International Law: Professor Carozza, Fall 2008

I. Sources of law a. Treaties

i. Functions: 1. Transactions 2. War/ Peace (allies and security) 3. Economic Functions 4. Territory 5. Recognizing sovereignty (i.e. Treaty of Paris)

ii. Treaty of Westphalia represented almost all of these functions iii. Some are like contracts- fulfilled almost immediately iv. Some are meant to be aspirational � works very differently in practice

1. These are not something that distinguish treaties but they make you more aware of how treaties work

v. Enforcement: 1. Reciprocity is central to treatise that have on-going obligations 2. How it is received by the internal political atmosphere is very important 3. “peer pressure” in multilateral treaties/ socialization

vi. Form/ Formal Aspects 1. Related to effectiveness- most are very formal/ detailed 2. Formality creates an air of solemnity to the obligations 3. Also, you can see all of the different ways that treaties are formed.

vii. Vienna Convention on the Law of Treaties (p. 926-927) 1. Codifying rules of custom (even in countries (U.S.) who haven’t ratified it) 2. Also adds to the existing law 3. Definition of Treaty is not exhaustive of all international agreements

a. Vienna Convention Def: i. An international agreement concluded between States in written form

and governed by international law, whether embodied in a single

instrument or in two or more related instruments and whatever its

particular designation.

1. The italicized part is not explicit in the traditional definition of a treaty.

b. This is the traditional definition which is broader than that given in the Vienna Convention

i. “An agreement of any kind having a legal effect between 2 or more persons of international law, under international law”

4. Terminology (treaty v. convention) makes no difference internationally � it does however in U.S. Constitutional Law.

viii. Interpretation: Eastern Airlines, Inc. v. Floyd (499 U.S. 520) (1991) 1. QP is whether Article 17 of the Warsaw Convention allow recovery for mental or

psychic injuries unaccompanied by physical injury. The issue becomes the interpretation of “Lesion corporelle”

a. Look first at a French English Dictionary b. Look at French legislation, judicial decisions and scholarly writings at the

time in which the Convention was written. c. Turn to treaty negotiations- the committees choice of narrower language

indicates a desire to limit the types of recovery.

d. Look at whether menta injury was recognized in many jurisdictions which are parties of the treaty.

e. Compare to other international treaties on passenger travel- such as Rail- which specifically includes mental injury

f. Finally hold that there must be physical manifestation of the injury for an air carrier to be held liable.

g. Subsequent practice and treaty modification are considered. h. Amendments of treaties are typically regarded as a new treaty

ix. Termination- Case Concerning the Gabocikova Nagymaros Project ICJ 1997 1. Necessity does not give grounds for terminating the treaty- only temporarily

alleviates obligations 2. Look at article 61 of the Vienna Convention- “permanent disappearance or

destruction of an object indispensable for the execution of the treaty to justify the termination on a treaty on grounds of impossibility of performance”

3. A fundamental change in circumstances must have been unforeseen. The other side violating international law may justify certain measures but not termination.

4. Hungary was not entitled to invoke a breach of treaty when it did CZ had not yet violated it.

5. CZ acted wrongfully as well. 6. The two sides could have attempted to incorporate new environmental norms. 7. If a state suspends or denounces a treaty when such action is not authorized under

the law of treaties, its conduct will be unlawful, making the state responsible in international law

8. Grounds for treaty termination: a. States can explicitly consent to terminate a treaty. b. Create a new treaty

9. Fundamental Change of Circumstances: a. Must accommodate them.

x. Determining whether the treaty is binding: The Eastern Greenland Case )World Court

1969) 1. Comes down to Norway saying “the Norwegian Government would not make any

difficulties in the settlement” of Greenland in light of the expansion of Danish political and economic interests

2. The court found that the statement was binding on Norway: The Court consideres it

beyond all dispute that a reply of this nature given by the Minister of Foreign Affairs

on behalf of his Government in response to a request by the diplomatic

representative of a foreign Power, in regard to a question falling within his duties, is

binding. Even if it was orally and not signed or anything by the sovereign of the state.

xi. Only a treaty governed by international law: 1. Requirement of filing with some international body – i.e. UNSG

a. Not required by Vienna Convention but it is a near universal practice. 2. Problem with oral agreement is that there is less certainty to it 3. Importance of manifesting consent � Sec. 2 of Vienna Convention

xii. Reservations: 1. Reservations actually affect a country’s obligations

a. Basically saying “this particular part of the treaty doesn’t apply to the U.S. 2. With a small number of parties: everyone has to agree- because they are all

negotiating at the same time 3. Multi-lateral treaties developed � became the practice for countries to enter

reservations at the time of ratification.

a. Historically this came about especially post- WWII in light of the increasing number of parties (decolonization, etc.)

4. Are reservations permissible? a. Can be answered by the treaty itself b. If it isn’t explicitly provided for ICJ says yes c. Dissenters wanted unanimity to apply � But this structure loses

5. Given that they are allowed the question becomes what reservations are permissible? Any?

a. Genocide Convention- “object and purpose” test i. A reservation is permitted as long as it doesn’t violate the object and

purpose of the treaty. ii. Purpose: Condemn, prohibit, define, criminalize genocide

iii. They decided to allow reservations because it would allow the treaty to have more parties-

b. Issue then becomes “universality as uniformity” v. “universality as to the number of parties to a treaty”

6. The problem is who decides whether reservations cross the threshold or not 7. Under the Vienna Convention

a. A- has no objections b. B- Objects to D’s reservation and opposes it in response c. C- objects to D’s reservation but doesn’t oppose it d. D- reserves e. SO:

i. A� D- treaty is enforced with the reservation (reciprocal) ii. D� B- no treaty

iii. C� treaty is in effect w/o Art. 10. 8. If you assume an international obligation you can’t claim domestic law prohibits it -

� you can invoke a reservation under domestic law, but you can’t use domestic law as a reason for not complying with obligations

9. What is the alternatice? a. An international body which decides what is allowed (i.e. ECHR) b. The legal obligations in force will impact political and diplomatic

mechanisms. c. Problems:

i. ECHR only has partial authority over reservations ii. What do you do with the Courts decisions? What if the court says that

you can’t have your reservations? iii. Are state still going to ratify these treaties?

1. This only happens in the ECHR. 10. The result is that treaties explicitly limit the sections which can be reserved to.

b. Customary International Law i. Custom is evidence of a general practice accepted as law

ii. To show that a rule of customary law (just a useful paradigm, not always sufficient) 1. Has been followed as a “general practice” and

a. Objective inquiry, have actors really followed the rule? b. Has the practice been consistent? c. Has the practice been followed for a sufficient period of time?

2. Has been “accepted as law” (opinion juris) a. Subjective inquiry b. Attempts to ascertain whether a practice is observed out of a sense of legal

obligations or necessity, or merely out of courtesy

iii. Even in light of the increasing reliance on treaties, customary international law remains important:

1. Treaty provisions need to be interpreted and, if treaty interpretation is not to be pure discretion, some guidance from other forms of law is called for.

2. Treaties don’t bind all states, and there need to be some rules with more general application.

iv. The Paquete Habana (175 U.S. 577 1900) 1. Internatinal law has developed as fishing vessels being exempt from being prizes of

war 2. Look at historical treaties and royal edicts 3. Look at it over a long period of time and inconsistencies are the exception 4. Determine that it is “common consent of mankind” that fishermen are to be left out

of armed conflicts. 5. Important:

a. The manner of determining rules of customary international law b. The way in which customary international law is incorporated into the

municipal law of the United States; c. The proper relationship between the U.S. courts and the executive branch in

legal matters touching on international relations. 6. Opinio juris: the belief that states act in a certain way because they are legally bound

to do so a. Important because custom is deemed to be the implicit agreement of states. b. It is practically difficult to determine opinion juris --? Often end up looking

at practice to determine its existence c. This is the problem of customary international law: opinio juris drops out and

is subsumed into practice- it becomes very circular. Practice determines

opinion juris- opinion juris should determine practice 7. Treaties:

a. Can be practice that will lead to custom b. OR can be a codification of customary international law c. OR can be a completely a new standard

v. The Asylum Case (Columbia v. Peru, ICJ 1950) 1. A regional custom is claimed- Columbia relies on the Montevedio Convention

(stating that it was a codification of customary international law) 2. The Claim fails:

a. Inconsistence in practice b. No clear opinio juris

3. If there are serious inconsistencies in only a handful of states with a small pool of actors, it is much easier to establish an inconsistency. A higher standard needs to be applied on a regional level because there is less room for variance.

