International Law Full Outline

ProIessor Borgen Fall 2008
INTRODUCTION

I. WHAT IS INTERNATIONAL LAW?
1) Law generally is composed of:
a) Right Process certain steps that have to be gone through in order to make something
"law"
b) Authoritative Decision correct institution undertakes the process right body made the
authoritative decision to make the laws |i.e. legislatures, administrative agencies (executive
rule making power) and courts (interpretation and enIorcement)|
2) International Law is about agreements between nations and how they are enforced
a) orking deIinition international law is the body oI law that governs:
i) Between states
ii) Between states and international organizations
iii)Between international organizations
iv) Between subnational actors across state borders
v) Between states, international organizations and individuals across national
boundaries
b) Other definitions of International Law
i) Public International law is the law that regulates the intercourse oI nations
ii) International law also deals with law regarding the relationship between
international organizations and the laws used to create those organizations
(1)Examples oI international organizations (IOs): E.U., O.A.S., O.P.E.C.,
NATO
iii)International law applies to sub-national, individual actors i.e. through human
rights
c) Composed of
i) International Business
ii) Comparative Law
iii)International Courts and tribunals
d) Transnational: things that happen across borders and the types oI problems that are
encountered with a cross-border relationship
3) !urpose of international law - why do states abide by international law?
a) Predictability: states want to know how other members oI the international community will
act
i) II several states sign onto something and they're all bound by it, can be conIident
that everyone that's party is going to at least try and make it look like they're doing
what they said they would
b) #eputation and Prestige: (Iunctions as a source oI power) iI country is good in certain
areas then can be given certain amount oI discursive power in international system (i.e.
what they have to say carries more weight) and do not want to be one that looks bad and
becomes disadvantaged
i) States want to avoid international condemnation and lack oI trust. If do not abide by
obligations, then down the road other states will not sign agreements with them.
c) inding: states would like to bind others more than they want to bind themselves
d) ifficulty of anonymous violation: it will be very hard Ior state or international
organization to violate international law without being noticed
e) osts of violations: sanctions can be applied to the bad state by the whole international
community

I) Note: oIten see smaller states going to the international state system Ior help because they
do not have the support oI the bigger countries that were backing them
4) Relation to Domestic Law is it the same as domestic law? Borgen's theory: NO, but no one says
that it has to be
a) There is no single executive in international law (and there doesn't have to be) but there are
rules that cause people to act and work in certain ways
5) Criticisms of international law
a) nforcement: sanctions tend to hurt the wrong people; strong countries can get away with
breaking laws and weak countries cannot (about the eIIicacy in enIorcing the "laws")
b) airness: |related to rights process| is it Iair to make rules where some can get away with
it, but others cannot, and then call that law?

II. WHY IS THERE AN INCREASE IN THE STUDY OF INTERNATIONAL LAW?
1) ore interaction between countries and increased globalization oI norms and ideas (through
economics, trading, living abroad and other things that have led to cross-border relationships)
2) The end oI Communism
a) End oI the Cold ar has led to decreased animosity between U.S. and Russia which means
UN is now a functioning organization and there is greater participation among the
countries
b) Companies doing business in Iormer soviet block states want laws tailored to laws oI their
locale
c) These same countries now want to join international orgs, such as the TO
3) ith greater interaction, there is an increasing diIIiculty Ior any one state to regulate/address
public policy issues that in the past they could do on their own
a) There are more interactions among the states that lead to more complex bargaining across
substantive grounds (leverage where law and power interact!)

III. SOURCES OF INTERNATIONAL LAW
1) Where does international law come from? (IC1 Article 38)
a) Treaties
b) Customary International Law ("customs"): practice oI states in recognizing that there are
obligations between them and other states
c) General principles "recognized by civilized nations" (and other basic procedural ideas)
|gap-Iillers|
i) Ex. res judicata, estoppel
d) Subsidiary Liens
i) Judicial Decisions:
(1)International Tribunals
(2)Domestic Tribunals
ii) Teachings oI publicists
2) Other sources
a) Trade Agreements and "SoIt Law"
b) International Organization Law (i.e. E.U. law)
3) Corpus oI Rules international law may just be a "body oI rules"

IV. INTERNATIONAL COURT OF 1USTICE ("IC1")
1) hat is it?
a) Principal Legal Organ oI the UN

b) ade up oI 15 judges who are elected by the member states oI the UN

i) Permanent embers oI the UN security council (China, US, France, Great Britain,
Russia) are assured a seat in the ICJ
ii) Ad hoc judges: when disputes are beIore the ICJ, those countries have a right to
appoint an ad hoc judge to the bench Ior that dispute only (theory: so country has
someone there that will understand what they have to say)
2) ho can sue? ONLY states have standing to sue beIore the ICJ
3) hat's litigated in Iront oI ICJ? Issues oI public international law (treaty debates, boundary
disputes etc.)
4) Jurisdiction
a) Compulsory Jurisdiction: state agrees that it can be sued beIore the ICJ on any international
law manner by any state that accepts a similar jurisdiction
b) Ad hoc jurisdiction: states have agreed speciIically that the court will have jurisdiction over
this speciIic dispute
5) Advisory Opinions: ICJ can also issue advisory opinions opinions when there are no claims
beIore the court but parties go to the ICJ when they want to know what their legal rights are
6) Note: Sometimes states do not go beIore the ICJ because it takes too long! (it can take up to a Iew
years!)
a) Alternative state can go to the UN Secretary General and get his opinion on legal issues
instead

V. DOCTRINES, ARGUMENTS AND IDEAS
1) spousal of laim when a state makes a legal claim on behalI oI one oI its citizen
a) State takes the cause oI its nationals and places it in the national arena
b) OR when an individual does not have standing beIore an international tribunal, then that
individuals home state takes the individual's case and argues it in that Iorum
2) propriation when government takes Ioreign national's property without adequate
compensation
3) $uperior Orders Argument when individual oIIicers claim that they were acting on behalI oI the
government and they should not be held individually liable
a) During the Nuremburg trials, it was made known that the deIense was not acceptable
4) Asymmetrical #esponse when states link two completely diIIerent issues together to show their
power
a) Ex. Dispute between states about holding citizens criminally responsible Ior something,
state uses other methods to show its leverage (i.e. international organizations and trade
agreements)
5) $anctions
a) Domestic Sanctions: sanctions imposed under a state's own domestic law eIIorts used to
be able to exert pressure on another country where there are restrictions on the ability oI
citizens and companies to engage in certain conducts with respect to certain countries
i) Can be passed either by the executive OR through statues passed by Congress
b) International Sanctions: can be imposed through passage oI resolution by the Security
Council that deIines the precise terms oI the international sanction
6) ringing a laim
a) Process
i) Exhaustion oI Local Remedies important theme Iirst go to the courts in the area
in which the claim/problem occurred
ii) Go to own country Ior remedies espousal plays a part here (country brings

argument on behalI oI one oI its citizens)

7) Pacta sunt servanda: the agreement is what it is ("the treaty must be served") iI a State enters
into an agreement, then it has to abide by it

VI. SUMMARY ON INTERNATIONAL LAW
1) $tructures: building blocks of international law things in the international system that make it
up
2) Actors/$ubjects: who/what acts and its subjected to regulation by international law
a) Classic Actor state
b) Now individual, NGOs, companies
3) Objects: topic that its dealt with (ex. "international criminal law," "international humanitarian law")
4) Processes: means in which international law is actually applied (ex. international dispute
resolution)
a) Also includes the way power is now applied or channeled through diIIerent international
procedures

VII. INTER!RETATION OF INTERNATIONAL LAW (HAROLD COE):
1) "uestions to think about when interpreting international law --
a) Transnational Acts who are the actors involved?
b) Law declaring the Iorum what are they and where do they get their authority
c) ho interprets what the law is?
d) How are the norms internalized? state and other actors must bring it into their own
systems and conIorm their behavior as such

VIII. SCHOOLS OF THOUGHT IN INTERNATIONAL LAW
1) Realists Iocus on distribution oI power and resources in the international area as well as on its
anarchic terms argue that nations comply with international law only when it is in their interests
to do so
a) hen interests conIlict with norms, interest will prevail
b) Compliance depends on most powerIul states deciding to comply and insuring that weaker
states comply
2) Institutionalists agree that states comply with international law only when it is in their interests
to do so, BUT stress that states have both conIlicting and mutual interests
a) International regimes comprised oI institutions and norms on a particular subject and
serve as mechanisms Ior restraining states and Ior achieving common aims
b) Norms promote compliance by reducing transaction costs, providing inIormation and
dispute-resolution procedures and providing a trigger and a Iocus Ior negative responses to
noncompliance
3) Constructivists argue that in anarchic international order, states have no preexisting interests or
identity rather their interests and identities have created (and changed) by and through
interactions with other states
4) antian View asserts that compliance is a Iunction oI international law's legitimacy vis-a-vis its
targets
5) Managerial Model states induce compliance not through coercion but rather through
cooperative, interactive processes oI justiIication, discourse and persuasion.
a) Through those processes, legal norms are invoked, interpreted and elaborated in ways that
generate pressure Ior compliance


IX. THEMES TO THIN ABOUT

1) eep in mind the debate over whether or not international governments are becoming less
intergovernmental and more supranational?
a) Ex. Having actual actors such as the UN and TO decide what the rules are and then tell
the states
b) Is it becoming less to do with consent and more mandatory?
i) Consensual odel (estphalian and Positivist Idea) only responsible Ior what
you sign
ii) andatory odel States are held to certain standards even iI they did not sign
onto it
2) Increasing regard Ior individual moving to new era oI State concern about individuals and
liabilities
3) Roles oI courts and tribunals are areas that were normally under "politics" (i.e. negotiations
between countries) being successIully moved into a more legal Iorm or juridical Iorm?
4) History oI international law tends Iocus on Europe has international law just become version oI
what US and Europe want? Or is there version that reIlects Asian models and policies and Islamic
models and policies?

CHAD and LIBYA AFFAIR
1) Facts: border dispute between Chad and Libya in Iront oI ICJ. Chad claimed they were entitled to
Aouzou strip. Libya claims strip was theirs (in addition to most oI Chad). Chad wanted Libya out
oI the strip.
2) Chad's Legal Argument: Chad wanted the speciIic boundary that was noted in the treaty
recognized treaty was signed in 1955 between France and Libya.
3) Libya's Arguments: 1) coerced into signing the treaty and its thereIore invalid, 2) inherited the
land Irom the Ottoman empire, 3) inhabitants in the area oI the strip were loyal to Libya and not
Chad (sociological argument), 4) Iundamental stability oI borders the treaty expired so the
boundaries should not be enIorced
a) Argument oI Unequal Treaties: treaties in their core are unIair b/c they were done by
colonial powers and iI the treaty is unIair, it should be set aside.
4) !lay of international Organization Organization oI AIrican Unity came in and acted as a
mediator. States also agreed that iI a decision couldn't be reached by the end oI 1 year, they will
bring it in Iront oI the ICJ
a) Decision: ICJ rules in Iavor oI Chad based on the 1955 Treaty why? Treaty had been
Iollowed (state practice) and ICJ looked at colonial map to determine prior boundaries and
Libya's actions Iollowing the treaty (they did not look coerced) and Chad consistently acted
as iI it were the dispositive border
5) ffect of oundaries once a boundary is set by treaty, they are set and there is no expiration date
even iI the treaty itselI expires they have their own permanence ("when a boundary has been the
subject oI agreement, the continued existence oI that boundary is not dependent upon the
continuing liIe oI the treaty under which the boundary is agreed.")
6) y it appened te way it did: Every country in the world has been screwed! Once you start
allowing going back in history to unravel, everyone has a historical wrong against them, so there is
a big reticence Irom relying on historical claims. International law tends to Iocus on bright-line
rule
7) mportance of case
a) Classical example oI international law:
i) Subject matter: borders

ii) Source oI law used: treaty

iii)Actors: two states
iv) Resolution: beIore a tribunal (peaceIul settlement oI disputes)
b) hat evidence could be used iI there was no treaty?
i) Other legal norms (such as customary international law) norm and norm creation
is always a central task in international law
ii) Historical look to the history oI the area to see how the states developed
iii)Sociological look to the people to determine how their cultures are shaped, who
they pledge allegiance to etc.
iv) Historical aps not completely dispositive, but could be used to show evidence oI
state practice
Natural Boundaries
THE #AO A##O#
1) Facts: Greenpeace vessel was sent to protest France's nuclear testing in the South PaciIic. France
destroyed the ship and killed a sailor on board. OIIicers were arrested and charged with homicide
in New Zealand, France wanted them back
2) French Arguments oIIicers were not responsible because they were acting under "superior
orders" and should not be held liable as individuals"
3) New Zealand concern did not want to turn over the oIIicers because under French law what the
oIIicers did was not a crime
4) Response by France restricted New Zealand exports to France and the European market
a) Structural power: power that you have based on some structure you have in a community.
FR was part oI EU and NZ wasn`t so, FR began trying to pressure the EU Irom exporting
butter and milk.
5) Response by New Zealand went to Organization Ior Economic Cooperation and Development
and to the General Agreement on TariIIs and Trade (GATT) and started non-binding mediation
why? New Zealand could not wait Ior the ICJ to render a decision in a couple oI years, and they
were more concerned about the trade implications in place
a) UN Secretary General Decision: ruled that France owed New Zealand $7 and that an
apology was due, oIIicers were placed in French military prison Ior 3 years (political
compromise)
6) Importance oI the case
a) Breakdown oI the case:
i) Actors: Greenpeace (NGO), France & New Zealand (states), two French oIIicers
and dead sailor (individual actors)
ii) Forum: UN and economic organization
iii)Resolution: UN Secretary General rendered the decision (problem: what is his legal
basis?)
b) hy this is more a modern example oI international law case:
i) DiIIerent Actors come into play
ii) DiIIerent Iorum used to come to the decision
iii)Political Negotiations
iv) Various Techniques used (i.e. issue linkage between criminal holding oI deIendants
and trade eIIects in play)
c) Themes:
i) Increasing power oI international organizations/institutions (global, regional, issue-
speciIic)
ii) Importance oI non-state actors (i.e. NGOs and individuals)

iii)ComplexiIication oI law making (move Irom treaties to Secretary General rulings,

tribunals etc)


SOURCES OF INTERNATIONAL LAW

I. SOURCES OF INTERNATIONAL LAW (GENERALLY)
1) ICJ applies the Iollowing to resolve disputes (according to Article 38)
a) "International Conventions" treaties
i) Can be very general/broad or about something in particular
ii) Some are bilateral and some are multilateral
iii)Can create rights and obligations Ior the parties to them
b) "International Customs" unwritten law, based in part on the long-standing state practice
oI countries when the practice is undertaken as part oI legal undertaken
i) Evidence oI general practice as accepted as law
ii) Binds all states that did not object to the custom/law when it was in Iormation
iii)How do you show a state's objection?
(1)Actions taken opposite oI the norm
(2)Treaty is contrary to the custom
(3)State has persistently made statements in international arena that says the
state does not agree with the custom
c) "General principles of law" basic procedural ideas used as gap-Iillers (when custom is
unclear)
i) Ex. res judicata, estoppel
ii) hat are general principles? Those that are so basic to developed legal orders that
they arise in most national legal systems and can thereIore be ascertained through an
objective, comparative assessment oI municipal law in the relevant states
iii)In practice rely on general principles largely as adjunct to treaties and customs to
be invoked sporadically and only as necessary to supplement or extend those other
Iorms oI law or to Iill gaps created when treaty and custom Iail to supply all relevant
rules Ior decision oI particular dispute
d) 1udicial Decisions (international tribunals and domestic tribunals) and teachings oI
publicists |subsidiary means|
i) NOT BINDING Stare Decisis does not exist Ior international tribunals BUT
courts want to stay consistent, so they oIten give strong preIerence to past rulings.
The decisions are persuasive authority
2) Note: Article 38 has enormous weight to help people determine what international law is
Restatement oI Law in US Foreign Relations basically rewrote Article 38
3) Other sources oI law there are new sources oI law not included in Article 38 (including soIt-law
and law oI international organizations)
4) Importance there is no Iormal hierarchy oI international law so no one thing is more important
than the other BUT realistically, there is more reliance on treaties than any other sources oI law
because treaties are clearer in terms oI content and states have voluntarily agreed to and signed
them
Both the breadth and depth of international law have increased as the law regulates more areas
then ever before and does so through processes and mechanisms that challenge a states interest in
keeping others out of its affairs in a word sovereignty.

II. TREATIES
1) Treaties (generally): written agreements between two states that are governed by international
law, embodied in either one instrument or in two.
a) Can be thought oI as a contract or as legislation

i) Contract: countries agree to do something creates rights and obligations

(1)Ex. tax treaty between two countries on how you tax across each other's
borders
ii) Legislation: outlining on-going relationships with parties establish broad rules oI
conduct amongst the parties
(1)Ex. UN charter: deals with voting, obligations and duties within the
organization
b) Bilateral (between two countries) and multilateral (between many countries)
c) Illegal treaties: anything contrary to UN charter (i.e. genocide, piracy, etc)
2) Executive Agreements: where the leader oI one State makes an agreement with the leader oI
another state
a) Essentially given the same weight as a treaty
b) Note: terms "treaty" |2/3 advice and consent oI senate has to be ratiIied| and
"agreement"|signed by president or approved by house| are diIIerentiated in US domestic
law, but mean essentially the same thing in international law
3) Basic Treaty Vocabulary
a) Signatory: state that has signed onto a treaty
b) RatiIication: domestic means/process (constitutional laws) needed to pass the treaty in the
country (US Congress)
c) Open Ior signature: treaty goes into Iorce and becomes live when the parties sign it.
d) Entry into Iorce oI a treaty: many treaties have a minimum requirement Ior the number oI
states needed to have signed and ratiIied it in order Ior it to go into Iorce
i) hen this number is reached the treaty goes into Iull legal Iorce and it is live
between all the parties
ii) It is only in Iorce against the parties that have ratiIied it
iii)II a country signed it but had not ratiIied it, the treaty is not yet in Iorce
iv) II a treaty is signed but not ratiIied (like in US) then treaty is deemed as being
rejected
e) Acceded to the treaty: hen you join a treaty that is already entered into Iorce
4) Why do we have treaties?
a) Generally to increase or order the aIIairs oI a State, to know what we can expect Irom the
other side, and to help coordinate diIIerent Iacets oI international relationships
b) To solidiIy policy
c) SelI-Interest can establish sovereignty oI a nation (ex. Cyprus)
d) To create something (constitutive reason)
e) Bind how others act
I) Increase reputation and legitimacy oI the state
g) For signaling sign onto a treaty not to what it immediately does, but to send a message as
to how you're going to act
h) Bind themselves ("pre-commitment") distrust over what might happen in your domestic
processes in Iuture and reasons why you think that your particular country needs to go in a
particular path
i) InIormation Sharing views treaties as a means to get closer to perIect inIormation in order
to decrease coordination problems
j) Coordination treaties are a method oI decreasing the costs oI coordination
5) Vienna Convention on the Law of Treaties (VCLT)
a) hat is it? Black letter law on treaty making and treaty interpretation by its name it is a
treaty itselI adopted in 1969 and went into eIIect in 1980 (US is NOT a party to it and has

not ratiIied it)

i) Purpose: to restate and codiIy the customary law oI treaties
ii) Every state takes the VCLT to be the exact description oI customary international
law
iii)EIIect in the US: have not ratiIied it, but even though we are not a party to it,
government views VCLT as authoritative in terms oI interpreting treaties and
Iollows it completely
b) DeIinition oI Treaty (VCLT Article 2): international agreement concluded between states
in written Iorm and governed by international law, whether embodied in a single instrument
or into two or more related instruments and whatever its particular designation
i) For the VCLT to be applied to a treaty, the treaty must be in writing
ii) Like a domestic contract, a treaty does not have to be a single document multiple
documents must be read together to get the Iull extent oI the treaty
iii)General thrust oI the treaty must be governed by international law BUT speciIic
parts oI the agreement can be governed by domestic law and still be called a treaty
(1)States must have the intent to have their relationship governed by
international law
(2)Ex. U treaty with US to buy airplanes and its governed by NY law is NOT
a treaty
iv) Note: do not read Article 2 to mean that other Iorms oI agreements are not legally
binding
(1)Article 3 International Agreements Not ithin the Scope oI the Present
Convention: the Iact that the VCLT does not apply to agreements that are
not in writing does not aIIect the legal Iorce oI those agreements
c) Who has authority to sign a treaty? (standing) Only heads oI government, secretary oI
state (Foreign inister), ambassadors Ior country are assumed to have power to sign Ior
their country
i) Only "countries" that are States have authority to enter into treaty and have eIIect on
whole State
ii) States within a country (i.e. NY or CA) do not have the authority to sign onto a
treaty
iii)VCLT Article 6: Every State possesses capacity to conclude treaties
iv) Article 7 oI VCLT Full powers: describes who has Iull powers to sign treaties and
bind the State (and iI how they act seems to say that they have Iull powers, then they
are authorized to sign Ior this purpose)
(1)A person is considered as representing a state for the purpose of adopting or
authenticating the text of a treaty or for the purpose of expressing the
consent of the state to be bound by a treaty if.
(a) He produces appropriate full powers, or
(b)It appears from the practice of the states concerned or from other
circumstances that their intention was to consider that person as
representing the State for such purposes and to dispense with full
powers.
(2)In virtue of their functions and without having to produce full powers, the
following are considered as representing their state.
(a) Heads of state, heads of government and Ministers for Foreign
Affairs, for the purpose of performing all acts relating to the
conclusion of a treaty.

