Public International Law Professor Lutz Fall 2016

I. WHAT IS INTERNATIONAL LAW? o Rest. 3 rd of Foreign Relations Law § 101

International Law → Consists of rules & principles of general application dealing with the conduct of states and of international organizations and with their relations inter se (btwn & among them) as well as some of their relations with persons, whether natural or juridical (corporations) Compare → Municipal Law → Internal, domestic law of a State

o International Legal System UN General Assembly → “legislative”

Resolutions passed by UN G.A. → recommendations only – not binding law

G.A. not a law making body – does not have the authority, per se, to enact law

World Courts – International Judiciary ICJ, or World Court: International Court of Justice (“the Hague”)

o UN’s principal judicial organo Jurisdiction over States & disputes between 2 or more different

States Disputes may arise out of acts committed by individuals but

must be attributable to the State’s government ICSID: Int’l Center for the Settlement of Investment Disputes (under

auspice of World Bank in Washington) World Trade Organization (WTO) Law of the Sea (LOS) Tribunal European Court of Human Rights

The international legal system is very different from the US legal system, however, significant conceptual similarities & analogous legal doctrines/theories: K, tort, property, civil procedure, crim, crim pro, evidence, etc.

Key Distinction: Rules that are made/opinions/decisions → directed to States, not individuals or companies

o United Nations – Principal Organs General Assembly

Consists of all the Members of the UN w/a max of 5 reps per Member State

Makes Resolutions (recommendations) relating to the maintenance of international peace & securityo General recommendations or specific recommendations at the

request of States Security Council

Investigates & makes recommendations re: disputes which are likely to endanger int’l peace & security and/or lead to int’l friction or give rise to a dispute → i.e. disputes which endanger human life

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Economic & Social Council Trusteeship Council International Court of Justice Secretariat

o CASE: The Chad-Libya War over the Aouzou Strip Rule of Law: A permanent boundary, once established in a treaty, does

not depend for its permanence on the continued existence of the treaty. 1955 Treaty established the frontier between Libya & Chad No subsequent treaty, or any act of the Parties called in question this

frontier, & to the contrary, subsequent treaties & acts by the Parties suggested that the existence of this frontier was accepted by the Parties

The establishment of the boundary has a legal life of its own that is independent of the life of the Treaty; otherwise the fundamental principle of the stability of boundaries would be vitiated → Uti Poessedetis

→ the Treaty can cease to exist, but the boundary will continue, absent mutual agreement

Boundary dispute is conclusively & completely determined by the 1955 Treaty → Classical Approach to Int’l Law re: Treaties

Supports the existence & value of the treaty beyond 1955, even without the continued acceptance of it

Until the treaty is breached, there is a usual assumption that the treaty is valid

Reflects Uti Possedetis Principle: respect for the territorial status quo (former boundaries (prior to independence) become frontiers protected by international law)o Borders need stability; States are defined by sovereignty

o CASE: Rainbow Warrior Affair Rule of Law : Where a nation’s agents have violated international law and

committed acts that are crimes in a second nation, the first nation may be required to provide the second nation with an apology, compensation, assurances that guilty parties will be punished if returned to the first nation, and assurances that no trade sanctions will be levied against the second nation as a result of the affair.

Attributions: acts attributable to the State itself, not just private individuals of the a State

Dispute Resolution Process: Per UN Charter, Article 33, states ought to engage in specific processes

to resolve disputes (when disputes may endanger the maintenance of int’l peace & security):o Consultation: Parties have a duty to consult each other to talk about

resolving disputeo Negotiationso Enquiry (fact-finding)o Mediate: 3rd party facilitates the parties to come to an agreement

that resolves dispute

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o Arbitration: 3rd party is conferred authority to make a decision for the parties

o Judicial Settlement Actual judge; Formal institution that is settling dispute Can develop their own jurisprudence – stare decisis isn’t

automatic in Int’l Law but consistency is still imperative for the legitimacy of the court

o What State’s Seek: Apology – satisfaction & Compensationo 3 Major Themes highlighted

1. Limits of Legalization → Shift of Int’l system to resolve disputes: leads to not really resolving them: Sometimes heightens dispute → More law is not necessarily better

2. Fragmentation of Int’l Law Highly decentralized process re: lawmaking & application Parallel proceedings → forum shopping; conflicting obligations; loss of

legal certainty 3. Persistent Challenge of Enforcement (or compliance)

If law cannot be enforced, what is the good of it?

II. HOW INTERNATIONAL LAW IS MADE o Sources of International Law

Article 38 of the Statute of the International Court of Justice, UN Charter The Court, whose function is to decide in accordance with international

law such disputes as are submitted to it, shall apply:o a. International conventions, whether general or particular,

establishing rules expressly recognized by the contesting states; → agreements made between 2 or more states → Requires

express consent Ex. Treaties

o b. International custom, as evidence of a general practice accepted as law; Customary Int’l Law: Dual Test

State Practice → what states do/practice as law, plus Opinio juris → accepted as law (opinion that it is law)

o c. The general principles of law recognized by civilized nations; → Laterally consistent laws throughout “most” legal systems Not automatically applied – used as gap fillers/principles

o d. Judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law More than merely persuasive Used for the determination of rules of law that there is a rule of

int’l law – that one actually exists → Evidence of Int’l Law Academic scholars – highly publicized opinions Judicial decisions of highest courts in other nations (ex. US

Supreme Court) ICJ decision and rule of law is binding only upon the Parties to the

dispute

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o Does not become case law to apply to future ICJ disputes – no stare decisis requirement

o Treaties → International Conventions Vienna Convention on the Law of Treaties

Codified most of the int’l law norms applicable to treatieso Many of its provisions restate or codify customary int’l law already

in place prior to the treaty’s adoption Adopted by states at an int’l conference in 1969; as of Oct. 2009, 110

states are parties to the Conventiono US is not a party to the treaty, but the Executive Branch has

described it as “the authoritative guide to current treaty law and practice.”

VC, Article 2: “Treaty” means an international agreement concluded between States in written form and governed by int’l law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation Written Form Between States Governed by Int’l Law

VC only applies to treaties in written form, entered into between States → however, VC rules may still be relevant to parties other than states (NGOs, insurgent groups, int’l orgs.) and to oral agreements

Formation of Treaties Negotiations Adoption

o Org. or states leading the negotiations will submit a text to the participating states for adoption: sometimes by consensus & sometimes by a process of voting on particular provisions or the text as a whole

o Multilateral treaties often provide for signature subject to ratification or approval

Signature: o States that sign a treaty accept the text as adopted and indicate

their intent to be bound by the treaty, subject to completion of national law requirements for treaty ratification

o Under Article 18, states that have signed but not yet ratified a treaty must not take any action to defeat the treaty’s object & purpose

Ratification: o Once ratified by a State → becomes binding upon that State –

international legal obligation

o Treaty Formation by the US (Dualistic System): Signature:

If the President decides that a treaty is in the nation's best interests (and does not violate the US Constitution!), the President (or designated representative) will sign the treaty. Signing a treaty does not make it become law! It means that the US Government believes

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the treaty is a good idea, and commits the President to seeking ratification.