4. Peru didn’t sign the treaties that Columbia is relying on- call themselves a persistent objector

5. In order to be a persistent objector you have to act consistently and affirmatively. Silence is insufficient.

vi. The Lotus Case- France v. Turkey (P.C.I.J. 1927) 1. There was an accident between a French steamer and a Turkish steamer – the

Turkish police arrested the French captain for manslaughter after asking him to come to shore to give evidence.

2. Jurisdiction: Either France or Turkey- no one else because it was on the high seas 3. Violation of international law would have been whether or not Turkish Courts could

exercise criminal jurisdiction at all.

4. Turkish law: says that anyone who commits an offense abroad against any Turkish subject can be arrested in turkey and punished.

5. The court is not determining the legality of this article of Turkish law but on whether it can apply in this situation in light of international law.

6. France says that Turkey must be able to point to a positive grant of power under international law.

7. Turkey says that they should have jurisdiction as long as it doesn’t conflict with a principle of international law.

8. Court says: a. International law says that jurisdiction cannot be exercised outside of a states

territory unless there is a permissive rule (doesn’t affect jurisdiction within its own territory of things which happened abroad)

b. Turkey does not have to be able to point to a definite grant of jurisdiction. c. Court says it is up to France to find/prove a rule prohibiting Turkish

jurisdiction. 9. Reciprocal claim of right � central to determining customary international law 10. France’s assertion fails because there is insufficient consistency 11. France then tries to more specifically point to criminal jurisdiction 12. Court assumes a principle of freedom of high seas 13. Court assumes that States have sovereignty unless specifically abrogated (i.e. by a

treaty) 14. Customary international law requires reliance on other aspects of international law-

it doesn’t exist in a vacuum. c. Other sources

i. General principles 1. General principles of national/ municipal law 2. Recognized in well-developed, sophisticated legal systems 3. AM and S case 4. General principles don’t depend on practice (esp. international practice)- they rely

entirely on domestic principles of law. ii. Natural law and jus cogens

1. Jus cogens- means a compelling norm- important because it is a non-consensual norm in international law.

2. U.S. v. Smith (1820)- determine that piracy is described by the law of nations with reasonable clarity

a. Work of jurists b. Writings on public law c. General usage and practice of nations d. Judicial decisions recognizing and enforcing law e. Common law- finds piracy to be an offence against the law of nations- not

against municipal law. f. General practice is conclusive proof of existence in international law. g. Custum: looking at what countries have said in the past- it is the general

practice of all nations to punish pirates h. General Principles: all of the jurists and writers on the topic find that there is

a definition of piracy � countries include that definition in their municipal laws.

i. Jus Cogens: people universally treat piracy as an offense against the law of nations.

3. Alfred von Verdross “Forbidden Treaties in International Law”

a. People who claim that there is no law but treaty law ignore the fact that each treaty presupposes norms which are necessary for the very existence of the treaty

i. Which persons are endowed with the capacity to act in international law

ii. What intrinsic and extrinsic conditions must b fulfilled so that a treaty can exist

iii. What juridical consequences are attached to the conclusion of an international treaty.

b. These are implicit assumptions that mean that certain norms cannot be flat out denied.

c. 2 forms of compulsory norms of customary international law: i. Law not to disturb each other in the use of the high seas

ii. International law authorizes states to occupy and annex terra nullius. d. Norms of international law that constitute jus cogens- prohibiting states from

concluding treaties contra bonos mores� the structure of international law must regulated the rational and moral coexistence of the members of a community.

e. “Ethical minimum” accepted by all states = maintenance of law and order

within the state, defense against external attacks, care for the bodily and

spiritual welfare of citizens at home, protection of citizens abroad. These

are really the only norms of jus cogens. f. Treaties:

i. A treaty norm is void if it violates a compulsory norm of general international law or contra bonos mores

ii. A treaty is contra bonos mores if a state is prevented by an international treaty from fulfilling the universally recognized tasks of a civilized state.

g. All codified in VC Art 53, 64, 66. 4. Southwest Africa Cases (p. 147)

a. The ICJ says that humanitarian considerations are not sufficient to make legal rights or obligations

b. They must be given a legal form if they are to be binding c. Important because the legal norms and the moral norms are separate.

5. Obligations Erga Omnes- the obligations of a state toward the international community as a whole- (among every one)

a. Jus cogens is a norm that applies to everyone in all situations- by definition. Therefore jus cogens is always erga omnes. The reverse is not necessarily true. Can be erga omnes and not jus cogens.

6. Prosecutor v. Furundzija (ICTFY) a. The prohibition against torture imposes State obligation erga omnes- which

means that a breach of that obligation is a breach of the correlative right of

all members of the international community. b. It has evolved into a norm of jus cogens- a norm that enjoys a higher rank in

international hierarchy than treaty law and even “ordinary” customary rules. c. Prohibition against torture has become one of the most fundamental

standards of the international community- and no one can deviate from it. d. Because torture violates jus cogens, any State law authorizing it will be void

and lack international legal recognition � international norms such as this trump state law.

e. Every state is entitled to investigate, prosecute and punish or extradite individuals accused fo torture, who are present in a territory under its jurisdiction.

i. It is the universal character of international crimes that vests in every

State the authority to try and punish those who participated in their

commission. 7. The Michael Domingues Case (Inter-American Commission on H.R.)

a. U.S. argues that they have been persistent objector to the international norm of not executing children. Have objected in GA, CHR, responses to Special Rapporteurs, Council of Europe, OSCE, OAS and I-A CHR.

i. Also say that there is no Jus cogens prohibition on the execution of children. For it to be jus cogens the international community would have to accept and recognize the peremptory character of the norm. For the Commission to decide that it was would mean that it held it to the same level as piracy and genocide.

b. The I-A CHR issued a report stating that not executing children is now a norm of international law and is peremptory- making it a norm of jus cogens

i. Deny the persistent objector claim by saying that by ratifying the 4th Geneva Convention without reservation they acknowledged the norm.

c. The Difficulty of establishing a norm of jus cogens is the specificity of the norm being asserted � justification is so fundamental that it cannot be deviated from � the more specific it is the more difficult it is to establish it as jus cogens.

iii. Equity- 1. Equity and fairness is a general principle of law recognized by all civilized legal

systems, and would be incorporated into international law 2. Equitable principles have been vigorously employed in international dispute

settlement. 3. Caveats to the application of equitable or fairness doctrines in international law

a. Equity does not mean reaching a result that is regarded as balanced: a judicial compromise.

b. Equity does not mean equality- it does not necessarily serve the ends of distributional and social justice.

c. Equity is a valuable and influential source of international law rules, but it has its limits.

II. International law sources in U.S. municipal law a. Treaties

i. One of the main arguments for Senate ratification is to protect states rights in federalism ii. Customary international law: Amerada Hess provided historical introduction to how

customary international law fits into domestic law. 1. Amerada Hess- Attacking a peaceful ship violates all sorts of treaties and customary

international law. It is beyond controversy that attacking a neutral ship in international waters violates international law.

iii. Paquete Habana- says “International law is part of our law” b. The law of nations

i. U.S. v. Alvarez-Machain (1992)- Facts: Dr. is kidnapped by DEA and brought/ prosecuted in U.S.- this is done outside of the bounds of an existing treaty.

1. Court holds that it doesn’t matter if it is violating the treaty or international law 2. Viewed as one of the worst int’l law decisions the Ct. has ever made � both legally

and politically shocking.

3. Court seems to be saying that you can do anything as long as it isn’t expressly prohibited � Mexico renegotiated the treaty after this decision.

4. Essentially hold that treaty is the controlling law and that customary law doesn’t matter – if there was no treaty Alvarez-Machain wouldn’t have a remedy.