(b)(c) representatives accredited by the states to an international

conference or to an international organi:ation or one of its organs,
for the purpose of adopting the text of a treaty in that conference,
organi:ation or organ.
v) hat iI the representative Ior the state signed the treaty did not have the authority?
(1)Article 8 of VCLT Subsequent ConIirmation oI an Act PerIormed without
Authorization: iI a person who is not authorized signs a treaty, then aIter the
treaty is signed, the state has to conIirm the treaty
(a) Act relating to conclusion of a treaty performed by person who
cannot be considered under Article 7 as authori:ed to represent State
for that purpose is without legal effect unless afterwards confirmed
by State
d) hat about oral agreements between two countries? VCLT does not speak to verbal
agreements only speaks to a speciIic subset oI binding agreements that are in writing
i) Oral agreements are also enIorced (intent is the key)
ii) Purpose oI the VCLT is essentially like the statute oI Irauds (i.e. iI it was so
important, then it should have been written down)
iii)Gentlemen's Agreements why do countries enter into them? Sometimes a country
will want something that is more inIormal to use it as an experiment to see iI
something is going to work, or iI the State is not sure that it is going to work then an
inIormal agreement will not have the long-term eIIect oI being binding iI it Iails
6) Legally Binding v. !olitically Binding diIIerence comes down to the ways in which claims are
to be made and disposed
a) Politically inding: iI a state breaches, then there will be political consequences, but not
necessarily any claims can be brought against the country
i) All treaties are mostly politically binding
b) egally inding: under international law, iI state breaches a treaty the state will Iace some
type oI claim Ior that breach (i.e. there are consequences Ior a breach)
i) Forum becomes an issue because it might be hard to Iind a Iorum where the state
can eIIectively assert their claim
7) Treaty Default Rules (according to the VCLT)
a) Treaties are assumed to only have prospective eIIect, not retroactive
i) II the states want there to be retroactive eIIect, it must be written in
ii) Retroactive EIIect VCLT itselI is a treaty, so technically it applies prospectively
(1)Does it have any eIIect on old treaties (most treaties were signed prior to
1969?)
(a) YES created legal Iiction so as to apply to ALL treaties (even the
old ones). hy? VCLT was essentially just "restatement" oI
customary international law on law oI treaties (so there's nothing
new!)
b) hen a State signs a treaty, it is assumed that it will be applied throughout the entire
territory oI the state (i.e. iI the US signs a treaty, then it applies to all the states within the
US)
i) In US, between period oI signing and ratiIication US is not bound by all rules oI
treaty but are not allowed to do anything that would go against main point oI that
treaty
c) VCLT only applies to States there is an additional treaty that deals with agreements
between states and international organizations and agreements between international

organizations
8) Interpreting Treaties
a) mportant ssues #egarding 1reaties
i) Interpret the treaty in good Iaith cannot use a tortured interpretation to make your
case
ii) hen interpreting:
(1)Use the ordinary meaning oI the words in the text (Iind the plain meaning oI
the word and that is going to the applicable meaning)
(2)Look at the related and subsequent agreements
(3)Try to determine the meaning through context
(4)Look Ior speciIically deIined terms in the treaty
(5)Can also look at the preparatory work Ior meanings
b) Modes Used to Interpret a Treaty
i) Textualist: rely on text oI treaty itselI |majority oI treaty interpretation is textualist|
ii) Intentionalist: relying on the intent oI the parties
iii)Purposive: tries to construe treaty with its overall objective and purpose give it a
reading that will square it with the purpose oI the states
c) Treaties and the UN Charter iI there is disparity between what the treaty says and what
the UN charter says, the UN Charter governs
9) Coerced Treaties treaties can have no legal eIIect iI they have been signed under coercion
a) Article 51 of VCLT: person signing the treaty has to be the one who was coerced
i) %he expression of a states consent to be bound by a treaty which has been procured
by the coercion of its representative through acts or threats directed against him
shall be without any legal effect.
b) Article 52 of VCLT: treaty is void when it was signed by threats that are in violation oI
principles oI international law
i) ust be a general sense oI Iear that something will happen
ii) %reaty is void if its conclusion has been procured by the threat of force in violation
of the principles of international law embodied in the Charter of the United Nations
10)Terminating a Treaty
a) VCLT Article 42 validity and continuance in Iorce oI treaties
i) %he validity of a treaty or of the consent of the State to be bound by a treaty may be
impeached only through the application to the present Convention
ii) %he termination of a treaty, its denunciation or the withdrawal of a party, may take
place as a result of the application to the provisions of the treaty of the present
convention. %he same rule applies to suspension of the operation of a treaty.
b) enunciation: when a party says it will no longer be bound by the treaty (bilateral treaties)
note: in multilateral treaties, its reIerred to as "withdrawal"
i) The procedure Ior ending the treaty is set in the treaty (i.e. how it will occur) it
may give speciIic right to a signatory to denounce
ii) Denunciation and ithdrawal VCLT Article 56 treaty which contains no
provision regarding its termination and which does not provide for denunciation or
withdrawal is not subfect to denunciation or withdrawal unless (a) it is established
that the parties intended to admit the possibility of denunciation or withdrawal, or
(b) right of denunciation or withdrawal may be implied by the nature of the treaty ...
c) reac: when party breaks its responsibility under treaty (not Iormal denunciation oI the
treaty)
i) Customary International Law (prior to VCLT) iI one party breaches any obligation

under the treaty, then the other party has the right to terminate the treaty
ii) Termination or Suspension oI the Operation oI a Treaty as a Consequence oI Its
Breach VCLT Article 60 the non-breaching party can only decide to terminate
in the Iace oI a breach oI the treaty only iI the other party has materially breached
an objective or purpose oI the treaty (speciIically linked). The non-breaching party
may also allow Ior suspension oI the treaty beIore it is terminated in order to allow
Ior things to work out (iI it doesn't, then the treaty can be terminated)
(1)Material Breach of a bilateral treaty ... entitles the other to invoke the
breach as a ground for terminating the treaty or suspending its operation in
whole or in part
(2)Material breach of multilateral treaty ... entitles
(a)other parities by unanimous agreement to suspend the operation of
the treaty in whole or in part or to terminate it either (i)in relations
between themselves and defaulting state, or (ii) as between all
parties
(b)party specially affected by the breach to invoke it as a ground for
suspending the operation of the treaty in whole or in part in relations
between itself and defaulting state
(c) any party other than the defaulting State to invoke breach as a
ground for suspending the operation of the treaty ... if ... material
breach of its provisions by one party radically changes the position
of every party with respect to further performance of its obligations
under the treaty
(3)Material breach of a treaty ... consists in.
(a)Repudiation of the treaty not sanctioned by the present Convention,
or
(b)Jiolation of a provision essential to the accomplishment of the obfect
or purpose of the treaty
d) Suspension: two ways to suspend a treaty
i) aterial breach by another party
ii) "Fundamental Change" (rebus sic stantibus) where the underlying Iacts oI the treaty
that makes the treaty necessary does not make sense anymore and the treaty should
thereIore be suspended
e) RUDS |Reservations, understandings and declarations|
i) Reservations: in multilateral treaties, one State signs onto an agreement but
reserves as to a part oI it (essentially reIuses to accept one or more oI the treaties
provisions claiming that particular clause or part oI clause will not apply to that
state)
(1)Does not really occur in bilateral treaties - no point in having it in there
(2)EIIects oI Reservations other states have two options:
(a) The other parties can accept the reservation: the treaty is in Iorce but
modiIied as to the reserved portion (the reserved portion doesn`t drop
out completely unless the reserving state decides to drop the portion
completely)
(b)They can reject the reservation, and iI it chooses to do so it can
accept the reserving party: the treaty is in Iorce except Ior the
reserved portion (he reserved portion drops out completely)
(c) They can reject the reservation and the reserving party: there is no

treaty relationship
(d)Note: iI a state is silent as to another state's reservation, then the
silent state is deemed to have accepted the reservation (Article 21(3))
(3)Functions oI Reservations
(a) Sometimes a state puts in a reservation when it believes that one
clause is lousy, but its going to sign onto the treaty anyway
(b)Usually has to do with domestic politics and not really international
politics (state knows treaty as written would not be accepted
domestically)
(4)Note: treaties will usually list clauses that a state is not allowed to reserve to
iI the state wants to get out oI those clauses then they should not sign the
treaty
(a) hy? Usually these clauses are the ones that the states consider as
primary importance
(5)VCLT Article 20:
(a) A reservation expressly authori:ed by a treaty does not require any
subsequent acceptance by the other contracting States unless the
treaty so provides.
(b)hen it appears from the limited number of the negotiating States
and the obfect and purpose of a treaty that the application of the
treaty in its entirety between all the parties is essential condition of
the consent of each one to be bound by the treaty, a reservation
requires acceptance by all the parties
(6)VCLT Article 21:
(a) A reservation establishes with regard to another party (modifies for
the reserving State in its relations with that other party the
provisions of the treaty in which the reservation relates to the extent
of the reservation, (b) modifies those provisions to the same extent
for that other party in its relations with the reserving state
(b)%he reservation does not modify the provisions of the treaty for other
parties to the treaty inter se.
ii) Understandings: state explains at time oI signature what it understands some oI the
key language to mean
(1)Ex. "we understand that deIinitions oI torture is what we know in US as
cruel and unusual punishment under constitution"
iii)Declarations: things that state wants the others to know about when it signs on
(1)Ex. "In eIIect, this treaty is non-selI executing and there are no domestic
causes oI action in US courts based on this"
iv) Issues with RUDS -
(1)Limits on RUDs
(a) Cannot do anything that would go against object oI treaty (main
purpose)
(b)Cannot reserve/derogate a jus cogens norm
(2)!roblems with RUDs
(a) ith RUDs, states are essentially not taking on any new
responsibilities
(i) Counter Argument: by putting in RUDs, make it clear to the
remaining signatories that state is taking treaty seriously and

make sure they're signing onto what they have to and not
something they cannot Iollow
(b)Any advantage to RUDs?
(i) Sometimes make treaty more Ieasible to be passed
domestically
(ii)Treaties cannot be backdoor to changing constitution (RUDs
allow them to sign onto treaty and in eIIect change domestic
law but not Constitution)
(c) Idea: greater "eIIect" iI you sign on with RUD (shows you're taking it
seriously) compared to just signing onto treaty without them (shows
you're not taking it seriously and whole thing is worthless piece oI
paper)
(3)Monitoring Body set up through UN to monitor treaty compliance (i.e.
Human Rights committee); asks Ior periodic reports Irom states about
compliance and allows Ior grievances and diplomatic discussion to resolve
problems
(a) Remember: monitoring body is not controlling but states can give
them deIerence to look at things and report back
11)hen a State cannot have a signed treaty invalidated
a) Article 45 oI VCLT Loss oI a Right to Invoke ground Ior Invalidating, Terminating,
ithdrawing Irom or Suspending the Operation oI Treaty: state losses the right to
invalidate when they have (1) expressly agreed that the treaty is valid or it remains in Iorce,
(2) by reason oI conduct it is considered as having acquiesced
i) A State may no longer invoke a ground for invalidating, terminating, withdrawing
from or suspending the operation of a treaty ... if, after becoming aware of the facts.
(a) it shall have expressly agreed that the treaty is valid or remains in force or
continues in operation ... or (b) it must by reason of its conduct be considered as
having acquiesced in the validity of the treaty or in its maintenance in force or in
operation...
(1)!roblem: Unequal treaties there are treaties between states where there is
a vast disparity oI power smaller states have brought up that issue, but
overall it has been rejected as a grounds Ior invalidating a treaty. This could
easily become a 'get out oI treaty card to allow states escape their
obligations when something doesn`t go according to plan.
CY!RUS CONFLICT
1) Facts: 1878 Turkey transIerred Cyprus to the US and both Turkey and Greece signed a treaty
accepting British rule over Cyprus. Cyprus wants to be independent in 1960. The population is
80 Greek Cypriot and 20 Turkish Cypriot. Unrest occurs Greek Cypriots are upset Iirst
(claiming that they gave up too much), there is civil unrest, peacekeepers and the UN come in, and
in 1974 there is a Greek engineered coup and the result is that Turkey invades and holds the
northern 3rd oI the island
2) Agreements entered into
a) asic $tructure Agreement: set out the new constitution Ior Cyprus and also set out a
certain balance oI power between the Greek and Turkish Cypriot communities as well as
recognizing certain minority rights
b) Treaty of Guarantee: Greece, Turkey, U and Cyprus (parties to the treaty) Cyprus
agrees to respect new constitution (respect basic structures and promises made within
constitution), while the other three countries agree to respect Cyprus' independence,

territorial integrity and security oI Cyprus as well as the basic structure (so Cyprus gets all
the beneIits oI sovereignty)
c) 1reaty of Alliance: Cyprus, Greece and Turkey (parties to the treaty) all agree to good
and Iriendly relations between them
3) Issue Authority to Sign a Treaty treaty was signed on behalI oI Cyprus by two individuals
(akarios and utchuk) who were not heads oI state (because there was no state) but were selected
as representatives did they have the authority to bind the state?
a) Greek Argument they were not leaders and Cyprus was not yet a state as the VCLT
requires
b) Turkish Argument should be considered heads oI state
c) Result: state practice Ior the years Iollowing did not indicate any objection on the power oI
these two on signing on, and they were both elected as president and vice president
4) Issue - Coerced Treaties
a) Cyprus argued: coercion in signing the treaty and the treaty was really unequal and unjust
("sign or Iace the consequences" they had to sign or they would not get sovereignty)
b) Turkey's Argument: everyone had to give something in order to get something (essence oI
compromise)
5) Issue - Military Intervention
a) Turkey's Argument: under Treaty oI Guarantee, they had a right to military intervention
their nationals were being killed and they have a right to intervene (Nationality principles)
b) Greece and Cyprus' Agreement:
i) Fundamental norm oI international law oI sovereignty and lack oI use oI Iorce (non-
intervention)
ii) Treaty prohibits the use oI Iorce
iii)Under UN Charter, 103 iI there is a conIlict between the UN charter and any
other treaty, then the UN charter has precedence UN charter does not allow Ior
intervention
iv) Turkey has other options other than using military Iorce in order to get what they
want
c) Arguments against Turkey's reading
i) II the parties meant "military action" they could have written it in (but maybe there
is an intentional gray area here because they knew the treaty would not be signed
otherwise)
ii) Goal is to have a uniIied Cypriot community iI the other countries are allowed to
intervene militarily, then that goes against the purpose oI the treaty
iii)Context oI the clause it does not make sense to establish a treaty and then allow
one party to step-in unilaterally
6) Issue - Terminating the Treaty
a) Under Article 56, Cyprus does not have a valid ground Ior denouncing the Treaty oI
guarantee because by its nature (i.e. created sovereignty) it does not make sense that they
should simply just be allowed to denounce it
b) Breaching the Treaty
i) Argument against Turkey: they breached the treaty because they allowed the
military incursion
ii) Argument against Greece: they breached Iirst because they supported a coup and got
rid oI akarios, and since they breached Iirst, Turkey could terminate the treaty and
do what they want


III. 1US COGENS

1) hat is jus cogens? Basic norms oI the international system that are so Iundamental that States are
unable to contract or treaty oI (i.e. slavery). Cannot escape the norm simply by writing a new
treaty.
a) Underlying norms trump what the treaty says
b) Ex: Intervention by Turkey into Cyprus would have oIIended a jus cogens norm (i.e. no
military intervention)
2) hy do we need jus cogens? Forms the baseline without it we could not have an eIIective
international law system, state could just do whatever they want and there would not be any order
a) Counterargument against Jus Cogens: iI two states just want to do something, why shouldn't
they be allowed to contract out oI it?
i) Response: under contract theory, cannot have a contract that goes against public
policy
3) Common Jus Cogens: nonintervention, "agreement must be observed"
4) VCLT Article 53: A treaty is void if, at the time of its conclusion, it conflicts with a peremptory
norm of general international law. For the purposes of the present Convention, a peremptory
norm of general international law is a norm accepted and recogni:ed by the international
community of States as a whole as a norm from which no derogation is permitted and which can be
modified only by a subsequent norms of general international law having the same character.
5) VCLT Article 64: If a new peremptory norm of general international law emerges, any existing
treaty that is in conflict with that norm becomes void and terminates.

IV. CUSTOMARY INTERNATIONAL LAW
1) hat is Customary International law? It is the result of a general and consistent practice of
states followed by them from a sense of legal obligation
a) Composed oI two elements:
i) State practice (objective component) understanding why a state is acting the way
it is
(1)How do we determine state practice? Look at documentation, public
comments made by oIIicial representatives oI the states, result oI
codiIications (i.e. International Law Commission), studies done and whether
or not States were asked to put in their thoughts (provides part oI what state's
view is)
ii) Opinio 1uris (subjective component) may be inIerred Irom circumstances, but
essentially it is like a state oI mind (i.e. mens rea)
(1)How do we determine iI State Ieels obligated? Look at statements oI states
(but state's rarely do that) |could be circumstantial evidence that State is
doing something out oI sense oI legal obligation|. Can also look to what
judiciaries have said (can view judiciaries as speaking authority oI laws that
govern state and iI rules have been applied as legal obligation, then that can
be used as evidence)
(2)Becomes important gets to question oI why states do what they're doing
2) ho's bound by customary international law? Every state unless persistent objector when rules
are formed
a) How to persistently object? ords and Deeds!
i) Statements in public bodies renouncing the rule ("I am not voting, I do not view this
as law and I am not bound")
ii) Treaty that goes against the rule

iii)Break the law (TRICY but showing that State has done it beIore may help!)
b) Criticisms
i) UnIair against new states because they do not have the opportunity to persistently
object don`t have an opportunity to send representatives to various meetings
where they can object persistently
ii) Undemocratic because people Irom the outside are attempting to impose ideas onto
people within the state that have not been able to vote and decide on them
iii)Favors Large States that can Iield large numbers oI lawyers and diplomats that can
respond to changes in the system and disIavors those smaller states that cannot get
their acts together and cannot Iight the rules
3) Issues to Consider
a) To what extent can something like a treaty be used as an example oI customary
international law?
b) Can there be regional customary international law (i.e. within just Europe, or Latin
America)
4) Cases analyzing Customary International Law
a) Paquete Habana Iishing vessel had been seized during the Spanish-American ar. Court
Iound that under customary international law civilian ships that are unarmed and not
engaged in any activities against another sovereign should not be seized during a time oI
war.
i) EIIect oI Customary International Law on reaching this decision
(1)State Practice analysis through history (examined treaties and letters
stating proposition that these Iishing vessels should not be subject to
capture)
(2)Opinio Juris court looked at evidence that some actors involved thought
there was legal obligation not to capture Iishing vessels (i.e. admiral's
activities) and general acceptance through passage oI time suggests that
countries had maybe started it because oI selI-interest (Ior their own beneIit)
it has hardened into an idea that this is the way States are supposed to act |all
based on court's inIerence that there is opinio juris|
ii) Criticisms
(1)Using "custom" but only based on the activities oI 4 European countries
(a) Response: there were only a Iew States with navies so can really only
look at those countries to Iind custom
(b)orld community was not that big at the time
(2)Over a period oI 350 years, only Iound limited number oI examples
(3)Inverse proportionality: number oI states versus time in terms oI getting
something to become a custom courts do not want there to be a short
amount oI time with just a Iew states, but may be more willing to accept it as
customary international law iI there are large number oI states in a short
amount oI time
b) Expropriation Cases: dealing with issues when a government takes the property oI a
subnational entity and has not properly compensated that entity/individual
i) $O Iran-US Claims Tribunal (dealing with claims that arose out oI the
Iranian revolution). Issue is determining the standard oI compensation.
(1)"uestion oI Compensation two standards:
(a) Full Compensation: prompt, adequate, eIIective. Immediate and Iull
value oI your investment that is gone

(b)Appropriate Compensation: measured in light oI all circumstances

oI the case, and assessed with unjust enrichment as a guiding
principle. Adequate as the assets are in the company and whether
there has been unjust enrichment
(2)State Practice: tribunal looked at various sources to make the determination
(a) Lump-sum payments unpersuasive because there are other
considerations present
(b)Bilateral Investment Treaties better than payments because at least
there are treaties that states are bound to BUT States are still
motivated in part by politics
c) UN General Assembly !rovision 1803 (customary international lawapproved by US):
nationalization expropriation or requisitioning shall be based on grounds or reasons oI
public utility, security or the national interest which are recognized as overriding purely
individual or private interests, both domestic and Ioreign. In such cases the owner shall be
paid appropriate compensation in accordance w/ the rules in Iorce in the state taking such
measures in the exercise oI its sovereignty and in accordance w/ international law. Have to
use state measures iI there`s a controversy, and go international only iI state agrees.
i) 1OPO: alleged expropriation by Libya where Libya nationalized the oil company's
assets. Issue is whether or not there is customary international law based on the UN
General Assembly Resolutions
(1)Dupuy Iocuses on the evidentiary aspect oI the States who voted Ior or
against the various resolutions (look at the context matters how the states
that would be creditors voted and how the ones that would be taking in
imports voted)
(a) Not about the number oI states that votes, but the breadth oI States
(b)For evidentiary purposes, it's better when there is a more diverse
subset oI relevant states voting in Iavor oI a particular resolution
(2)Critiques
(a) How do we deIine the "relevant subset" and "relevant actors" it
essentially leaves it up to judge to make the determination and its too
easy Ior the judge to get it wrong
(b)United state practice in one area is more evidence oI customary
international law rather than one-sided state practice
(3)UN General Assembly !rovision 3171: states have an aIIirmative right to
resources. Nationalization makes the resources part oI sovereignty. Each
state gets to determine the amount oI compensation and mode oI payment
and all disputes are to be addressed according to the state laws.
(4)UN General Assembly !rovision 3281: it reiterates what was said in 3171.
Right to nationalize and expropriate. State decided what appropriate
compensation should be.
5) Using Treaties as evidence oI customary international law treaties can be used as evidence oI
customary international law but only under certain circumstances (i.e. need to show general state
practice and that this state practice exists because states Ieel they are legally bound to do so)
a) Consider:
i) Issue oI the persistent objector whether or not the State that didn't sign the treaty
can be seen as a "persistent objector" and is thereIore not bound
ii) II the treaty is narrowly tailored then it is poor evidence oI customary international
law

b) ConIlicts between treaties and pre-existing conIlicts

i) General Rule: subsequent agreement will prevail over a preexisting custom, unless it
is a jus cogens norm
(1)Normally assume that an agreement will supplement the custom instead oI
superseding customary international
ii) II treaty is signed and states later undertake general practice that conIlicts with
treaty iI parties intend to set up new relationship and act in that way, they can
establish new norm that could become customary international law and supersede a
treaty
6) Anthea Robert's Ideas on Customary International Law
a) Old Conception v. New Conception of Customary International Law
i) Old View: state practice (issue oI the large number oI states Irom the relevant
subsection in an acceptable amount oI time) and opinio juris |standard view|
ii) New View: does not look much at state practice, but at opinio juris and how the
states are acting in relation to any legal obligations they think they have
b) Instant Custom: iI States do certain things, they can get to a point oI having customary
international law without having a long state practice to back it up
i) Problem: makes the persistent objector argument hard because the custom is
"instant" (how can States say they've been objecting?)
c) Aspirational v. Actual (comes up in the context oI human rights treaties): a lot oI times,
States can sign nonbinding agreements or binding agreements Ior political reason and then
do not conIorm their practice in any way
i) Criticism: States are signing it Ior political reasons and that takes away the whole
identity oI customary international law
ii) DeIense: puts states on notice and serves as a warning that all the States will be held
to it (gives "teeth" to a lot oI agreements States have made beIore)