Sending the Treaty to the U.S. Senate: Once signed, the next step in the ratification process is to send the

treaty to the US Senate, more specifically, to the Senate Committee on Foreign Relations. To do so, the State Department is responsible for putting together a package of documents to go along with the treaty, including:o Policy benefits and potential risks to the US;o Any significant regulatory or environmental impact; or,o Analysis of the issues surrounding the treaty's implementation, for

example, whether the agreement is self-executing, or whether it needs domestic implementing legislation or regulations to abide by the treaty.

In addition, the State Department may propose a set of Reservations, Understandings, and/or Declarations (RUDS). These provisions include any specific additions, changes or deletions in the language and substance of the treaty that the US will require in order for it to ratify.

Senate Consideration and "Advice and Consent" With the treaty package in hand, the Senate Foreign Relations

Committee can begin its consideration. It can vote to send the treaty to the full Senate for action, with a favorable or unfavorable recommendation, or even without any recommendation at all; it can also decide to ignore the treaty entirely. However, if the Committee fails to act on the treaty, it is not returned to the President. Treaties, unlike other legislative measures, remain available to the Senate from one Congress to the next, until they are actively disposed of or withdrawn by the President.

When the Committee on Foreign Relations sends a treaty to the full Senate, the Senate considers whether to give its "advice and consent" or approval. That requires 67 votes, or two-thirds of the 100 Senators. The Senate may make its approval conditional by including in the consent resolution amendments to the text of the treaty, its own RUDS, or other statements.

Back to the President Even if the Senate votes in favor of a treaty, there is still another step

in the ratification process. Only the President, acting as the chief diplomat of the United States, has the authority to ratify a treaty. With the Senate's approval, the President can then move forward with the formal process of ratification. That means submitting documents giving the US Government's agreement to abide by the treaty, as well as any RUDS, to an institution (called a "depositary"). The deposit of the instruments of ratification establishes the consent of a state to be bound by the treaty.

o Self-Executing Treaties Do not need to go thru execution process for implementation → become

absorbed directly into the law of the U.S. Ex. CISG

Treaty → Acronym: T.I.R.E.D .

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o T. What is a treaty? Binding as a matter of law – legitimized by the legal system Pact sunt servanda: is defined as the fundamental principle of the law of

treaties and that all treaties are binding upon the parties and must be performed in good faith.

Ratification: Has been signed into international law Ascension: after initial States have signed on to it, an additional state

agrees to it – sometime after ratification Ex. China became party to World Trade Organization years after it

came into being in 1994 → it acceded to the treaty

o Who Can Enter Into Treaties? Article 6: Capacity: Every state possesses capacity to conclude treaties Article 7:

(1) A person is considered as representing a State for purposes of adopting or authenticating the text of a treaty or for expressing consent of state to be bound by treaty if: o (a) He produces appropriate full powers, or o (b) It appears from practice of 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) The following are considered as representing the State without producing full powers o (a) Head of states, government and ministers for foreign affairs, for

purpose of performing all acts relating to conclusion of a treaty…o (c) Representatives accredited by States to an international

conference or to international organization or its organs for purpose of adopting the text of treaty in that conference, organization or organ

Example: A US representative to a conference on human rights may have capacity to negotiate and sign a treaty on human rights but lack capacity to negotiate and sign an unrelated treaty on the sale of goods.

Apparent Authority- A state is bound to a treaty unless it is clearly evident that its rep was acting beyond authority.

Article 8: Subsequent Confirmation of an Act Performed Without Authorization: An act relating to conclusion of treaty performed by person who is not authorized to represent a state under Article 7 is without legal effect unless afterwards confirmed by that State.

Article 5: Inter-governmental Orgs. → can enter into treaties → ex. UN

o Unilateral Agreements A country commits itself to do something in particular – without a return

“promise” Can other countries hold that country to its declared commitment? Is the

country obligated? No KSN present, but country made a public commitment

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Argument: The country undertook to make a commitment – other countries can be beneficiaries to that commitment; Unilateral agreement was formed when country stated it would do somethingo If there is intent to establish an obligation or to induce other states

to rely on that commitment → must be more than just a politcal statement

In order to create an International Unilateral Obligation, must establish: Legal Undertaking: It was done unilaterally, with intent to establish

that the State would become bound to its terms No Quid Pro Quo

o No subsequent acceptance or reaction from other states was necessary

Created reliance by other countries

o Invalidating a Treaty Under the VC Convention: Grounds for invalidating a treaty: error, fraudulent conduct, corruption,

coercion, conflict with peremptory norm (jus cogens), and conflict with domestic law

Article 2(1) of the UN Charter: principle of sovereign equality of states → as a practical matter, states vary enormously in size, resources, population, military capacity, & economic strength → these disparities necessarily place some states in stronger bargaining positions than other in the negotiation of particular treaties However, as a general matter, such inequalities do not preclude the

conclusion of a valid treaty any more than similar inequalities in the bargaining positions of private parties preclude the formation of valid private Ks

On the other hand, doctrinal municipal law of many states provide for rescission of Ks under duress (threat), unconscionability (bargaining inequality + oppressive terms/take it or leave it), undue influence (excessive pressure), and misrepresentation (fraud)

CASE: Turkey-Cyprus Conflict Greek Cypriots & their supporters questioned the validity of Cypriot

consent to the 1960 treaties → Suggested that the treaties were “imposed” on Cyprus; had no choice but to accept the treaties; and that the treaties were “unequal, inequitable and unjust.”o “Arrived at in circumstances precluding free choice”

The basic articles were arrived upon btwn the Greek & Turk govts in the absence of the reps of the people of Cyprus

Archbishop, leader of the Greek majority of the people of Cyprus said he raised a number of objections & expressed strong misgivings re: certain provisions: was unable to bring about change & was faced with dilemma of either signing it as it was, or rejecting it & facing “grave consequences”

o “In the circs, I had no alternative but to sign the agreement. This was the course dictated to me by necessity . . .”

o Parties were in an “unequal bargaining position” and the Greek Cypriot side did not give its consent freely

Turkey’s representative defended the adoption of the treaties:

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o These treaties…represented a compromise formula acceptable to all the parties…

o Was arrived at after long and bitter debates in the UN, as well as in int’l conferences, & convinced everyone of the necessity to establish a system which would take into consideration the rights & legitimate interests of all concerned

Article 42: Validity and Continuance in Force of Treaties: (1) Validity of treaty or consent of state to be bound by a treaty may be impeached only through application of present Convention, (2) Termination of a treaty, its denunciation or withdrawal of a party may take place only through application of provisions of treaty or present Convention. The same rule applies to suspension of treaty.

Article 45: Loss of a Right to Invoke a Ground for Invalidating, Terminating, Withdrawing from or Suspending the Operation of a Treaty: a party that continues to perform under the terms of a treaty, despite knowledge that grounds for invalidating exist, is precluded from later invoking those grounds for invalidation. This provision does not apply to coercion or in conflict with jus cogens.