5. Ct could have acknowledged the violation of the treaty but said that it was an issue that had to be dealt with by the Executive- but they didn’t.

ii. Sosa v. Alvarez-Machain (2004)- Use ATCA to sue for arbitrary arrest and detention (in violation of law of nations)

1. ACTA includes the law of nations- it has been 28 years since Filartiga 2. But Court acknowledges reasons for restraint in considering this cause of action:

a. CL isn’t as powerful as it used to be b. Erie Doctrine (no federal common law) c. Legislative test d. Interference with political branches e. No congressional mandate to define new causes of action.

3. Test: Federal Courts should not recognize private clais under federal common law for violations of any international law norm with less definite content and acceptance among civilized nations that the historical paradigms familiar when ACTA was enacted.

4. Claim here doesn’t pass test a. It isn’t specific enough

iii. Medellin v. Texas- 1. While treaties may comprise internatinal commitments… they are not domestic

law unless Congress has either enacted implementing statutes or the treaty itself

conveys an intention that it be ‘self-executing’ and is ratified in those terms 2. Optional Protocol does not take immediate effect, but commits the State to take

future action through legislative means 3. Because the remedy for ignoring an ICJ decision is only diplomatic that shows that it

is not meant to be binding on domestic courts 4. To say that decisions of the ICJ were automatically enforceable as domestic law

would undermine the ability of the political branches to determine whether and how to comply with an ICJ judgment.

5. Just because ICJ judgments aren’t automatically enforceable doesn’t mean underlying treaty is not

6. ICJ decision creates obligation but it doesn’t become binding in federal law III. Persons and actors in the international legal system

a. Individuals i. Nationality:

1. Nottebohm Case- there has to be a reasonable connection between the person and their country of claimed nationality.

a. He got Lichtenstein citizenship but Guatemala refused to acknowledge it and they confiscated his property when they declared war on Germany. Lichtenstein tried to bring a claim on his behalf

b. Court found that his links with Liechtenstein were too tenuous c. “genuine link”

2. Barcelona Traction- Incorporated in Canada, did business in Spain and a majority of the shareholders were Belgians

a. ICJ ruled that Belgium had no right to bring a claim on behalf of its shareholders.

b. Allowing this would encourage multiple suits brought from different states

c. Has been highly criticized by those who argue that if there is no risk of double-recovery against a State, shareholder claims can be brought by any State

b. States i. States are the primary actors in international law- states are sovereigns as individuals can

never be ii. Sovereignty:

1. The notion of sovereignty is something that changes over time a. Westphalia created a certain scheme- recognizted the sovereignty of princes

BUT also qualified it- i.e. by recognizeing freedom of religion b. Changing and contingent on definition- after Westphalia- this notion of

sovereignty was condemned by the Catholic Church c. Sovereignty is not absolute

i. Regardless of what you the source of sovereignty is that actually limits it as well

1. If you believe source is natural law- you must also recognize the limits that imposes

2. “States” themselves aren’t really necessary under the natural law approach.

d. Sovereignty has no essential content i. The content of sovereignty is given by what international law/ the

international community says it is ii. i.e. Modern Human Rights legal regime- Development of

international law helps to provide the definition of sovereignty 2. Have to ask what the meaning of sovereignty is today within the functioning of

international law today. For example, in the context of the EU 3. You don’t have to be a state to participate in the international legal system

a. Individuals (including corporations) b. International Organizations c. States themselves are of a wide variety

i. Micro-States 1. Liechtenstein 2. Nauru

ii. Subjugated States 1. Navajo Nation 2. Kuwait under Iraq

iii. Failed States 1. Somalia

iv. States in Economic and Strategic Unions 1. EU

v. Federal States 1. Australia,, Brazil, Canada, Germany, India, Russia,

Switzerland and the United States vi. The Holy See

4. Who gets to decide? How do we determine what sovereignty is? a. A natural theory of Statehood- international law simply recognizes what is

already there i. Declaratory approach

b. Constitutive theory of statehood i. You aren’t a state until international law/ community say that you are

c. Montevideo Convntion is declarative, generally

i. BUT what about factor 4- states require a capacity to entire into

relations with other states- seems to be constitutive (a practical

reality) d. There is a mutuality of the declarative/ constitutive approaches e. Joining the UN is like a short cut to recognition f. Question of statehood is a mixture of objective existence and the role of

international relations/ standards (i.e. Taiwan) g. Ambiguity: why do we need both theories?

i. There are two conflicting sets of values 1. Realism- want to recognize where power exists- otherwise

there is no order 2. Values of community and cooperation

ii. The theory of recognition matters in practical ways 1. Look at a wide range of cases

a. Tinoco- contractual obligations b. Turkey- claim of existence c. Kadic- what are obligations of a non-recognized state?

iii. Tinoco- QP: Are contracts entered into by Tinoco gov’t still valid? (even though he is no longer the head of the government?)

1. Deciding case behind default rule: later governments can’t repudiate obligations assumed by previous governments

a. Once you start to make exceptions to this it is a disaster- it is too hard to make determinations

b. Focus seems to be whether they were the de facto government c. BUT also explains recognition by other states (would be de jure)

i. Or this could be that recognition is a fact of control so de facto and de

jure go hand in hand iv. Autocephalous Greek Orthodox Church of Cyprus v. Goldberg and Feldman Fine Arts, Inc.

1. In a U.S. court of law- the law of an unrecognized entity isn’t given effect in a U.S. court

a. The Turkish government in Cypress can’t issue a decree b. Exceptions: in some cases U.S. courts have had to give some recognition to a

de facto government even if it isn’t officially recognized c. Why not in this case?

i. It is cultural property and that has large value in the international community

ii. Should ultimate success in recognition be determinative in whether law is respected?

iii. Comes back to how a state achieves legitimacy- de facto and de jure. 2. An unrecognized entity can’t sue/ or intervene in a suit- if it is disputed whether it is

a sovereign state then it should have no juridical personality a. Is an issue of comity � probably wouldn’t recognize US if US didn’t

recognize them 3. In practice the rules that say that the (a) and (b) above depend a lot on deference to

executive branch interests. v. Kadic v. Karadzic- Appellants have a right to try to prove that state exists (sm jurisdiction

does exist) 1. Takes a formal set of criteria to see whether it may or may not have been state

action, similar to Montevedeo Convention 2. The case could have come out very differently in another context (i.e. not in U.S.

Courts)

vi. Girocredit Bank: An Austrian case- their interests are very different (Autris holds a lot of assets)

1. Assets create a problem with succession issues- who owns it? Who can access it? 2. Flip side is treaty obligations- who has to uphold them? Which parts of Former

Yugoslavia have to pay debts/ uphold treaty obligations? 3. The fact that the result ultimately depends on an agreement means that it will

ulitimately be determined on equity (a decisions of fairness) 4. Has to do with the mutuality of obligations 5. UN seat was a negotiating tool.

c. Intergovernmental organizations i. IO’s have become increasingly important

1. Contribute to generation of custom 2. Help to articulate opinio juris 3. They are essential to a state oriented system 4. If you only have the states there is no way to control/guide state action

ii. Functions: 1. Forum for discourse 2. Dealing with uniformity of transaction 3. Deciding the membership of the international community (controlling behavior)

a. This is a form of socialization 4. Share/ distribute information

iii. Distinction: 1. Is it a forum for states to act? 2. Is it an entity that acts independently?

iv. Almost always a fundamental tension – because they are created by states, controlled by states, but their purpose is to stand outside of states and be a check on their power.

v. Issue of legal personality: They have some autonomous function/ identity 1. Engage in treaties 2. Have some immunities 3. Have capacity to have standing/ stake claims 4. All make it look like a person/ seem like a person- but it isn’t fully a person in the

way that states are vi. The Reparations Case

1. QP: is an IO an independent juridical person in terms of international law? a. If yes: it can act on its own b. If no: it operates at the will of the state and is not capable of acting on its own

2. ICJ concludes that it has to have a juridical personality a. UN CHARTER- Doesn’t explicitly provide that, but when you look at the

functions it gives to the UN it has to have its own personality i. In particular read intentions of the Charter within the scope of

purpose b. Characteristics of the UN

i. Has a center ii. Has organs

iii. Has body/ members c. Court is describing it with all aspects of personhood- basically the ICJ

constructs a person in order to accomplish its functions. 3. Limitations:

a. Only has the rights and duties that are necessary to its functions b. It is NOT a state by virture of it being a person c. Personhood is linked to the IOs fidelity to its ends.

