mechanism), with some exceptions: Objective regimes: treaties that bind non-parties; ICJ found UN Charter to create rights and duties for nonmembers; some environmental regimes o Codification of custom: North Sea Continental Shelf Germ. v. Den./Neth. (ICJ; 1969): Germ. refused to sign equidistant rule in treaty; 2

treaty was progressive development (new law) not codification of custom o Treaties and CIL are co-equal sources of law; treaties can be state practice and help for CIL or could violate and circumvent certain kinds of CIL (except jus cogens) 3. Process of treaty-making: o VCLT articulates rules; must have capacity to enter into agreements (see subjects of international law): A. Negotiation B. Drafting C. Signature Authority/ agency becomes important because some treaties are legally binding at moment of signature D. Ratification Required for most international agreements State makes clear intent to be bound Ex: U.S. treaties must be signed by President and ratified by 2/3 of Senate VCLT Art. 18: Between signature and ratification, States must not act in a way to defeat the object and purpose of the treaty unless they make clear their intent not to ratify the treaty E. Termination May generally withdraw as a signatory (before ratification); ex: US with Rome Statute Some treaties (ICCPR) says no party (postratification) is allowed o Reservations: Attempts by a State to unilaterally change the legal effect of some part of the treaty Only applicable to multilateral treaties (reservations to bilateral treaty would be rejection and counter-offer) Reservations to the Genocide Convention Advisory Opinion (ICJ; 1951): Reservations must not be counter to the object and purpose of the treaty What defines a reservation? VCLT Art. 19 & 20: Reservation is anything that purports to change the legal effect of a treaty; declarations and interpretive statements at ratification are not reservations Treaties themselves often contain parameters for reservations, sometimes barring them entirely States may object to another nations reservation 4. Application and interpretation:

o Basic assumptions: A. International agreements generally are only proscriptive; treaty must specify to be retroactive B. Applied throughout territorial sovereignty of the State party unless otherwise specified o Treaty interpretation subject to CIL: Silence may mean acceptance of a prevailing interpretation o Methods of treaty interpretation: A. Textualism: Focuses on the words in the treaty and uses cross reading of different provisions to resolve ambiguity VCLT Art. 31: Interpret in light of ordinary meaning in light of prevailing international law at the time of drafting (Bankovic v. Begium, ECHR, 2002) B. Intentionalism: Intent of drafters, including travaux preparatoires (negotiating history) is disfavored, largely because of time between signature and ratification VCLT relegates to secondary role only used when text is ambiguous or obscure When ambiguous, a treaty may be interpreted contrary to the interests of the drafting state (esp. when unequal negotiation) C. Teleological : Interprets to give full meaning to fundamental purpose of treaty Captures VCLTs object and purpose goal ICJ (1950) rejected notion of maximum effectiveness (construing treaty so as to give it fullest effect) 5. Amendment, invalidity and termination: o A. Amendment: Generally done by agreement of parties Treaty may contain procedures Very common o B. Modification: Some but not all parties agree to material change VCLT Art. 41: so long as treaty does not bar modification, States can give notice of modification, provided change does not derogate from rights of other parties and does not affect an essential provision o C. Invalidity

Defects in treaty (presumed not to contain mistakes): Contrary to fundamental domestic constitutional law Error Fraud Corruption Coercion If one provision invalid, rest of treaty may continue State may lose right to claim in validity f acquiesced in operation over sufficient time o D. Termination (unilateral): May terminate if another party has breached obligations CIL and VCLT Art. 60: Only for material breach essential to the accomplishment of the object or purpose of the treaty Changed circumstances: Must fundamentally chance conditions which led to conclusion of treaty VCLT Art. 62: Seeks to limit use of changed circ. doctrine: o i. Change must be fundamental o ii. Unforeseen by drafters o iii. Current circumstances must have been essential basis of consent to be bound o iv. New circumstances must radically transform obligation for party seeking termination o v. Obligations are yet to be performed War: Matter of CIL; VCLT deliberately silent Outbreak of hostilities only suspends those obligations the performance of which is incompatible with a state of conflict between the countries Certain kinds of treaties (humanitarian) cannot be terminated by war b. Customary International Law Required elements: o 1. General state practice: Objective component Need not be universal, but should reflect wide acceptance Nicar. v. US (ICJ; 1986): Conduct of states inconsistent with general practice should be

treated as breaches of the rule not as an indication of a new rule Rules change by new state practice; enough states breaking the old rules or actively resisting the formation of new rules Need not be observed for a long period of time if universal and consistent enough New states are still bound by CIL; must try to change through new state practice o 2. Opinio juris: Subjective component Practice done out of sense of legal obligation (rather than comity or self interest) If states generally follow the practice but would feel free to disregard it, not CIL Responses: International lawyers: redundant requirement because lawyers just try to prove practice Academics: something more than action is needed to prevent anachronistic results (reasonableness, utility, etc.) Evidence: o Diplomatic correspondence o International organization reports o Military manuals o Newspaper accounts of contemporary events o Judicial decisions o GA resolutions? Development of CIL: o Paquete Habana: (SCOTUS; 1900); small fishing boat not a war prize so compensation ordered. Points to usage, treaties, royal order precluding seizure of fishing boats, US practice during revolutionary war, 1785 treaty between US & Prussia Art23, US practice in 1846 during war w/ Mexico as evidenced by letters, similar French & English prohibitions during several wars to distill CIL Even though Young Jacob (English High Court; 1798) ruled no opinio juris, this changed in those 100 years o S.S. Lotus: France v. Turkey (PCIJ; 1927); Where effects are felt on Turkish territory, nothing can stop Turkey from asserting jdx Court embraces principle that international law is permissive (all is permitted unless clearly prohibited)

extreme positivism/permissive view of international law (states can do anything not prohibited) Permissiveness favors the autonomy of states The burden of proof is on France to show that Turkey violated an existing principle of international law by asserting jdx Compare with opposite burden shift in US courts where plaintiff faces bars to justiciability But Courts finding yields a non-liquet (unclear law) as to how to interpret in absence of evidence No expressed consent No law No violation o Though being able to function without consent gives international bodies authority and establishes global rule of law Ct says nothing specifically allowed or prohibited Turkish jrx so allow it But in the absence of evidence this holding seems weak per Nuclear Weapons Advisory case decision, judge said should declare lacunae/non-liquet where unclear Presumptions in the formulation of CIL: o Asylum: Colom. V. Peru (ICJ; 1950): military leader sought refuge in Colombian embassy after failed coup Regional custom of diplomatic asylum (Colombia asked for leaders safe passage, Peru denied and won case) Colombia bears burden to show Perus violation of regional custom is violation of CIL: Counter to normal presumption: silence at regional custom is rejection Disrupts formation of regional custom Protects institutional role of ICJ because overrules fragmented rules and institutions Presumptions may shift for political reasons or when ICJ wants to declare content of international law o Anglo-Norwegian Fisheries UK v. Norw. (ICJ; 1951): Norway claimed ocean by drawing straight lines Court back to presumption that silence is acceptance Norways bidding and UKs lack of protest means UK cant protest now