V. SOFT-LAW
1) What is Soft Law? Norms that are not legally binding and signed by states or non-state actors
(normally not enIorceable in the judicial court) set up coordinated activities that depending on the
circumstances and how they are viewed may evolve into customary international law
a) Attempt by multiple actors to set up a norm amongst themselves is not legally binding
b) Arguments FOR: it is very Ilexible since there is no binding law
c) Arguments AGAINST: there is no real predictability (not sure who is Iollowing the norm);
there might not be any speciIic recourse iI someone is not Iollowing; it is ambiguous
d) Is it a copout to call this "law"? It is law because it might be in the process oI becoming law
(it is a norm that is on the road to becoming law)
e) States can also sign "soIt law" prior to negotiating a treaty because it is a chance to test-
drive what they want treaty to say without much cost (iI its successIul then it can be made
into treaty)
2) hat happens iI it is broken? Can be sanctions (i.e. embarrassment) iI state breaks norms
3) Example oI SoIt Law: Soccer balls were being made by child labor. FIFA and domestic soccer
associations pledged not to allow soccer balls made by child labor to be used in international
tournaments. It set up expectations of who is protected under labor situations if States were
involved, it could turn into customary international law if the States followed general practice, and
could also be turned into a treaty
4) Expropriation and SoIt Law: international rules governing compensation
a) orld Bank is trying to come up with some kind oI statement as to what the state oI the law

is Survey was conducted to Iind out what the diIIerent treaties, conventions etc have said
in order to make "guidelines"
i) Deals with:
(1)Foreign Direct Investment company or state invests in another country Ior
purpose oI actually running business (ex. Nike chooses to build plant in
Indonesia its direct investment because Nike is concerned with running
that investment)
(2)PortIolio Investment indirect way oI being compensated (ex. buying stock
oI something in another State and then just getting the dividends)


ACTORS IN INTERNATIONAL LAW

I. STATES
1) Sovereignty: there is debate as to what really makes up sovereignty some people think oI it as
"whole" or "broke" (i.e. like a ball) while other think that it is akin to a deck oI cards (i.e. can deal
out cards to someone else or collect Ior various reasons)
a) Not a necessary or appropriate external attribute Ior the abstraction called a "State" nor is
it the appropriate term or concept to deIine the relation between the abstraction and its
counterpart abstractions (other states)
b) eep in mind: there is no higher decision maker than the State
c) Autonomy: not reliant on anyone else and no one else can decide internal aIIairs idea oI
"privacy" in domestic aIIairs (what happens in that country is essentially that country's
business and others are not supposed to come in and breach idea oI impermeability)
2) Methods of State Formation
a) Decolonization: when colonial power leaves its Iormer colonies and the Iormer colonies
become independent States
i) Ex. AIrican countries are a result oI decolonization; Latin America
b) Secession: break-oII a territory Irom a non-imperial state (iI it is an imperial state then it is
decolonization)
i) Note: NOT the same thing as succession (legal rights oI states)
c) Dissolution: when one state dissolves into two or more states and the Iormer state ceases to
exist
i) Ex. USSR
d) erger: creation oI a new state by the union oI two others can also be absorption oI one
state into another, or a merger oI two equal states
i) Ex. South Yemen North Yemen became Yemen
e) Absorption: where one state is absorbed into another
i) Ex. East Germany is absorbed into Republic oI Germany
I) Peace Treaties: states have also emerged Irom peace settlements aIter major wars |DON'T
ORRY ABOUT THIS|
3) Montevideo Convention on the Rights and Duties of States
a) Statehood a State in international law must have:
i) Permanent Population (needs to have a place where people are living there
permanently)
(1)Ex. Antarctica does NOT have a permanent population because there are a
lot oI people that live there solely Ior research
ii) DeIined Territory (some core territory that the state is at least the land located at X)
can be border disputes, just need the "core"
iii)Government (some authority is necessary) there is no speciIied government
(convention is silent as to the form oI government needed) but as long as there is a
ruler that has eIIective control over the territory it will meet the deIinition
iv) External Relations (capacity to enter into relations with other states) have to be able
to enter into the Iull canopy oI Ioreign policy in order to be considered a State
(1)Note: it is acceptable Ior some countries to allow their larger neighbors to
run their Ioreign relations ex. onaco has its Ioreign policy run by France
v) |Not Iormal requirement| Intent (must make claim that they are a state and want to
be viewed as such)
(1)Do not have to be recognized as a State (i.e. Taiwan is not a "state" because

they do not want to be recognized as such, but can still enter into
agreements)
vi) Note: whether or not a state meets the criteria is basically determined by whether or
not the other states believe that it meets the criteria
b) Generally: iI an entity acts like a State and can Ieel the type oI power that a State has, they
will oIten be treated like a State (but not always)
c) Issues oI Recognition do not conIuse the issue oI recognizing a government with that oI
recognizing the existence oI a State
d) US States: do NOT meet the criteria and cannot be called "States" because they do not have
the ultimate sovereignty needed (i.e. there is an entity higher than them that makes
decisions)
i) BUT the Vatican is viewed as a State it barely passes the criteria in the
Convention, and was created via treaty
4) Self-Determination: by virtue oI this right they Ireely determine their political status and Ireely
pursue their economic, social and cultural development (right oI people to govern themselves)
a) In past, selI-determination was not issue idea oI terra nullius ("empty territory") oI
colonies where people were treated as resources, and colonial powers did not see their
sovereignty
i) European Powers viewed that they were protectors oI land and they had a legal right
to the land oI the people they took over could keep/transIer/sell the land without
having to worry about what the native population thought
5) Two types of self-determination
a) nternal self determination what we would understand in the US as being a combination
oI civil rights within that political participation and minority protections. II you are within
a country and that country gives you real civil rights and be Iree Irom persecution, ability to
speak your language and educate your children, keeping your culture, political
participation, then you have selI determination. This is what you have a right to
b) ternal self determination ability to actually start a new state. This is highly
controversial.
c) Aaland slands Sweden ceded Finland (and the Aaland Islands) to the USSR, aIter the
revolution Finland gained independence Irom Russia.
i) Role oI International Law: it involves international law because they're dealing with
the transition oI Finland (where Finland is stepping out to become an independent
state)
(1)Domestic Law could play a part in the decision iI its about a minority
group Iighting Ior better rights within a State (because oI the principles oI
sovereignty, other are not allowed to interIere)
ii) Tribunal: selI-determination is not customary international law it is not a positive
rule among the law oI nations (there is not enough state practice)
(1)Rule: in order Ior secession, need to prove Iairly serious/extreme problem
like persecution
iii)Deals with external self-determination (secession) vs. internal self-
determination (minority rights)
(1)Solution: rather than allow them to split oII Irom Finland, provide Ior
minority rights within the state that takes into account their heritage |internal
selI-determination|
d) Changing view oI "people":
i) 18th Century "people" was the citizens oI a particular nation-state

ii) Decolonization (and Aaland Islands) "people" becomes the inhabitants in a

speciIic territory (problem: because oI the way that empires were set up,
determining "people" did not Iollow logically)
iii)Today "people" is determined by ethnicity
e) here does the principle oI selI-determination come Irom?
i) UN Charter Article 1 develop Iriendly relations among nations based on
principles oI equal rights and selI-determination
ii) UN Charter Article 73 ember oI the UN which have or assume responsibilities
Ior the administration oI territories whose people have not yet attained a Iull
measure oI selI-govt. recognize the principle tat the interests oI the inhabitants oI
these territories are paramount . to this end:
(1)To ensure, w/ due respect Ior the culture oI the people concerned, their
political, economic, social and educational advancement, their just treatment
and their protection against abuses
(2)To develop selI-govt., to take due account oI the political aspirations oI the
people, and to assist them in the progressive development oI their Iree
political systems
iii)UN General Assembly Resolution 1514 (1960) all peoples have the right to selI-
determination
(1)"People" all residents oI state, ethnic, religious or linguistic group (not
clearly deIined)
(2)Burden is on states to justiIy what they're doing rather than on people Ior
what they want
iv) UN General Assembly Resolution 2625 territory oI a colony under the charter oI
the UN, has a status separate and distinct Irom the territory oI the state
administering it and the separate status shall exist until the people exercise their
right to selI-determination
(1)Note: people stay in this area until they decide to exercise their right to selI-
determination and independence
I) alkan risis Implications
i) II the state is in dissolution, brings up problems oI what to do with the "goodies" the
Iormer state had and who gets them (i.e. Seat at the UN, votes at the UN and other
organizations)
ii) SelI-determination is moved into the realm oI minority rights (jus cogens and
preemptory norms no one can get out oI it)
iii)Uti possidetis furis. territorial integrity and not changing state (colonial boundaries)
do NOT get to change them
(1)II we can just say that boundaries are up Ior grabs, then lose the point oI
selI-determination and what we're trying to achieve
(2)Automatically Iavors certain claims, and disIavors claims where people
cannot point to a time when they had boundaries elsewhere
(3)Focus: not wanting the world to turn into "microstates"
(4)Tension between uti possidetis and selI-determination
iv) ovement away Irom idea oI external selI-determination (states breaking up) and
view protection oI minority rights as the solution
v) Bright line Rules Ior Secession
(1)II there is protection oI minority rights in the country the group is in, or iI
they can reach that point realistically, then there is NO claim to secession

(2)II the group cannot point to a time when they belonged to another state
historically, then they cannot break oII
(a) Ex. urds cannot point to a historic "urdistan" so its hard to make
the argument under Uti Possidetis that they should have their own
state
6) Recognition recognizing another State's existence. Legal importance oI recognition becomes
melded with political intentions oI the states
a) Two views on recognizing a state
i) eclaratory Jiew: political act and is irrelevant to whether or not a state actually
exists (consistent with state practice)
(1)Recognition is purely a political act that States undertake Ior a variety oI
reasons, Ior example to show support Ior a new state, but it is irrelevant Ior
the legal determination oI statehood.
(2)ontevideo Convention Article 3 (political existence oI the State is
independent oI recognition by the other states)
ii) onstitutive Jiew: recognition is part oI statehood
(1)Regardless oI the satisIaction oI objective criteria, a claimant to statehood is
not itselI a state until it has been recognized by others
(2)Opposition smaller states do not like this view because oI the Iear that they
need the O oI other states beIore coming into the international system and
do not want statehood to be held up by it
b) EU Guidelines on Recognition oI New States
i) There are 5 requirements to Iorm a state Changed the game: now requires that
there be a democratic government and Ioreign relations have to respect certain
things in order to be recognized as a State
ii) Other views oI the "changes"
(1)Didn't change recognition but made out rules Ior countries they want to
"play with"
(2)As a legal matter the deIinition oI statehood has not changed, but Ior the
European States aIIected, they tweaked recognition to Iit their requirement
by having main trading partners require these things
c) Recognizing a government is diIIerent Irom recognizing the state
7) State Succession legal rights oI states
a) Issues: how will the new state be aIIected by the predecessor states?
i) Treaty Obligations
ii) International Organization membership
iii)Disposition oI state assets and state property
b) Two approaches
i) Clean Slate: State arising out oI transIormation comes out like a new baby NOT
bound by treaties
(1)Course oI action that severs all links between the new state and the old one
(2)New State would assume none oI the rights, obligations, memberships,
assets or debts oI the predecessor State
ii) Continuity: each successor State is considered bound by treaties and obligations oI
the pre-existing State
(1)New State assumes all rights and obligations oI the prior state, all its
memberships in international organizations and some pro rata share oI its
assets and debts

c) Two Tests in Succession |majority oI states have no signed onto either view|
i) Vienna Convention on Succession of States (VCSS) (oIten invoked as a
statement oI international law)
(1)Rule: States are bound unless they otherwise agree
(2)Article 34 separation oI parts oI States: states created through secession or
other separations are BOUND when a state or new state Iorms Irom the
predecessor state, treaties remain in Iorce except Ior certain circumstances
(a)(1)hen part or parts of the territory of state separate to form one or
more states, whether or not the predecessor state continues to exist.
(i) (a) Any treaty in force at the date of the succession of states
in respect of the entire territory of the predecessor state
continues in force in respect of each successor state so
formed,
(ii)(b) Any treaty in force at the date of the succession of States
in respect only of that part of the territory of the predecessor
state which has become a successor state continues in force
in respect of that successor state alone
(b)(2) Paragraph 1 does not apply if.
(i) %he states concerned otherwise agree, or
(ii)It appears from the treaty or is otherwise established that the
application of the treaty in respect of the successor State
would be incompatible with the obfect and purpose of the
treaty or would radically change the conditions of the
operation.
(3)Article 16 new states that were previously colonies are NOT bound:
(a) A newly independent state is not bound to maintain in force, or to
become a party to, any treaty by reason only of the fact that at the
date of the succession of States the treaty was in force in respect of
the territory to which the succession of states relates.
(4)Article 11 Boundary Regimes: succession oI states does NOT aIIect
boundaries
(a) A succession of states does not as such affect.
(i) (a) A boundary established by a treaty, or
(ii)(b) Obligations and rights established by a treaty and
relating to the regime of a boundary.
(5)Article 35 position oI state aIter separation oI part oI its territory: treaties
that were in Iorce Ior predecessor state stay in Iorce Ior the predecessor state
(a) hen after the separation of any part of the territory of a State, the
predecessor state continues to exist, any treaty which at the date of
the succession of States was in force in respect of the predecessor
state continues in force in respect of it remaining territory, unless
(i) %he states concerned otherwise agree,
(ii)It is established that the treaty related only to the territory
which has separated from the predecessor states, or
(iii)It appears from the treaty or is otherwise established that the
application of the treaty in respect of the predecessor State
would be incompatible with the obfect and purpose of the
treaty or would radically change the conditions for its

operation.
(6)Note: Colonies are not bound because want to encourage their independence
and allow them to start clean (also they had no say in what the state signed
onto originally anyway, so its unIair to make them bound)
(7)Ultimately discourages secession because all the obligations are in place
ii) Restatement 210 (closer to the clean slate principle)
(1)Rule: when part oI a state becomes a new state, it does not succeed to the
prior states obligations not bound unless you explicitly or implicitly (by
actions) agree to be bound
(a) (1) hen part of the territory of a state becomes territory of another
state, the international agreements of the predecessor state cease to
have effect in respect of that territory and the international
agreements of the successor state come into force there
(b)(2) hen a state is absorbed by another state, the international
agreements of the absorbed state are terminated and the
international agreements of the absorbing state become applicable to
the territory of the absorbed state
(c) (3) hen part of a state becomes a new state, the new state does not
succeed to the international agreements to which the predecessor
state was party, unless, expressly or by implication, it accepts such
agreements and the other party or parties thereto agree or
acquiesce.
(2)hy is it set up this way? Academics wrote it not necessarily the same
people who had a sense oI what the state's interests are (they made a
judgment call as to what the law should be)
d) Succession oI the states oI the USSR what happens to the rights and obligations oI the
new states Iollowing the break up Ior the
i) Alma Ata Declaration:
(1)International Obligations: new States were going to be bound view that
international obligations are theirs and they're going to make sure that the
rules are Iollowed
(2)Seat at UN: decided and negotiated amongst themselves that Russia was
going to get the seat in the UN
ii) Contrast to the break-up oI Yugoslavia in the SFRY situation the new "States"
could not agree on what to do (they were in the midst oI the war as they were
separating out) so there wasn't the negotiations and Iormal declaration like in the
USSR situation

COLONIES STATES VIA SECESSION
VCSS Not Bound (Article 16) Bound (Article 34) discourages
secession
Restatement Not Bound (3) Not bound

BALAN CRISIS AND YUGOSLAVIA
1) Facts: three entities (Bosnia, Slovenia, Croatia) were claiming that they were sovereign states aIter
the state oI SFRY was called into question
2) Issue of Secession: there is question as to whether these groups were previously independent
a) Considerations was there any history oI abuse? Is SFRY really dissolving or are these

three areas merely seceding? (presumption against secession)

3) Badinter Commission
a) Opinion 1: what constitutes a state? Problem: SFRY may not be a state anymore
i) II it has not dissolved, then it is an issue oI domestic concern (i.e. these groups want
to be separated out)
ii) Do not want it to be viewed as dissolving because oI the other implications who is
going to get all the rights iI SFRY is no longer in existence? (i.e. seat in the UN,
votes in other organizations etc)
iii)Result: there is no SFRY because it is not controlling anything (the internal organs
have stopped working), it fell apart and the constituent parts dont recogni:e it as a
central government. %here is no SFRY fust separate entities within a given
territory.
b) Opinion 2: about ethnic populations do they have a right to selI-determination?
i) SelI-determination oI inority Rights now a preemptory norm oI international
law (jus cogens) and States cannot get out oI aIIording those protections
ii) Any rights to selI-determination must NOT involve changes to existing Irontiers (uti
possidetis)
iii)Result: Serbian minorities are entitled to all the rights accorded to minorities under
international law. %his means they can choose their nationality. It could mean they
were dual nationals, be viewed as a distinct entity within the already existing state.
%his does not mean you can have your own state. Serbs have a right to self-
determination but NO% their own state.
c) Opinion 3: territorial borders
i) Boundaries in dispute were not Irontier boundaries but were administrative
boundaries imposed by SFRY to maintain order, and cannot change them (principle
oI uti possidetis)
ii) Result: extends uti possidetis juris to dissolving states not only decoloni:ing states.
Also Serbian cause is hurt by the fact that like the Kurds they cannot point to a
historical moment when they had a separate Serbian state, so they are not entitled.