4. Depending on the purpose of the institution we will expect different things with regard to state interests.

5. Recognizes limited personhood BUT- trying to determine whether they can bring claims.

d. Peoples- Self-determination i. Very political- contingent on political facts of international community at the time

ii. Makes it a very amorphous topic/ concept. iii. Internal value: promotion of democratic institutions iv. External value: freedom from alien rule v. Aaland Islands: very strategic in buffering Europe from Soviet Russia

1. They regard themselves as culturally Swedish 2. Doesn’t say where they belong- says that international law says that they aren’t part

of the domestic jurisdiction of Finland – Because it is a new state, Finland can’t assume

a. Just because Finland eventually became a state doesn’t mean that Aaland has to be a part of it just because it was under Soviet control.

3. Assumption of normality when applying concept of self-determination as being up to the State

4. Self-determination as conceived then is subordinate to the territorial consideration of states

5. Because international law doesn’t leave it to Finland- League of nations can say something

a. Say that it should go to Finland because they are neutral- but also allow for the Islands to have relative autonomy

b. They have to ratify things like EU treaties if they want to be able to pass. vi. Self-determination and Autonomy: Autonomy of a group is one possible outcome, thought

not necessarily always the goal vii. United Nations and Self-determination

1. Article 1(2) of the Charter explicitly refers to self-determination viii. Reference re: Secession of Quebec

1. Context has changed: a. UN exists now b. HR Treaties- most of the guarantee self-determination c. Massive upheaval during 50’s-60’s- decolonization d. Circumstances to call for self-determination are much broader.

2. Relevant issues a. Peoples

i. Used autonomous control over property- lead to these groups having specific rights

ii. Courts have consistently resisted going that far (to self-determination or secession)

b. State Sovereignty c. Internal self-determination d. External self-determination

i. Quebec has no right to external self-determination because they have adequate internal self-determination they should not have access to external

ii. Canada goes out of its way to allow representation, inclusion of the language, etc.

iii. If internal self-determination was sufficiently restricted there could be a right to secede. They following are the only gernally accepted circumstances for External Self-determination

1. Colonization 2. Alien Occupation

iv. Default assumption is always the integrity of territorial states 1. Unless the denial of internal self-determination

(approximating it to colonialism or foreign occupation is so extreme there will be no right to external self-determination

2. It is rare that self-determination would be allowed to proceed

if it interfered with territorial boundaries

v. International law resists changing territorial boundaries because if

it were taken too far it would lead to anarchy. e. NGOs

i. Role and presence contributes to the independence of IOs 1. Help to distribute information, negotiation- separate from states 2. Shadow reporting

a. Make it possible to critically evaluate states b. Oriented towards compliance

i. Puts pressure on the states to conform to international standards 3. Participating in law making

a. i.e. ICRC is Custodian of Geneva Convention b. Propose law- point out gaps in the law

i. Draft standards (interpretation of standards_ 4. Advocate on behalf of individuals in the International Law system

a. Training and disseminating norms ii. What makes them function well?

1. $$ 2. Impartiality/ independence/ neutrality � with regard to states (I.e. AI) 3. Formal legal status 4. Expertise (specialization) 5. Representation (having popular legitimacy)

iii. What NGOs do, and what they do well determines whether they get to be a real player iv. They money comes from Rich Western Countries- whether they are governments,

individuals or corporations 1. Can be a problem in terms of accountability- but it is a system that is implicitly

biased against the participation of poorer countries v. Law:

1. Article 71 of the UN Charter (Consultative status) 2. Furthered by ECOSOC resolution

a. Standing in terms of i. Expertise- or-

ii. Representation iii. Have a democratically adopted constitution

3. They can participate as long as they aren’t too political about it (have to keep a certain distance from States)

4. NGOs with consultative status have limited rights � it is consultative not participatory

a. They don’t have any rights and privileges within the member states simply based on their consultative status

vi. ICRC- completely unique

1. An NGO but have a participatory role- and is recognized to have a limited legal personality

a. Certain privileges and immunities of workers b. Guards independence fiercely (and will often be the only organization

allowed into certain areas) f. International courts and tribunals

i. Dispute Resolution 1. Negotiation/ Mediation

a. The fact that so much international dispute resoulution happens this way doesn’t mean that it is non-legal

b. Engage in a negotiation beginning with what legal rights and obligations each party has

c. Happens “in the shadow” of the law 2. Arbitration

a. Goes further- adds some formal body of dispute resolution i. Has been around for centuries- its popularity ebbs and flows

b. Can be about almost anything c. Really began to flourish in the 19th century- i.e. Alabama Case d. It is a formal but flexible method of dispute resolution that occurs without the

use of force. Can help to avoid what would otherwise have been a military conflict. Flexible in terms of:

i. Parites- Doesn’t have to be between sovereign states- can be between private parties

1. A public international dimension but can be translated into domestic courts via treaty law

2. i.e. Texaco Libya Arbitration ii. Type of dispute- Can cover anything:

1. Finances 2. Prisoners 3. Natural resources

iii. Type of body making the decisions: 1. Can be made by any type of body, professional judges, a

panel, a single person (UNSG), Naval officers, anyone can do it if it is agreed upon

2. Established entities such as the International Chamber of Commerce as well.

e. Requires intensive discussion in terms of rules of procedure and rules of evidence

f. Decide what law applies i. International law generally? A specific treaty? Municipal law?

ii. It is up to the parties to negotiate 3. Alabama 4. Dogger Bank

a. UK v. Russia- Russian commander got confused and fired on British shipping boats. UK was pissed- went to arbitration to prevent war

b. Arbitrator ruled that the fault was entirely on the Russians but that it hadn’t been intentional (commission consisted of 5 naval officers from other countries)

ii. International Court of Justice 1. Differs from the other forms of dispute resolution because;

a. It is institutionalized

b. Based in Law i. The court can be asked by a state to resolve an issue in fairness

(rather than in law) but it has never been done. 2. Permanent court of international justice 1922-1939- its jurisprudence is still used

today by the ICJ a. There is no common law but the ICJ does cite to other cases as precedent.

3. Functions: a. Dispute Resolution b. Development of international law

i. A lot of States cite ICJ decisions as examples of international law 4. Legal Status of ICJ

a. Court stresses that it is a judicial organ � based in law i. Advisory jurisdiction

b. Part of the UN System- in the Charter i. The Court (especially with advisory opinions) will typically take into

account UN interests and why the UN agency requested the opinions 5. Jurisdiction

a. Only states which are parties to statute can be brought b. Any state that is a member of UN is a party (technically) c. In theory international law based on state consent d. ICJ statute addresses only certain kinds of cases

i. Treaties 1. Special agreements- such as after a conflict 2. Preexisting treaties- both bilateral and multilateral

ii. Declarations 1. Must be reciprocal- a match between declarations for the

States in question to be parties to cases e. There is an unlimited right to make reservations and to withdraw them

i. Conley- U.S. determines what is under their domestic jurisdiction ii. Vandenberg- US declaration doesn’t apply to multilateral treaties-

including UN Charter (this is the problem in the Nicaragua case) f. There is still valid jurisdiction over several states which filed in the 1920’s-

30’s w/ PCIJ g. Lowest Common denominator principle

i. Norwegian case � limited reciprocity but Frances reservation is similar to Conley and Norway can rely on French reservation to prevent jurisdiction

6. Composition a. 15 judges- elected by Security Council and General Assembly- based on

regional representation iii. The Minquiers and Ecrehos Case:

1. Clear consent by agreement after the dispute- asking ICJ to determine who (Fr. Or UK) owns the island

a. These kinds of courts account for a majority of ICJ cases 2. Burden of Proof: Both Parties have to submit proof of possession 3. Substantive issue is acquisition of territory

a. Maritime law i. Equitable principles

ii. UN Convention on law of the sea (islands effect legal space out into the water)

b. Land disputes

i. Post-colonial situation- ute posseditis (colonial boundaries are going to be respected- who has it keeps it)

ii. Non-post colonial disputes 1. Contiguity 2. Cessation- one sovereign cedes it to another 3. Effective occupation- occupying land that belongs to no one

a. Discovery b. Have to occupy it as a sovereign- not just one of the

subjects 4. Prescription- occupying land that belongs to another sovereign

iv. Thie Diplomatic and Consular Staff Case (US v. Iran) 1. Arises post-hostage crisis 2. Iran’s Objections

a. Non-judiciable b/c it is a political matter i. ICJ says all cases are political if between 2 states so that is no reason

for it not to be in front of the ICJ b. Says that hostages were spies/ not able to access diplomatic protection

i. Court says this is the whole point of diplomatic protection- there are other mechanisms to get rid of spies

3. US reasons for bringing this case: a. A PR exercise b. Exercise of US soft power (especially in light of the Cold War) c. Make it more than US v. Iran � international community v. Iran

v. States responsibility: 1. Agency: if an agent acts under color of law the state is responsible

a. Not present in IRAN case 2. Failure to act with due diligence:

a. States has a duty to protect diplomats in their territory- IRAN failed 3. Adoption/ admission- if someone w/o state authority does something and the state

approves- it becomes like state action a. In IRAN case- the evidence indicates this to be the case because Khomeini

made public statements in support of the actions vi. Advisory Opinions-

1. Rarely used 2. Is it better for the ICJ to issue advisory opinions which aren’t legally binding?

Better for their international standing? IV. Jurisdiction issues

a. Bases of jurisdiction i. (Type 1)Prescriptive jurisdiction (to prescribe certain behavior as required or prohibited)

1. This is the power of a nation to legislate, to make rules binding on persons , transactions, and relationships that have some connection with that State

2. States can Prescribe whatever behavior they want to as long as there isn’t a prohibition against it

a. States don’t need one of these principles that have jurisdiction- it is better to look at them as descriptive of the ways in which states explain their jurisdiction and argue their points.

b. Affirmative limiting principle: when one state intevernes with jurisdiction of another state

c. 5 Principles provide the framework within which states argue their case when there is a conflict

d. The only real limiting principle is “unreasonableness” with respect to another state

ii. (Type 2) Adjudicative jurisdiction- the power of a tribunal to decide a particular dispute or to hear a certain case

iii. (Type 3) – The power to enforce both its rules and its judgments 1. needs to be kept separate

iv. LOTUS Presumption- States are free to assert their jurisdictional competences to the absolute limit that international law allows. States are able to insist on their jurisdiction over a particular individual .

v. vi. 5 bases of jurisdiction

1. Territory- where a state’s argument usually begins a. Provides a certain amount of clarity – because it is fundamental to how states

are arranged b. Problem: any territorial claim can run into another claim. Banana: territorial

principle isn’t enough bc effects are in another territory than the actions c. Subjective territorial jurisdiction

i. Things that happen in your territory but are they going outbound ii. This is uncontroversial- if it is in your territory you have prescriptive

jurisdiction d. Objective territorial jurisdiction

i. Occurs elsewhere but ahs an inbound effect in your territory ii. Alcoa case (p 774)

1. Although the events took place outside US the effect was inside so CT has jurisdiction

a. Have to have intent to effect the US b. Have to have a material effect

2. Primary nature of territoriality means that you have to be careful with objective territorial jurisdiction because it can conflict with other States jurisdictions

2. Nationality- initially appears uncontroversial. It is the assumption that states have political authority over their citizens � citizens have consented to the authority of their own state

a. Inevitably run into conflicts with other state’s jurisdiction (in terms of nationality and territory especially)

b. Question becomes how strong/ tenuous must the link of nationality be? i. How extensive can the regulation be?

c. Blackmer- Supreme Court ruled that the refusal of a US citizen, living in Paris, to obey issued subpoenas and to return to the United States to give testimony in a pending case was properly within the jurisdiction of the offended court.

d. Taxation is the extreme- US taxes citizens no matter where they live 3. Passive Personality/ Nationality

a. Could be collapsed into nationality b. State could exercise urisdiction ove a crime based on the nationality of a

victim- kinda weak. c. Prescriptive jurisdiction over behavior which affects our nationals d. Not exercised a lot: most often in terrorism (hostage taking)

i. Harm doesn’t just affect nationals- it targets them. e. Pretty limited principle

4. Protective jurisdiction

a. Where security of the state is @ issue (ability to conduct government functions)

b. i.e. espionage, counter-fitting, visa fraud c. A state can stop this list of behavior anywhere in the world � but it is a

narrow list. d. Punishing foreign plots to overthrow a nation’s government e. Rarely invoked in US law

5. Universal Jurisdiction a. Certain crimes which are considered crimes against all nations. Smith,

Filartiga b. i.e. slave trade, piracy, torture, genocide

i. Any time, any place, by anyone. b. Comity

i. Invoked a lot with regard to conflicting assertions of jurisdiction ii. Comity is a principle by which we do what we can to respect the sovereignty of other

governments BUT it is not a rule of law/ not a requirement 1. It does not get invoked to decide the case

iii. There is no strict definition or understanding of what definitely counts as comity but when

possible, the decisions of foreign tribunals should be given effect in domestic courts, since

recognition fosters international cooperationg and encourages reciprocity, thereby

promoting predictability and stability through satisfaction of mutual expectations. iv. It advances the interests of both forums

1. The foreign court because its laws and policies have been vindicated 2. The domestic court because international cooperation and ties have been

strengthened. v. Limitations:

1. When the foreign act is inherently inconsistent with the policies underlying comity could either legitimize the aberration or encourage retaliation

2. No nation is under an unremitting obligation to enforce foreign interests that are fundamentally prejudicial to those of the domestic forum.

c. Sovereign immunity and acts of state i. Schooner Exchange v. McFaddon-(p.831) provides the classical background

1. Sovereign immunity began because of the idea that here was no one above the sovereign- there was no higher power than the sovereign of a state.

2. The ship (even though the US claimants said it was theirs and had been taken by Napoleon) because it as in the US as a public ship of the French Navy, the original owners could make no claim to it

3. The law of nations said that there was an implicit promise that a friendly nation would not do anything to the foreign ship while it was in their ports

ii. Things have changed since the classical model of Sovereign Immunity: 1. Abuses of sovereignty (WWI, WWII) 2. Economic Globalization 3. The role of the state underwent a change in the early 20th century

a. State owned companies b. The state is more involved in what is going on in the daily economic

happenings of the city iii. Because of these changes, commercial activity gets carved out of sovereign power- it

becomes the first thing to be subject to the restrictive sovereign immunity � this is a functional necessity

iv. Victory Transport v. Comisaria General-

1. Tate Letter: memo from the State Dept. giving a statement of the US restrictive theory of sovereignty

a. The courts take it up as a certain standard 2. Types of Acts covered:

a. Internal administrative acts, such as expulsion of an alien b. Legislative actsm such as nationalization c. Acts concerning the armed forces d. Acts concerning diplomatic activity e. Public loans.

v. States aren’t immune unless they are exercising their public power vi. It is highly subject to political pressure because courts relied on the State Department to

determine whether it was a public or private action vii. Problems:

1. Courts ended up having highly inconsistent decisions 2. State department was constantly in a tricky diplomatic situation

viii. Solution: The foreign Sovereign Immunities Act- came at a time when a number of states were codifying what had previously been customary international law

1. Still really broad- would require a lot of judicial clarification 2. BUT: moves the determination out of the executive and into the judiciary 3. §1604 says the default is immunity unless the P can establish that one of the

exceptions apply. The burden of proof is on the Plaintiff a. Waiver b. Commercial activity c. Property takings d. Property in the united states acquired by succession or gift or rights in

immovable property e. Certain kinds of torts

i. Wrongful death, personal injury, damage to or loss of property caused by the foreign state, of an agent of the foreign state while acting in the scope of his employment

f. Arbitration awards g. Essentially a terrorism exception

i. Also tied to HR (Terrorism victims act and CAT) ix. Commercial activity exception is the one that is most commonly at stake

1. Determined by nature of activity rather than by its purpose 2. Courts have found it hard not to collapse nature and purpose in some cases (i.e.

buying a F-16 fighter jet) a. The nature is commercial even though the purpose is military

x. Outside of commercial activity exception the exceptions are view very narrowly 1. P. 859 there is an effort to codify this issue with at an international level because the

need for coordination is relatively obvious. xi. Argentine Republic v. Amerada Hess-

1. Bombing of ships is a public act- not going to fall under the tortuous act exception 2. It was a public act of the State of Argentina- and therefore they shouldn’t be able to

be tried in U.S. courts. If the court were to try it – there would be huge political and diplomatic ramifications

3. Dropping bombs = protected 4. Torture= not protected (letter g above)

d. Act of State Doctrine- becoming more and more obsolete i. Basically says that US courts will not sit in judgment on the actions of a foreign state done

within the borders of the foreign state.