Article 51: Coercion of a Representative of a State: the expression of a State’s 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 effect

Article 52: Coercion of a State by the Threat or Use of Force : A treaty is void if its conclusion has been procured by the threat or use of force in violation of the principles of international law embodied in the Charter of the United Nations

EXAM TIP: Questions often explore whether a state may be bound to a treaty under international law before it has accepted the treaty under its own internal processes because VC Article 18 says that a state that has indicated its preliminary acceptance of a treaty in certain ways cannot do anything to “defeat the object and purpose of the treaty” until it has clearly indicated its refusal to become a party to it.

o I: Interpreting Treaties Article 31: the “Ordinary Meaning Rule”

A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in light of its object & purposeo Context: the language of the treaty itselfo Any subsequent agreement between the parties re: the

interpretation of the treaty or the application of its provision, any subsequent practice which establishes the agreement of the parties re: its interpretation

o Any relevant rules of int’l law applicable in the relations between parties

Good Faith Compliance Requirement

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Pacta Sunt Servanda: It is supposed that all treaties must be performed in good faith & are binding upon all states that are a party to it, regardless of their motivations for entering into it

Treaties are made to serve a purpose for both sides/all sides Obligations on both sides, usually → hence the reason for the long

negotiation process Treaties exist b/c of the obligations they create → purpose for entering

into them is to create those obligations Principle of Treaties: made to be negotiated & operative in good faith Pact sunt servanda → the treaties are to serve – to be serving, is to be

served

Article 32: To Explain the Ordinary meaning, if necessary When the meaning resulting from the application of Art. 31, or to

determine the meaning when the interpretation according to Article 31 either:o Leaves the meaning ambiguous or obscure, oro Leads to a result which is manifestly absurd or unreasonable

Then: the Treaty may be supplemented for the purposes of interpretation/explaining, with the following:o Preparatory work of the treatyo Circumstances of its conclusion (very rare situations)

** Histories are usually not accepted, unless the parties agree that the preparatory work is accurate, or they want to see it & make it official **

CASE: Turkey-Cyprus Conflict Issue: What does “take action” mean?

o Turkey argues they have the right to “take action” under the agreement

What is the plain meaning of take action?o It is ambiguous

Under Art. 32: Allowed to supplement with preparatory work to explain the meaning of “take action” (although in this situation, that probably wouldn’t help much)

Jus Cogens: Peremptory Norms Def.: A norm that pre-empts other norms – you can’t have a norm that

would in some way violate that peremptory norm

Article 53: Treaties Conflicting with a Peremptory Norm of General International Law (jus cogens)o A treaty is void if, at the time of its conclusion, it conflicts with a

peremptory norm of general international law. o For purposes of the present Convention, a peremptory norm of

general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a

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subsequent norm of general international law having the same character.

Ex. Human Rights Violations – Genocide

CASE: Turkey-Cyprus Conflict Turkey will argue that they have the right to use force to protect their

people (jus cogens) Greece will argue that Turkey cannot use force to actually invade their

sovereign state (jus cogens) – would violate Article 2(4) of the UN Charter:o The Organization & its Members . . . shall act in accordance with the

following Principles: 1. The Org. is based on the principle of the sovereign equality of

all its Members. 2. All Members, in order to ensure to all of them the rights and

benefits resulting from membership, shall fulfil in good faith the obligations assumed by them in accordance with the resent Charter.

All members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered.

o R: Reservations: What are the consequences of treaties? Uniform acceptance of all of the provisions of a treaty by all the parties to

it is the norm for most treaties However, sometimes 1 or more states wishes to become a party to a

multilateral treaty but refuses to accept 1 or more of its provisions → States may seek to enter a reservation to the treaty → to limit or exclude the application of 1 or more of the treaty’s terms to the reserving state, provided that the treaty does not expressly prohibit the reservation at issue

Article 20: Acceptance of and Objection to Reservations 1. A reservation expressly authorized by a treaty does not require any

subsequent acceptance by the other contracting States unless the treaty so provides

2. When it appears from the limited number of the negotiating States & the object & purpose of the treaty that the application of the treaty in its entirety btwn all the parties is an essential condition of the consent of each one to be bound by the treaty, a reservation requires acceptance by all the parties.

3. When a treaty is a constituent instrument of an int’l org. & unless it otherwise provides, a reservation requires the acceptance of the competent organ of that org

In cases not falling under the preceding paragraphs & unless the treaty otherwise provides:o a. Acceptance by another contracting State of a reservation

constitutes the reserving State a party to the treaty in relation to that other State if or when the treaty is in force for those States

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o b. An objection by another contracting State to a reservation does not preclude the entry into force of the treaty as btwn the objecting & reserving States unless a contrary intention is definitely expressed by the objecting State

o c. An act expressing a State’s consent to be bound by the treaty & containing a reservation is effective as soon as at least 1 other contracting State has accepted the reservation

Article 21 - Legal Effects of Reservations & of Objections to Reservations 1. A reservation established w/re: to another party . . .

o (a) Modifies for the reserving State in its relations w/that other party the provisions of the treaty to which the reservation relates to the extent of the reservation; and

o (b) Modifies those provisions to the same extent for that other party in its relations w/the reserving State.

2. The reservation does not modify the provisions of the treaty for the other parties to the treaty inter se.

3. When a State objecting to a reservation has not opposed the entry into force of the treaty btwn itself & the reserving State, the provisions to which the reservation relates do not apply as btwn the two States to the extent of the reservation

Illustrations: A, B, C & D are parties to a general multilateral treaty

o A ratifies the treaty w/a Reservation to Provision 10o B accepts the Reservationo C objects but still wishes to maintain treaty relationship (accepts A

as Party to the convention)o D objects to both the reservation & to the entry into force of the

treaty btwn itself & A A → B: treaty is in force/binding but B cannot assert Art. 10 against A

(Art. 10 is modified) A → C: treaty is in force/binding but Provision 10 is not included in

their agreemento However, C will still hold A to Art. 10, but A will assert reservation –

thus Art. 10 is in “limbo” → allowed under Art. 20 & 21 of VC A → D: No treaty in force btwn A & D B, C, D: treaty is in force w/o reservations → no modifications btwn B,

C, D (inter se)

o E. Exceptions to Performance: Changed Circumstances Termination - Unless provision

Violates jus cogens Material Breach by opposing party Impossible to comply with treaty Fundamental change in the circumstance in the treaty

Article 56: Denunciation of or Withdrawal from a treaty Containing No Provision Regarding Termination, Denunciation or Withdrawal (only if intended or implied 12 month notice)

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Article 60: Termination or Suspension of the Operation of a treaty as a Consequence of Its Breach: 1. A material breach of a bilateral treaty by one entitles the other to

use it as grounds for it; 2. A material breach of a multilateral treaty by one of the parties

entitles: o a. Other parties by unanimous agreement to suspend the operation

of the treaty: o b. One specially affected by breach is a ground for it between itself

& the default State; o c. One party changes the position of every party with respect to

the further performance of its obligations under the treaty. 3. A material breach of a treaty, for the purposes of this article,

consists in: o a. A repudiation not sanctioned by the present Convention, OR o b. The violation to the purpose of the treaty.