II. INTERNATIONAL ORGANIZATIONS
1) hat are International Organizations?
a) ain Characteristics
i) Participation: International Organizations range Irom global (UN, TO) to
something that is regional (EU, TO, IF) or even sub-regional
(1)UN Charter Chapter 8 talks about regional arrangements. Common
agreement determines iI something is regional
ii) Issues: ranges Irom general/broad issues (UN, EU) to something that is issue
speciIic (orld Intellectual Property Association)
b) !urpose: international organizations are crated to Iacilitate cooperation between
governments and other international actors.
2) Commonalities among International Organizations
a) International Court of 1ustice dispute resolution dealing w/ UN charter and other
treaties. Has no power to establish tribunals.
b) Constitutive Instruments the core documents (membership, dispute resolution, voting)
i) International organizations are usually created by treaties Ex. UN charter
c) Assembly of Members every State that is member oI organization belong to organ that
includes all members and deals with broad policy questions and they can discuss

periodically what is going on

i) ajor role oI international organization is information sharing
ii) Ex. UN General Assembly
d) Specialized and Executive Organs made up oI a subset oI the membership not
everyone is within the specialized organ at all times (oIten have specialized decision-
making power)
i) Ex. UN Security Council
e) Economic and Social Council in charge oI various commissions.
I) Trusteeship Counsel deals w decolonization and historical things
g) Secretariat proIessional staII that is headed by a secretary general or director the
international bureaucracy within the organization that keeps the international organization
up and running and make sure that decisions being made turn into actual policies on the
ground
i) They Iorward the work oI the organization, NOT the work oI their home country
3) hat is the importance oI international organizations?
a) Advantages to joining
i) Common interest
ii) Bargaining power one oI the reasons the EU came together EU as a whole can
be a Iormidable market as opposed to one consisting oI individual states
iii)Binding power can bind other states to act in a certain way
(1)Ex. TO: States join the TO because they want to know that other parties
will not tax goods above a certain amount
iv) inimize "Iree-rider problem" and attempt to minimize one entity Irom overusing
the good
b) Disadvantages to joining
i) Binding power look at the US and the UN right now with regard to Iraq.
ii) Squabbles over rules and legal issues (such as the credentials debate during the
South AIrica apartheid issue)
4) Game Theory series oI assumptions on how people make decisions and modeling what the
responses are
a) !risoner's Dilemma: two co-conspirators are each in diIIerent interrogation rooms and are
being interrogated. Do they save themselves? Or do they stay silent and protect each other?
i) Outcomes
(1)II you do not know what you're partner is going to do, tendency is to squeal
(both get punished)
(2)II both cooperate and do not say something, then they're in a position that is
paredo superior (both sides would be better oII)
ii) Importance this model motivates a lot oI Ioreign policy when State's do not
know what the other country is going to do, they tend to do what is right Ior them
(because iI the State cooperates and the other deIects, then they would get screwed
in the end!)
iii)How do we get States to move Irom "punishment" to "reward" (paredo superior)?
(1)Factors to keep in mind
(a) History with the other (sense oI how they're going to act)
(b)SpeciIic discussion/negotiation prior to the situation
(c) Reward Ior cooperation (give them something extra)
(d)Communication during the crisis
(e) Extra punishment iI the state deIects

(2)Treaties can Iunction to help move Irom punishment to reward: history, prior
negotiations, communication, and punishment all play a part in treaty
Iormation
b) Tragedy of the Commons: everyone is a Iarmer and there is only a certain amount oI
grass. II everyone holds down how much they can graze, then everyone will be better oII,
but the more you send your sheep out the better it is Ior yourselI.
i) Temptation becomes to deIect everyone is IearIul that the other is going to send
more sheep out to graze)
ii) Result: total collapse
iii)How do we prevent the collapse? International organizations are set up to help with
this situation Irom regional groups to global groups we can see how the
international groups play against each other based on the prior agreements that they
made (Iacilitate activity)
5) Legal Personality oI International Organizations
a) Scenario: normally States can get reparations Ior an injured citizen under a claim oI
espousal. Do International Organizations also have this legal personality to sue that is
separate and distinct Irom the states?
b) Reasons to allow Ior legal personality oI organizations
i) II the delegate is Irom a weak state, that State may not be able to provide enough
protection Ior the delegate to do the work he needs to do, so the organization legal
personality provides an added security
ii) EIIiciency Concern iI the organization wants to be able to get things done, then
the delegates shouldn't be concerned with how he is going to be protection and he
wouldn't otherwise be willing to do his job
c) ernadotte Case advisory opinion about reparations Ior injuries suIIered in the service oI
the UN (Swedish mediator blown up in Israel). The decision determined that the UN had
legal personality to sue on behalI oI those individuals who suIIered while working Ior the
UN.
i) Implications not every international organization is going to have a legal
personality it will depend on the duties oI the international organization, what it
needs to IulIill those duties and then applying the certain personality it needs
ii) %o ensure the independence of the agent and consequently the independent action of
the international organi:ation itself, it is essential that in performing his duties he
need not have to rely on any other protection then that of the organi:ation
iii)Organi:ation must be deemed to have those powers which, though not expressly
provided in the Charter, are conferred upon it by necessary implication as being
essential to the performance of its duties
6) United Nations
a) UN Charter Article 23: the Security Council shall consist of 15 members of the UN.
Permanent China, France, USSR/Russia, UK, USA. %he General Assembly shall select
10 other members of the UN to be non-permanent members of the Security Council. Non-
permanent members shall be elected for a term of 2 yrs.
b) UN Charter Article 24: in order to ensure prompt and effective action by the UN, its
members confer on the SC primary responsibility for the maintenance of international
peace and security, and agree that in carrying out its duties under this responsibility the SC
acts on their behalf.
c) UN Charter Article 25: the members of the UN agree to accept and carry out the
decisions of the SC in accordance with the present Charter.

d) UN Charter Article 27: (1) each member of the SC shall have one vote, (2) decisions of
the SC on procedural matters shall be made by an affirmative vote of nine members.
e) Breakdown oI the UN
i) Secretariat (lead by )
(1)OIIice oI Legal AIIairs in-house council Ior the UN also advice the
Secretary General as to broader issues oI international law
ii) General Assembly
iii)Security Council
(1)embers: 5 permanent members |US, U, Russia, France, China| and 10
others rotate on
(a) Non-permanent seats allocation: 3 to AIrica, 2 to Asia, 2 to Latin
America, 2 to estern Europe and other states, and 1 to Eastern
Europe
(2)In order to pass a resolution need 9 YES votes and no vetoes
(3)Only organ within the UN that can pass resolutions and bind all the members
(4)ReIorm oI Security Council countries like Japan, India, Nigeria, Germany
and Brazil want to get some type oI permanent seat or what there to be
change in the Iormation oI the Security Council
(a) Problem: usually a competitor in that region that will not let it
happen
I) Note:
i) Legal System within UN ICJ is the main body Ior dispute resolution BUT there
are tribunals that are set up to deal with particular issues
(1)Other tribunals are not adjuncts oI the ICJ, but oI the Security Council
(2)Chapter VII oI the Charter Chapter VII Tribunals iI there is a threat to
peace, their decisions can bind the other members oI the UN with a policy
announcement
(a) Criticism: these tribunals are only responsive to the needs oI the
permanent members oI the Security Council
ii) Committees within General Assembly numbered and deal with speciIic matters
(1)Ex. 6th Committee deals with codiIication oI international law and all the
issues that deal with that)
iii)Specialized Agencies (under economic and social council) deal with speciIic issues
(1)Problem: oIten see themselves as separate Irom the UN and problems arise
because oI conIlicts that occur
(2)Ex. orld Bank and the IF
7) Apartheid
a) nternational onvention on te $uppression and Punisment of te rime of Aparteid
i) Article I: the States Parties to the present Convention declare that apartheid is a
crime against humanity and that inhuman acts resulting from the policies and
practices of apartheid and similar policies and practices of racial segregation and
discrimination.are crimes violating the principles of international law
ii) Article II: for the purposes of this convention, the term 'the crime oI apartheid`
shall apply to the following inhuman acts committed for the purpose of establishing
and maintaining domination by one racial group of persons over any other racial
group of person and systematically oppressing them.
(1)Denial to a member or members of a racial group or groups the right to life
and liberty of person

(2)Deliberate imposition on a racial group or groups of living conditions

calculated to cause its or their physical destruction in whole or in part
(3)Any legislative measures and other measures calculated to prevent a racial
group or groups from participation in the political, social, economic and
cultural life of the country and the deliberate creation of conditions
preventing the full development of such group or groups
b) UN Charter Article 33: calls on all states whose disputes might create international
Iriction to settle them by peaceIul means, oIIering an illustrative list oI techniques:
i) Negotiation: direct discussion b/w the parties
ii) Enquiry: neutral Iact-Iinding by a 3d party
iii)ediation: 3d party attempts to bridge diIIerences with its own proposals and
possibly incentives
iv) Conciliation: a combination oI enquiry and mediation
v) Arbitration: a binding solution devised by a 3d party
vi) Judicial settlement: a binding solution devised by an international court
vii)Resort to regional agencies or arrangements

South Africa and Apartheid
1) Facts: South AIrica was still using Apartheid and there was concern in the international
community about it. The UN tried to deal with the situation as an international organization
2) Issue relationship between the UN general assembly and the security council (highlights decision
making power in the UN)
3) General Assembly Resolution 616B written broadly but was intended to be aimed at South
AIrica and tell them to conIorm to the norms that are part oI the charter as everyone else agrees
they have not been
a) Because its written broadly, it can also be applied to many other states (so now everyone,
not just South AIrica is swept up by it)
b) Advantages: written broadly to mediate the conIlict/problem as its more oI a political
document about trying to get states in conIormity with principles oI UN. Also serves as a
warning that the other states recognize that something is wrong.
c) Disadvantages: no speciIic penalty or enIorcement action is expressed. Doesn't say who did
what wrong so the reaction Irom every state can be "it's not me," nor is it speciIic about the
norm being broken
4) Security Council Resolution 134 written speciIically at South AIrica
a) ey language: Recogni:es that the situation in the Union of South Africa is one that has led
to international friction and if continued might endanger international peace and security
i) "Peace and security" is a red-Ilag strengthens the Security Council's power to
issue binding enIorcement measures when this threat occurs so then they can get an
enIorcement measure against that State
ii) Highlights the power oI the Security Council to determine enIorcement measures
the General Assembly doesn't have that much power
5) General Assembly Resolution 1761 written speciIically at South AIrica deploring the
determined aggravation oI racial issues by enIorcing measures oI increasing ruthlessness involving
violence and bloodshed.reaIIirms that these actions continue to endanger 'international peace and
security
a) ey Language: Requests Member States to take the following measures, separately or
collectively, in conformity with the Charter, to bring about the abandonment of those
policies.

i) Breaking diplomatic relations with the Government of the Republic of South Africa
or refraining from establishing such relations
ii) Closing their ports to all vessels flying South African flag
iii)nacting legislation prohibiting their ships from entering South African ports
iv) Boycotting all South African goods and refraining from exporting goods, including
all arms and ammunition to South Africa
v) Refusing landing and passage facilities to all aircraft belonging to the Government
of South Africa and companies registered under the laws of South Africa
(1)What is the problem w/ resolution 1761? This resolution 'requests states
to do it. This is a general assembly resolution which is not binding. This
was passed but it doesn`t require anything oI the states.
6) Security Council Resolution 181 is a little harsher then GA Resolution 1761, the SC can do
more and can 'dictate to the states
a) ey Language: solemnly calls upon all States to cease forthwith the sale and shipment of
arms, ammunition of all types and military vehicles to South Africa.
i) This is still just a request. It is not binding b/c it is not under Chapter VII. The SC
can decide whether they want to make something legally binding.
7) South AIrica's Ability to sit in the UN discussion surrounded whether or not they can sit at the
UN even though they're not meeting their requirements to conIorm to the principles in the UN
charter
a) ho should get to decide? Security Council had the ultimate vote and vetoed the General
Assembly's decision to revoke credentials so South AIrica sits
8) Importance shows the interplay between the General Assembly and the Security Council there
is a lot oI political will when it comes to sanctioning and there is going to be diIIerent results based
on who gets makes the decisions

III. NON-STATE ACTORS (NON-GOVERNMENTAL ACTORS)
1) hat are NGOs? Group oI individuals united to advocate a particular agenda on the domestic or
international stage
a) New actors in international law and have caused the most change
b) Types oI NGOs
i) NGO the group
ii) Corporation
iii)Individual
iv) States oI the United States
(1)Examples: Greenpeace, FIFA
c) What can NGOs do?
i) nowledge making and knowledge dissemination good at research studies and
getting the inIormation out to the public
ii) $pecialization can Iocus on a particular issue and bring it to the Iore-Iront
iii)Ability to Organize can get together other like-minded interests and use that to
Iorward a particular point oI view
iv) obbying meeting with oIIicials who can eIIectuate change
(1)How can they assist governments? Not always in conIlict with government!
Can Ieed great deal oI inIormation to government policy makers
(relationship oI give-and-take)
v) onsultative $tatus NGO is able to go and consult in an international Iorum it a
non-voting position, but can bring people into the Iorum oI international law when

they might not normally have that opportunity and help with the negotiation and
preparation oI any Iinal documents, resolutions or agreements
2) Are NGOs good or bad?
a) Positives
i) Can mediate between states that might not be able to get along and work with them
ii) ay have a deeper knowledge on a topic/issue
iii)You can get to a bigger source oI experts
iv) Gateway to networking w/ other experts and other sources oI inIo
v) "Voice in the wilderness" know what everyone else says/Ieels, bring a diIIerent
point oI view
vi) Outsider viewpoints/increased public participation and cosmopolitan viewpoints
(views that transcend the view oI just one state)
b) riticisms
i) Too many voices at the table (can increase disagreements)
ii) Because oI their specialization may make extreme claims (miss the political
realities governments have to deal with)
3) Accountability who do NGO's have to answer to? They have to answer to the people that Iund
them
a) Two groups oI donors:
i) Average ember (dues paying member)
ii) Large corporate (or government) Iunders
(1)Problem: iI NGO is doing something the corporation does not like, they run
the risk oI losing a great deal oI Iinancial support and occasionally the
Iundraising scope oI the NGO will aIIect their programs and views
b) Result there is oIten a "hybrid" when NGOs act where they're advancing the views oI the
people/issue they represent but also have to keep their donors happy
4) airo onference on Population and EIIect oI NGOs
a) ain Concern demographics, but NGOs helped move the Iocus towards how to
prevent/holdback overpopulation
b) How did they achieve the shiIt?
i) Organized other women's groups to have a united Iront on issue
ii) Domestically lobbied governments Ior changes and support remind politicians that
they will need the members` vote (retail politics)
iii)Chose the most contentious issues ("pick your battles") managing the message
sideline the radical view because radical vies aren`t persuasive
iv) Talked to other States to gain support
v) Built relationship with international organization Ior support
vi) Provide model texts that delegations can choose to use or not to use
5) States of the United States as NGOs
a) Issue: how do we justiIy American conceptions oI Iederalism with American conceptions oI
nationalism and what eIIect does that have in Ioreign aIIairs and international law?
i) eep in mind the powers oI the Iederal executive in comparison with powers oI the
states (how the Iederal treaty making power aIIects them both)
b) assacusetts urma ase A wrote a law saying that they will not do business or
contract with companies that do business in Burma
i) Issue: are they allowed to do that?
(1)Article 27 of VCLT State is responsible Ior violations by a substate entity
(regardless oI the legality oI the action)

(2)Implication US Iederal government could be liable Ior A's law

ii) Constitutional concern: supremacy clause (all treaties shall be supreme law oI land)
iii)International Concern: does this law disadvantage Ioreign companies and go against
international trade law?
iv) hat is A argument? This is contracting practices issue we can chose with
whom we can contract or not, and we chose not to contract w/ them
v) Supreme Court A law hampered the President Irom engaging in Ioreign aIIairs
(since he was allowed to liIt all or some oI the sanctions iI improvements were
made in Burma). A law was a blanket denial and hampered the president's ability
to negotiate and it interIered with Ioreign relations
c) ivestment $tatutes and $out Africa iI investing in a company that does business with
South AIrica, will now divest and take money oI there and put it elsewhere
i) OIIice oI Legal Counsel (OLC in the Department oI Justice) Iound that divestment
laws were not constitutionally problematic because states were allowed to decide
where to invest money and here the primary eIIect was on US companies.
ii) hy was it ok?
(1)Not assessing the Ioreign government and not aIIecting the acts oI the
government, just talking about private companies (directed at private
enterprise)
(2)States moving their money around Irom one company to another will not
hamper the president in his negotiations with the Ioreign government
(3)Overall doesn't rise to level oI hampering Ioreign aIIairs
d) Analysis how do we determine iI a state is allowed to do this?
i) Are we aIIecting the President's power?
ii) Is it preempted by preexisting legislation by Congress?
iii)Is this law seen primarily about Ioreign aIIairs? Or is it about something else?
iv) Even iI there is an eIIect on Ioreign aIIairs, is there a sound business reason Ior it?


INTERNATIONAL LAW AND DOMESTIC LAW

I. US Constitutional Concerns
Main Issue. role of treaty making in US and looking at responsibilities of xecutive as opposed to
Congress, and to a smaller extent States.
1) Types oI "Agreements" US Can enter into terms "treaty" and "agreement" are diIIerent in the US
(have same international impact but are treated diIIerently under domestic law)
a) Under VCLT, "agreement," "covenant," "treaty" all mean the same thing and have same
legally binding eIIect
b) Types oI US "agreements"
i) Treaty: requires 2/3s oI advice and consent oI senate to ratiIy it and make it valid
ii) Congressional-Executive Agreement: majority oI each house oI Congress to make it
valid
iii)Sole Executive Agreement: does not require congressional participation at all
c) Tend to see certain types oI agreements go Iorward as treaties (arms agreements and
human rights) and others as congressional-executive agreements (i.e. economic and trade
agreements)
i) Reasons:
(1)Easier to get congressional-executive agreements (only need majority oI
both houses) and more democratic (more people have a say)
(2)High issues (i.e. military issues, diplomacy) require diIIerent attention than
low issues (i.e. business issues)
d) Interchangeability Thesis Ior the purposes oI US Iunctions, two routes oI treaties and
congressional-executive agreements are interchangeable
i) Idea: can take an agreement and go through either route
2) Constitutional Treaty Making !ower
a) Constitutional Provisions
i) Article II: president shall have the power by and with advice and consent oI 2/3s oI
Senate
ii) Article VI: treaties are supreme law of the land
b) Limits on using treaties to make law Rule: cannot use treaty to go beyond Constitution
or what Congress can do, and no agreement can conIer power to Congress or on any other
branch oI government
i) issouri v. Holland: treaty between U and US about migratory birds, states are
claiming an interest |10
th
amend states have right to regulate hunting/Iishing|.
Held: involves interest that can be protected only by national action in concert with
that of another power (transitory birds, Ied issue that states can`t resolve alone)
(1)Balance oI power between Ied government and states: in certain
circumstances, Ied power is greater and handle situations better. Congress
has some leeway in use oI treaties. Enumerated power can sign treaties on
a wide variety oI issues (nothing unconstitutional)
(2)O arg Congress can`t do this by treaty b/c it can`t do this by statute
ii) Bricker Amendments proposed because oI Iear that human right's treaties signed
onto by Iederal government would give Congress power to enacted domestic laws
beyond its power to do so. anted to give Congress power to review treaties beIore
making it domestic law and putting in provision that wouldn't allow something to
become law in the US iI it could not have been made law without treaty.
(1)Basic Ideas
(a) Cannot do by treaty but President isn't allowed to do by statute

(b)Congress can get greater authority over what executive signs onto
(2)Agreement was pulled "gentlemen's agreement" that US would not sign
onto any more human right's treaties either without Senate's consent or
without RUDs
iii)#eid v. overt: issue with conIlict between treaties/agreements and Constitution
wiIe who killed her husband was tried by court martial. Held: conIlict between
agreement and Constitution, and where there is conIlict the Constitution trumps
(even though both are supreme law oI land)
(1)hen there is a constitutional problem/conIlict, treaty cannot exist treaty
does not give government a "back door" to amend Constitution
(2)Treaties give us law oI land iI properly enacted
(3)Later in time statute will nulliIy an existing treaty. (p. 279) a later in time
statute will nulliIy a earlier in time treaty and vice versa.
iv) Note: not everything that is in treaty is applied abroad
3) NAFTA congressional-executive agreement between exico, US and Canada set up customs
and agreements, and deals with number oI issues (i.e. commerce, licensing, environment, labor
relations, trade, tariIIs, etc.) This is like a BIT b/w the 3 nations
a) Debates over NAFTA ProIessor Tribe:
i) ircular 175: list oI Iactors Irom State Department based on content and import
oI international agreements, some agreements should go Iorward as treaties
(1)Can do more with treaty than congressional legislation
ii) Cannot have constitutional breaches to make new constitutional law constitution is
what is and treaties/agreements cannot circumvent that
b) ade in U$A oundation v. U$: brought by NGO on whether or not NAFTA is
constitutional
i) Lower Court: passage through simple majority in two houses is all that is needed (so
NAFTA is constitutional)
ii) 11th Cir.: decided it was political question and nonjusticiable express grant to
Congress to regulate Ioreign commerce
(1)There is no text that tells us when something has to be treaty and there are no
judicially manageable standards to determine when agreement is signiIicant
enough to qualiIy as "treaty"
(2)Judges are concerned about not over-stepping limits: iI there is nothing in
constitution telling us what limits oI power are, then judges aren't able as
good at resolving disputes
4) !residential !ower to Make International Agreements ames & oore v. #eagan: issue oI
executive power through treaty power. Held: there was implied authorization Ior president, so
suspension oI claims out oI Iran Hostage Situation could be suspended by President (can read
Congressional statutes as "roadmap" in determining whether or not Congress gave President some
kind oI power)
a) Relationship between Presidential Power and Congressional Power (Steel Seizure Cases)
i) ) with approval oI congress (implied or expressed) in the same direction as
congress, there is a deIinite approval oI congress it is written (highest power oI
president)
ii) Zone oI Twilight (unclear as to congress intent, and we are Ialling back on
president`s power) unclear whether the president can act
iii)Congressional disapproval (going against congress). The president`s power is at its
lowest must rely on the powers given to him by the constitution

b) Note: in Ioreign policy matters, executives get a lot oI deIerence!