1. Becomes problematic when there are effects outside of the boundaries of the foreign state.

ii. Is not a jurisdictional defense to a suit like FSIA is- best thought of as a prudential rule of judicial self-restraint or choice of law rule, which results in certain claims being dismissed on their merits.

iii. FSI is faised by a defendant- Act of state can be invoked by any party iv. P. 866- the judicial branch will not examine the validity of a taking of property within its

own territory by a foreign sovereign government, extant and recognized by the U.S. in the absence of a treaty or other unambiguous agreement regarding controlling legal principles, even if the complaint alleges violation of customary international law.

v. Difficulties arise: 1. When there are citizens of different states 2. When standards of international law are violated

vi. Second Hickenlooper Amendment: Provided that a taking in violation of international law could still be adjudicated in U.S. courts, notwithstanding the act of state doctrine, provided that the asserted claim was for a property right and the President had not specifically filed a notice barring the suit.

vii. Exceptions also excist involving human rights abuses (Torture Victim Protection Act) – like the ATCA for US plaintiffs.

viii. There is no real “commercial-activity exception” like there is for FSI ix. It is not a constitutional issue- it is a prudential one

1. It is not the judiciary’s job to conduct foreign relations V. Substantive Areas

a. Environmental Law: i. Most of it consists of highly technical treaty regimes

ii. Demonstrates how international law can adapt and change in light of changing public needs iii. Different countries are disparately effected by the tension between environmental protection

and economic development 1. May not have the luxury of saying no to certain behaviors

iv. Trail Smelter Case- US v. Canada- under previous agreements they had created an arbitration tribunal

1. An actor can’t allow an activity within its own boundaries (of one state) to

adversely impact the inside of another state 2. Has risen to the level of customary international law 3. It does however leave open a number of other issues:

a. Does it cover private acts? All private acts? 4. Bottom line: it is a seminal case I principle of accountability for trans-boundary

harm v. Stockholm Declaration � Created UNEP

1. First major multi-lateral document covering a wide variety of topics: 2. Principle 21: states have the right to exploit their natural resources pursuant to

their domestic law as long as it doesn’t have external effects. 3. Similar to the Trail case- but strengthens it � als creates a positive duty to stop

actors from doing so 4. Explicitly says that states have the right to exploit their national resources- as

long as the effects stay within their boundaries 5. Not intended to be a statement of rule of law

vi. Rio Declaration: 1. Principle 2- restates #21 but adds developmental policies

vii. Both declarations represent soft law- but is not a source of law 1. Value: exchange of information

viii. Overall difficulty is trying to balance: 1. Sovereignty 2. Environmental Protection 3. Developmental Goals

ix. Nuclear Test Case: 1. Palmers Dissent- trying to say that there is sufficient customary, coherent

international environmental standards x. Carozza sounds doubtful- says that it is only a very broad set of principles

1. Environmental responsibility is a limit on sovereignty 2. In the protection of the environment states have an obligation of cooperation

a. Rights of consultation 3. There is a differentiated responsibility for environmental protection among states

a. Smaller/ poorer states are expected to do less 4. Development has to be sustainable 5. Precautionary principle- in the absence of scientific certainty with regard to

environmental protection actions/ policies should be protective � assuming that the harm will occur

xi. This is why IEL has generated complex treaty based regimes � customary law is insufficient to address the problems

b. The law of the sea i. Generally:

1. Well defined norms 2. Codification of customary law began in the mid-20th century 3. Constant struggle between sovereignty and commonality 4. Limits on the territorial sea has changed over time 5. UNCLOS III

a. Law of the Sea Tribunal b. Tried to create an institution to regulate mining of continental shelf seabed c. Differentiated responsibility of the law of the sea- depending on the

developmental situation of the individual states ii. Vessels

1. Muscat Dhows arbitration- French/ British dispute over who has jurisdiction over the ships of the Sultan of Muscat

a. Who has jurisdiction? i. The Flag state

b. When is the country allowed to grant nationality to ships? i. According to its own laws � whenever it wants

c. What are the limits: i. If the flag state enters into a treaty with another state in the absence of

treaty provisions there are no limits – that is what Open Register is for.

2. Having exclusive flag state jurisdiction over vessels creates problems a. UK can’t do anything about slave trading on French flag ships b. Varying standards of safety etc. (oil spills) c. Very few exceptions to this freedom (piracy, slave trade) d. Certain countries allow more- so vessels want to register there

i. A race to the bottom in terms of regulation e. Bear the costs of certainty, predictability and stability created by the

jurisdiction of the flag state (need to know what ship belongs to what countries law)

3. Too many states having jurisdiction would be chaos – BUT the only thing worse would be stateless vessel- the flag state rule prevents that- makes it so that there are no stateless vessels.

4. The M/V Saiga- Decided by the international tribunal for the law of the Sea a. Law of the Sea convention says : “There must be a genuine link between the

state and the ship” b. But, the lack of a genuine link does not give another state the right to ignore

the nationality i. That would lead to problems would allow the other state to exercise

jurisdiction over a ship they wouldn’t have had any other way 1. There would be a different standard of what would be a

sufficient link c. Principle of subsidiartity:

i. Counterweight to subsidiarity is some protection of the common good d. The genuine link requirement is to articulate more fully what flag states are

supposed to do. 5. To the extent that the ship is in the territorial waters of a state � There are certain,

limited types of jurisdiction that coastal states can exercise 6. The jurisdiction depends on where you are:

a. Internal waters b. Territorial sea c. Contiguous waters d. Exclusive Economic Zone e. High Seas

iii. Territorial seas and straights 1. Internal Waters: Everything on the landside of the baseline is treated like land

a. Sometimes there is exception made for ports� states won’t exercise jurisdiction if ships in port don’t disturb the peace

2. Territorial sea- 12 Nautical miles- has always existed but distance has changed: cannon shot � 3 miles � 12 miles

a. Extent of state control (jurisdiction) i. It can use the water in the same way it can internal waters

ii. Criminal jurisdiction, but limited. Can’t board a ship unless it came from its internal waters

1. If you think ship is doing something bad- you can call the embassy and ask permission to board.

iii. Innocent passage: treaty basically codified pre-existing

customary law iv. Military vessels- mostly innocent passage applies- but 25 states ask

for notice of military vessels passing through territorial waters iv. The continental shelf and exclusive economic zone

1. Continental Shelf- “instant custom” a. The legal regime applied to the resources of, and the activities affection, the

seabed and subsoil under the ocean. b. Based in the Turman Proclamation

i. The natural resources of the subsoil and sea bed of the continental

shelf beneath the high seas but contiguous to the coasts of the United

States as appertaining to the United States, subject to its jurisdiction

and control

c. Extended out to the point where the water was 200 meters deep or “beyond that limit, to where the depth of the superjacent waters admits of the exploitation of the natural resources”

i. This allows for advancements in drilling technology- and international law would adjust by allowing coastal States extensions of rights to the CS.