o Right of Passage: Port. v. India (ICJ; 1960): during decolonization, India refused to allow passage of troops to isolated Portuguese colony Presumption that silence is acceptance Question about rights of passage too broad; Court considered based on course of dealing between States Right of passage for civil admin. binding CIL; right for troops was mere comity Since Portugal didnt protest formation acceptance c. General Principles/ Res justi Principles recognized by most of worlds legal cultures Civilized nations in Article 38 refers to common law, civil law, Islamic law and ideological legal systems Used to fill gaps where CIL and treaties are not on point Jus Cogens: o Peremptory Norms o Even if have (1) general practice and (2) opinio juris (accepted as law), still have problem of persistent objector (e.g., arguably US capital punishment) some things are binding on all nations, without consent and may never be derogated from (no treaties or CIL) o What are jus cogens norms? No clarity; very ill-defined. Some clear ones are prohibition on: Slavery Genocide Agression Additionally other norms that are probably jus cogens: Prohibition against piracy (yet Congress can authorize letters of marquee & reprisal) Prohibition against Terrorism Humanitarian laws (Geneva Conventions) Apply to states and individuals Per Military Activities Against Nicaragua (conspicuous example of prohibition on use of force as jus cogens), may even trump domestic law Other Sources and Evidences VCLT Art. 38: Differentiates between sources and evidences of international law; some materials have only subsidiary significance In addition to general principles, CIL and treaties (which are all positivist) some natural law principles shape international conduct: o 1. Equity


Abuse of right: one may not use their rights so as to infringe the rights of others Unjust enrichment: grants relief in absence of formal contract Clean hands: a party that seeks equity must do equity Caveats: A. Equity does not mean balance or judicial compromise; ICJ Art. 38: Expressly bars court from deciding based on what is just and good unless the parties agree to that B. Equity does not mean equality or social justice; Libya-Tunisia Continental Shelf: Court refused to grant Tunisia resources simply because they were poor o 2. Humanity o 3. Growing trend to consider representative democracy an affirmative value of international law o 4. Stewardship and rational use of global resources Legislation, judicial decisions and scholarship: o ICJ Art. 38: Recognizes these sources but only as a subsidiary means of establishing evidence of the content of international law o 1. UN Resolutions: Do UN General Assembly Resolutions (UN Charter Art. 10: Only recommendations) make law? Some scholars say because only theyre only recommendations, they lack opinio juris because chose not to make binding law By contrast, ICJ has considered GA resolutions as evidence of state practice in occupation of territory and IHL TOPCO Arbitration Texas Overseas Petrol v. Libya (Arb. 1977): Libya relied on GA resolutions to claim tribunal under concession contract had no jdx; court rejected because resolutions not supported by wide enough cross section of states o 2. Judicial decisions: ICJ, specialized tribunals, ICC, etc. have no stare decisis between courts or for their own decisions; should be regarded as subsidiary ICJ Art. 59: Except between parties to a dispute, a decision of World Court has no binding In reality, however, most courts follow their own precedent, at least for procedure o 3. Legal publications:

ICJ statute recognizes teachings of the most highly qualified publicists of the various nations as evidence of international law Classics are favored before newer writers, but most relied-upon seconfary sources are reports by UN International Law Commission, American Law Institute, etc. Integration of sources and methods: o Trail Smelter Arbitration US v. Can. (1941): Rule emerged that one should not use ones territory in a way that injures the rights of anothers territory; rule started as general principle rooted in natural law state practice became CIL codified in treaties CIL continues to shape and change treaty rules


Subjects and Objects of International Law

Subjects: Entities that bear international legal rights and duties; known as international legal persons Objects: Who and what being acted upon o Distinction has been blurring o Most notable shift in modern international law is inclusion of International Orgs and individuals as subjects Used interchangeably: o Nations/ nation-states/ states/ countries o Self-determination/ secession/ irredentism/ uti possidetis Not interchangeable: o Peoples: some sort of collective entity making claims to political independence Doesnt include women/ children/ elderly/ etc Generally, doesnt include tribes or religious groups b/c matter of internal law and not seeking political autonomy May include groups that are defined by ethnic or cultural traits o Sovereignty: internal control and insulation from external control; exclusive jurisdiction; independence; not accountable to other powers; nonintervention Exists on a sliding scale; can be small country with relatively little power 1. States State identity, sovereignty: o Essence of statehood is sovereignty and self-determination; relates back to consent


o Rights of sovereignty: Capacity to enter into agreements Only states are able to become full members of international organizations States may claim breaches of international law obligations and seek redress Enjoy privileges and immunities from other nations jdx States may engage in war or armed conflict as an instrument of policy No international right to cessation, unless a former colony o 1933 Montevideo Convention Art. 1: Elements of statehood; expressed CIL: A. Permanent population Whether a population is small, nomadic or widely dispersed is not important so long as population is a group of persons leading a common life and forming a living community B. Defined territory Need not be perfectly demarcated but only relatively consistent Must be naturally formed part of the Earths surface C. Government D. Capacity to enter into relations with other states C and D are often combined to be a question of sufficient independence to exercise international rights and discharge responsibilities Ex: Liechtenstein delegated foreign relations to Switzerland which qualified it from League of Nations but was later allowed to sign ICJ statute and has litigated cases before World Court th o CIL implied 5 qualification of self-determination, but still many notable exceptions o Stimson Doctrine: US articulated principle after League of Nations refused to accept Manchukou; US and UN will not accept forcible creation of entities in violation on international law; useful from historical perspective o Sui Generis entities: Some international territories do not aspire to statehood but are instead disputed area placed under the nominal sovereignty of one nation but with actual supervision of an international organization Recognition: o Unspoken assumption that other nations are prepared to treat an entity as a fellow nation


o Area defined by theoretical constructs: Constructive recognition: Theory that recognition by other states is a requisite Declaratory theory: Statehood is purely objective and recognition is largely irrelevant In reality, there is a mix o In transfers of power, as long as there has been no state succession, change in government should not affect recognition Tinoco Concessions Arbitration (Majority rule) UK v. Costa Rica (1923): Where a government is the de facto ruler of a country, recognition by specific nations does not matter and that governments acts are presumptively valid During period of transition or civil war, the international community will have to at some critical mass of state recognition of de facto rulers; effective control of territory test (ex: During fighting in Libya, eventually UN gave GA seat to NTC, not Ghadafi loyalists) De jure would be government that has no effective control (ex: Dhali Llama in Tibet) o Consequences of Non-recognition by US; point now is whether we have diplomatic relations with country more than formal recognition: 1. Access to US court limited: A. If seeking to be plaintiff in a case filed in US court, must be affirmatively blocked by executive B. If sued as defendant, will still be accorded foreign sovereign immunity so long as they are de facto regime 2. Validity of entities acts may be questioned State succession: o Occurs when there has been a fundamental transformation in the identity of the State itself, not just its government (substantial change in territory, decolonization, etc.) o Area largely governed by CIL and legal consequences depend on nature of change and type of issue involved o Treaties: Newly independent states start with a clean slate; decolonized states may pick and choose treaty obligations of former colonial master Ex: US still would have been bound to Rome statute after Bush took office b/c US was same country; Former Yugoslavia shed some of its obligations b/c new states were formed


o Property and debts: Public property of ceded territory may be seen as assets while debts are liabilities o Torts: International law relieves successor state of liability for tortuous acts of predecessor regime o Contracts: Given uneven treatment by international decisions; some courts have ruled no obligation to respect predecessors contracts, while World Court has ruled that successor is obliged to pay compensation if it cancels contracts o Brown (UK v. US) (1923): Bederman overstates that new states start with a clean slate. Instead, in decolonization context, state can pick and choose which contractual and treaty obligation it wished to uphold, but state had to pay compensation if it chooses to cancel the contracts of a predecessor 2. International Organizations International law has been slow to recognize the international legal personality of international organizations or institutions but has recognized the status of certain orgs Generally now, extent of rights and obligations depend on teleological approach History and structure of International Orgs: o 1815 Final Act of Vienne: Ended conflict after French Revolution and Napoleonic conquests; established first modern international organizations o League of Nations in 1919: Aimed at resolving international disputes; not good at maintaining international peace but helped protect rights of minority populations and resolving small disputes Established blueprint for UN: Assembly: Each member state had one vote Council: Great powers had permanent seats and smaller nations rotated through Secretariat: Created permanent, independent staff Permanent Court of International Justice (PCIJ): o United Nations in 1945: General Assembly, Security Council, Secretariat, ICJ o Agencies: Many specialized agencies with various degrees of connection to UN; most notable: World Bank and IMF International Maritime Org International Civil Aviation Org 13