II. Relationship between International and Domestic Obligations
1) Relationship oI Treaties and Statutes iI there is a conIlict with domestic law and international
treaty what do courts do?
a) Charming Betsy Rule: iI there are two readings oI a statute (one in compliance with treaty
and one in contravention), then courts are to read it as in compliance with treaty
b) Later in Time Rule: the one that is passed last, governs
i) Domestically the later in time rules
2) Vienna Convention Issues and Domestic Situations
a) reard Breard was a Paraguayan citizen who committed murder and was not told his
rights under the Vienna Convention. He was later executed.
i) VCCR (Vienna Convention on Consular Relations)
(1)Gives right oI notiIication that detainee has right to speak to consulate
(2)Consulate is supposed to be told that US is detaining their citizens
ii) Supreme Court: bases decision in procedural deIault, Breard raises his claim too
late. Additionally, AEDPA (Antiterrorism and EIIective Death Penalty Act) was
passed aIter VCCR so it should trump
iii)Letter to State Governor Irom Secretary oI State: asking governor to stay execution
"with great reluctance" concern about eIIects on US citizens elsewhere.
(1)Appreciating Reciprocal: need to respect these rights in US because there is
overall beneIit in making sure same rights are respected by other countries
when it involves US citizens
iv) hat is the harm oI Breard not being told that he can contact the consulate and not
telling the consulate that he was detained?
(1) lived in an immigrant enclave and had no understanding oI his rights.
(2) was acculturated the he would not have gotten on the stand saying he was
under a satanic curse under the evil eye. Paraguay says that they could
bridge the cultural gap. He didn`t understand US law and procedure, and the
consequences oI taking the stand in criminal procedure.
%heme. Consider the relationship of federal executive to executives of state. did
federal government do all it really could to stop execution?
4 The president could have stepped in to prevent the execution, instead a letter
was sent 'requesting a stay oI execution. VA governor wasn`t about to put
his ass on the line in this hotly contested issue iI the president wouldn`t stand
behind this.
b) aCrand dispute between US and Germany about execution oI two German Nationals.
Germany brought it to ICJ. Ruling: Iailure to notiIy deIendants oI VCCR rights violated US
obligations under the treaty; procedural deIault rule (not allowing claims) also violated
treaty and could not be used as a bar |can`t use iI Irustrates VCCR|; provisional measures
created legal obligation Ior US
c) Avena ase and exico v. US concerned about 51 exican Nationals beIore US courts.
exico wanted the cases retried, but ICJ knew never going to happen, so ICJ pushed Ior
US to reconsider and review these claims.
i) US review and reconsideration: puts in place a clemency board operating under
governor, so prisoners can petition board Ior review. II there is a VCCR violation, it
is leIt up to board to take that into consideration and then grant/deny clemency
ii) . hy clemency? These proceedings are not bound by procedural deIault not an

operation oI the courts, it is a decision under the proclivities oI the governor.

iii)ICJ says not good enough needs to be a judicial process b/c this is a matter oI
right and not a matter oI courtesy. These people have the right to have their VCCR
rights being heard. Another answer has to be Iashioned that uses judicial
proceedings or US would be in breach.
iv) as the ICJ correct in telling the US what to do? One arg is that the US signed the
VCCR and the Optional Protocol agreeing to have ICJ as the Ct in deciding
violations. Counter-arg procedural rights oI arresting state are superior and should
be used (Breyer dissent) BUT iI there is a problem w/ the domestic law then the
international laws would trump.
d) Osvaldo 1orres Case Concurrence:
i) Decision must be based on giving Iull Iaith and credit to treaties and any
interpretations ICJ is authorized to make. e have to respect the language oI the
treaty (pacta sunt servanda the ag will be respected).
ii) Doesn't make ICJ a "super-court" but treats it as an administrative agency and gives
deIerence to its decisions (i.e. they are experts and to certain extent, going to give
them ability to decide certain issues)
e) edellin ase (25)
i) Issue: whether domestic Ct must apply the reasonable decision oI the Avena case;
whether the US Ct should apply as a matter oI comity (courtesy) the decision oI
Avena
(1)US Arg: It is up to the president to decide whether or not to comply w/ the
ICJ Avena decision. Congress and President already decided and interpreted
the language, and now we need to apply it.
(2)President has the power in Ioreign aIIairs, this is a Ioreign aIIairs issue and
not primarily a judicial issue, then this is a political " and has nothing to do
w/ the judicial branch.
I) edellin ase (28)
i) Issues: 1) role oI ICJ judgments, do they control domestically; 2) did the president
have the power to issue the memo? (2008)
(1)SelI-executing: Able to have immediately have some domestic application
(2)Non selI-executing treaty: requires some subsequent act oI congress in order
to have aIIect.
ii) How do we decide whether it is selI-executing? Clear-statement rule: there has to be
a clear statement that it is selI-executing.
iii)!resident`s Memo: decision that cts have to give comity to the 51. S Ct: Pres can`t
convert a non selI-executing treaty, into a selI-executing treaty, only congress can,
and until it does so, Ct can`t disregard the existing laws on this. Pres reps US b/I UN
and ICJinternational arena, not unilaterally create domestic law. Foreign Power:
Pres` memo not supported by longstanding practice oI Congressional acquiescence.
3) Norm Portals when you have international law on one side and domestic law on the other, then
things like VCCR and Optional Protocol is a way to get international norms into domestic matters.
a) hen you Iind a portal you start to have litigation, then you have an increase oI litigation
when you Iind this successIul.
b) One oI the things to think about the bigger game being played and what is the point. The
Cts are being used to inIuse international law into domestic law.

III. Relationship between International and Domestic Courts

1) hat is the relationship between international courts and US courts?

a) Two Views
i) onist international law is automatically part oI a state`s domestic legal system.
International law is superior to state law in case oI conIlict.
ii) ualist International and domestic law govern diII actors and issues. International
law governs relations among states, while domestic law governs relations between
the state and its citizens and among citizens. Each state determines Ior itselI
whether, when and how international law is 'incorporated into domestic law and
the status oI international law in the domestic system is determined by domestic
claw.
(1)Ex. decision in Breard emphasized this point
iii)Note: iI you want to bring international law into the case, want the judge to be in a
more monism type oI reasoning, but iI you do not want to bring in international law,
then you want to lead to dualism reasoning.
2) International Court of 1ustice (ICJ) no law enIorcement powers, but have other enIorcement
mechanisms: i.e. reciprocity, credibility, ability to Iorward matter to UN Security Council
a) Binding Issues are ICJ decisions binding on US Courts? No one in the US wants to
consider the ICJ a super-appellate court above the US Supreme Court where they could
control US law
b) In Breard
i) Paraguay: wanted ICJ to stop execution
ii) US: argued that ICJ cannot tell them what to do, just can determine what
relationship with Paraguay is
(1)State Department: ICJ provisional measures are not binding instead should
be viewed as "advice"
%heme. should ICJ decisions have domestic effects?
%heme. should provisional measures have domestic effects?
%heme. what do you need to comply with various obligations and who gets to decide if
there has been compliance?
3) PO Headquarters Agreement ase dealt with the headquarters agreement between the US and
the UN gave UN rights with regards to headquarters and the US not to interIere. UN invited PLO
to participate in UN and have an oIIice. US passed law requiring all PLO oIIices in the US be
closed
a) Court: 'The Charming Betsy Rule: (rule oI interpretation US rule) iI there is a later in
time statute conIlicting w/ an earlier treaty you assume that congress didn`t intend to cause
a treaty breach unless there is a clear statement that they wish to do so. hat you try to do
1
st
is to try to interpret the meaning oI the treaty and the statute so that the statute doesn`t
oIIend international law.
i) Step 1 apply the Charming Betsy rule and assume that unless there was an intent
to supercede then try to read them not. Step 2: iI however, it doesn`t seem possible
or there was a clear intent, then you apply the later in time rule
b) Result: Iound that the statute never mentioned the headquarters agreement or that it was
being enacted to supersede the treaty Congress has the opportunity to give clear indication
that it applied to the UN, but it missed it. ThereIore the treaty stays in Iorce
4) Anti-allistic issile $ystem (A) ssue treaty: restricted ability to develop or deploy AB
systems. In the 1980s, wanted to Iund research in strategic deIense initiative.
a) Article I: each party undertakes not to deploy ABM systems of defense of the territory of
the country and not to provide a base for such a defense

b) Article II: ABM system is a system to counter strategic ballistic missiles or their elements
in flight trafectory, currently consisting of` (a) ABM interceptor missiles, (b) ABM
launchers, and (c) ABM radars
c) Article III: permits each party to deploy, inter alia, ABM system to protect its national
capital
d) Article V: each party undertakes not to develop, test, or deploy ABM systems or
components which are sea-based, air-based, space-based, or mobile land-based.
i) Domestic Issue
(1)Senators: iI you develop any oI these systems, then you are breaching
(a) Biden Condition US shall interpret in accordance with views
shared by Congress at time oI ratiIication oI treaty (i.e. cannot ratiIy
it thinking it means X, and then Iind out later that it means Y). This
is a reassertion oI congressional authority, and the treaty is not giving
possibly secret understanding b/w the executive and the other treaty
powers, the understanding is open b/w the executive and the senate.
(2)Executive: AB only prevents developing technology talked about during
ratiIication, does not apply to new technologies
(a) Sofaer Doctrine hen the senate gives advice and concern and the
treaty, there may be other secret understanding about how the lang. is
to be interpreted, and that is ultimately what you are ratiIying and
that is what you are putting into eIIect. The interpretation oI treaties
is primarily the province oI the executive, it is only the executive
who knows what was going on in the negotiations room and what the
other parties expects this to mean.
(i) Senator Carl Levin: what is the importance oI the advice
and consent process iI the executive can redeIine the terms oI
a treaty at will? II we allow this administration to reinterpret
the AB treaty the Senate will have written itselI out oI the
treaty-making process altogether
e) eep in ind VCLT Article 31: treaty shall be interpreted in good faith, in accordance
with the ordinary meaning to be given to terms of treaty in their context and in the light of
its obfect and purpose
i) VCLT Article 32: Resource may be had to supplementary means of interpretation,
including the preparatory work if the treaty and the circumstances of its conclusion,
in order to confirm the meaning resulting from the application of Article 31, or to
determine the meaning when the interpretation according to Article 31. (a) leaves
the meaning ambiguous or obscure, (b) leads to a result which is manifestly absurd
or unreasonable
5) Alien Torts Claims Act (Alien Torts Statute) "window:" brings international law into domestic
law
a) hat is it? Originally passed as part oI the 1789 Judiciary Act "The District court shall
have original jurisdiction oI any civil action by an alien Ior a tort only, committed in
violation oI the law oI nations or oI a treaty oI the United States."
i) District Courts have original jurisdiction this is a Iederal action
ii) Elements:
(1)Any civil Action (NOT criminal proceeding)
(2)By an alien (not available to US citizen)
(3)Committed in violation oI law oI nations (has to be customary international

law or jus cogens)

(4)Note: involves someone acting under color oI state law
iii)Causes oI Action: ATS is primarily jurisdictional, but that doesn't mean causes oI
action do not stem Irom it
(1)Causes oI Action depends on what you could sue on under law oI nations --
not bound to speciIic claims under law in 1789 when ATS was passed, but
have to have same level oI certainty that it is a violation oI modern
international law as Iramers had when passing ATS
b) Law of Nations two descriptions:
i) Rule that dealt with governing relations between states (interstate relations)
(1)Tend to Iocus on executive and legislature
ii) Rules dealing with transnational/transboundary relations
(1)Tend to Iocus on judicial branch
c) 1udicial Caution when determining claims
i) Idea oI common law has changed
ii) Role oI courts have changed
iii)Creation oI private rights oI action is best leIt to legislature (not courts!)
iv) ATS can have an eIIect on Ioreign aIIairs
v) There is no congressional mandate to expand ATS (be careIul!)
d) Cases
i) ilartiga v. Pena Pena (Paraguayan citizen) had killed the son oI Filartiga and
was living in Brooklyn so the suit was brought in NY.
(1)Did Penas actions violate the law of nations? YES court interpreted
international law not as it was in 1789, but as it has evolved and exists today
and under modern law, torture is illegal under customary international law
(2)Result: US gets jurisdiction why?
(a) PlaintiII couldn't sue in Paraguay or in ICJ
(b)ith human rights, there's still international claim available look to
law oI nations Ior torture claims
ii) 1el-Oren v. ibyan Arab #epublic attack by PLO oIIicials that killed a number oI
Israeli citizens and some US and Dutch nationals in Israel.
(1)Bork Concurrence: NO CAUSE OF ACTION ATS gives furisdiction but
there is no cause oI action (cause oI action must be Iound somewhere else
such as a statute or in international law).
(a) Limited Role oI International Law
(i) Not regarded as tool oI Iirst resort nationals rely on
diplomacy and other political tools
(ii)Since it is use Ior diplomatic reasons, the one who controls
diplomatic relations (i.e. Executive) should be on to decided
when international law is or isn't invoked
(iii)Court should not Iind general causes oI action, because it
hurts and interIeres with Ioreign relations
(2)Edwards Opinion: claim would stand except Ior the Iact that PLO is not a
state and there needs to be a State actor (doesn't extend to NGO)
(a) ATS does give rise to a cause oI action
iii)$osa v. Alvarez-acain Alvarez was a doctor who supposedly had been used by
drug lord in exico who had been killed, he was sought by FBI and DEA and was
brought back to US. He used Sosa who was exican OIIicial who helped US in

getting him
(1)Cause oI action cognizance (not a cause oI action) but iI cause oI action
exists, this is where it resides
(2)Focused on both areas oI law oI nations (transactional actors and
relationships between states) because statute requires someone acting under
color of law
(a) Very narrow list to be considered under the law oI nations: violation
I saIe conducts, inIringement oI the rights oI ambassadors, and piracy
(b)What does the narrow list mean now? It has to be something
broadly accepted. CIL ATS is Ior the types oI torts which are as
important now as (piracy) were then. e need jus cogens, there has
to be no controversy around that. Something that is approaching jus
cogens, Iundamental broadly agreed international law.
(3)There are still some causes oI action you can sue under (even though its
primarily jurisdictional can inIer it Irom Congress)
(a) BUT has to be as widely accept as original claims in 1789
(b)Needs to be same level oI certainty that these are violations oI
modern international law
(4)Need to observe judicial caution in these cases!

IV. Act of State Doctrine
1) hat is the Act oI State Doctrine? Domestic courts should generally reIrain Irom judging validity
oI another state's sovereign acts taken within its own territory at the time oI suit, in the absence oI a
treaty or other unambiguous agreement regarding controlling legal principles even iI acts violate
customary international law
2) anco ational de uba v. $abbatino Act oI State is not a rule within US Constitution, nor rule
in international law (not required).
a) Find doctrine based on Iunctionality:
i) ReIlect the proper distribution oI Iunctions between judicial and political branches
oI government on matters bearing upon Ioreign relations
ii) Arises out oI basic relationship between branches oI government (essentially system
oI separation oI powers)
b) Rule: act oI state doctrine will protect a sovereign, unless there's clear and unambiguous
international law violation and then you do not apply doctrine
i) ith increasing codiIication, there is more and more oI role Ior judges
ii) Bernstein exception: iI the dept oI state weighs in and says that they don`t have a
problem using judicial power then the cts can step in. State dept can write a letter
relieving the ct Irom any problems in terms oI jurisdiction. Regardless as to what
the state dept says, the ct has its own obligation to see whether it will decide on an
issue based on these constitutional underpinnings.
3) $ irkpatrick v. nvironmental 1ectonics orp. |bribing govt. oI Nigeria| concern about
embarrassment oI executive branch and oI Ioreign countries involved.
a) Rule: judges have to presume validity oI Ioreign government acts, unless there is something
clearly showing otherwise
i) II there is question oI validity, it has be shown that it is not valid
ii) Act of state doctrine does not establish an exception for cases and controversies that
may embarrass foreign governments, but merely requires that in process of deciding
acts of foreign sovereigns taken within their own furisdiction shall be deemed valid

b) Note: doesn't overrule Sabbatino clariIies doctrinal points!

4) #epublic of Pilippines v. arcos whether arcos can use the acts state doctrine protection
aIter he was deposed. hen deposed lose the protection oI the acts oI state doctrine
a) Rule: the 'Acts oI State applies only to acts oI state and a sovereign has to provide
prooI/veriIication that his actions were acts oI state.
b) THIS IS NOT SOVEREIGN IUNITY!!!!!! DO NOT CONFUSE

V. 1urisdiction
1) Three Types oI Jurisdiction
a) 1urisdiction to !rescribe: state's authority or competence to promulgate law applicable to
persons or activities (typically exercised by legislative bodies)
i) Role oI domestic ct and whether or not they an regulate activities outside oI the state
b) 1urisdiction to Adjudicate: state's authority or competence to subject persons or things to
its judicial processes
i) hich Iorum gets to try the case? hether X can be tried b/I some ct.
c) 1urisdiction to Enforce: state's authority to induce or compel compliance oI its law using
judicial, executive or police action
2) 1urisdiction to !rescribe
a) ain Principle: territorial principle
i) Nation state has exclusive and absolute jurisdiction within its borders
(1)Related Assumption: domestic statutes only have territorial application
ii) States have no authority over what occurs in another state
b) How do we Iind jurisdiction Ior another state?
i) otus (rance v. 1urkey) French boat collides with Turkish ship where Turkish
passengers and sailors died (collision is Iault oI French oIIicer). He's detained in
Turkey.
(1)Court Iinds jurisdiction Ior both France and Turkey
(a) Ask whether international law prohibits jurisdiction (not iI it's
allowed)
(b)Issue oI eIIects: not whether or not it was in the territory, but whether
it affects the nation trying to get jurisdiction
(c) Nationality oI victim is not enough
ii) Note: people did not like decision in Lotus
(1)International aritime Committee: set oI "operating practices" (soIt law)
stating that iI there is crime at sea, it must be punished by laws oI Ilag vessel
(where crime occurred)
(2)1940 ontevideo ConIerence: applicable rules would be rules oI vessel on
which crime had occurred
3) Development of 1urisdictional
a) American anana: Iocused on territorial principle do not want to depart Irom territorial
principle because it would encumber executive and that would violate separation oI powers
i) Provides all actors with way to order actions and know about potential liabilities
ii) UnIair and unjust because actors do not know iI they were Iacing potential liabilities
iI laws were made extraterritorially (activities are organized based on local law)
iii)Avoiding interIerence: departing Irom territorial principle would be interIering with
how Ioreign country regulates activities within its borders (sovereigns would have
to worry about compliance with Ioreign laws)
iv) Everyone doesn`t mean in the world, just everyone regulated by US, not everyone

over whom we can have personal jurisdiction. Even though we can have personal
jurisdiction, this doesn`t mean we can regulate these companies (separating the
adjuratory and legislative jurisdiction).
v) Assumption that Congress intends the rules to apply only to US and not beyond the
US b/c there would be a problem w/ comity
vi) Separation oI powers iI we start to apply rules oI congress overseas there is a
problem w/ power oI the executive, the cts choosing to apply can cause problems
Ior the executive.
vii)The general and almost universal rule is that the character oI an act as lawIul or
unlawIul must be determined wholly by the law oI the country where the act is done
b) AOA: ("when can we have jurisdiction?")
i) EIIects Doctrine can be outside oI state's borders and even be a Ioreign national,
but iI there are eIIects in the country, then you are subject to liability in that country
(1)Need to intend to do something
(2)Needs to be actual intended aIIect
ii) Problems: goes back to problems oI unsurity (all arguments in Iavor oI territorial
principle are now used against eIIects doctrine)
c) 1imberlane: ("when should we have jurisdiction?")
i) Three pronged test
(1)EIIects (taken Irom ALCOA)
(2)Actual Injury to PlaintiII |do not worry about it|
(3)Balancing interests oI US and other country
(a) Degree oI conIlict w/ Ioreign law or policy: a very large conIlict
would be weighted to the side oI the other country (not US)
(b)The nationality or allegiance oI the parties
(c) The location or principal places oI business oI corporations
(d)The extent to which enIorcement by either state can be expected to
achieve compliance
(e) The relative signiIicance oI eIIects on the US as compares with those
elsewhere, to the extent to which there is explicit purpose to harm or
aIIect US commerce
(I) The Ioreseeability oI such eIIect,
(g)The relative importance to the violations charged oI conduct within
the US as compared with conduct abroad
(i) A ct evaluating these Iactors should identiIy the potential
degree oI conIlict iI US authority is asserted (diIIerence in
policy, nationality)
(ii)Having assessed the conIlict, the ct should then determine
whether in the Iace oI it the contracts and interests oI the US
are suIIicient to support the exercise oI extraterritorial juris
d) Hartford ire:
i) Test is there in Iact a true conflict between domestic and Ioreign law?
(1)No conIlict exists, Ior these purposes, where a person subject to regulation
by two states can comply with the laws oI both (you can`t comply with one
w/o breaking the other US law would be Iorcing you to do something that
is illegal in the other country and vice versa)
ii) Dissent
(1)Should assume territorial application oI law unless there is indication oI

otherwise
(2)Charming Betsy Rule try to Iind a way to read both together with same
meaning
(3)Based on reasonability does not make sense (no way states should be
allowed to regulate all over the place)
e) ain Analysis:
i) II there is no true conIlict regulation
ii) II there is conIlict Timberlane test (problem: these kinds oI cases are rare)
(1)Not clear whether it leads to regulation or not
I) mpagran ase: cts seem to be moving away Irom HartIord Fire and back towards
reasonableness and comity.
i) Test: ct should construe ambiguous statutes so as to avoid unreasonable interIerence
with the sovereign authority oI other nations and this rule oI construction reIlects
principles oI customary international law the law (ct must assume) Congress
originally seeks to Iollow.
g) ood Pulp ase: Comes Irom EC commission that wanted to regulate commerce as point
oI conduct. Conduct where it supposed to be not where the took place. The conduct took
place in the EC and so comes under EC jurisdiction
i) Conduct has 2 parts: there is Iormation and implementations. This was
implemented in the European Community.
(1)It is not just eIIects that washed on your shore, there needs to be speciIic
conduct that has to be Ioreseeable, deliberate and intended |direct,
substantial, and Ioreseeable|

Boeing-McDonald Douglas Merger
1) Facts: merger oI two aerospace companies (both are US companies). EU Iinds Iault with merger.
FTC went through investigation and Iound no violation oI anti-trust laws, and concluded that
merger would not cause substantial impact in airline industry. EU threatens consequences iI merger
goes through (i.e. would tax merged company and anyone who does business with it). In eIIect, the
consequences would make merger unviable.
2) Issues: can EU regulate this merger, since both companies are US companies?
3) Territorial Argument even though its legal where you are Irom, there's something wrong with
it, and EU wants to deal with it
4) How does it come out under diIIerent tests oI jurisdictions?
a) ALCOA: eIIect and intent companies are merging with intent to have eIIect on market
b) Timberlane:
i) EIIects (same analysis as ALCOA)
ii) PlaintiII's Injury |do not worry about it|
iii)Balancing Aspect stronger argument is Ior no jurisdiction because it is about two
US companies and US has greater interest since that comprises a large segment oI
US aerospace industry and while they sell certain portion to Europe (its not large
market!)
c) HartIord Fire: no true conIlict not Iorcing companies to break laws in either country, so
EU would be able to regulate it