d. Can only extend out to 200 nautical miles e. System developed to

2. Exclusive Economic Zone a. Governs resources and activities in the water column and ocean surface b. Can extend 200 nautical miles from shore c. Sovereign rights over the natural resources of the water column (mostly fish) d. Jurisdiction over activities affecting those resources, including offshore

platfors and artificial islands. e. All other high seas freedoms apply (like in SC)

c. The “commons” i. The High Seas: the original Common Area

1. Basic principle � freedom of the seas 2. Codified by UN Convention—UN Convention on the Law of the Sea, Articles 86-

91, 301 (p. 692) 3. Under Grotious

a. Could have been i. High seas belonging to no one (res nullius)

ii. High Seas belonging to everyone (res commnis) 4. Ends up being res communis

a. If it belongs to no one- that meant eventually someone could ownit b. For practical reasons no one can physically occupy it

i. This may not necessarily be true any more- indicates the level of importance is put on each reason

c. One can use it and it doesn’t impact anothers ability to use it 5. Nature of the sea- a natural law presumption- normative presumption 6. High seas are – everything that ins’t the EEZ, territorial waters, archipeligo- Art 86 7. Art. 87- Freedom of: navigation, overflight, to lay submarine cables and pipelines, to

construct artificial islands, Fishing, scientific research a. All have to pay due rigerd fo the interests of other states

8. Art- 88- used only for peaceful purposes a. To be read in the context of the rest of international law- i.e. The

international use of force 9. Does not mean absolute freedom: piracy, slave trading, illegal broadcasting

a. Within 87 (2)- due regard for the interest of other states b. Within 87(1)- other rules of international law

10. Incorporates into concept that the rules of international law apply to protect the common interests of states (Commonality of states)

ii. The Deep Sea bed 1. Generated the same kind of debate as high seas � settled that it was res communis 2. 1970 declaration formalizes this principle- unanimous GA resolution 3. Law of the Sea treaty tried to set up a large bureaucracy to administer it � this failed

to get approved 4. There has to be some sort of international agreement/ structures to ensure common

heritage iii. Common Heritage of all Mankind

1. P. 680 n.1- it requires: a. No state appropriate an area or its resources b. Common management w/ universal participation c. Equitable sharing of economic benefit

i. With eye towards developing states iv. International Waterways

1. No one possess it 2. Common but also restricted 3. Events upstream will certainly impact places downriver 4. No one who has access can do something that is not reasonable and equitable.

v. Antartica 1. At the time of exploration it was res nullius and people began to eventually claim it 2. Discovery has never been viewed as enough- need to exert effective control � issue

becomes how are you going to do that 3. When Antarctic Treaty comes into force � claims are essentially frozen, there can’t

be new ones and the old ones don’t go away 4. Commonality imposed as a scheme that already had and continued to allow

sovereign claims a. Military presence only for scientific research b. Inform others of the activities there c. Share information gathered there

vi. Outerspace 1. Treaty is 1967- also establishes the idea of commonality of heritage

a. Resulted in negotiations being done at the U.N.- only way an agreement could be reached because only 2 state had access to outerspace at the time

2. Could have ben res nullius but established: a. Province of all mankind b. Freedom of scientific investigation c. Encourage international cooperation

3. Doesn’t exclude expropriation- if you do it responsibly- then more independent action is allowed.

4. Issues remain: a. What happens when a private party wants to use space? b. What is the basis under the treaty and the idea of commonalit for countries to

oppose private part action c. Commercial use of space for telecommunication “geostationary orbits” d. Bogata declaration- equatorial states trying to assert jurisdiction over space-

other states said NO. d. Human Rights

i. International Human Rights Law conflicts and requires changes in traditional International Law

1. Jurisprudential and normative content a. IHRL has revived the naturalist theory within International Law

i. Largely justified by the idea that there are some things that are just right/ just wrong

ii. Ethical and moral norms v. Legal norms- focused on the idea that persons have moral worth as such

iii. This does not fit into the classical relations between states that is the basis for traditional international law

b. It introduces individuals, as such into international law � have to be viewed as more than just an object and seen as being an actor in the broader international law system

c. Shifts the overall system of values away from maintenance of peaceful relations between states b introducing a “thicker” justice- not only relations between states but peaceful relations with regard to individuals as well

2. Role of states within the system is changed- authority and status of states gets diminished. HR concerns focuses on what happens within a state- internal functioning becomes an area of international concerns

a. It matters what kind of state you are- not just that you are a State b. Not only aggressive states “look bad” c. Within the boundaries of sovereignty= HR serves to strengthen a type of

sovereignty- states are required to exercise certain authority internally � strengthen idea of what a state is.

3. Sources of international law don’t work the same way with respect to HR norms- customary international law doesn’t fit with HRL, as well as the relation between practice and opinion juris

a. Treaties- IHRL- not created by a treaty or a set of individual treaties, but a network of treaties that relate to/ build on one another

b. Jus cogens- doesn’t come into play in international law at all until IHRL i. Almost every assertion of jus cogens comes from HR Law

ii. This goes back to natural law 4. Issues of enforcement or implementation � reciprocity (or lack there of) can

become a problem � reciprocal obligations enforce international law (that doesn’t work in IHRL because it is often a states relations with its own citizens that is in question)

a. Importance of individuals as primary complainants- give individuals resources- complaint mechanisms make individuals the catalyst for enforcement

b. Importance of international institutions- especially adjudicative bodies c. NGO’s – communal/ associational dimension gets worked in

ii. The Nuremberg Judgment- establishes individual criminal responsibility 1. Article 6 of charter:

a. Crimes against peace – individual responsibility for this was new b. War Crimes—already pretty well established in terms of individual

responsibility c. Crimes against humanity – most important to emerging human rights system

i. It was a watershed moment- a doctrinal innovation ii. If it is a new obligation- how can you punish someone for something

they did before it was articulated? 1. Because it is so obviously wrong- has a basis even though it

wasn’t enshrined in positive law 2. The issue was that the court was created by the victorious powers over the losing

side 3. Emerging order incorporates recognition that respect for human person/ dignity have

to be recognized and institutionalized 4. UN Charter (881):

a. Preamble: to reaffirm faith in fundamental human rights b. Art. 1, p.3: human rights and fundamental freedoms

5. Universal Declaration (921): 53 nations- no widespread consensus that it would actually work. It was a great achievement but at a certain cost (namely that it was

written at a high level of generality/ abstraction)- it is insufficient to generate and sustain a system of positive norms and rules of law

6. Therefore effort becomes ensuring rights at higher levels of specificity and creates procedures and institutions for enforcement. .

iii. Damian Thomas v. Jamaica 1. HR Committee: trying the case but Jamaica withdraws from the Second optional

protocol 2. Decisions by HRC are not intended to be binding based on the language of the

ICCPR 3. In light of the Vienna Convention: ‘treaties should be interpreted in good faith’

a. Not saying we have to respect the HRC- saying we have to respect the treaty � makes it different from other courts w/ undisputed jurisdiction

e. The laws of war i. Humanitarian law

1. Jus in bello- law in war- but saying IHL is sparate is a way that we insulate the protection of individuals- it doesn’t matter what kind of conflict it is � we need to humanize the war

2. It has been a feature of the law of nations since before the rise of the modern Nation

State a. Arises out of the ethical imperative that those not involved (noncombatants)

should be protected b. Historically, all of the major advances have been in response to some critical

period- each new wave of treaties/ institutions have been in response to a conflict

3. It is different from IHRL a. Law of war has recognized that some killings are ok b. Essentially governed by criteria of geography and temporality- this maes it

limited i. Only in situations of armed conflict, only where armed conflict is

taking place � outside of those areas we want IHRL to apply because it gives even broader protections

ii. There are differences between international armed conflicts and internal armed conflicts

c. IHL is still grounded in the reciprocity of obligations between states i. People are owed obligations simply for being persons- not only for

being agents of a state. BUT reciprocity is a way of ensuring that the standards are enforced

ii. Even if it isn’t always respected it still has a serious impact 4. Effectiveness/ implementation:

a. Reciprocity b. Codified through military codes/ ensures that it is the basis for military

discipline/ military honor 5. Paradox: a body of law that is about massive killing- but that massive killing is ok

legally BUT this allows you to say “not these people, not at this time” 6. Hamdi v. Rumsfeld-

a. IHL comes in to interpret “necessary and appropriate” according to O’Connor

b. Raises (the lack of clarity) about why IHL applies to detention means we have to look at it more closesly

7. Hamdan- US said no application of GC

a. SCOTUS says that common art. 3 of GC applies (though didn’t determine the facts of the case)

8. What would happen if Guantanamo was closed? a. Send them back? To where? b. Grant them political asylum? c. Continue to detain them? d. Try them in criminal courts?

i. If prisoners of war (under G.C.) can use military tribunals ii. If not a war, then their detention is a police action?