World Meteorological Org World Health Org o Regional Orgs: Org of American States European Union o Types of International Orgs: i. International Public Orgs: Only States can be members ii. NGOs Mostly individual members Mostly influence law but are not subjects (except some orgs like International Committee of the Red Cross [ICRC]) iii. Multinational Public Orgs: Run by consortia of governments; includes orgs like OPEC International Orgs as Subjects: o Reparations for Injuries Suffered in the Service of the UN Advisory Opinion (ICJ; 1949): UN diplomat killed by Jewish troops after sent to mediate between Jewish radicals and Palestinians; question whether UN could bring claim (1) against non-recognized state and (2) whether UN had international legal personality Though not in UN Charter, UN had a right to bring claims because this was key to the organizations success (teleological approach) UN could bring claim against nonmembers because of its objective nature Constitutional Law and Institutional Liability: o Certain Expenses of the UN (ICJ; 1962): France and Soviet Union refused to pay dues for peacekeeping forces deployed to Africa and Middle East by GA (rather than SC as prescribed by Charter); Court rejected separation of powers and stated ultra vires (beyond the powers) acts could only be challenged if contrary to the entire object and purpose of the organization (expanded legal personality of international organizations) o International organizations can now: Conclude treaties with each other and with states Bring claims for reparations when suffering loss or to protect their interests o Meaning unclear for certain international orgs: International Tin Council: Org engaged in what would otherwise be prohibited price-fixing in most countries; collapsed on its own; in subsequent litigation, UK and US would not lift the corporate veil (provide


exceptions to corporate personhood and allow suits of member nations/ individuals) 3. Individuals A. o o o o Nationality: Since international law is originally predicated on actions of states and has only recently accepted individuals as subjects, nationality is essential for individuals to exercise rights and duties Jus sanguinis: Nationality transferred by blood from parents Jus soli: Nationality conferred on basis of birth place Many states, including the US, use some combination Statelessness: Stateless persons have no right to abode or travel and can be arrested if found in any particular jurisdiction Mitigation: Some international agreements on refugees and reducing statelessness States prohibited from terminating nationality if that would mean the individual would become stateless American Convention on Human Rights establishes right to nationality, which limits the power of states to make constitutional changes to nationality rules Dual nationality: Problems of dual nationality: Treason if two countries of nationality are at war with each other Double taxation Inability to have claim brought on ones behalf Nottebohm Liechtenstein v. Guat. (ICJ; 1955): Nottebohm lived and owned land in Guat. but was German citizen; at start of Hitlers rise decided to become Liechtenstein citizen; Guat. refused to recognize Liechtenstein nationality and confiscated property bc at war with Germ. Rule: Other countries are not obliged to respect a grant of nationality; must be a real and effective/ genuine link between an individual and his state of citizenship Duties: Piracy and universal jurisdiction: Piracy considered one of the oldest crimes which an individual could commit in international law Some international crimes of individuals (including piracy) give rise to universal jurisdiction (any nation can prosecute because the crime was erga omnes) Nuremberg Trials (1945 ) Key point for imposition of international law duties on individuals

B. o


o o

C. o

Guided by London Charter, which created particular international crimes (crimes against peace, war crimes, crimes against humanity) subject to the jdx of any subsequently created International Military Tribunal Court rejected defense that actions were acts of state which granted immunity to the individuals, thereby vindicating notion of individual responsibility under international law Superior Orders/ Command Responsibility: That a defendant acted pursuant to an order shall not free him of responsibility, but may mitigate the punishment; subordinates thus under legal duty to refuse orders he reasonably thinks are unlawful (knew or should have know standard) Followed by 1948 Genocide Convention Ex dedere aux judicare: Principle in many treaties creating individual duties in which a state promises to prosecute or extradite for a certain crime Modern tribunals: ICTY and ICTR: Ad hoc tribunals created to try war crimes; have informed much of the content of individual responsibility ICC: Created by Rome Statute in 1998 (US not a party); if state party is unable or unwilling to prosecute one of its own nationals, ICCs jdx can be triggered; establishes permanent forum for establishing law of individual responsibility Rights: Role of states: Because international law is predicated on the role of states and most international law is implemented by states, they are the source of most rights However, natural law theory would suggest that humans are endowed with certain rights apart from the will of their governments Individuals, though endowed with certain rights in international law, do not have the same rights as states or international orgs Remedies: Rights generally do not exist without remedies; in international law, individuals have limited remedies: i. Diplomatic protection: o Espoused by state of nationality, not individual o Assumes injury by state other than ones own o Depends on political will of state ii. International human rights o Can be claimed by individual and against ones own state


State Responsibility and Diplomatic Protection 16

State responsibility includes the entire of nations duty to respect international law rights of other countries and, when it violates them, to make proper amends and reparations Lack of consensus on content of State Responsibility; consists of CIL in some areas as well as supplemental bilateral agreements History and theory: o Equality: Within recognized limits, governments should treat aliens in the same way as it would treat its own nationals o International Minimum Standard: There is a threshold of treatment below which no civilized nation should drop Harry Roberts Claim: US citizen arrested in Mexico and kept in terrible conditions; court rejected argument that Roberts was not singled out for bad treatment; Mexico still violated international obligations o Contract: Can agree to arbitration (need 1. Choice of law and 2. To specify who does the arbitration) o US/ Mexico 1930s Farm Nationalization dispute/ Hull-Hay correspondence: The foreigner who voluntarily moves to a country which is not his own, in search of personal benefit, accepts in advance, together with the advantages he is going to enjoy, the risk to which he may find himself exposed. It would be unjust that he should aspire to a privileged positions. Substance and procedure: o ILCs Draft Articles on Responsibility of States for Internationally Wrongful Acts (Adopted in 2001 after very long drafting period; UN GA adopted Articles in Resolution as recommendations): Art. 1-3: Act or omission (same under international law) by State, attributable to State and is breach of international law (Corfu Channel; ICJ, 1949: Albania knew or should have known mines were in channel) Art 7: Includes ultra vires acts but not private acts Art 8: Includes private individuals if acting under direction or control of state (Military and Paramilitary Activity in Nicargua; ICJ, 1986: Responsible to actual degree of control) o An international claim, (1) if otherwise admissible, arises when (2) an act or omission, (3) attributable to a State, (4) wrongfully violates a duty owed under international law to another State or its nationals, when (5) it is the cause of the claimants injuries and (6) there is no justification to excuse it o 1. Admissibility: States espouse the claim of their injured nationals (can choose whether to bring the claim, whether to settle or compromise, what to do with damages, etc.) Nationality: State can only bring claims on behalf of its own nationals; if one has dual nationality, one can bring a claim