5. Paragraphs 1 to 3 do not apply to human rights provisions

o D. Damages: technically, Breach, Withdrawal – What constitutes a Breach of a Treaty? Article 42: Validity & Continuance in Force of Treaties:

1. Impeached only through Convention, 2. Only through provisions of treaty.

Article 45: Loss of a Right to Invoke a Ground for Invalidating, Terminating, Withdrawing from or Suspending the Operation of a treaty: a. It agreed that the treaty is valid or remains in force or continues to

operate or b. It must by reason of conduct be considered as having acquiesced in

validity Article 51: Coercion of a Representative of a State (treaty has no

effect): Article 52: Coercion of a State by the Threat or Use of Force

(treaty has no effect): Whether or not the treaty is valid?

The representations Jus Cogens – pre-emptive

III. CUSTOM AND SOFT LAW Customary International Law (CIL)

o A rule of customary international law binds all states that have not objected to the rule while it is in the process of formation Evolves from state practice – custom/norm of States → then becomes

Opinio Juris → need both to become customary int’l law Does not require the formal negotiation & express consent associated

w/treaties Custom continues to govern many issues that are not regulated by treaty

o TEST/RULE:

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State Practice Duration – length of time

o “there is no specific time requirement: it is all a question of accumulating a practice of sufficient density, in terms of uniformity, extent & reps

o However, in the nature of things, some time will normally need to elapse b4 a practice matures into a rule

# of Stateso “…it must be virtually uniform. Different states must not have

engaged in substantially different conduct…”o Contrary practice does not prevent the formation of a rule of CIL as

long as this contrary practice is condemned by other States or denied by the govt tiself – through such condemnation or denial, the rule in ques. is actually confirmed

o The State practice must be both extensive & representative – does not however, need to be universal: a “general” practice suffices → No precise number or % of States is required

o The practice must “include that of States whose interests are specially affected” → if this is satisfied, do not need a majority of States worldwide

o If, on the other hand, “specially affected States” do not accept the practice, it cannot mature into a rule of CIL, even though unanimity is not required

o Who is “specially affected” under Int. Hum. Law may vary according to circumstances

plus Opinio Juris The subjective element implicit in CIL, the belief that a practice is in

fact binding Must often be inferred from the nature & circumstances of the practice

itself Consistent state practice becomes law when states follow the practice

out of a sense of legal obligation → not out of mere convenience or courtesy

o CASE: The Paquete Habana (US Supreme Ct 1900) Issue: Whether two ships/vessels that were engaged in fishing/pursuing

their vocation of catching & bringing in fresh fish off the coast of Cuba, and which had no knowledge of the war or of the blockage, had no arms nor ammunition on board, & made no attempt to run the blockade after it knew of its existence, nor any resistance at the time of the capture – were exempt from seizure as prizes of war. → Holding: Yes

GR: By an ancient usage among civilized nations, beginning centuries ago, and gradually ripening into a rule of int’l law, coast fishing vessels, pursuing their covation (?) of catching & bringing in fresh fish, have been recognized as exempt, with their cargoes and crews, from capture as prize of war. Provided they had no offensive arms, & were not proved to have made

any signals creating a suspicion of intelligence w/the enemy Was once a “rule of comity only and not of legal decision” → but the

period of a 100 yrs which has since elapsed is amply sufficient to have

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enabled what originally may have been comity, courtesy to grow, by the general assent of civilized nations, into a settled rule of international law

“Where there is no treaty and no controlling executive or legislative act or judicial decision, resort must be had to the customs & usages of civilized nations”

Discerning & Applying Custom: Foreign Direct Investment & Expropriationo Expropriation → What is just compensation?

The Hull Doctrine: US Secretary of State, 1938: no government is entitled to expropriate private property, for whatever purpose, without provision for prompt, adequate, & effective payment therefor Prompt: without delay Adequate: Fair Market Value Effective Payment

o Currently that is accepted by the investor (in the currency brought in by the investor); or which is freely usable, remains convertible

UN General Assembly Resolution 1803 in 1962 supported “PAE” → international law

governed Later Resolutions 3171 & 3281 → law of the host State governs

o Each State is entitled to determine the amount of possible compensation & the mode of payment, & any dispute which may arise should be settled in accordance w/the national legislation of each State carrying out such measures i.e. Iran, Iraq, Libya, etc. would get to determine outcome….

o Most Western countries did not consent to these Resolutions

Guideline on the Treatment of FDI Unanimously endorsed by the World Bank’s Development Committee,

1992 However, where bilateral investment treaties (BITs) are in force

(ex. US & Ecuador), they take precedence over the Bank Guidelines Bank Guidelines support “PAE” standard for compensation & effective

dispute settlement procedures → However, State & foreign investor must agree to what the fair market value is, however; other detailed stipulations

Strengthened protections for investors

o CASE: SEDCO, Inc. v. National Iranian Oil Co. & Islamic Rep. of Iran (Iran-US Claims Tribunal, 1986) Issue: Under CIL, does a nation that expropriates a private interest have

to provide compensation equivalent to the full value of the property taken?

Rule : UN GA Resolutions are not directly binding upon States & generally are not evidence of CIL, except in certain circumstances However, opinions of int’l tribunals & of legal writers overwhelming

support the conclusion that under CIL in a case such as here presented

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– a discrete expropriation of alien property – full compensation should be awarded for the property taken

o CASE: Texaco v. Libyan Arab Republic Rule: To be legally binding, UN Resolutions must be accepted by a

majority of member states representing all of the various groups, including those Western members w/market economies, as well as Third World members

Effect: Resolutions 3171 & 3281 were adopted by a majority of members, however, 1 paragraph re: nationalization, which disregarded the role of int’l law, was not consented to by the most important Western countries & caused a number of developing countries to abstain → thus, these latter provisions do not have legal value

→ Only Resolution 1803 was supported by a majority of Member States representing all of the various groups Thus, 1803 which in substance, conforms to International Law, is

applicable/governs

Soft Law o Declared norms of conduct understood as legally non-binding by those

accepting the normso 3 Characteristics of all forms of law making (Prof. Reisman)

1. Instruments vary in terms of their precision → some obligations are clear: others confer substantial discretion

2. Legal instruments differ in the extent to which they are viewed as authoritative

3. Law-making instruments vary in the degree to which they are likely to be the subject of effective enforcement mechanisms. Determining softness or hardness → examination of the form, subject-

matter & content, as well as the intention of the parties.o Not binding, but can gradually become more and more obligatory

Becomes a customary norm, state practice → & then opinio juris → then becomes “binding” hard law

1. Relationship to lawmaking 2. Legitimacy of process 3. Ripening Factors

Ex. Stockholm Declarationo At the time executed, only 2 States were parties, now about 60% of

States are parties → Ripened into Hard Law

Other Sources/Means of Making Int’l Law GA Resolutions & Security Council Resolutions Declarations of Int’l Orgs. Industry codes of conduct.

o → Have value, but not the power of law (authority) May result in capacity of parties to make claims/enables them to hold a

party to a principle → is not binding, but shows the principles “softness” or “hardness” -- how non-binding is it? How close is it to possibly becoming “hard” law?