1. Presents the ‘fruit of the poisonous tree’ problem ii. Traditional law on the use of force

1. Jus ad bello 2. Decline of the idea of ‘just war’ in explanation of use of force with the emergence of

sovereign territorial states and the growth of positivism a. Use of force is within the sovereign powers even in the 19th century and the

presumption was for sovereigns- although there were some limitations 3. Naulilaa Case- reprisals

a. Has to be response to illegality b. Has to be necessary c. Has to be proportional to the harm suffered d. There are certain parallels to the just war theory

i. Necessity ii. Proportionality

4. Caroline Case- Self-defense a. It is interesting because it is only an exchange of diplomatic notes- but it ends

up becoming representative of customary international law b. Articulates a formula

i. Necessity ii. Proportionality

5. WWI- a. League of nations didn’t outlaw war BUT there is the Kellogg-Briand pact

and its prohibition i. Extremely general

ii. No enforcement mechanism b. Viewed as more aspirational than effective

iii. The law of the UN Charter 1. 2(4) on p. 547- can’t use force contrary to the purposes of the U.N. – the purposes

are extremely broad 2. Art- 51- self defense is allowed if an armed attack occurs � must be reported to

Security Council 3. Very different from the previous regime

a. WHO: i. Institutionally- entrusts fundamental decisions to an institution and

gives formal legal authority to the Security Council b. ON WHAT BASIS

i. Substantively- threat to- breach of international peace and security (v. different (much narrower) than the just war doctrine)

ii. Privileges the value of peace and security and subordinates other previous justifications

1. Justice? 2. Democracy/ socialism- Not a basis for war under the charter

3. Promotion of Human Rights- a strict reading fo the prohibition would say no

4. Ambiguities: a. What qualifies as the use of force? Is it only if on a certain scale? b. What counts as self-defense?

i. Pre-emptive? ii. Anticipatory?

iii. Protection of Neighbor? c. Most notable problem:

i. Gap between actual practice and legal norms ii. System never really implemented

1. Emergence of Cold War 2. Countries unwilling to give troops to U.N. 3. Huge gap between practice and law

iii. This allows us to see/ test the reach of law 5. How to address the problems:

a. Henkin (p. 548) i. 2(4)- he says that it is a dangerous world- especially in light of

nuclear weapons and because of this- the purposes of the UN can’t be achieved through military force. Implications to Human well being are too great

ii. Need to take a very strict and narrow view of what is allowed under the charter

iii. Charters restrictions must be firm and strong iv. Reconcile that with Human rights:

1. A system of strong and stable states are what is necessary to ensure Human Rights

2. Defends a broad reading of the Charter and a narrow understanding of exceptions

v. Wants a strong state-centric system vi. Even though the charter was never realized in its original form- the

restrictions of law of war should be taken seriously vii. Acknowledges exceptions:

1. Self-defense 2. Approval of Security Council

a. Strict understanding and narrowly construed. b. Reisman

i. Resists a formalistic/ black letter approach to the charter ii. It matters that historically the UN system doesn’t function the way it

was intended to iii. We have to accept that there are other values (other than the

restrictions on the use of force) that people value 1. i.e. political self-determination

iv. Must balance interests with interests in restraining the use of force. 6. Nicaragua Case- ICJ

a. There was a rebellion- almost a civil war and Nicaragua is providing $$ to El Salvador in their civil war

b. US trains rebels in N who counter that effort c. US contests jurisdiction but doesn’t succeed d. US refuses to participate in merit portion of the case

e. ICJ tries to assume US case- factual questions still remain- historical evidence seem to show that ICJ was wrong and N. was involved in El Salvador

f. Sources of Law: i. Court can’t interpret a multilateral treaty (charter) unless all parties

are present ii. So it instead decides it based on customary international law

1. Then the say that the Charter is customary international law g. Court sys that the principles of the charter (as customary law) prevent

collective self-defense in this case h. Self-defense is only a means of response to an armed attack� in this case

supplying arms to rebels and minor border incursions do not meet the level required.

i. There is no dispute that at some level N. is supplying arms and training � but it doesn’ justify armed attack in return- do not provide basis for legal use of force.

j. Would have been illegal for El Salvador to use forcee i. Report to S.C. (Henkin)

ii. Other low level attacks? If there is no right of s-d does that mean that N. actions are legal?

1. Reisman- there are other principles to consider i.e. territorial integrity

2. So therefore N. would be acting illegally under the charter k. Self-defense has to beet a standard independent of art 2(4) l. How to accommodate this gap?

i. Even if we acknowledge that the U.S. was factually right- it was the self-serving justification of preventing radical left wing leaders form getting power � justifying unilateral military action

1. Need the standard to prevent this ii. But system is unresponsive to the interets of the state- is a state really

going to limit itself to asking the S.C. for help? 7. Bush Doctine of Pre-emptive self-defense

a. A broad explanation (statement) of this same principle b. The charter read restrictively would not necessarily allow full self-defense

without some initial action by the other side. 8. Charter modified some customary law- but it didn’t completely replace it (custom)

there are som principles which still exist 9. If there is a customary rule that allos for the use of force in some circumstances- you

just have to accept the customary limitations 10. Problem: UN has no accountability

a. The SC is frequently by-passed but this isn’t a new problem- cold war was a mess

b. Crisis of Iraq II is not new to SC iv. Collective force

1. Ch. 5- Art 24 of the Charter- Security Council- primary responsibility over peace and security—the Decisions have legally binding effect

2. Ch 7(39, 42, 43) members intended to put forces at disposal of Security Council but that never happened- Now troops are under their own states command

3. There are substantively no limitations on armed force or the imposition of sanctions 4. Procedurally there are difficult requirements because the veto powers, state interests,

etc.

5. Peacekeeping: a. Raises problem of the Security Council authority- because it is not in the

charter- they aren’t enforcement actsoin 6. Notice: ICJ recognizes S.C. power to use this (Not General assembly) 7. Also sees Peacekeeping as a legitimate development of the UN System 8. Security Council authorization of military force

a. Korea b. Gulf War I c. The only two to get the approval before hand

9. Post hoc authorization: Somalia, Afghanistan, Kosovo 10. First Gulf War:

a. Res 661- i. S.C. made finding of breach of peace for purposes of future

resolutions ii. Legal basis was ch. 7 of charter

iii. Not i.e. art 41 � significant because it can later become the basis for use of focrce0 leaves a variety of mechanisms open to be used.

iv. UN will often use calculated ambiguity in their resolutions. b. Res 678- “all necessary means” indicates UN approval to use military force

i. Iraq failed to keep any veto power on its side 1. Truly exceptional as a relationship with any of the veto

powers would have been sufficient ii. Is this an enforcement (of international peace and security) action or a

recognition of the self-defense of Kuwait iii. Res 678 was the authorization- also the limitation

1. Since it was the latter- all that oculd be done was to restore the territorial integrity of Kuwait- GHWB acted within this framework and that is why he didn’t force regime change

2. If it is an enforcement action: there would be many other considerations

11. Second Gulf war: a. Arguments for the Authorization of the Use f force

i. Based on Security Counci action 1. Working within the Charter scheme (has not received wide

spread acceptance) ii. Outside the charter scheme

1. Fuctionally similar to self-defense 2. Pre-emptive self-defense 3. An invocation of self-defence from pre-charter

a. Bush Doctrine goes substantially beyond the customary understanding i.e. Caroline

4. There is a new custom a. The problem with this is that it was a claim of right

that was largely rejected by the rest of the international community

v. Law of war blurs lines between positivist rules and ethical norms. vi. Doctrinal Gap:

1. Between what this is prohibited and what is enough to allow states to invoke Self-defense (i.e. Nicaragua)

2. What does this mean about the effectiveness of the charter system a. Don’t just say that it isn’t effective-

b. Have to look at the types of armed conflicts c. Don’t really see armed conflicts aimed at destroying the territorial integrity

and sovereignty of another state d. Probably why one of the only approved actions was Iraq 1