against one of those states, provided it is not the dominant and effective one Barcelona Traction Belgium v. Spain (ICJ; 1970): For corporations existing in multiple states, the state of incorporation is the only one which can bring a claim (in context of expropriation at least) Algiers Accords: Created Iran-US Claims Tribunal in 1981; adopted rule allowing US to bring claims on behalf of any corporation in which US national owned 50% or more of stock ILCs Draft Art. on Diplomatic Protection, Art. 9: Adds exception to Barcelona Traction: Where corporation is controlled by national of another state and has no substantial business activities in the state of incorporation, and the seat of management and the financial control of the corporation are both located in another state, that state shall be the state of nationality; Addresses concerns in Barcelona by making nationality either/ or, not multiple states Most claims for expropriation are handles under Bilateral Investment Treaties (BITs) Local remedies rule: Injured aliens should seek redress in local courts before seeking satisfaction through own governments espousal under international law, unless it would be clearly futile to do so or remedies offered are not adequate and effective relief Calvo Clauses: Waiver in international agreement (usually foreign investment) in which aliens specifically disavow rights to diplomatic protection; courts have found to bar breach of K claims but not tortious claims o 2. Attribution: States are only responsible for injuries suffered by a foreign national if those injuries were somehow caused by state action (ex: mugging by street thugs doesnt count) State action includes those done under color of law and even ultra vires (beyond the powers) or illegal acts under domestic law (ex: even if not responsible for acts of street thugs, police must take reasonable measures to protect lives and property of foreigners) Revolutionary movements or insurrections that later come to power may also be held responsible for earlier conduct; if not successful, state may be responsible for injuries cause by not quelling rebellion o 3. Wrongfullness:


Denials of justice: Host states law enforcement or judiciary failed to operate properly and, as a result, injured rights of foreigner; now almost a strict liability standard to follow these rules Failure to protect: States charged with omission; most states adopt some standard of due diligence Some standards codified in agreements like 1963 Vienna Convention on Consular Relations (right of consular visits, access to aliens incarcerated in criminal proceedings Other claims (wrongful expulsion, contract breaches, expropriations) reviewed under tort standards for negligence or contract standards for breach Burden is on claimant to show state acted inconsistent with international law o 4. Causation, defenses and remedies: Affirmative defenses might include classics such as comparative negligence and assumption of risk Damages: Restitution: intended to restore status quo ante Compensation: party pays for actual damage done Satisfaction: Non-money damages; apology Expropriations and contract breeches: o Margin of appreciation: International law grants fairly broad discretion to host states to expropriate or nationalize sectors of their economies o Unless restrictions accumulate to the point of irreversible interference with foreign investors property rights, generally not regarded at regulatory takings NAFTA and WTO revisit this somewhat (shocker!) o If act does amount to regulatory taking, compensation must be prompt, adequate and effective; generally this means fair market value and claims of appropriate compensation at deep discount for mass nationalizations have been largely discounted Human Rights:


A. Substance: o Treaty of Versailles of 1919: First authentic human rights regime; mostly protected ethnic minorities but also established group rights (rather than individual rights) o UN Charter of 1945: Art. 55(c): Called for universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language or religion; Art. 56: Vested the UN with power to take joint and separate action to accomplish this


Enabling provisions allowing UN to proceed with developing human rights norms UN Declaration of Human Rights of 1948: Led by Eleanor Roosevelt Enunciates civil and political rights as well as economic, social and cultural rights Not legally binding document; not a treaty Many contained civil and political rights have become regarded at CIL and some have become incorporated into treaties ICCPR and ICESCR of 1967: UN adopted two separate treaties to distinguish between positive (ICESCR) and negative (ICCPR) rights, especially as related to property rights differences between the capitalist and socialist states US ratified ICCPR in 1992, but took reservations, said the treaty was not self-executing and essentially made ICCPR exactly congruous to constitutional protections ICCPR monitored by Human Rights Committee Legal Consequences of Construction of a Wall Advisory (ICJ; 2004): ICCPR applies to states parties exercise of jurisdiction outside of its own territory Other human rights treaties: Body of universal human rights instruments dedicated to other, more specific, issues US has only become party to a limited number Jus cogens norms: Certain CIL norms have become jus cogens obligations that cannot be derogated by treaty (genocide, slavery, torture, etc.) Also, states that have systematic policy of abusing human rights may have committed violations of CIL (though unclear what amounts to systematic policy; regional systems somewhat help inform this) Regional systems Council of Europe (1940s); Org of American States (1950s); African Union (1980s) Sometimes difficult to enforce because rule of law is prerequisite May function as laboratories of new rights and form seeds of CIL Sometimes represent different values/ moral relativity (which undermines natural law arguments that human rights are universal): i. Property: Rarely described in human rights instruments; 1952 protocol to ECHR provides limited right to peaceful enjoyment of possessions


ii. Death penalty: o Protocol 6 to ECHR bans death penalty o Soering Case Soering v. UK (ECHR; 1989): Court blocked extradition from UK to US because D could have faced death row phenomenon which amounted to degrading treatment; didnt address Protocol 6 b/c neither US nor UK were parties; UK forced to choose btwn ECHR and extradition treaty; case subsequently resulted in Habeas reform in US to reduce length of time on death row o Judge v. CA HRC (2004): Under shifting interpretation of ICCPR, CA (abolitionist country, even if didnt sign Additional Protocol 2 on DP) cant extradite D to US (non-abolitionist country) without seeking assurances; classic treaty interpretation; influenced by recent CA sup ct decision o US made a reservation to Art. 6(2) prohibition of capital punishment for offenders under 18 when ratifying ICCPR to allow DP for 16 and 17 year olds

o Derogations: Generally only allowed in emergency situations; war does not generally eliminate obligations ICCPR Art. 4: Parties may depart from obligations if: i. Time of public emergency which threatens the life of the nation ii. Derogation is strictly required by the exigencies of the situation iii. Certain core rights (right to life, against torture and enslavement, freedom of thought and conscience) must be preserved iv. Notice of the derogation must be communicated to other parties B. Models for enforcement: o Slavery Conventions (1820s 1926): Treaties imposed international duty on all states and prescribed universal jdx Requires commitment of individual states o Genocide Convention (1948): Prescribes universal jdx Requires parties to enact domestic legislation Allows for referral of suspicions of genocide to UN Security Council