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IV. PARTICIPANTS IN THE INT’L LEGAL PROCESS: STATES & INTERNATIONAL ORGANIZATIONS

O Requisites of Statehood: 1. Permanent Population 2. Defined Territory 3. Government 4. Capacity to enter into relations w/other States

Note: Difference btwn recognition of statehood vs. recognition of a government

Constitutive View Only: Recognition by other states required for Statehood

O Self-Determination & Its Limits MAIN ISSUE : What constitutes a right by peoples to assert a right to self-

determination:O CASE: Alland Islands – Finish or Sweden? (Pre-UN Charter)

Issue: Whether, from the standpoint of territorial sovereignty, the situation of the Aaland Islands in the independent state of Finland is of a definite and normal character, or whether it is a transitory or not fully developed situation. Issue: Is it possible to admit as an asbolute rule that a minority of the

population of a State, which is definitely constituted and perfectly capable of fulfilling its duties as such, has the right of separating itself from her in order to be incorporated in another State or to declare its independence?

Holding: No Reasoning : To concede to minorities, either of language or religion, or to

any fractions of a population the right of withdrawing from the community to which they belong, b/c it is their wish or their good pleasure, would be to destroy order and stability within States and to inaugurate anarchy in international life. – it would be to uphold a theory incompatible with the very idea of the State as a territorial and policy unity. Sovereignty of states → concerns of not disturbing the rights and the

prospect of changing maps, new rules, etc. → confusion/complexity creates an instability which can lead to other consequences – “inaugurate anarchy in international life”

Interested in maintaining order & stability RULES: The separation of a minority from the State of which it forms a

part and its incorporation in another State can only be considered as an altogether exceptional solution, a last resort when the State lacks either the will or the power to enact and apply just and effective guarantees. Succession is possible only when the State refuses to grant or is

incapable of granting “satisfactory guarantees and faithfully observe the engagements which it will enter into with them”.

Application: If it were true that incorporation w/Sweden was the only means of preserving its Swedish language for Aaland, we should not have hesitated t consider his solution. But this is not the case. There is no need for a separation. The Finnish State is ready to grant the inhabitants satisfactory guarantees and faithfully, observe the engagement which it will enter into with them: of this we have no doubt.

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o Self-Determination after the UN Charter UN Charter: Article 1

Purpose of UN: to develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace…

UN Charter: Article 73 – set up to administer a transition of colonies to statehood → decolonization Members of the UN which have or assume responsibilities for the

administration of Territories whose people have no yet attained a full measure of self-government recognize that the principle that the interests of the inhabitants of these territories are paramount,

And accept as a sacred trust the obligation to promote to the utmost, w/in the systems of international peace & security established by the present Charter, the well-being of the inhabitants of these territories and, to this end:o Ensure their political, economic, social & educational advancement

& ensure their just treatment, protection against abuseso Self-government → i.e. no more colonialism!o Encourage advancement – development – internal capacity o Further int’l peace & securityo Measures of development

UN General Assembly Resolutions – (pg. 124) Declaration on the Granting of Independence to Colonial Countries &

Peoples (1960)o Peoples of colonies → have a right to self-determination – right to

independence “Friendly Relations Declaration” (1970)

o Modes of implementing the right of self-determination by “peoples” seeking self-determination, independence, emergence, etc.

o States are under an obligation to support self-determination

o CASE: Yugoslavia/Kosovo Issue 1: Whether the events in Yugoslavia were best viewed as secession

of entities from Yugoslavia, as Serbia insisted, or the dissolution of the state itself, as the other republic claimed EU’s European Commission got involved – security issues were posed

to other European states because of close geographical proximity – European community concerned w/issues involving its neighbors

Secession: One territory breaks off from a non-imperial state to form a new state, either peacefully or as a result of armed conflict 1. Determine, first, if territory has the right to self-determination & to

secession 2. Then, determine whether they meet the requirements of statehood

Dissolution: the process by which a state dissolves into two or more states, with the former state ceasing to exist Ex. Breakup of the FRY; USSR; Czechoslovakia

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The Essential organs of the Federation of Yugoslavia no longer meet the criteria for participation & representativeness inherent in a federal State

Thus, Yugoslavia is in the process of dissolution Issue 2: Does the Serbian population in Croatia & Bosnia-Herzegovia, as

one of the constituent people of Yugoslavia, have the right to self-determination? Rule: the right to self-determination must not involve changes to

existing frontiers at the time of independence – (uti possidetis juris) – except where the States concerned agree otherwiseo The now peremptory norms (jus cogens) of the international law

requires States to ensure respect for the rights of minorities; this requirement applies to all Republics vis-à-vis the minorities on their territory The Serbian population in Bosnia-Herzegonia & Croatia must be

afforded every right accorded to minorities under int’l conventions as well as nat’l & int’l guarantees consistent w/the principles of int’l law

o Article 1 of the two 1966 International Covenants on human rights: Established that the principle of the right to self-determination

serves to safeguard human rights By virtue of that right every individual may choose to belong

to whatever ethnic, religious, or language community he or she wishes

o Thus, the Republics must afford the members of those minorities & ethnic groups all the human rights & fundamental freedoms recognized in int’l law, including the right to choose their nationality

o CASE: Kosovo Break away nation – looked to UN & US support to become independent Since Kosovo was not yet a state, it could not be a party before the ICJ –

only states have jdx before the ICJ Eventually, ICJ decided that Kosovo could exercise its right of self-

determination Several states supported recognition of Kosovo & it is now an independent

state, however, US & UN still have substantial presence there in order to support it – Is it really an independent state then? If it has to rely on substantial outside support & cannot sustain its own statehood?

CASE: Frontier Dispute: Burkina Faso v. Mali (African Statehood) Issue: Is the principle of uti possidetis a general rule of law applicable

to any decolonization? Holding: Yes: It is a general rule that inheres in the process of a nation

obtaining independence Its purpose is to prevent fighting over borders after the administering

power leaves Although this principle seems at first to conflict with the principle of

self-determination, the maintenance of the territorial status quo in Africa can be seen as the best way to preserve the independence that people have struggled to achieve

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Because uti possidetis fosters the security & stability necessary to maintaining independence, it complements people’s rights to self-determination

o CASE: Secession of Quebec Issue: Can a peoples’ right to self-determination be said to ground a right

to unilateral secession? Holding: NO The right to external self-determination has only been granted to peoples

under colonial rule or foreign occupation, based on the assumption that both are entities inherently distinct from the colonialist power & the occupant power

External self-determination has also been bestowed upon peoples totally frustrated in their efforts to exercise internally their right to self-determination In this case, Canada represents the whole of the people on a basis of

equality & w/out discrimination & respects the principles of self-determination in its own internal arrangements → Canada, the state, is entitled to protection under int’l law of its territorial integrity

o Recognition of New States by Outside Actors Declaratory View: recognition is a purely political act that states

undertake for a variety of reasons – for ex. to show support for a new state – but it is irrelevant for the legal determination of statehood Recognition by 1 State of a new state is thus merely a declaration by

the former of what is already the case; and if the entity is not yet a new state, recognition does not make it one

Constitutive View: regards recognition as one of the elements of Statehood – regardless of its satisfaction of the objective criteria, a claimant to statehood is not itself a state until it has been recognized by others; thus, a refusal by states to afford recognition would mean that the entity claiming statehood would not be entitled to the rights of a state Thus, recognition is a 5th element to Statehood, according to the