4) Universal 1urisdiction (!rescriptive 1urisdiction)
a) Other Prescriptive Jurisdiction
i) Nationality Principle: states can regulate their own citizens, even when they are

abroad
ii) Protective Principle: security oI the state ability to regulate certain acts outside oI
borders because oI need to protect homeland
iii)Universal Principle: any state may exercise jurisdiction over an individual who
commits certain heinous and widely condemned oIIenses (even when no other basis
exists). Juris based on the act itselI even when there is no other nexus w/ the Iorum
(1)Jurisdiction is conIerred Irom the act alone (regardless oI who did it and
where)
(2)Theory: actor is enemy oI international community, so any state can bring
action
b) Historically applied to piracy (pirates were enemies oI all) made sense to have any state
capture pirate (only way to have eIIective response)
c) Today Universal Jurisdiction something else |our citizens were aIIected, something
happened on our soil "prosecute or extradite" any country that has someone within
their territory that has committed a crime has responsibility to either prosecute that person,
or to extradite that person to any other state that agrees to prosecute
i) Typically applied to terrorism (have many anti-terrorism conventions)
d) Problems:
i) Impunity how should one be punished? Can the rest oI community agree and
accept it?
ii) Political interIerence courts are doing more harm than good
iii)II everyone can enIorce it, then have problem oI interpretation (may not agree!)
5) Mechanisms to Try International Crimes
a) Universal Jurisdiction: Ioreign country tries deIendant Ior crime
i) Robust Idea read it into treaties and it is not explicitly written
ii) Treaty-based it is written in (terrorism or anti-apartheid mechanisms)
b) Domestic Court: place where crime took place
i) This is where universal jurisdiction may take a right away
c) Ad hoc Court: court set up speciIically Ior this problem Iunction oI security council
setting up court to deal with problem
d) International Criminal Court: permanent tribunal not set up Ior speciIic conIlict, but also
has ongoing general jurisdiction
i) Tribunal that state's parties have signed onto and whose jurisdiction they've
accepted
e) ixed Tribunals: specially set up Ior an issue have combination oI international judges
and domestic judges
i) ixes the judges and the law that is applied
6) Sovereign Immunity (adjudicatory) when are Ioreign states and nationals going to be immune?
a) Theories oI Sovereign Immunity:
i) Absolute teory: sovereign can`t, w/o his consent, be made respondent in the cts oI
another sovereign
ii) #estrictive mmunity: the immunity I the sovereign is recognized w/ re to the
sovereign or public acts oI state, but not w/ re to private acts
b) $cooner cange - in rem action to recover boat that has been changed into French
vessel. Held: cannot get the boat back (viewed as tied to sovereign itselI)
(1)Territorial Argument: ship is basically French soil and ct cannot decide what
happens
(2)Comity: we want others to respect that where there is US territory we want it

to be immune
(3)International Law in consensual: there needs to be some type oI consent in
order to have jurisdiction
(4)Could oIIend Ioreign sovereign to say that they have jurisdiction
essentially it is a diplomatic problem between two countries
(5)Rule: when sovereign enters into another country, keep their sovereignty
warship is extension oI sovereignty and it's oIIensive to sovereign to not
respect that. Any exemption haw to come Irom the jurisdiction itselI. II the
country agrees to jurisdiction, then you have it, iI not, there is no
jurisdiction. Private actors submit to the juris oI the country where they
arrives, sovereigns don`t.
(6)Cases that Iollow ( parte Peru and eico v. Hoffman) demonstrate the
shiIt between going Irom absolute immunity to an issue oI constitutional
interplay between executive and the courts
(a) Issue to extend jurisdiction do not do it unless have executive
permission
c) Tate Letters whether or not court can have jurisdiction (public v. private action)
i) Sovereigns are not always immune look at commercial activity
(1)Problem: commercial activity is not deIined
ii) Scenario: when suit is brought into court, seek Tate letter in which they seek
decision on whether or not it involves commercial activity and iI jurisdiction applies
(1)Problems: iI jurisdiction applies, deals with separation oI powers (executive
tells them they have no problem and can exercise jurisdiction)
(2)ill also overwhelm system, so State department needs a clearer method to
make determination
d) Foreign Sovereign Immunities Act (FSIA)
i) DeIault Rule: Ioreign sovereign gets immunity
ii) 1603(d) what is "commercial activity"? Either regular course oI commercial
conduct or particular commercial transaction or act
(1)Focus is on what was done not why it was done
(2)#epublic of Argentina v. eltover Argentina deIaulted on bonds and
unilaterally changed payment schedule and bonds were part oI package with
American banks to Iind a way to get countries out oI debt
(a) Commercial Activity: aIIecting loan repayment
(b)Direct EIIect: while it involved Argentina and can be viewed as
political act, place oI contract was in NY (payment place) direct
eIIect in US |example oI state taking on commercial activity|
(c) Purpose v. Conduct: the purpose was irrelevant, Argentina was a
market player, and there was an eIIect.
(3)$audi Arabia v. elson US national was whistle blower in Saudi hospital,
hospital calls the police on him and he is arrested and tortured.
(a) No commercial activity police power was used and that is only
something a country can do, so there is Ioreign immunity
(b)Criticism: hospital was the actor (called police) and that arguably is a
commercial entity
iii) 1605(a) a Ioreign state shall not be immune Irom the jurisdiction:
(1)aived its immunity either explicitly or by implication
(2)Action is based upon commercial activity carried on in US by foreign state,

or upon act performed in US in connection with commercial activity of

foreign state elsewhere ... or upon act outside US in connection with
commercial activity that causes a direct effect in the US
(a) Commercial activity carried in US
(b)Act carried in US in connection with commercial activity elsewhere
(c) Act outside oI US which causes direct eIIect in US
(3)xpropriation in violation oI international law
(4)Rights in property in US acquired by succession or giIt or rights
(5)here money damages are sought Ior personal injury or death (with
exceptions)
(6)Note: Iinancial eIIect is not enough to conIer jurisdiction alone
iv) How can we tell the difference between state acting as sovereign compared to
state acting in commercial activity?
(1)II government is acting more like reIeree, then they are immune
(2)II government is acting more like player, then they are not immune
v) What does FSIA apply to? hether or not FSIA applies to acts that occurred
beIore FSIA was enacted (issue oI retroactivity)
(1)Republic of Austria v. Altman Austria wants immunity because it is being
applied retroactively
(2)Language oI statute Congress' intent was to have FSIA apply to all claims
that came into US courts aIter application oI FSIA (including any claims that
occurred beIore FSIA came into eIIect)
(a) All claims are to be treated the same, regardless oI when they
occurred
vi) Terrorism and Immunity various statutes have removed sovereign immunity in
certain causes those countries on "state-sponsor oI terrorism list" can be sued Ior
an act oI state that might otherwise be viewed as government sponsored act and not
have to worry about the FSIA grant oI immunity (Cuba, Iran, Iraq, Libya, N orea,
Syria and Sudan. |Iraq and Libya are oII the list|)
(1)EIIects: enIorceability is a problem these States do not usually have assets
in US that can be attached, so when they're sued, plaintiIIs get paid Irom US
tax dollars
(2)ONLY Ior terrorist activities

Antares Case
1) Facts: NAA is airport authority owned by Nigeria. Antares leases plane to GA Air and they
deIault, the plane is impounded in Nigeria. NAA requires payment oI Iees owed in order to release
the plane
2) Issue: was there direct eIIect in the US?
3) Does it Iall within FSIA 1605 exception? NO there was no direct eIIect
a) Its more oI a tort claim than a contract claim and the place oI tort is Nigeria
b) Even though US company stands to lose money, there is no direct eIIect
c) Could still get jurisdiction iI there were substantial contacts in US, but that also Iails


INDIVIDUAL AND INTERNATIONAL LAW

Three main areas where individual rights come into international law |Human Rights;
International Humanitarian Law; International Criminal Law| and all three are interlocking
and overlap

I. Human Rights
1) hat are Human Rights?
a) Relationship between individual and society entitlement oI individual in relationship to
society as a whole, applied in peacetime and wartime
b) Negative Rights (ex. Bill oI Rights) Ireedom Irom something |i.e. Ireedom Irom
government|
c) Positive Rights (ex. more in Human Rights) Ireedoms Ior something, should be able to do
something or have right to something |i.e. right to work, right to economic development|
2) Three Generations oI Human Rights
a) Civil and Political Rights universal declaration and ICCPR (International Covenant oI
Civil and Political Rights) |least controversial|
b) Economic/Social and Cultural Rights ICESCR deals with right to Iood and right to
work; resource claims on society rather than immunity claims individual can have against
state
c) Right that Deals with Group Claims can be issues oI selI-determination, or other group-
related inquiries (i.e. cannot starve a population) |most controversial|
d) Note: these rights can also clash and overlap i.e. Expropriation is clash oI Iirst generation
rights (right to be Iree Irom undue inIluence oI interIerence with property) with third
generation (right oI people to be Iree to do what they want with their property)
3) Themes oI Human Rights
a) EnIorcement
i) "uestions to consider
(1)ho has standing to enIorce these rights? (state or individual)?
(2)here do they have standing? hen do domestic courts allow claims based
on international human rights? hat about international tribunals?
ii) In the US
(1)SelI-Executing Treaty: allows Ior right oI action in US based on itselI, and
becomes eIIective as part oI domestic law as applied by courts
(2)Non-selI Executing Treaty: requires legislation in US beIore claims can be
brought
b) Relationship oI human rights with other international obligations are these complaint with
one another? Are there things that in human rights that go against other obligations? Or
vice-versa?
c) Universality v. Culture Distinction
i) Argument: human rights is really a western conception oI rights and they're trying to
apply it to the larger international community
ii) hat about these people's culture?
4) ain Texts oI Human Rights
a) UN Charter
i) !reamble states the determination oI the people oI the N 'to reaIIirm Iaith in
international human rights
ii) Article 2.7 non-intervention clause states can`t intervene in the domestic activities

oI other states.
iii)Article 55: commits UN members to promote 'universal respect Ior, and
observance oI, human rights and Iundamental Ireedoms oI all
iv) Article 56: requires UN member states to cooperate in promoting human rights
v) Article 68: contemplated the Iormation oI a UN Commission on Human Rights to
conduct research on human rights and to draIt treaties and other instruments Ior the
articulation and promotion oI human rights
vi) How is it institutionalized in the UN?
(1)UN Human Rights Commission (Article 68: ongoing monitoring oI the HR
situation)
(2)Assigns general responsibility on human rights issues to the General
Assembly
(3)Committee on ECOSOC has direct responsibility
b) UDHR |Universal Declaration oI Human Rights| sets out what human rights are
i) Article 1: all human beings are born Iree and equal in dignity and rights
ii) Article 2: everyone is entitled to all the rights and Ireedoms set Iorth in this
Declaration, w/o distinction oI any kind, such as race, color, sex, language, religion,
political or other opinion, national or social origin, property birth or other status
iii)Article 4: everyone has the right to liIe, liberty and security oI person
iv) Article 5: no one shall be subjected to torture or cruel, inhuman or degrading
treatment or punishment
v) Article 7: all are equal beIore the law and are entitled w/o any discrimination to
equal protection oI the law
vi) Article 8: everyone has the right to an eIIective remedy by the competent tribunals
Ior acts violating the Iundamental rights granted him by the constitution or by law
vii)Article 9: no one shall be subjected to arbitrary arrest, detention or exile
viii) Article 29:
(1)everyone has duties to the community in which alone the Iree and Iull
development oI his personality is possible
(2)in the exercise oI his rights and Ireedoms, everyone shall be subject only to
such limitations as are determined by law solely Ior the proposes oI securing
due recognition and respect Ior the rights and Ireedoms oI others and oI
meeting the just requirements oI morality, public order and the general
welIare in a democratic society
(3)these rights and Ireedoms may in no case be exercised contrary to the
purposes and principles oI the UN
ix) Article 30: nothing in this Declaration may be interpreted as permitting a state to
act in a prohibited way
(1)Problem: its General Assembly resolution, so it is not binding (though it may
put us on the path to customary international law and some has become jus
cogens)
c) ICC!R |International Covenant on Civil and Political Rights| legally binding and sets
out more speciIic and qualiIied language about speciIic human rights
i) Article 2: each state party to the present covenant undertakes to respect and to
ensure.the rights recognized.without discrimination oI any kind, such as race,
colour, sex, language, religion, political or other opinion, national or social origin,
property or other status;
ii) Article 4:

(1)In time oI public emergency which threatens the liIe oI the nation and the
exercise oI which is oIIicially proclaimed, the State Parties to the present
Covenant may take measures derogating Irom their obligations under the
present Covenant to the extent strictly necessary by the exigencies oI the
situation provided that such measures are not inconsistent with their other
(2)No derogation Irom articles 6 (right to liIe), 7 (ban on torture), 8 ( 1 and 2)
(ban on slavery), 11 (ban on imprisonment Ior debt), 15 (ban on ex post
Iacto crimes), 16 (recognition as a person beIore the law) and 18 (Ireedom oI
thought, conscience, and religion) may be made under this provision
iii)Article 6: (1) Every human being has the inherent right to liIe.No one shall be
arbitrarily deprived oI his liIe; (2) in countries which have not abolished the death
penalty, sentence oI death may be imposed only Ior the most serious crimes in
accordance with the law in Iorce at the time oI the commission oI the crime; (5)
sentence oI death shall not be imposed Ior crimes committed by persons below 18
and shall not be carried out on pregnant women
iv) Article 9: everyone has the right to liberty and security oI persons. No one shall be
subject to arbitrary arrest or detention
v) Article 14: all persons shall be equal beIore the courts and tribunals.everyone
shall be entitled to a Iair and public hearing by a competent, independent and
impartial tribunal established by law. (3) everyone shall be entitled to the Iollowing
min guarantees:
(1)To be inIormed promptly and in detail in a language which he understands
oI the nature oI the cause oI the charge against him
(2)To have adequate time to prepare deIense and communicate with counsel
(3)To be tried without undue delay
(4)To have Iair representation and to be present at the trial
(5)To examine witnesses against him, and be able to get witnesses on his behalI
(6)To have Iree interpreter iI he can`t understand/speak language oI the ct
(7)Not to be compelled to testiIy against himselI or selI-incrimination.
vi) Article 17: no one shall be subjected to arbitrary or unlawIul interIerence w/ his
privacy, Iamily, home or correspondence, attacks on honor or reputation
vii)Article 18: everyone shall have the right to Ireedom oI thought, conscience and
religion.Ireedom to maniIest one`s religion or belieIs may be subject only to such
limitations as are prescribed by law and are necessary to protect public saIety, order,
health or morals or the Iundamental rights and Ireedoms oI others
viii) Article 19: right to Ireedom oI opinion, expression receive and impart inIo oI all
kind regardless oI Irontiers; orally, in writing or in print, art or other media
ix) Article 20: any propaganda Ior war shall be prohibited by law, as well as any
advocacy oI national, racial or religious hatred that constitutes incitement Ior
discrimination, hostility or violence
x) Article 23: the Iamily is a natural and Iundamental group unit oI society and is
entitled to protection by society and the state
xi) Article 25: every citizen shall have the right to take party in the conduct oI public
aIIairs (directly/chosen reps), vote and access to public service in his country
xii)US signed onto ICCPR, but with RUDs (given concerns Irom Bricker
Amendment)
(1)Free Speech (conIlicts with Iirst amendment)
(2)Death Penalty

d) ICESCR |International Covenant on Economic, Social and Cultural Rights| similar to

ICCPR, but sets things out diIIerently, but clearer and makes things more legally
enIorceable in international law context
i) Note: "International Bill oI Rights" UDHR, ICCPR and ICESCR (Borgen hates
that phrase)
ii) There are 3 themes:
(1)Problem oI enIorcement: we don`t have a level oI credible enIorcement
mechanisms as we do Ior other disputes (econ under TO), even though
countries lose lawsuits in Iront oI Human Rights tribunals, their compliance
is tepid. hen they pay $ they are good, when they have to change laws the
compliance is poor
(2)Are there, or should there be domestic right oI enIorcement: selI-executing,
not selI-executing treaties, should you be able to sue your own govt. Ior
violating a treaty like ICCPR.
(3)Universality v. cultural distinction: are human rights western cultural
imperialism How universal are human rights? Are these rights we all have,
or is there some distinction b/w the HR that people have? II you say yes,
then you have to wonder whether some people are not really getting the
rights that the estern people get.
e) CAT |Convention Against Torture and Other Cruel, Inhumane or Degrading Treatment or
Punishment|
i) Article 1: 'torture means any act by which severe pain or suIIering, whether
physical or mental, is intentionally inIlicted on a person Ior such purposes as
obtaining Irom him or a 3d person inIormation or conIession, punishing him Iro an
act he or 3d person has committed or is suspected oI having committed, or
intimidating or coercing him to a 3d person, or Ior any reason based on
discrimination oI any kind, when such pain or suIIering is inIlicted by or at the
instigation oI or with consent or acquiescence oI a public oIIicial or other person
acting in an oIIicial capacity, it does not include pain or suIIering arising only Irom
inherent in to incidental to lawIul actions
ii) Article 2:
(1)Each state party shall take eIIective legislative, administrative, juridical or
the measure to prevent acts oI torture in territory under its jurisdiction
(2)No exceptional circumstances whatsoever, whether a state oI war or a threat
oI war, internal political instability to any other public emergency, may be
invoked as a justiIication oI torture
iii)Article 4:
(1)Each state shall ensure that all acts oI torture are oIIences under its criminal
law
(2)Each state party shall make these oIIenses punishable by appropriate
penalties which take into account their grave nature
iv) Article 10: Each state shall ensure that education and inIo regarding the
prohibitions against torture are Iully included in the training oI law enIorcement
personnel, civil or military.or other persons who may be involved in custody,
interrogation or treatment oI any individual subjected to any Iorm oI arrest,
detention or imprisonment
v) Article 11: each state shall keep under systematic review interrogation rules,
instruction, methods and practices

vi) Article 14: each state shall ensure in its legal system that the victim oI an act oI
torture obtains redress and has an enIorceable right to Iair and adequate
compensation, including the means Ior such as Iull rehabilitation as possible.
vii)Article 16: which state shall undertake to prevent in any territory under its
jurisdiction other acts oI cruel, inhuman or degrading treatment or punishment
which do not amount to torture as deIined in article 1
5) Torture
a) Issues to keep in mind
i) How do you balance human rights oI individuals with security needs oI society?
ii) How does international law apply in considering levels oI physical Iorce on
detainees?
iii)ho decides whether international law applies and what level oI Iorce is
acceptable?
iv) How is US domestic law and international law interpreted?
v) Geneva Conventions have to do with conduct oI war (just need an "armed
conIlict" declaration oI war becomes unimportant)
(1)Geneva 1: wounded and sick armed Iorces supposed to treat them well
and get medical attention. 'The Red Cross Convention
(2)Geneva 2: sailors on the high seas or shipwrecked same treatment as Ior
soldiers in Geneva 1
(3)Geneva 3: treatment oI prisoners oI war
(a) Article 4 criteria Ior "Iighting groups" to be recognized
(i) Commanded by person responsible Ior subordinates
(ii)Forces need Iixed distinctive sign recognizable at distance
(iii)Need to carry arms openly (no concealed weapons)
(iv)Conduct operations in accordance with laws and customs oI
war
(b)ain Point: iI you act a certain way in combat, then you get GC
protections, but iI you do not act that way, then no protections are
given
(i) Ex. spies act covertly, so they do not get GC treatment
(4)Geneva 4: occupation oI territory and treatment oI citizens in that territory
(a) Additional Protocol 1: Deals w/ diIIerentiating b/w soldiers and
civilians. US not a party but treats as CIL and is bound
(b)Additional Protocol 2: deals w/ internal conIlict (civil war)
(5)Note: Geneva Conventions also suggest that iI application oI GC is not
mandated, that executive can make decision to allow it to apply
b) Torture Memos
i) Issue with treatment oI Taliban v. treatment oI Al "aeda
(1)Should Geneva conventions apply? Argument was made that it should not
apply because both are insurgent groups. Yoo states there were 2 loopholes:
(a) AIghanistan is a Iailed state and thereIore Taliban, is not protected by
the Geneva Convention (conIused recognition oI state v. recognition
oI govt.; only b/c the govt. isn`t recognized doesn`t mean the state
doesn`t exist)
(b)Al "uaida is a non-state actor and thereIore not protected by the
Convention some said perhaps, others said that under Art 1 (all
conventions) the key idea is not reciprocity but rather that even when

the other parties don`t reciprocate each state undertakes these

promises as to how to act regardless oI how other states act.
(2)However, maybe they do deserve GC treatments because we want our
soldiers to be treated same way and these groups are "response" Irom State
ii) "ar on Terror" two views:
(1)War iI it is a war, then due to the combatants on the other side (how they
act and their nature they do not Iit under deIinition oI "Iighting groups"),
then as a matter oI law Geneva Conventions do not apply
(a) This was the contested view oI the administration
(b)ius in bellum law that is applied in war, law regulating how
combatants act
(c) ius ad bello law oI the use oI Iorce when you can use Iorce against
another party
(2)Crime it was just crime (they were just more successIul in 2001 than in
1993) and domestic law should be applied with possibility oI international
criminal law and application oI some human rights norms
iii)What can and should be acceptable for interrogation during time of national
crisis? -
(1)UDHR torture is "cruel, inhuman or degrading treatment oI punishment"
(2)Administration (meaning Irom 8th amendment and 18 USC 2340) Ior
torture: victim must experience intense pain or suffering ... that would be
associated with serious physical infury so severe that death, organ failure,
or permanent damage resulting in loss of significant body function will likely
result
(3)For someone to be a torturer: an interrogator must have the specific intent of
inflicting 'severe physical or mental pain or suffering` upon the detainee.
Knowing that the interrogators conduct would likely cause 'severe physical
or mental pain or suffering` is not sufficient to meet the specific intent
requirement set out in 2340(1). Further a showing that the individual
acted in good faith belief that his conduct would not produce the result that
the law prohibits negates specific intent. Acts may be cruel, inhuman or
degrading, but still not produce pain and suffering of the requisite intensity
to fall within 2340As proscription against torture.
(a) So Ior something to be torture you not only have to reach a certain
level oI pain and suIIering and have to have an intent to cause this
pain then it is torture. II your intent is to get inIo, and the pain and
suIIering is incidental to the process oI getting the inIo, then you are
inoculated Irom being accused oI torture.
(4)'Necessity deIense: necessity has been defined as follows. conduct that the
actor believes to be necessary to avoid a harm or evil to himself or to
another is fustifiable, provided that (a) the harm or evil sought to be avoided
by such conduct is greater than that sought to be prevented by the law
defining the offense charged.
(a) The time element is absent. Necessity is when you have to act now,
anything short oI that gives you options. utation in the necessity
deIense, change Irom situation where person has his back against the
wall, to some threat in the Iuture
(5)Arguments in Iavor: GC does not apply, so US has leeway but,

international humanitarian laws also apply and US cannot derogate Irom

those responsibilities
(6)CAT torture: any act by which severe pain or suIIering (mental or
physical) is intentionally inIlicted on a person
c) Detainee Treatment Act (DTA):
i) cCain Amendment: no person in the custody or under eIIective control oI Dept. oI
DeIense . shall be subject to any treatment or technique oI interrogation not
authorized by and listed in the US Army Field anual n Intelligence Interrogation
(1)In general: no individual in the custody or under the physical control oI the
US govt., regardless oI nationality or physical location, shall be subjected to
cruel, inhuman or degrading treatment or punishment
(2)Construction: nothing in this section shall be construed to impose any
geographical limitation on the applicability oI the prohibition against cruel,
inhuman, or degrading treatment or punishment
(3)Cruel, inhuman, or degrading treatment or punishment mans cruel, unusual
treatment or punishment prohibited by the 5
th
, 8
th
, and 14
th
Amends to the
Constitution oI the US, as deIined in the US understanding to the Torture
convention.
ii) Also provides that in any civil action or criminal prosecution against such
personnel in connection with specific operational practices, that involve detention
and interrogation of aliens.it shall be a defense that such officer, employee,
member of the Armed Forces, or other agent did not know that the practices were
unlawful and a person of ordinary sense and understanding would know the
practices were unlawful. Good faith reliance on advice of counsel should be an
important factor.to consider in assessing whether a person of ordinary sense and
understanding would have known the practice to be unlawful.
iii)'Graham Amendment outlines procedures Ior reviewing the status oI detainees at
Guantanamo and Ior hearing charges against them in military commissions, and that
no ct of fustice, or fudge shall have furisdiction to hear or consider habeas petitions
Irom detainees at Guantanamo or any other action against the US or its agents
relating to any aspect of detention oI detainees at Guantanamo.
d) Military Commissions Act it added a new subsection to torture and human and
degrading treatment (bringing back speciIic intent), barred habeas corpus, stripped US cts
Irom any jurisdiction to hear enemy combatants, Geneva convention couldn`t be invoked in
any legal proceeding having to do w/ torture.
i) Public ommittee against 1orture in srael v. srael: 'moderate physical pressure
is it torture?
(1)Balance: treating people w/ a certain level oI human dignity |right oI the
individual| v. national security |right oI community| at what point does
one trump the other, iI at all.