Allows ICJ jdx over all cases which involve genocide Requires political will of parties ICCPR (1967): Art. 40 requires submission of regular reports on compliance international shaming Art. 41: States may allow interstate complaints to request UN body to investigate actions of another party 1966 Optional Protocol: First mechanism to allow individual complaint process; individuals must be (1) names and (2) local remedies must have been exhausted ECHR (1950): Allows institutions to hear inter-state complaints and those by individuals against own states of nationality Decisions of ECHR are self-executing to member nations National Courts: Most human rights enforced domestically US has Alien Tort Claims Act (1979): District courts have original jdx over any civil action by alien for tort in violation of Law of Nations or self-executing treaties to which US is party without reservation; only aliens may bring claim (Torture Victim Protection Act of 1991 extends some rights to US nationals) Filartiga v. Pena-Irala (1980): Claim for torture succeeded b/c both international crime and tort Sosa v. Alvarez-Machain (2004): ATCA is only jdx statute and does not alone establish cause of action; if based on CIL, law must be sufficiently definite and established (technically at point when ATCA was enacted, though would probably allow for some violations of IHL) ATCA does not grant jdx over foreign states or sovereigns, only individual defendants ATCA is civil action (as is all Human Rights law, whereas IHL is criminal law) Direct state action: May punish states politically by breaking of diplomatic relations, instituting financial sanctions, etc. Responsibility to protect (R2P): Developing doctrine imposing an affirmative responsibility to protect from human rights abuses Frequently involves physical invasion of offending state and may clash with other international law norms promoting peace and security


Objects of International Law:


Territory and common areas: o Rules of acquisition: i. Discovery: old rule in which colonizers were free to claim land occupied by indigenous peoples ii. Effective occupation: Isle of Palamas Arbitration (1928): by 1898, this rule had supplanted Discovery as CIL; states must exercise effective control of land territory to claim title Standard depends on nature of land (less occupation for remote islands, etc.) Implied choice of law issues, which court resolved by picking critical date when legally significant event took place Enforces notions of repose similar to adverse possession iii. Acquisitive prescription: Gaining rights to territory in CIL through long and unprotected use; similar to adverse possession and reliance o Uti possidetis: Modern states in decolonization are obliged (at least initially) to follow state bounds drawn by colonial predecessors o Servitudes: States may agree to limits on use of territory (such as demilitarization of certain areas, preferential rights for canals, etc.) o Air space: States land territory included air space above it which ends at lowest altitude a satellite can continually remain in orbit without disintegrating Law of the Sea International Environmental Law International Economic Law


International Law and US Law

1. International Law and Domestic Law: Domestic law (also called municipal law) as grounds for international law violation: o International courts may interpret and apply domestic law in disputes between states, but are free to apply and interpret national law as relevant to disputes before them o International tribunal may reject a domestic ruling if it is self-serving, fraudulent or erroneous o International courts will often look for common ground between disputants domestic law o States may not invoke national law as basis for refusing to perform international legal obligation and international courts generally decline to follow an authoritative interpretation of CIL or treaty made by one of disputants


Exception: VCLT Art. 46: If party signed treaty in obvious violation of domestic constitutional law, such treaty is null and void International Law in Domestic Law: o International law does not care how international law is applied domestically and assumes obligations are carried out in good fair, with State Responsibility attaching for failure to observe CIL or treaty o Monism: Theory that international law and domestic law are part of the same legal system, but that international law is higher in prescriptive value than national law Most proponents are human rights advocates Some states differentiate between treaty monism and CIL monism Civil law countries tend to be more monist (perhaps reflecting more positivist and group rights values) o Dualism: Theory that international law and domestic law are separate systems which operate on different levels and international law can only be enforced in national law if incorporated or transformed Most common law countries are firmly dualist, which presents some problems for US (perhaps reflecting more negativist and individual rights values) International Law in US Law:


Constitutional provisions: o Congress has power to define and punish offenses against the law of nations as well as role in making treaties o President may receive and send ambassadors and is commander in chief o Judiciary has power to resolve disputes involving international questions and is explicitly granted jdx over maritime and foreign ambassador cases o Under domestic law, neither treaty nor CIL can abrogate from rights granted under Constitution (see Reid v. Covert; 1957) o Not yet decided whether US can constitutionally delegate certain authority to international institutions o Just because a treaty or CIL rule may be unconstitutional does not necessarily mean international obligations are voided; SCOTUS has sought to avoid problems by employing principles of international law to interpret substantive provisions of the Constitution CIL: o While treaties are clearly federal law, Constitution doesnt mention CIL o Though there should be no judge-made federal common law, most favored interpretation is that CIL is a matter of federal law because US states have no accountability under international law


o Federal courts preempt states interpretation of CIL/ state laws to the extent that they interfere with foreign relations interest, even in absence of explicit act of Congress o CIL cannot take precedence over a contrary statute or treaty in domestic law because of the institution, democratic way treaties are enacted, though CIL should be used to interpret treaties and statutes o Newer treaties which codifies CIL can change statute or older treaty (last in time rule) o If no treaty or statute on point, US courts must follow CIL (see Paquette Habana case) o While Executive cant willfully violated clearly applicable and binding CIL, courts are reluctant to challenge for fear of political question Treaties: o Power: Const. Art. II 2: President shall have power, by advise and consent of 2/3 of Senate to make treaties; Art. VI 2 (Supremacy Clause): Treaties are supreme la of the land and judges in every states shall be bound Senate initiates treaty process and president later concludes ratification; president may attach reservations, understandings and declarations (RUDs) but only reservations change legal effect Missouri v. Holland (1920): Regulation of migratory birds was state power, but US concluded treaty with UK Rule: Senate power to make treaties exceeds delegated domestic Congress powers under Art. 1; Senate may make treaty that is (1) motivated by exigency and great national interests, and (2) does not violate express constitutional prohibition; largely moot now because of broad Commerce Clause powers Senate cant conclude treaty that would take away power which expressly requires approval of House of Representatives (declare war, etc.) o Self-executing vs. non-self-executing treaties: Foster and Elam v. Neilson (1829): Created distinction Self-executing: Binding on US courts without further action/ at moment of ratification Non-self-executing: Require further act of legislation to make binding Medellin v. TX (2008): Presumption against self-execution; also, US does not necessarily follow treaty interpretations made by ICJ Distinction is not clearly defined, but look to: Does treaty have contractual flavor?


Whether terms of treaty mention further action needed? Specific enough in content and manifests intent by parties to be binding in US law without further implementing legislation? Use normal methods of treaty interpretation o Conflict between treaty and statute: Last in time rule: If self-executing, earlier conflicting statutes is abrogated to the extent of the conflict If non-self-executing, no preemption until Congress acts to implement treaty through domestic legislation Later statutes can override domestic effect of treaties (though no effect on international law) except: i. Later statutes cant eliminate rights that have vested under the treaty ii. Charming Betsy (1804): Statute cant abrogate from earlier treaty unless Congressional intent to override was clear and manifest o Interpretation in US courts: Consistent with 1969 VCLT, courts start with text US more likely to then look at travaux (leg. history) than international tribunals US courts look at understanding of ratifying Senate which induced them to be bound US courts attempt to harmonize interpretation with expectations of treaty partners o Termination: Presumed that the President, acting alone, can initiate needed action to end US treaty obligations Executive Agreements o Executive agreements have the same binding effect in international law as treaties o Most international agreements are conducted this way o A. Congressional-executive agreements: enacted the same way as ordinary legislation (majority of Congress, signed by Pres) o B. Executive agreements: President acting alone; limitations: Must promptly report agreements to Congress, who may protest May be acting pursuant to specifying details in self-executing or legislated treaty or inapposite to non-self-executing treaties May be acting pursuant to Art. II powers (Recognition of ambassadors and states and Commander in chief); courts are reluctant to challenge this Executive agreements may preempt earlier statutes or treaties either directly or through dormant powers doctrine Jurisdiction: 26