Constitutive View

V. PARTICIPANTS IN THE TRANSNATIONAL LEGAL PROCESS: NON-STATE ACTORS o NGOso Multinational Corporationso States of the US in the Int’l Arena

Law of State Responsibility : Obligations that States owe other States → are responsible for the acts of “sub-states” or territorial units → ex. 50 states of the USA

CASE: Crosby, Sec. of Admin & Finance of Massachusetts v. Nat’l Foreign Trade Council A state statute that prohibits the state from doing business

w/companies that do business with a certain country unconstitutionally infringes on the federal government’s foreign affairs power under the Supremacy Clause

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CASE: American Insurance Association v. Garamendi, Ins. Commis, California The likelihood that state legislation will produce something more than

incidental effect on foreign affairs requires preemption of the state law by national policy, even when there is no affirmative federal activity in the subject area of the state law, & therefore no showing of conflicto California’s provision of regulatory sanctions to compel disclosure of

certain information (i.e. prior issuance of Holocaust-era insurance policies in Europe) by insurance companies contravenes national foreign policy encouraging European govts & companies to volunteer disclosure

o [This case essentially preempts any state law that deals in any way w/international relations. The majority’s broad stokes prevent the formulation of a rule that outlines what a state may and may not do in a state law that has any possible bearing on int’l relations.]

VI. INTERNATIONAL LAW IN DOMESTIC LEGAL SYSTEMS O Monistic v. Dualistic System

Monistic System: If a treaty was agreed to (or int’l customary law came up) it would not have to be separately addressed, it is integrated into the domestic system – directly

Dualistic System: Treaties do not impact the various state unless there is some add’l act/acceptance by the individual states US legal system → Dualistic: Congress/Pres need to accept/be a party

to Primacy of the constitution – focuses more directly on the municipal

legal system & how it will accept in different rules/creates a process for doing thatO Mixture: if an int’l agreement is self-executing than US becomes a

party to that obligation – becomes the law of the land under the US System

O Most treaties do require some execution, however – certain congressional or executive execution to make sure that the obligation agreed to is implemented into the legal system

O EU: A unique, treaty-based institutional framework that defines & manages economic & political cooperation among its 27 Members EU: all countries use the same currency – EURO – creates a total

economic integration Last stage of integration they have talked about – Union (Political)

where they have a single legislature – haven’t done this yet European Court of Justice (ECJ) – EU’s Judicial Organ EU Legislation: Rome Treaty: creating the Community provides that

regulations are binding in their entirety & directly applicable in all Member States – Analogous to US Federal Laws Directives are binding w/respect to “the result to be achieved” –

addressed to the member states, which are free to choose the best “form & methods” of implementation

Recommendations & opinions are not binding Rome Treaty: “Direct Effects” Principle

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Independently of the legislation of the Member States, Community law therefore not only imposes obligations on individuals but is also intended to confer upon them rights which become part of their legal heritage

The treaty provision had a “direct effect” in domestic law that individuals could rely upon in national courts

Community Law creates precedence – courts are bound to apply Law stemming from the Treaty could not be overridden by domestic

law provisions

O Limits to the Power of the US Gov’t to Make Int’l Agreements CASE: Missouri v. Holland: Treaties are the supreme law of the land when

made under the authority of the US Migratory Bird Treaty Act: made pursuant to a treaty btwn US &

Canada – thus its provisions are the supreme law of the land & binding on Missouri

CASE: Reid v. Covert: Civilian dependents accompanying soldiers on active duty overseas cannot constitutionally be subjected to military court-martial for offenses committed overseas, despite treaties or executive agreements to the contrary → i.e. a treaty can be breached by a congressional action which is

inconsistent CASE: Dames & Moore v. Regan: The president may issue an order

nullifying judgments against a foreign state; It has been a historical prerogative of the executive to use his authority to settle disputes between US nationals & foreign states, even where the resolution was not to the liking of the US nationals; Congress has never prohibited this and has enacted the 1949 Int’l Claims Settlement Act, which created procedures for disbursing settlement amounts – Congress has implicitly authorized presidential action in this area

O Breaking International Law: Consular Notification & the Arrest of Foreign Nationals Addressing Conflicts Btwn Int’l & Domestic Legal Obligations

CASE: Breard v. Greene: When a statute that is subsequent in time is inconsistent w/a treaty, the statute to the extent of conflict renders the treaty nullO Article 36(2) of the VC: the rights expressed in the Convention

“shall be exercised in conformity w/the laws & regulations of the receiving State” provided that “said laws & regulations must enable full effect to be given to the purposes for which the rights accorded under this Article are intended.” It is the rule in this country that assertions of error in criminal

proceedings must first be raised in state court in order to form the basis for relief in habeas. Claims not so raised are considered defaulted. By not asserting his BC claim in state court, Breard failed to exercise his rights under the VC in conformity w/the laws of the US & the Commonwealth of VA

O Supremacy Clause → Reid v. Covert: “an act of Congress…is on a full parity with a treaty, & that when a statute which is subsequent

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in time is inconsistent w/a treaty, the statute to the extent of conflict renders the treaty null.”

ICJ Opinion: Avena & three Mexican Nationals (Mexico v. USA) → O The procedural default rule does not preclude judicial review in US

courts of cases in which the US has breached the Vienna Convention However, partial or total overturning of the convictions is not an

available remedy here, b/c it is not the conviction or sentences of the Mexican nationals that violate international law – rather, is the US violation of the Vienna Convention (breach of Art. 36(1)(b) to inform 51 detained Mexican nationals of their rights under the Convention & to notify the Mexican consular of their detention & to allow the consular access to the detained nationals)

Examination of the possible prejudice to the nationals as a result of the US breach can be achieved thru review of the record by the court → “review and reconsideration” prescribed by the VC should be effective – thus it should take account of the violation of the rights set forth in the Convention and guarantee that the violation and the possible prejudice caused by the violation will be fully examined & taken into account in the review & reconsideration process

ICJ Decisions & Their Domestic Effect on U.S. Courts Per UN Charter → ICJ decisions are binding on the States which are a

party to the UN Charter and the case before the ICJ – are not binding on the courts/legal system of the State, however

The State itself, as a party to the UN Charter, is obligated to carry out ICJ decisions in cases that they are party to

ICJ decisions do not create stare decisis → the value of former ICJ decisions w/respect to subsequent ICJ decisions will be important, but is not obligatory – not required to follow it b/c each decision is considered a decision only w/respect to the parties before it → unique to that particular party & situation only

CASE: Sanchez-Llamas v. Oregon The rule of procedural default applies to the Vienna Convention on

Consular Relations US says: ICJ’s interpretation of the Convention’s Art. 36 is not binding

on US Courts → thus, ICJ’s decision in Avena (and other cases) are entitled only to respectful consideration (in federal & state courts)

The procedural rules of domestic law generally govern the implementation of an int’l treaty

CASE: Medellin v. Texas: 1) The US Constitution does not require state courts to honor a treaty

obligation of the US by enforcing a decision of the ICJ

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2) The US Constitution does not require state courts to provide review & reconsideration of a conviction w/our regard to state procedural default rules as required by a Memorandum by the President