(2)Article 34(ii): a person shall not bear criminal liability Ior an act which was

immediately necessary in order to save a liIe, Ireedom, person or property,

be it his own or that oI another, Irom a concrete danger oI severe harm
stemming Irom the conditions existing at the time oI the act, and having no
other was but to commit it.
(a) this can create exceptions and this article creates an opportunity Ior
torture. The necessity deIense creates a loophole, and the " is
whether the loophole swallows the rule.
(3)Cited by the ct doing evaluation on Israel: #epublic of reland v. U how
do we determine iI something is "torture?"
(a) Test: intensity and cruelty have to look at intensity oI acts
depends on nature oI circumstances: duration oI treatment; physical
or mental eIIects; and in some cases the age, sex and state oI health
oI victim
(i) Have to take the interrogee into account
(ii)Has to be some type oI special stigma to deliberate inhumane
treatment that causes very serious and cruel suIIering (needs
to go beyond cruel and degrading in order to torture)
(b)Still leaves open deIinition oI "torture"
e) Who gets to determine what "torture" is and how it can be applied? -
i) Argument against torture: eIIectiveness is extremely low unlikely that good
intelligence will come Irom torture, so what is the point?
ii) How can we craIt the rules?
(1)One view: judicialized/legalized method ("torture warrants") iI you think
its important, can go in and get warrant to immunize and to be allowed to do
it
(2)Other view: unilateral decision by executive to decide to set aside certain
obligations and to sanction and warrant extreme methods oI interrogation
I) Necessity Defense Public Committee Against %orture: being used not as a deIense, but as
a "necessity warrant" and whether or not it is acceptable to do something
i) Deals with deciding those cases that involve an individual reacting to given set oI
Iacts and does not authorize use oI physical means Ior purposes oI allowing
investigators to execute their duties in circumstances oI necessity
ii) DiIIerent Irom claiming "I did something wrong and now I want deIense to apply"
iii)Ticking Time Bomb Argument Public Committee Against %orture where
individual holds inIormation about bomb that iI it deIuses would kill a lot oI people.
Is investigator allowed to employ physical means in order to get inIormation about
bomb?
(1)Indeterminacy Argument how do you know that it's a "ticking time
bomb?" Allowing these kinds oI situations is a slippery slope!
(2)Torture is more likely to give you bad inIormation than good inIormation
(3)eighing individual rights v. security as a whole can weigh it out through
diIIerent legal techniques and structuring policy
6) Women's Rights
a) "uestions to keep in mind:
i) Is it useIul to talk about women's rights as opposed to human rights? hy should it
be separated out?
ii) hether and to what extent international law should regulate private relations (i.e.
relations between two individuals (husband and wiIe)

iii)To what extent are human rights universal?

b) CEDAW (Convention on Elimination oI All Forms oI Discrimination Against omen)
main text on rights oI women
i) Deals with some issues that were speciIic to women, not just biological, but also
related to power (i.e. reproductive rights)
ii) Consolidated the rights that were piecemeal in other treaties takes issues and
makes them clearer on how they Iit together)
iii)Deals with private action (between individuals) and also public action (relationship
between individual and state)
iv) There are very important issues that weren`t being addressed, 2/3 oI illiterate adults
are women, 4x more vulnerable to AIDS, 1.3m die each year, 4 mill sold into
slavery, 35-45 are abused under domestic violence
v) Article 1: Discrimination against women shall mean any distinction, exclusion or
restriction made on basis of sex which has effect or purpose of impairing or
nullifying recognition, enfoyment or exercise by women (irrespective of their
marital status, on a basis of equality of men and women) of human rights and
fundamental freedoms in the political, economic, social, cultural, civil or any other
field
vi) Article 2: states condemn discrimination and agree to pursue a policy oI eliminating
discrimination against women
vii)Article 3: states shall take in the political, social, economic and cultural Iields, all
appropriate measures, including legislation, to endure the Iull development and
advancement oI women, and guarantee them the exercise and enjoyment oI human
rights and Iundamental Ireedoms on a basis oI equality with men.
viii) Article 4: unequal standards are acceptable to accelerate de Iact equality b/w
men and women, but shall in no way entail the maintenance oI unequal or separate
standards, measures are to be discontinued when goal is achieved
ix) Article 5: state parties shall take appropriate measures: (a) to modiIy the social and
cultural patterns oI conduct oI men and women.to eliminate prejudices and
customary practices which are based on idea oI inIeriority/superiority or
stereotypical roles oI either sex. (b) ensure Iamily education includes proper
understanding oI maternity as a social Iunction and recognition oI the common
responsibility oI men and women in upbringing and development oI their kids
x) Article 16: State parties shall eliminate discrimination w/ re to marriage and Iamily,
on basis oI equality b/w men and women:
(1)Same right to enter marriage
(2)Same right to Ireely choose a spouse and to enter marriage only w/ their Iree
will and consent
(3)Same rights/responsibilities during marriage and at its dissolution**
(4)Same rights/responsibilities as parents
(5)Same right to decide Ireely and responsibly on the # and spacing oI their
kids.and means to exercise these rights
(6)Same rights/responsibilities w/ re to guardianship, wardship, trusteeship, and
adoption oI kids
(7)Same personal rights as husband and wiIe (choosing name, proIession,
occupation)
(8)Same rights Ior both to ownership, acquisitions. disposition oI property
(a) Problematic: Art 16 1(c)** western imposition oI our own cultural

ideas (cultural imperialism) there is no consensus about what the

responsibilities oI people in marriage.
(9)Develops international Iorum in which private citizen can sue under
CEDA against State Ior allowing private structure to take place where her
rights are inIringed
(10) Jelasquez-#odriguez ase: sued State because they did not use due
diligence to prevent murder or to prevent and prosecute those who did
(a) Imputes on state liability because oI lack oI due diligence to prevent
violation and respond to it
xi) Goal and Results not lawsuit, but domestic change whereby states are being held
responsible to do certain things and change domestic legal structure in order to meet
expectations (want states to change domestic laws!)
xii)Private Rights oI Action problem surrounding whether or not States created these
private rights oI actions by signing onto treaty
(1)Optional Protocol to VCLT second sub-treaty that says that iI state wants a
private right oI action, sign onto the sub-treaty
(a) II states do not want to allow Ior private right oI action, they do not
sign it
c) US Responses to CEDAW |RUDs|
i) Reservations:
(1)Articles 2, 3, 5: regulation oI private sector did not want to legislate Ior
equal pay and work; assigning women to all units oI the military; paid
maternity leave
(2)Article 16 |States shall take all appropriate measures to eliminate
discrimination against women in all matters relating to marriage and family
relations|: took issue because oI abortion connotations
ii) Understandings: 1) Iederalism will be handled by states; 2) restriction oI Ireedom
oI speech, expression; 3) Iree health services to be determined by states
iii)Declarations: Not selI-executing and disputes on convention will be held on case-
by-case basis
d) Female Genital Mutilation (FG)
i) ssues
(1)hat are the types oI activities that will be viewed as human rights
violations?
(2)hat should the other states that do not have this as part oI their practice do
to deter practice? Or should they do anything?
ii) Asylum oncerns
(1)In order to be granted asylum applicant must demonstrate a 'well Iounded
Iear oI persecution on account oI race, religion, nationality, membership in a
particular social group, or political opinion. The actions against women
should 'shock the conscience.
(2)Should FG be basis Ior asylum?
(a) Social Group deIined by common characteristics that members oI
the group either cannot change, or shouldn`t be required to change
b/c such characteristics are Iundamental to their individual rights.
(i) Yes: narrow social group to women within countries
practicing FG
(ii)No: too overbroad to allow any oI these women to claim

asylum
(b)!ersecution 'membership n a particular social group and 'on
account oI a protected characteristic. 'evidence that the persecutor
seeks to act against other individuals who share the applicant`s
protected characteristics is relevant and may be considered, but shall
not be required
(i) Yes: its ostracizing iI you do not do it (shunned!)
(ii)No: something chosen to be done, and women view it as
positive
(c) ain Argument against: Congress had intended something diIIerent
when it wrote laws Ior asylum (i.e. torture)
(3)Framework for Asylum - n re asinga
(a) Point: reIlects change in international law and recognizing that
asylum is not only Ior what states do to individuals, but what
individuals can do to each other
(b)Framework
(i) Persecution
(ii)Excluding other classes oI people (speciIic group oI people)
(iii)Exclude past victims iI they can show acquiescence
(c) Need to be in "targeted group" n re #-A: court did not allow
asylum because she was not in targeted group (husband was beating
his wiIe because she was his wiIe, not because she was in targeted
group) now iI he was beating his kids as well, then there would be
a target group since there would be several people beaten
(d)oammed v. Conzalez: issue: whether a person who already
suIIered FG still qualiIied Ior asylum. Response: FG must be
considered continuing harm, so that an individual who has already
endured FG, doesn`t need to Iear the same persecution recurring in
the Iuture in order to be eligible Ior asylum.
(e) Abay v. Ascroft: petitioner`s Iear that her daughter would have to
undergo FG iI returned to Nigeria qualiIied both mother and
daughter Ior asylum.
7) Are we overstepping boundaries by imposing what we think violations oI human rights are on
other countries and actors?
a) Universalists: insist that human rights derive Irom our common humanity and so should
apply equally to all
b) Relativists: deny that human rights can or should be universal and argue that human rights
norms must be adapted to reIlect wide variations in culture, belieIs, and economic and
political circumstances.
c) International law is consensual: only liable Ior the norms and obligations you sign on to
d) Arguments are made that it is ok Ior other states to say that someone is violating human
rights
e) Pushing our notions oI human rights surrounds issues oI piercing sovereignty, role oI
international with individual
I) Remember: diIIerences between basic rights and right oI individual, with "right to liIe" as
core right
i) Donnelly Argument essential political unit is the person has basic rights
necessary to any Iunctioning society

(1)There are Iundamental rights v. culturally derived rights question: does

human rights exist because we are alive OR because it has been constructed?
(2)Certain rights are core necessary Ior society to exist and work
(3)Secondary rights leIt to cultural relativism:
(a) Relative civil rights (i.e. Ireedom oI speech and association)
(b)Universal right to liIe, liberty and security

II. International Humanitarian Law
1) The Laws oI ar
a) St. Augustine ~1ust War: just wars are usually deIined as those which avenge injuries,
when the nation or city against which warlike action is to be directed has neglected either to
punish wrongs committed by its own citizens or to restore what has been unjustly take by it.
Further, that kind oI war is undoubtedly just which God HimselI ordains.
b) 1us ad bellum: law on the use oI Iorce (whether or not you can enter into armed conIlict)
i) Role oI UN UN Charter
(1)Article 1: purpose oI UN: to maintain international peace and security
prevent and remove threats to peace, suppression oI acts oI aggression or
other breaches oI peace, settle international disputes
(2)Article 2(4): all members shall reIrain Irom the threat or use oI Iorce against
others
(3)Article 39: security council has power to call something a threat to
international peace and security, and can choose to make recommendations
to member states
(4)Article 41: the SC may decide what measures not involving the use of
armed forces are to be employed to give eIIect to its decisions, and it may
call upon the members oI the N to apply such measures. ay include: partial
interruption oI economic relations and oI rail, sea, air, postal, telegraphic,
radio and other means oI communication, and the severance oI diplomatic
relations.
(5)Article 42: iI the measures in Art 41 prove to be inadequate, SC may take
such actions by air, sea or land Iorces as may be necessary to maintain or
restore international peace and security. ay include: blockade and other
operations by air, sea or land Iorces iI UN embers
(6)Chapter 7 Abilities security council: iI there is a threat, economic
sanctions may be taken or can go to point where use oI military Iorce is
acceptable or required to restore the peace
(7)Article 51: allows state to use military Iorce without going to security
council nothing shall impair right of individual or collective self-defense if
an armed attack occurs against a Member of the UN, until the SC has taken
measures necessary to maintain international peace and security (can be
group oI states, or one state)
(a) Allowed to use Iorce up until point security council checks it out
(i) This view oI Iorce is managerial use of force (meant to
supersede preexisting use oI Iorce which was just war theory)
(8)Article 53: the SC shall, when appropriate, utili:e such regional
arrangements or agencies for enforcement action under its authority.
c) 1us in bello: law oI armed conIlict
i) Subjects:

(1)States (what they can and cannot do in midst oI armed conIlict)

(2)Insurgencies (group that is trying to take over a state but is not itselI a state)
(3)Individuals (what can they do and not do overlaps with international
criminal law)
2) Gulf War of 1991
a) $ #esolution 1: recognizes the attack by Iraq against uwait and decides that 'all
States shall prevent import and export oI goods to Iraq. |doesn`t permit blockade|
b) $ #esolution 5: permits member states to use 'measures commensurate to the speciIic
circumstances as may be necessary under the authority oI SC to halt all inward and outward
bound maritime shipping in order to inspect and veriIy their cargoes and destinations
c) $ #esolution 7: SC prohibited air traIIic to and Irom Iraq
d) $ #esolution 78: authorizes 'the use of all necessary means to uphold and implement
resolution 660 and all subsequent relevant resolutions and to restore international peace and
security
i) Use oI Force in 1991:
(1)Plus: Power oI multilateralism, having a large coalition, deIrays the costs,
and allows Ior a larger number oI troops on the ground
(2)inus: hard to get consensus (authorization), and even iI you get it, delay
when you want to use Iorce
ii) Use oI selI deIense
(1)even when a right Ior selI deIense exists, it should be conIined to cases in
which the 'necessity oI that selI-deIense is instant, overwhelming and
leaving no choice oI means and no moment oI deliberation.
(2)Preemptive (no other choice) v. Anticipatory (no immediate threat, Iear)
3) Gulf War of 2003
a) $ #esolution 8: demands that Iraq stops trying to annex uwait, immediately release
all uwaiti and 3d party nationals held and return uwaiti property seized.
b) $ #esolution 87: decides that iI Iraq complies with all the resolutions and requirements
then import oI Iraqi goods will be permitted and SC Res. 661 expires.
c) $ #esolution 1441: recognizes that Iraq continues to violate SC Res. 687 and allows Iraq
one more chance to comply by allowing UNOVIC and IAEA access to all relevant date
re weapons, and recalls that Iraq has been waned that it will Iace harsh consequences Ior
noncompliance.
i) Is there authorization to use Iorce?
(1)Pro: aterial breach oI obligations (686, 687) means that UN can go back in
and use Iorce.
(2)Against: need reauthorization to use Iorce b/c the general rules are strict
about the use oI Iorce and they don`t want states to be able to jump back in.
The original resolutions were pushing Iraq out oI uwait and this has
nothing to do w/ that. So much time has passed and you can`t possibly say
that b/c there is a breach now, gives you the ability to invade. Ripeness arg,
iI it really means that, then it is really easy Ior the US to get a
reauthorization French arg, and this is what US didn`t want to have.
4) Evolution of Conflict:
a) Mass Conflict: height: Napoleonic era; technology: riIles, cannons, masses oI peasant
armies; political org: went Irom Ieudalism to the nation state; legal issues: just war theory
to the Concert oI Europe |nation state|.
b) Industrial Warfare (mobilizing the economy, modern organizational practices): height:

start US Civil ar and height was in I; technology: machine gun; political org:
'Fordism people Iitting into a bigger industrial machine; legal issues: start oI Hague
Convention/League oI Nation.
c) Blitz reig: era oI maneuver warIare. Height: starts at I height is the combination oI
II and aIter; technology: transportation; political org: military industrial complex; legal
issues: response was UN Charter managerial.
d) Network Warfare: swarm many small entities working together to converge on targets
(terrorist cells, guerilla units) height: start at Vietnam, GulI ar 2, height: no idea;
technology: C3I, computers command communication and intelligence; political org:
strategy/changes aIIecting this: globalization; legal issues: response Irom international law
is to be seen: issue oI anticipatory selI-deIense (?), series oI resolutions by UN Iollowing
9/11, making terrorist orgs more Iair game Ior military actions oI states.
5) Sources of International Humanitarian Law
a) Hague Laws and Regulations (core rules) |not focusing on that|
b) Geneva Conventions (protocol I)
i) Article 48: parties to a conIlict shall at all times distinguish b/w the civilian
population and combatants and b/w civilian objects and military objects and
accordingly shall direct their operations only against military objectives.
ii) Article 51:
(1)The civilian population and individual civilians shall enjoy general
protection against dangers arising Irom military operations
(2)The civilian population as such, as well as individual civilians, shall not be
the object oI attack. Acts or threats oI violence the primary purpose oI
which is to spread terror among the civilian population as prohibited
(3)Indiscriminate Attacks
(a) Those which are not directed at speciIic military objective
(b)Those which employ method or means oI combat which cannot be
directed at a speciIic military objective
(c) Those which employ method or means oI combat the eIIects oI
which cannot be limited as required by this Protocol and are oI nature
to strike military objectives and civilians, or civilian objects without
distinction
(4)ore indiscriminate attacks:
(a) An attack by bombardment by any methods or means which treats as
a single military objective a number oI clearly separated and distinct
military objectives located in a city, town or village
(b)An attack which may be expected to cause incidental loss oI liIe,
injury to civilian, damages to civilian objects.which would be
excessive in relation to the concrete military advantage anticipated
(5)Attacks against civilian population or civilians by way oI reprisals are
prohibited
(6)The presence oI movements oI the civilian population or individual civilians
shall not be used to render certain points or areas immune Irom military
operations.iI used to shield military objectives or impede operations
iii)Article 52: (2) attacks shall be limited strictly to military objectives.|which are|
limited to those objects which are by their nature, location, purpose or use make an
eIIective contribution to military action and whose total or partial destruction,
capture or neutralization, in the circumstances ruing at the time, oIIers a deIinite

military advantage. (3) in cases oI doubt whether an object which is normally

dedicated to civilian purposes, such as place oI worship, a house or other dwelling
or a school, is being used to make an eIIective contribution to military action, it
shall be presumed not to be is used.
iv) Article 57: in the conduct oI military operations, constant care shall be taken to
spare the civilian population, civilians and civilian objects.
c) "una Incident: Israeli air Iorce carpet bombed "una which was a reIugee compound
used mortar rounds: 1) Iixed point armor piercing round, damage intense but localized; 2)
anti-personnel intended to kill as many troops as possible. Concern was that Israel
deliberately shelled a reIugee compound using the anti-personnel rounds.
i) There are certain Iacilities that have bright lines around them that they are not to be
targets oI attack, unless there are very speciIic circumstances (no civilians, bad guys
outweigh the good). Red-Cross Hospitals, UN reIugee camps.
ii) Standard: whether a reasonable military commander would have done it (based on
what decision-maker can get their hands on)
(1)Assessed aIter the Iact
iii)Strict Liability iI anyone Irom command messes up and commander should have
known about it, then reasonable military commander will be liable the same as that
person (imputed liability!)
(1)Standard: whether a reasonable military commander would have done it
(based on what decision-maker can get their hands on)
(a) Assessed aIter the Iact
(2)Strict Liability iI anyone Irom command messes up and commander
should have known about it, then reasonable military commander will be
liable the same as that person (imputed liability!)
d) Bombing of osovo: US planes Ilew above 15,000 Ieet
i) Argument that the shooting would be less accurate b/c its hard to target accurately.
ii) as there a legal responsibility to Ily below 15,000?
(1)There was no legal requirement to Ily below 15,000. There was a speciIic
mention oI the Iact, that US has pretty accurate ordinates even Irom Iar away
(2)Does this mean that those who don`t have the same technology as US, iI
there was a signiIicant change in the analysis oI how many people would
die, would have to Ily below 15,000 the answer maybe yes.