Types of jurisdiction: o Prescribe vs. Adjudicate vs. Enforce: each is analytically distinct Lotus Presumption Fr. v. Turk. (PCIJ; 1927): States are free to assert their jdx to the limit international law allows; views international law as permissive system and gives parties incentive to make aggressive assertions of jdx; Exceptions: i. Comity: Hilton v. Guyot (1895): The recognition which one nation allows within its territory of the leg, exec, or judicial acts of another nation o US courts should not lightly assume that Congress intends to apply legislation extraterritorially to individuals or to matters clearly subject to international regulation o US court may decide that even though it has jdx, it should instead be heard by foreign tribunal (either through choice-of-forum clause or forum non conveniens doctrine) ii. Interest-balancing iii. Reasonableness: 1987 R3d of Foreign Relations Law of the US 403: A state may not exercise jdx to prescribe law with respect to a person or activity having connection with another state when the exercise of jdx is unreasonable (heavily criticized); factors: o Link of the activity of the territory; connections between regulating state and the person principally responsible for the activity; character of the activity, importance of regulation, extent to which other states regulate such activities, degree to which the desirability of such regulation is generally accepted; justified expectations that may be affected by regulation; importance of regulation to international political, economic or legal system; whether consistent with international system; extent another state may have interested in regulating activity; likelihood of conflict Bases for jurisdiction (in order of strength): o i. Territoriality and Effects States exercise nearly complete jdx competence on their own territory; Exceptions: A. Consent through treaties to self-derogations of territorial sovereignty (ex: SOFAs governing issues like criminal prosecution of military members in other countries, Reid v. Covert and Boumediene v. Bush)


Effects doctrine: When state wishes to exercise jdx over person or thing outside of own territory, but which causes effects inside the states borders; becoming recognized widely o US v. Alcoa (1945): US may apply Sherman Act anti-trust law to non-US companies if anticompetitive conduct that has actual effects inside US; here, court put burden on D to show no actual impact

o ii. Nationality States are largely free to require compliance by its nationals, even when they are living abroad SCOTUS has ruled that US may try and punish nationals for offense committed abroad even though they may also be nationals of the state in which the offense was committed Whip-saw effect: When compliance with US law would put individual at odds with law of state of residence, or visa versa; softened by: A. SCOTUS will interpret ambiguous act as not applying extraterritorially B. Foreign sovereign compulsion: US national will be relieved of obligation to respect US law when to do so would place it in irreconcilable conflict with a foreign nations law; some courts grant defense with showing of good faith effort to comply, but other courts reject o iii. Universality Any national can prosecute or assert jdx over person suspected of certain crimes Some infractions established by CIL, then codified in treaty; some have recently progressively developed Ex: UK found Spain had jdx over Chilean President Pinochet because of accusations of torture; state official can be prosecuted as individual but not sued for torture; being challenged in ECHR Ex: Alien Tort Claims Act o iv. Protective principle States may sometimes exercise jdx over non-nationals for conduct which occurs outside US but that nevertheless is prejudicial to the states security, but this depends on how a nation defines national security o v. Passive personality Weakest basis for jdx Idea that state can exercise jdx for a crime based on the nationality of the victim


Historically, US has been very critical, though this has waned lately; US v. Yunis (1991): Where Congress was express in its intent to extend passive personality to certain crimes (terrorism, etc.) the normal presumption is overcome Extradition and Mutual legal assistance: o States may request aid from other states executive or judicial authorities in the pursuit of criminal or civil procedures (service of process, taking of evidence, authentication of documents, etc.) o Letters rogatory: Requesting assistance from tribunals of another state o Antelope (1825): The courts of no country shall execute the penal laws of another; US refuses to enforce foreign judgments that they believe would violate US foreign policy o Extradition: Surrender by one state of an individual accused or convicted of a crime in another nation; mostly conducted pursuant to treaty; Requirements: Rule of non-inquiry: No independent review of the merits of the charges is made; courts merely inquire as to (1) whether the individual surrendered is the person sought and (2) probable cause Common treaty requirements: Must be sought by legitimate government under an arrest warrant by a court of competent jdx Principle of double-criminality: Ds crime must be punishable in both the requesting and the sending states; usually pursuant to list of crimes Whether the statute of limitations has run Speciality: D may only be tried or punished in the requesting state for those crimes for which he was extradicted Some bar death penalty Political offense exception: Sending state is not obliged to extradite a suspect charged with political offences; attentat clauses make murder of head-of-state or family not a political offense o 1985 Supplemental Extradition Treaty btwn US and UK largely eliminate political offense exception Jurisdictional Immunities:


Foreign Sovereign Immunities: o Absolute to Relative Immunity: Immunity of States in domestic courts of other nations has always been matter of CIL


Schooner Exchange v. McFaddon (1812): France seized prize ship from private Americans and rechristened it as a war ship; US said ship was immune from arrest b/c it was part of the military force which supports the sovereign power Distinguished btwn jus imperii (on behalf of the government) and jus gestionis (on the private or commercial account of the sovereign or govt official) 1926 Brussels Convention: Withdrew foreign sovereign immunity for state owned commercial vessels; paralleled spread of restrictive form of foreign sovereign immunities with exempted commercial activity Tate Letter (1952): Widespread and increasing practice of governmental engaging in commercial activities makes necessary a practice which will enable persons doing business with them to have their rights determined in the courts (no immunity for commercial activity) o US Foreign Sovereign Immunities Act (1976): Seeks to convert questions of foreign sovereign immunity from political and diplomatic questions into judicial and legal ones; means US courts no longer need permission from State Dept to try case FSIA does not govern immunity of foreign officials sued individually; that is governed by common law FSIA is exclusive means of gaining jdx over foreign sovereignty in the US (in this sense, limits Alien Tort Claims Act and blunts much human rights litigation because suits can only be brought against private individuals) Foreign sovereign entity bears burden to show that it is covered/ protected by FSIA, but once covered, the entity is presumptively immune unless one of the exceptions applies (means P carries burden of showing that US court has jdx) Exceptions are thus the heart of FSIA: i. Commercial activity exception: o FSIA defines as either a regular course of commercial conduct or a particular commercial transaction or act. The commercial character of an activity shall be determined by reference to the nature of the course of conduct or particular transaction or act, rather than by reference to its purpose. o Debt restructuring and finance by foreign sovereigns is commercial activity and there is no immunity o 1605(a)(2): Plaintiff must show some connection btwn activity and US:


A. Commercial activity in US B. Act performed in US in connection with commercial activity outside US, OR C. Act outside US in connection with commercial activity outside US but that has direct effect on US Saudi Arabia v. Nelson (1993): State sponsored torture is a sovereign act and can never be commercial ii. Waivers of immunity: o Friendship, Commerce and Navigation (FCN) treaties with US contain some; other treaties have forum-selection clauses o Implied waiver is possible in very narrow circumstances (entering appearance in US court without invoking immunity, filing counter claim, etc.) o Human rights advocates have claimed that sovereigns who engage in jus cogens violations waive immunity; idea that universal jdx cancels out immunity This view has generally been rejected (AlAdsani v. Kuwait, UK; Saudi Arabia v. Nelson, US) iii. Terrorist states exception o Covers situation where damages sought for (1) personal injury or death or damage to or loss of property (2) occurring in the US and (3) caused by tortious act or omission of foreign state (4) while acting within the scope of his office or employment, except: When act or omission is based on discretionary function OR When the claim arises out of malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights o Assassinations and political murders cannot be discretionary policy o New 2008 exception; 1605A: Permits US nationals (private right of action) to bring suits against foreign sovereigns for personal injury of death arising from torture, extra judicial killing, air sabotage and hostage taking; no


o Remaining issues Under FSIA, proceedings subject to special removal to federal court and no right to jury trial Executive still has role as amicus curiae and may make determination as to who constitutes a head-of-state Status based immunity: Not mentioned in FSIA and have absolute immunity under CIL for criminal and civil suits; after leaving office maintain immunity for official acts (in UK means also for things like torture; unclear for US) Arrest Warrant Case Congo v. Belg. (ICJ; 2002): Congos minister of foreign affairs, facing war crimes charges in Belgium, was immune head of state, but wouldnt be immune if home state waived immunity if proceeding before international court (thats why Malosovic would be prosecuted) Enforcement of judgments: i. Only commercial property of foreign sovereign or actual foreign instrumentality that is D in suit may be attached or executed against ii. Must be some ink between property to be attached or executed against and the claim Acts of State Doctrine: o Unlike FSIA, allows court to reach merits of the case, but is a prudential rule of judicial self restraint or choice of law, resulting in claims being dismissed on the merits o Doctrine solely restricted to common law states o Underhill v. Hernandez (1897): The courts of one country will not sit in judgment on the acts of the government of another, done within its own territory o Bernstein letters: Executive indication that it has no dispute with US court adjudicating a dispute involving the actions of a foreign government; indicates act of state doctrine is escape valve to avoid political embarrassment; indicated that individuals should instead bring claims to Executive to be espoused by US government o Banco Nacional de Cuba v. Sabbatino (1964): Indicated that though the Constitution does not mention act of state doctrine, it does have constitutional underpinnings in separation of powers; any case which involves an action by a recognized foreign government within its own territory is barred from adjudication by US courts unless there is a controlling treaty provision

requirement that tort occur in US but D state must be one that is designated by State Dept as state sponsoring terrorism (only 5); 10 year statute of limitation; claimant must give offending state opportunity to arbitrate


o Second Hickenlooper Amendment: Reaction to Banco Nacional; courts are not to apply act of state doctrine for expropriation cases unless the Executive tells them to o W.S. Kirkpatrick & Co. Inc. v. Environmental Tectonics Corp. (1990): Distinguishes situations where a party seeks to declare invalid the official act of a foreign sovereign performed within its own territory (protected) and those where the court merely imputes the unlawful motivation of foreign officials (not protected; bribery, etc.) Diplomatic, Consular and Organizational Immunity: o Embassies are no longer considered to be territory of foreign state that occupies them o Embassies cant be evicted for nonpayment of rent o Diplomats: Type and intensity of immunities depend on nature of diplomatic officials and establishments Diplomats represent the sending state in all political and military relations with the host govt Governed by 1961 Vienna Convention on Diplomatic Relations Complete immunity from host states criminal jdx and most civil proceedings Diplomatic pouches (shipments to and from embassies) supposed to be inviolable When diplomats commit serious crimes (rare) receiving state can either demand sending state waive immunity or that diplomat immediate leave (persona non grata) o Consuls: Consuls protect interests of nationals resident in host country Governed by 1963 Vienna Convention on Consular Relations Only limited immunity for conduct carried out in pursuance of functions Both diplomats and consuls have relief from taxes and personal obligations Immunity for both can be waived by home govt. o International organizations: Immunity of UN missions generally respected Organizations themselves generally dictate their immunity through an instrument of the institution UN employees are subject to civil service protections; immune from harassing civil litigation, etc.; protections are functional


War and Peace

1. Counter-measures Divided into two categories: forcible and non-forcible A. Non-forcible


o Retorsions: An unfriendly, but legal, response made to another nations illegal act Withdrawal of diplomats and embassy staff Termination of voluntary aid and support Sanctions: No state is legally entitled to trade, but growing body that severe economic sanctions may run afoul to WTO free-trade or human rights norms May foreswear this option in FCN or other BITs o Reprisals (non-forcible): Illegal act made in response to another states illegal act Most agree these are necessary to promote respect for international obligations Air Services Agreement Arbitration US v. France (1978): France would not allow change in gauge (smaller than agreed Pan Am plane) into airport; US made reprisal by suspending Paris-LA flight to force France into arbitration; court ruled counter-measures are necessary part of punch and counterpunch; US action was a violation of 1946 agreement, but permissible and proportional; once effective dispute settlement triggered, counter-measures must cease VCLT: Only where there has been a material breach of an agreement can another party terminate or suspend performance; must be careful of anticipatory breach UN ILC Draft Art. of State Resp.: Limit reprisals in situation where there is available dispute-settlement mechanism Reprisals against nationals of offending nation resident in hurt nations territory: Consistent rules of State Responsibility toward aliens, but may violate human rights norms Remedies: i. Satisfaction: State admits wrong-doing and undertakes to conform future behavior with international law norms; declaratory judgment; clarified content of international law ii. Restitution: State affirmatively engages in remedials conduct; one tribunal has rejected specific performance and another has granted iii. Cash awards: Sometimes as settlement; Ex gratia payment: makes amends without admitting fault; lump sums; usually only compensatory damages (sometimes with interest, rarely with attorneys fees or punitive) B. Forcible o International Legal Norms Regarding the Use of Force Before WWII Legal Norms Prior to WWII


Jus ad bellum: laws of war and using force in intl relations; the law going to war Jus in bellum: laws of warfare itself History: o St. Augustine: just war doctrine: punish rulebreakers in very limited circumstances, like selfdefense (obj) o St. Thomas Acquinus: punish guilt, wrongdoers. Force ok if used for a moral purpose. (subj) o Peace of Westfalia, positivism, all states equal, no more just war o Napoleonic Wars: tech development and total war (not just armies involved but all of society, including citizens) o Lieber code of 1863: minimize violence, put distance between military targets v. civilian and non-military targets. The basis for... o Hague Conventions of 1899 and 1907 (define jus in bellum): minimize violence and protect noncombatants Use of Force Rules o Caroline Doctrine: Diplomatic corespondance between UK and US; preemptive use of force OK if the necessity of self-defense is instant, overwhelming and leaving no choice of means and no moment for deliberation; UK agreed it must show proportionality and necessity o Developments from WWI to WWII o The League of Nations: collapsed after Italy invaded Ethiopia; recommended arbitration and provided for punishment for aggressors o The Kellogg-Briand Pact (1928): renounces war as an instrument of policy and instead says we should use arbitration. Still good law. o The Use of Force After WWII o The Charter of the International Military Tribunal (in response to Nuremberg tribunals) (Article 6), Art 7: no immunity for anyone; official position does not free you from accountability. No problem with imposing ex post facto laws because the standards, while not codified, were part of CIL at the time of violation. o Overview of the UN Charters Use of Force Regime UN Charter, Articles 2(4), 51 Art 2(4): All members shall refrain in their international relations from the threat or use of force against the territorial integrity 35

or political independence of any state, or in any manner inconsistent with the Purposes of the UN. o Included all military action, including temporary occupation o Included threat of force, though what this means is not clear o Art. 1 prohibits aggression; 1974 Resolution defines this as whatever the international community and UN organs think it is; aggression presumed with occupation, bombardments, blockades and direct attacks Art 51: inherent right to individual or collective self defense if armed attack occurs; also based in CIL o Caroline assumed to be built in to this o Collective self-defense: May ask for help of neighbors; Military and Paramilitary Activities in Nicaragua (ICJ; 1984): US funding of guerillas to topple leftist government; once court found jdx, Reagan withdrew; US claimed collective self-def. for El Salvador but lost; must be a formal request for assistance Humanitarian Intervention - Kosovo a. Status quo: only if authorized by SC or self-defense. This was taken prior to any SC authorization b. Excusable breach approach: illegal but morally/politically justified c. Evolving CIL recognizes as legally justified d. Codification: not really done yet. On par w/ self-defense e. US argues that it was in response to the excessive and indiscriminate use of force by Serbia in violation of IL, regional security, threat to safety of international observers in Kosovo f. UK claims that extreme circumstances made actions necessary to avert a human catastrophe Collective Security: UN and Regional Use of Force and Peacekeeping Efforts B. UN Use of Force and Peacekeeping Efforts (UN Charter. Chapter VII, Articles 39-42) 1. Article 39: SC has responsibility to determine threats and auth force 36