Avena does constitute an int’l law obligation on the part of the US → but not all int’l law obligations automatically constitute binding federal law enforceable in US courts

O IL Claims: Human Rights Violations & the Alien Tort Statute (ATS: 1789) ATS:

The District Courts shall have original jurisdiction Of any civil action By any alien For a tort only Committed in violation of the law of nations, or A treaty of the US

O Requirements: Violation of the law of nations, or a treaty PLA → Alien; DEF → another country? Foreign official? Basically gives jurisdiction over the parties in District Court when the

matter falls within the category of a “tort” “committed in violation of the law of nations or a treaty of the US”

O CASE: Filartiga v. Pena-Irala (2d Cir. 1980) Rule: Torture is considered a violation of IL, & federal JX for an action

based on torture may be founded on personal JX, no matter where the tort occurred

The alleged conduct violates the law of nations & thus falls under ATS, & federal jdx to hear the claim exists Official torture is prohibited by the law of nations, which makes no

distinction btwn treatment of aliens & citizens Torture in this case, must be committed by someone acting under

some state authorityO Inspector General of Police in Paraguay (Pena) → tortured & kills

Joelito FilartigasO PLAs were unsuccessful in ParaguayO Pena case to the US on a visitor’s visa → PLAs filed suit in NY &

served DEF there Federal jdx for an action for wrongful death based on torture exists if

personal jdx exists no matter where the tort occurred A state’s treatment of its own citizens is a matter of int’l concern & the UN

promotes human rights & fundamental freedoms for all – the right to be free from torture is a human right & a fundamental freedom guaranteed by IL via the UN Charter The 1975 GA Declaration on the Protection of All Persons Being Subject

To Torture prohibits any state from permitting torture Torture is prohibited by Paraguay’s own constitution – IL thus confers

fundamental rights upon all people vis-à-vis their own govts Congress provided in the Judiciary Act federal jdx over suits by aliens

where principles of IL are in issue; the Constitutional basis for ATS is the law of nations, which has always been part of the federal common law

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A case properly arises under the law of the US for Article III purposes if grounded upon statutes enacted by Congress or upon the common law of the US

O → CASE: Filartiga: confirms the belief that it is every nation’s responsibility to be the enforcer of IL

O CASE: Sosa v. Alvarez-Machain (US Sup.Crt. 2004) Issue: What private actions are w/in ATS jurisdictional provision?

Historically: The CL indicates that the ATS conferred jdx for a relatively modest set of cases, alleging violations of the traditional law of nations, including only offenses against ambassadors, violations of safe conduct, & individual actions arising out of prize captures & piracy

Rule: The ATS does not create a private cause of action for individuals who are victims of IL violations against other individuals Rather, the statute was intended to be exclusively concerned

w/jurisdiction, in the sense of addressing the power of courts to entertain cases concerned w/a certain subject

Expanding Scope of Application: “Courts should not recognize claims under federal CL for violations of any IL norms w/less definite content & acceptance among civilized nations than the historical paradigms familiar when § 1350 was enactedO i.e. In this case, abduction → does not equate with a violation of

torture

O Determining the Scope of Aiding & Abetting Many (by not all) of the Human Rights practices at issue in ATS suits

violate CIL only if undertaken, encouraged, or condoned by the govt of a state as a matter of state policy Many ATS cases against corporate DEFs allege either (1) that the DEFs

were closely associated w/the state as to be state agents (i.e. acting under color of law), or (2) that the DEFs “aided and abetted” the state’s human rights violation

CASE: Khulumani v. Barclay Nat’l Bank (US Ct. App.) Rule: Court of Appeals held that PLAs could plead a theory of aiding &

abetting liability under ATS → not sure what the Supreme Court will hold (see infra) (Aiding & abetting violations of CIL can provide a basis for jdx under the ATS)

Π representatives of apartheid victims in South Africa claimed that various multinational corporations (DEFs) aided & abetted the apartheid govt → allege violations of IL, & claims under the ATS

Multinational Corporate Aiding & Abetting → imputation of HR violations to corporationsO The recognition of the individual responsibility of a Δ who aids &

abets a violation of IL is one of those rules “that States universally abide by, or agree to, out of a sense of legal obligation & mutual concern”

A DEF may be liable under IL for aiding & abetting a crime by another when the DEF

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O 1. Provides practical assistance to the principal which has a substantial effect on the perpetration of the crime

O 2. Does so with the purpose of facilitating the commission of that crime

Aiding & abetting liability is sufficiently “well-established and universally recognized” to be considered CIL for the purposes of the ATS

CASE: Kiobel (2010-2011) Issue: Will Corps (not acting under color of law as “state agents” or

aiding & abetting a state) be subject to the ATS? (case currently pending oral argument in US Supreme Ct)o ATS may impose liability only for violations of ILo But corps are not liable under CIL; ergo, properly dismissedO However “Nothing in the opinion limits or forecloses suits under the

ATS against individual perpetrators of violations of CIL – including employees, managers, officers, and directors of a corporation – as well as anyone who purposefully aids and abets a violation of CIL”

VII. REACH OF DOMESTIC LAW IN THE INT’L ARENA: JURISDICTION & ITS LIMITS o Types of Jurisdiction

Jurisdiction to Prescribe (i.e. Prescriptive Jurisdiction) Refers to a state’s authority or competence to promulgate law

applicable to persons or activities Jurisdiction to Adjudicate

Refers to a State’s authority or competence to subject persons or things to its judicial process (analogous to personal jdx)

Jurisdiction to Enforce Refers to a State authority or competence to induce or compel

compliance with its laws through its courts, as well as through executive, administrative, or police action

o Jurisdiction to Prescribe: 1st Restriction imposed by IL upon a state is that, failing the existence of a

permissive rule to the contrary, a State may not exercise its power in any form in the territory of another state Issue: Extraterritorial Reach of US Law – Does the law making body

have the ability to make rules about a particular activity or person outside the US?

Is. spotting: facts re: rules that cover extraterritorial activities → Jx to Prescribe

CASE: SS Lotus (France/Turkey): what occurs on board a vessel on the high seas must be regarded as if it occurred on the territory of the State whose flag the ship flies (in case of collision btwn 2 ships → concurrent JX → JX in States of both ships) Holding Reversed by Nat’l & Maritime committees:

o In cases of collision upon the high seas no criminal or disciplinary proceedings arising out of such collision should be permissible

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against any person in the service of the ship except in the ports of the State of which the person is a national or of which his ship was flying the flag at the moment of collision

CASE: American Banana Co : “All legislation is prima facie territorial” The general & almost universal rule is that the character of an act as

lawful or unlawful must be determine wholly by the law of the country where the act is done

For another jx, if it should happen to lay hold of the actor, to treat him according to its own notions rather than those of the place where he did the acts, not only would be unjust, but would be an interference w/the authority of another sovereign, contrary to the comity of nations, which the other state concerned justly might resent

Comity: refers to int’l comity btwn persons/nations → courtesy, not reciprocal – not done expecting something in turn