III. International Law and Globalizing Economy
1) Law of Economic Relations how these levels aIIect each other and individual decision-maker
a) National Regulation and Law
b) Foreign Regulation (i.e. law oI another country comes up in extraterritoriality and
antitrust)
c) Regional Rules (i.e. NAFTA and EU)
d) Global Regulation
2) Investing and Trading with Other Countries
a) Three ain Transaction Types all three are essentially diIIerent alternatives to get to
same result
i) Trade Irom the US, or trade Irom another co. Regulated by GATT
ii) Foreign Direct Investment (FDI) building a Iactory in another country. Buying a
controlling share in the co and running that co., &A, joint venture. There is no
large treaty Ior this, there are regional treaties, EU, NAFTA, BITs

iii)Licensing license your name/trademark and ways to make the product to another,
and we get money based on our licensing agreement. No overall regulation, this is
more an issue oI dealing w/ domestic and Ioreign laws.
b) hich one is more attractive? Look at:
i) Economics oI Situation
ii) Regulatory Risk (how risky are these ventures based on legal issues that we would
Iace?)
(1)Generally, investment is viewed as the most risky
3) Global Set oI Rules GATT (General Agreement on TariIIs and Trade) |basic set oI rules|
a) ain Ideas
i) Tariffication: move Irom quotas to tariIIs (i.e. taxing on goods coming into
country)
(1)"uota regulates trade by saying that only certain number oI one product can
come into the country (generally more destabilizing)
(2)TariIIs are easier to negotiate negotiated rounds are attempts to bring down
levels oI tariIIs
ii) Most Favored Nation (FN) Status: basic agreement among all signatories that iI
you have FN status, then have to given the best tariII level given to anyone else
(1)Automatically get best deal granted by one country to another GATT
signatory
(2)Goal: downward pressure on tariIIs whatever best deal is, everyone should
get
iii)National Treatment rule: treat Ioreign/imported goods in a way that is
nondiscriminatory in comparison to domestic goods
(1)Cannot make two kinds oI goods not alike just because one is Ioreign
(2)Sourcing (i.e. "ade in the USA") is generally acceptable, unless separating
it out is done to disIavor the other
(3)Note: in some instances, separating it out might be acceptable i.e. French
ines
b) Dispute Settlement Understanding (DSU) Article 23
i) hen embers seek to redress a violation oI obligations.under the TO
agreements, they shall have recourse to and abide by these rules and procedures
(1)embers shall not make a determination that a violation has occurred. can
do nothing else but invoke dispute settlement
(2)Following the procedures oI dispute settlement, members can determine the
level oI suspension oI concession or other obligations and obtain DSB
authorization b/I taking action.
c) Trade disputes basic responses
i) Counter veiling duties (CVD): iI there is unIair competition Irom a Ioreign co. or
group oI co.s b/c they are receiving a subsidy Irom the govt., which are not allowed,
the importing country can put a CVD, and tax them.
ii) Anti-Dumping Duties: certain types oI abusive trade practices and how goods are
priced. II a co. is Iound to be dumping then you can tax them.
iii)Non-tariff Barrier (NTB) trade problems that are not about tariIIs real goal is
to upset trade and block certain products by claiming there is another reason to keep
it out oI country (i.e. "environmental regulations")
4) WTO GATT is just a system oI rules, so it set up TO (permanent organization to deal with
problems)

a) Purpose: to Iacilitate the implementation and monitoring oI trade rules

i) Easier to devise them, monitor them on an on-going basis, and have dispute
resolution Ior when there is a problem
b) Three ain Legal Components
i) TO Agreement: sets up the organization, like UN Charter
ii) GATT 1994: updated the old version, modern set oI basic trade rules(Uruguay)
iii)Covered Agreements: series oI speciIic side agreements on special topics that
require individualized attention
(1)i.e. Ior trade and services, agricultural products, textiles etc.
5) Dispute Settlement went Irom the original GATT and diplomatic understandings (political) to
what we have now with the TO and arbitration (technical, legal and judicial)
a) Basic shiIt: Irom political and diplomatic, to technical and legal
b) In arbitration, even though there is no precedent in international law, persuasive use oI
precedent is high, and oIten look to cases Irom other competent courts
6) Banana Wars three main areas oI banana production (Caribbean, Central and South American,
Philippines) and US wants EU to tax Latin American plantations less because that's where a
majority oI US company plantations are located.
a) Banana I: dealt with tariII and quota system
i) Found EU noncompliant with GATT obligations
b) Banana II: AIter BI, EU never changed their system, but instead put another system where
there would be duty Iree ACP bananas Ior up to 30 oI consumption.
i) Found EU again noncompliant.
c) Banana III: US in response started to apply US trade law and sidestep TO and wanted
retaliation (USTR 301). Concern that US had gone too Iar and under TO not supposed
to apply sanctions to others when you want, it has to be based on violation
d) US--301-310 oI the Trade Act oI 1974
i) 7.115 the US explicitly, oIIicially, repeatedly and unconditionally conIirmed the
commitment expressed in the SAA namely that the USTR would 'base any 301
determination that there has been a violation or denial oI US rights under the
relevant agreement on the panel or Appellate Body Iindings adopted by the DSB
(1)US makes clear that it will not use law unless violation is Iound and iI TO
is satisIied
(a) This is not what was reported to Congress when ratiIying TO.
ickey antor: some countries have even tried to claim that the
TO will restrict the ability oI the US 301 b/c it requires to abide
by the dispute settlement rules and procedures when it seeks to
redress a violation oI the TO. There is however absolutely no
basis Ior such a claim.
(2)EU then agreed to phase out regulations
7) Investment and Regulations
a) Unlike trade, there is no "world treaty" laying out investment rules (no equivalent oI
GATT)
i) Instead there is International Center Ior International Investment Disputes (ICID)
and a web oI bilateral investment treaties setting up basic norms oI international
investment
b) NAFTA Chapter 11:
i) National Treatment and FN treatment Chapter 11 requires that each NAFTA
parry to accord investors 'treatment no less Iavorable than that it accords, in like

circumstances, to its own investors as well as 'treatment no less Iavorable than that
it accords, in like circumstances, to investors oI any other party or non party
(1)II another country has more Iavorable terms, have to give FN countries
those same terms
ii) inimum Standards oI treatment each NAFTA party is to accord investments
'treatment in accordance with international law, including Iair and equitable
treatment and Iull protection and security
(1)Idea: some countries say that they Ireely take Irom domestic investors, so
they should be able to take Irom Ioreign investors
(a) Cannot use it as a sword! Cannot say "well I treat all domestic
investments bad, so I can do the same to Ioreign investments"
iii)Prohibition on so called perIormance requirements no NAFTA party can require
that investors make certain concessions, such as promise to employ a certain # oI
local personnel, export a certain age oI output, or achieve a certain age oI
domestic content in its goods
iv) Free transIers NAFTA requires that all parties permit all Iinancial transactions
abroad related to an investment, including proIits, dividends, interest, capital gains,
and Iees to be made 'Ireely and without delay and in a 'Ireely usable currency at
the market rate oI exchange.
v) International law standards on expropriation and compensation
(1)no party my directly or indirectly nationalize or expropriate an investment oI
an investor in another party in its territory or take a measure tantamount to
nationalization or expropriation oI such an investment except:
(a) For public purpose
(b)On a non-discriminatory basis
(c) In accordance with due process oI law; and
(d)On payment oI compensation
(2)Compensation shall be equivalent to the Iair market value oI the
expropriated investment immediate b/I the expropriation took place, and
shall not reIlect any change in value occurring b/c the intended expropriation
had become known earlier
8) Regulatory Expropriation iI a panel decision goes beyond the scope oI its power, the litigant is
able to collaterally attack the Iindings and arbitral award at the place oI arbitration in the local ct
a) oewen Case: Canadian company went into &A in US and then pulled out. Sued in
local court in ississippi on commercial tort idea. Jury came back with award oI $500,
and in order to appeal Loewen had to post bond oI $625.
i) Issue: brought to NAFTA on ground that they weren't being treated same as national
companies (especially with appeal bond)
ii) How is it expropriation? Losing their economic value oI Iinal judgment iI have to
post so much money in order to get Iinal judgment
(1)Losing property right oI access to courts in order to get Iinal adjudication oI
claim without compensation
b) Metalclad v. Mexico: US co. building a waste Iacility in X, and given the run around w/
a local permit
i) Argument: lack oI transparency oI local rules local municipality messing w/
Ioreign investor b/c it didn`t want the Iacility there.
ii) There are no transparency obligations under Chapter 11 and the tribunal
overstepped its bounds.

c) Meyers v. Canada: eyers a US co. wanted to transport waste contaminated w/ PCBs

Irom Canada to US to dispose. US banned import/export oI such waste unless co. got EPA
approval iI the activity wouldn`t result in an unreasonable risk to human health. eyers got
permission, next month Canada, b/c oI its disposal industry lobbying persons passed a law
prohibiting export oI PCB. 16 months later this law was repealed.
i) Claim that the ban violated Chapter 11 and loss oI business opp and proIit
ii) Tribunal determined that the ban was motivated 'to a very great extent by the desire
and interest to protect and promote the market share oI enterprises that would carry
out the destruction n Canada, and were owned by Canadian nationals and that the
ban violated the requirement oI national treatment and Iair and equitable treatment
d) Methanex v. US: CA banned the TBE Irom being used in gasoline (gets into ground
water and contaminates it). ethanex made methanol, a component in TBE.
i) CA destroyed their business, and the law goes Iar beyond legitimate public interest.
ii) There was no violation oI NAFTA national treatment provision b/c the CA ban had
the same eIIect on US co.s as it did on Canadian, the law was non-discriminatory
and was accomplished with due process.
(1)ethanex would have helped its own case iI it could have shown that: there
was bad science used to reach the decisions, or even better, that this law was
speciIically against Canada co.s b/c there are no US co.s that make
methanol.

IV. Issues of Compliance
1. Theories why states comply w/ international law.
a. Positivist: the reasons why states tend to Iollow law b/c oI the sanctions oI the monarch
you get punished iI you dong. 'Command View there is a command w/ a sanction.
(Austin/Bentham)
i. Critique by HLA Hart. ultiple reasons Ior compliance not all about
punishment. Law has emerged Irom a custom, becomes the manner in which
you act, expected oI you. Part oI it can be not having to do w/ worrying what
bad things can happen, interaction oI social interplay, you want to look good.
ore than command and sanction
b. onstructivism/1ransnational egal Process (Herald o) sanctions are downplayed.
Concern over norms, and as you begin to Iollow norms, act in certain way, teaches other
people in the community as to how you are expected to act, and aIter a time norms
become internalized and you get high level oI compliance.
i. This is diII Irom positivism. Positivism is about enIorcement, how good is your
enIorcement mechanism. The view here is not about enIorcement, we care about
whether people comply. Sometimes it is about discourse in the international
community as norms are viewed, internalized and then complied w/.
1. US EX: seat belt laws. Norm oI using seat belts is internalized.

History of International Law Over Various !eriods

Ancient
1imes

Greek City-
states
(500 BC)
Political Structure
ultiple City-states
Independent
Interacted with one another
Similar to the modern system (used as analogies to the modern system)

Law and Legal Themes
Diplomatic !ractice: diplomats were treated as iI they were an extension oI the
sovereign
Treaties: Pacta Sunt Servanda (iI you enter into agreement, you have to abide by it)
|role in inner city-state relations|
Basic Rules of War (who was able to do what to whom in conIlict)
Basic Norms of Arbitration: arbitration between city-states to resolve disputes

Law v. !olitics in Melian Dialogue Peloponnesian ar "the strong do what they
will, the weak suIIer what they must" brought to light tension with what a super
power will do and that the other side will make claims based on norms
Communal Norms oI city-states can't trample on the rights oI the other city states
the existence oI those norms end up conIerring power on its own
#oman
mperial
1imes

Imperial
(Empire)
(116 AD)
Relations between people within a single empire
Political Structure
Empire
Law within the single empire

Ius Gentium ('law oI peoples) root oI modern term 'international law trying to
smooth over diIIerences between diIIerent peoples in empire (based in part on equity,
Iairness, general principles agreed to amongst other peoples)
- It applied principles oI equity "what is the Iair result?"
- It applied general principles oI law common to civilized nations comparing the
new diIIerent nations would have settled dispute and attempt to Iind common
ground (judge would attempt to glean out general principle oI law)
Ius Civile rights between roman citizens (i.e. rules used in a claim between two
individuals within the roman empire)
iddle Ages

Independent
!olitical
Units
Political Structure
Feudalism and the Holy Roman Empire
Papacy

Natural law law that comes Irom God (God essentially makes what the law will be)
demonstrates the zenith oI the power oI Catholic Church what Church says in terms
oI law is extremely important (Gods law as applied here on earth)
- Aquinas. Human laws derive from and are subordinate to Gods Law.


ate iddle
Ages /
#enaissance

New Legal
System
(independent
states)
Critical period in international law as the society changes]
Political Structure
Rise oI independent states
Decreased power oI the Holy Roman Empire and papacy (due to the reIormation)
Politically Europe was Iracturing into smaller units that began to interact with each
other and trade and travel amongst them Iound that the solutions Rome had was
useIul have to Iind a way to deal with new world and people there

New Legal System: draws Irom old Roman Law, Church law (even though not applied
in the same way, its still inIluential) and Justinian's Code (codiIication that took place
during Roman Empire)
Increased Trade
Discovery oI the new world (issues now deal with dealing with the new world and
people there)
New military technology
1t & 17t
enturies

estpalian
$ystem

Treaty of
Westphalia
Birth of modern state system as we understand it today and also birth of modern
international law]
Treaty of Westphalia: signed in 1848 to put an end to the 30 years war
(comprehensive peace treaty signed by all oI the monarchs oI Europe)
- Emphasis on Sovereignty: each state has absolute control oI the issues that occur
completely within that state there is no higher power than that oI a given state
(NO empire above the state telling them what to do)
- Rise of !ositivism: reliance on practice oI states and conduct oI international
relations as evidenced by custom or treaties as the basis oI international law (less
concerned with "natural law" and more concerned about the actual acts oI states
(i.e. what they have signed onto)
Ecclesiastic Authority (i.e. Pope) that had gained a lot oI power and were NOT hired
in the state could not tell them what to do (state would have complete authority within
its borders, and its powers did not extend to any other state)

Grotius De Jure Delli ac Pacis (1623-24) On ar and Peace (Iather oI international
law) three key principles:
Restitution: survives today as the law oI responsibility State A hurts State B, then
State A owes B some Iorm oI restitution Ior the harm caused
!romises Must be ept: pacta sunt servanda (comes back Irom the time oI Greece
and city-states)
Freedom of the Seas: (Law oI the Sea) no state controlled the seas (open to all states)
and there was strong sentiment that it was "closed sea" where States could control
parts oI the sea and could do what they want; pirates are also criminals oI all time
18t & 19t
centuries

Concert of
Europe

!ositivism was the dominant form of legal reasoning]
Sovereignty: crucial importance (stems Irom estphalia, but becomes dominant Iorm
oI legal analysis at this time)
!ositivism: Iocus is on what is provable (what states have actually done and signed on
to)

Vattel "The Law oI Peoples" All effective international law is derived from the will

of nations by what they do and write in their treaties

John Austin did not believe in international law (sees it all as norms) Law is the
command of the sovereign backed by sanctions

Lieber Code (came Irom US)
Hague Peace ConIerence: put conventions on laws oI war and precursor to the Geneva
Convention

1ay Treaty (1794): b/w US and GB having to do w/ ongoing claims aIter
revolutionary war. Not like a 3
rd
party dispute resolution US and GB arbitrators
Alabama Arbitration (1871): b/w US and GB had to do w/ Alabama a ship oI the
conIederate navy that went to GB load up on supplied and let it come back to US and
go to war. The arbitrators here were not only Irom US and U. There were 5 people
and other 3 were Irom other countries. This was closer to a 3
rd
party dispute
resolution.
Concert of Europe/Vienna (1815): complex series oI agreements between the great
and minor states oI Europe trying to keep the balance oI power set up rules Ior what
the states could do in order to keep the balance oI power attempt at preventing
conIlicts by giving you a sense oI what the result will be iI you try to do something
(i.e. what the political response will be iI you do something)
Hague Conferences (1899): dealt with conduct oI war concerned with how you can
and cannot Iight war (i.e. no torture, killing oI civilians, etc.)

It set up a list oI approved arbitrators/mediators that could be chosen and
countries could put together a panel to resolve disputes. Important b/c it was a
permanent institution (b/I it was ad hoc put together as needed). It set basic common
rules Ior arbitration (b/I each set oI parties had to put together their own rules).


1oday
nter ar

Versailles
Treaty
tensions
odern state system (but with Versailles treaty Tensions) also the League oI Nations
(1
st
attempt at a global international organization)
Collective Security (LN) iI any nation attacks any other nation, then all oI the other
countries are supposed to respond (as long as they`re part oI the group)
LN Iell apart!!!
ellogg-Briand (1928): attempt to use legalized structure to say that the parties who
signed it promised that they wouldn`t go to war with each other.
PCIJ precursor to the ICJ (PCIJ cases are still cited today) general jurisdiction under
law and weren`t allowed to use military Iore
14 Points oI oodrow ilson his blueprint Ior making the world saIer Ior democracy
anti-colonial and gave voice to this idea oI selI-determination oI peoples (selI-
determination b/c a big deal later in the 1990s) Iocusing on the rights oI people and that
they should have a right to selI-determination
1oday
Post

Bipolar
System
|Rise oI the UN|
UN similar structure oI the League oI Nations built more realistically establish rules
needed to regulate activities
Intergovernmental not meant to be where there was an independent power like UN
that was going to be the world power and tell the states what to do it was just supposed
to be regulatory (its NOT supranational)
Nonintervention states do not get to interIere with the internal aIIairs oI another state
brings back the ideas oI positivism and sovereignty
Self-Determination (coming back Irom ilson`s time) UN system also says that
peoples should not be subjugated by Ioreign powers
Human Rights also need to be respected
** Tension in the UN system **
Rise of International Courts and Dispute Settlements ICJ and Nuremberg and
Tokyo (major war crimes trials); increased use oI international dispute resolution on trade
areas (more speciIic areas get taken out oI political discussion and more legalistic
methods get built and used)
Post old
ar
(1) Increased use oI international organizations overall UN has become more important;
TO; orld Bank (IBRD) and IF (international monetary Iund)
Regional Organizations become more powerIul and prevalent born during the Cold
ar, but things like the European community turning into the European Union
(2) Importance oI Non-state Actors (see it more in cases like the Greenpeace Rainbow
arrior Case) importance oI individuals as being protected by international rights and
prosecuted by international law
(3) Increasing rise oI courts and tribunals
1oday
(early 21st
entury)
No simple answer to questions in international law]
Live in a time where there is a mix between positivism and return to natural law
Sovereignty is important to states (positivism)
Human Rights we live in a world where you cannot get around issues oI human rights
individuals have human rights that we are entitled to by simply being human, whether or
not our countries agree to them (Ilies in the Iace oI sovereignty)

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ProIessor Borgen Fall 2008

b) ade up oI 15 judges who are elected by the member states oI the UN

argument on behalI oI one oI its citizens)

IX. THEMES TO THIN ABOUT

ii) Source oI law used: treaty

iii)ComplexiIication oI law making (move Irom treaties to Secretary General rulings,

SOURCES OF INTERNATIONAL LAW

i) Contract: countries agree to do something creates rights and obligations

not ratiIied it)

(b)(c) representatives accredited by the states to an international

III. 1US COGENS

(b)Appropriate Compensation: measured in light oI all circumstances

b) ConIlicts between treaties and pre-existing conIlicts

ACTORS IN INTERNATIONAL LAW

ii) Decolonization (and Aaland Islands) "people" becomes the inhabitants in a

three areas merely seceding? (presumption against secession)

periodically what is going on

(2)Deliberate imposition on a racial group or groups of living conditions

(2)Implication US Iederal government could be liable Ior A's law

INTERNATIONAL LAW AND DOMESTIC LAW

b) Note: in Ioreign policy matters, executives get a lot oI deIerence!

operation oI the courts, it is a decision under the proclivities oI the governor.

1) hat is the relationship between international courts and US courts?

law or jus cogens)

b) Note: doesn't overrule Sabbatino clariIies doctrinal points!

or upon act performed in US in connection with commercial activity of

INDIVIDUAL AND INTERNATIONAL LAW

d) ICESCR |International Covenant on Economic, Social and Cultural Rights| similar to

the other parties don`t reciprocate each state undertakes these

international humanitarian laws also apply and US cannot derogate Irom

immediately necessary in order to save a liIe, Ireedom, person or property,

iii)To what extent are human rights universal?

ideas (cultural imperialism) there is no consensus about what the

(1)There are Iundamental rights v. culturally derived rights question: does

(1)States (what they can and cannot do in midst oI armed conIlict)

military advantage. (3) in cases oI doubt whether an object which is normally

a) Purpose: to Iacilitate the implementation and monitoring oI trade rules

c) Meyers v. Canada: eyers a US co. wanted to transport waste contaminated w/ PCBs

History of International Law Over Various !eriods

of nations by what they do and write in their treaties

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