2. Article 40: SC may take provisional measures to chill out conflicting parties 3. Article 41: non-force sanctions are ok to punish; SC decides what to use 4. Article 42: use of force ok necessary to maintain/restore intl peace a. Art 43 was meant to create UN army, never happened C. UN and US Response to Iraq 1. The Iraqi Invasion of Kuwait a. UN Security Council Resolution 678: authorize use of force 2. The Cease-Fire and the Aftermath: 687: ceasefire 3. The Second Gulf War a. UN Security Council Resolution 1441: weapons inspection but no automaticity. Still had to get approval from SC before invading. b. War legal because article 2 has been amended by CIL? Repeated use of US force without prior SC authorization could have created a new norm c. US: ok under CIL, done it before, Caroline, bla. d. UK justification: 687 authorizes reinvasion if later stuff breached. i. Didnt meet obligations, material breach, use of force authorized ii. Dumb bc 1441 doesnt auth use of force Regulation of the Conduct of War: International Humanitarian Law Jus in Bellum D. Development of International Humanitarian Law 1. Lieber Code: Civil War. Union unilaterally gives to soldiers. Minimize damage to civilians etc 2. Field Code: built on Lieber. give to soldiers, rules about war. 3. Hague Regulations (1899, 1907): Russian Tsar wants min damage/violence 4. Geneva Conventions (1949): protect 4 classes 5. Geneva Protocols (1977) E. The Scope of Application of International Humanitarian Law 1. 4 Basic Principles of Humanitarian Law/Geneva Conventions a. Limit use of force to avoid unnecessary suffering b. Distinguish btw combatants and noncombatants c. Treat noncombatants humanely/respectfully d. Occupying power must respect existing legal order 2. International Armed Conflict: Common Article 2: during war, btw 2+ parties 3. Armed Conflict Not of an International Character: Common Article 3 a. Establishes bare minimum standards for any conflict: sick care, discrimination/genocide, etc


b. POWs entitled to humane treatment: no torture, no harsh interrogation, red cross gets access, get exercise and medical treatment, correspondence with family, inform the other government that theyre held, released upon cessation of violence. 4. Wars of National Liberation: Protocol I & II: Goals distinction and proportionality protect civilians in the course of combat a. Deals w/ asymmetrical wars of insurrection, colonies b. Combatant: act like soldier, get benefits. Act like terrorist, dont. i. Commanded by superior officer ii. Wear insignia iii. Carry arms openly iv. Obey laws & customs of war F. Substantive International Humanitarian Law Rules 1. Protocol I, Article 35: warfare methods not unlimited, prohibits superfluous injury, cant harm environment 2. Protocol I, Article 48: distinguish combatant and civilian population, targets, objectives 3. Occupying powers must respect legal order G. Problems of Application: The Law of Armed Conflict and Fight Against Terrorists 1. Dont really fall into any category. Break all laws of war. How to treat? 2. Martens Clause: if gap in rules, act in way consistent w/ humanity Substantive International Criminal Law H. Nuremberg and Individual Criminal Responsibility 1. Judgment of the International Military Tribunal: Kellogg-Briand puts everyone on notice. Individuals not immune. Clearly violated law. a. Kind of ex post facto though b. Set the bar: put people on notice c. Crimes against peace, war crimes, Hague conv violations: fair game 2. Why have a war crimes tribunal a. The Holocaust was particularly unprecedented b. Closure for victims c. Better to deal with crimes in a tribunal than to impose reparations on Germany again, like in Versailles, which ended up alienating them d. World needs to know the extent of the egregiousness of the crimes I. Additional Individual Responsibility Issues 1. Immunity



3. 4.


a. Arrest Warrant of 4/11/00 (DROC v. Belgium): universal jrx statute calls for C official to be tried for war crimes. D says I have official immunity B cant sue. In CIL, immunity applies even if IL violation. i. Direct opposite holding as Lotus: should be ok bc no specific positive immunity law on point ii. Immunity applies when hes in office iii. C.f. Pinochet: IL violation cant be official act. No immunity. (See FSI infra) Command Responsibility a. In re Yamashita: leaders responsible for troops actions while in command. i. Codified in ICTY/ICTR articles Vicarious Responsibility a. Prosecutor v. Furundzija: although D didnt rape victim, guilty bc he was complicit in or assisted IL violation Following Orders and Duress a. Prosecutor v. Erdemovic: soldier has a duty to disobey manifestly illegal order. NOT a complete defense, mitigating factor. i. Can only defeat this by showing extreme duress b. c. Article 13: file/bring case i. State brings case to prosc ii. UN SC can ask a prosecutor to investigate iii. Prosc can act sua sponte (A) Lots of discretionpartly why the US chose not to be a party to the ICC; no political check on the prosecutor (B) Panel can override d. Article 17: admissibility (SMjrx) hinges on domestic action. i. Complementarity: ICC jrx only triggered if state fails to act ii. If state doesnt make a good faith effort, the ICC can still exercise jurisdiction (1 reason why the USs decision dont make sense, son) US Position a. Bush administration insists that we have a unique role in the world as a protector. We dont want our solders to have to respond to frivolous claims, thus taking away their ability to respond where they are needed. b. Idea that we dont have to respond to the ICCs jurisdiction c. No checks on prosc i. Good, but panel can override ii. Crit: funny bc thats the US way in domestic cts d. Protect soldiers/servicemen 39

i. Crit: subject to ICC jrx if in member state. ii. if US were member, then US could investigate/try and ICC would have to respect (A) exception: bad faith circumventing of jrx 6. Legit ICC criticism: violates positive law a. Able to subject people to jrx even if they dont recognize jrx i. Crit of crit: if you submit to foreign states laws anyways, the ICC is merely a part of that (delegation) 7. Other problems a. Is not joining the ICC equivalent to saying we are not bound by jus cogens norms? b. Are we separating ourselves from the rest of the international community? c. Deeply ingrained US fear of international participation and international organizations 8. Advantage and disadvantages to each type of tribunals a. Ad hoc, Hybrid, and truth commissions need definite start and end points b. Ad hoc and Hybrid are borne of political conflict and may have pre-decided the outcome c. Precedent can only be set by the ICC J. Alternatives to Criminal Prosecution 1. Leila Sadat, Universal Jrx, National Amnesties, and Truth Commissions: South Africa: no prosc if you tell everything you did, historical record