CASE: US v. Aluminum Co of America (Alcoa) : Effects Test → Substantial Effect/Intent R: Any state may impose liabilities, even upon persons not w/in its

allegiance, for conduct outside its borders that has consequences w/in its borders which the state reprehends; and these liabilities other states will ordinarily recognize

Acts that both intends to effect something w/in US territory and actually does effect that thing → US Courts have JX over such Actso 1936 Alliance btwn Swiss & European Nations: crt held that the

agreement restricting production was intended to restrict imports into the US and had such an effect, therefore in violation of US Antitrust laws under the Sherman Act

CASE: Timberlane Lumber Co. v. BofA → Refined Effects test – Tripartite analysis 1. The antitrust laws requires that there be some effect – actual or

intended – on American foreign commerce 2. A greater showing of burden or restraint may be necessary to

demonstrate that the effect is sufficiently large to present a cognizable injury to the PLAs, and thus, a civil violation of the antitrust laws

3. “Substantiality” test: Are the interests of, and links to, the US, including the magnitude of the effect on American foreign commerce – sufficiently strong, vis-à-vis other nations, to justify an assertion of extraterritorial authority?o Factors to be weighed:

Degree of conflict w/foreign law or policy Nationality or allegiance of the parties & the locations or

principal place of business or corporations Extent to which enforcement by either state can be expected to

achieve compliance Relative significance of effects on the US as compared w/those

elsewhere Extent to which there is explicit purpose to harm or affect

American commerce

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Foreseeability of such affect Relative importance to the violations charged of conduct w/the

US as compared w/conduct abroad

CASE: Hartford Fire Insurance Co. v. California: Issue 1: Did the Court have jurisdiction over the Sherman Act claims

against Δ?o Rule: FRCP § 1331 vests district courts w/subject-matter jdx over

cases “arising under” federal statuteo A: Sherman Act is a federal statute – claims arise under the

Sherman Acto C: Yes, Court had subject matter jdx over claims

Issue 2: Does the Sherman Act reach the extraterritorial conduct alleged in this case?o R: Extraterritorial reach of the Sherman Act is determined by jdx to

Prescribe Congress possesses legislative jdx over the acts alleged in this

complaint b/c Congress has broad power “to regulate Commerce w/foreign Nations”

Power to make laws applicable to persons or activities beyond our territorial borders where US interests are affected

GR: legislation of Congress, unless a contrary intent appears, is meant to apply only w/in the territorial jdx of the US However, it is well established that the Sherman Act applies

extraterritorially Rule of Construction : an act of congress ought never to be

construed to violate the law of nations if any other possible construction remains GR: Statutes should not be interpreted to regulate foreign

persons or conduct if that regulation would conflict w/principles of IL

Prescriptive Comity : the respect sovereign nations afford each other by limiting the reach of their laws → Choice of Law principle: in the absence of contrary congressional direction, assumed that prescriptive comity has been incorporated into our substantive laws having extraterritorial reach

Restatement Test: A nation having some basis for jdx to prescribe law should nonetheless

refrain from exercising jdx w/respect to a person or activity having connections w/another state when the exercise of such jdx is unreasonableo Factors for reasonableness:

Extent to which the activity takes place w/in the territory (of the regulating state)

Connections, such as nationality, residence, or economic activity btwn the regulating state & the person principally responsible for the activity to be regulated

Charter of the activity, the importance of regulation to the regulating state, extent to which other states regulate such

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activities, degree to which the desirability of such regulation is generally accepted

Extent to which another state may have an interest in regulating this activity

The likelihood of conflict w/regulation by another state

EU Test: Implementation Test: Article 85 of the Treaty of Rome Prohibiting Anti-competitive conduct: 2 elements

1. The formation of the agreement or practice, and 2. The implementation thereof

The pace where the conduct was implemented is decisive of jdx – if only the agreement to act was formed outside of EU – easy to evade → need implementation of the agreement/practice to engage in anticompetitive conduct to occur w/in territory

Other Bases for Prescriptive Jurisdiction: Nationality Principle

o Under the nationality principle, states can exercise prescriptive jx over their own nationals, even when they are located outside national territory

o CASE: Blackmer v. US: by virtue of the obligations of citizenship, US retained its authority over him, and he was bound by its laws made applicable to him in a foreign country

o Ex. – must pay taxes on income made in US, even if you live abroad

The Protective Principleo Any foreigner who, outside the territory of the State, shall be

culpable, either as principal or as an accomplice, of a crime against the security of the state, shall be prosecuted and tried according to the provisions of the State’s laws

o Right to protect against threats to national security

The Passive Personality Principleo A state may apply its law, particularly criminal law, to an act

committed outside its territory by a person not its national when a national is a victim of the act → State’s right to reach out extraterritorially to protect its own nationals/citizens from non-nationals in a foreign state by act committed against him/her in a foreign state

Universal Jurisdictiono CASE: US v. Yousef: Universal JX arises under CIL only where

crimes 1. Are universally condemned by the community of nations, and 2. By their nature occur either outside of a state or where there

is no state capable of punishing, or competent to punish, the crime

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o Any state may exercise jdx over an individual who commits certain heinous crimes – ‘crimes of humanity’…even when no other recognized basis for jdx exists Piracy, war crimes, genocide, and slave trade give rise to

universal jdx Terrorism? Assaults on diplomatic personnel? Kidnapping?

Classical modern example: Eichmann – stood trial in Israelo No nexus needed – but crime must be of an international charactero Right to prescribe a state’s own law universally to ‘crimes of

humanity’ even if the defendant/criminal did not commit acts

o Jurisdiction to Enforce/Adjudicate – Irregular Renditions General Norm: 1 state cannot exercise its judicial functions w/the

territory of another state without that State’s consent IL prohibits the agents of 1 state from enforcing, w/out permission their

criminal law w/the territory of another state Extradition Treaties: treaties set forth the procedures by which one

state can request another state to send it individuals charged w/a crime in the first state

Capturing Criminals Abroad CASE: Arrest of Slavko Dokmanovic –

o Tribunal had jdx to enforce → enforce the arrest, when Dokmanovic was arrested within their own territory → he entered the State’s territory and his presence in the sovereign was enough

o Court determine that the prosecutor’s “ruse” did not constitute a “forcible abduction or kidnaping”

CASE: Eichmanno The right to plead violation of the sovereignty of a State is the

exclusive right of that State. Only a sovereign State may raise the plea or waive it, and the accused has no right to take over the rights of the State

o The indictment in this case was filed after Argentina had exonerate Israel of violation of her sovereignty and there was no longer any breach of international law

o In these circumstances the accused cannot presume to speak, as it were, on behalf of Argentina and claim rights which that sovereign State had waived

CASE: U.S. v. Alvarez-Machain (U.S. Supreme Crt)o Extradition Treaty btwn US & Mexico

Court concludes that treaty is silent as to kidnapping – thus does not condemn or prohibit other forms of getting the Δ to the court

“Respondents and his amici may be correct that respondent’s abduction was ‘shocking” and that it may be in violation of general int’l law principles... the decision of whether respondent should be returned to Mexico, as a matter outside of the Treaty, is a matter for the Exec Branch.

o Compare to Paquette Habana: International law is part of our law, and must be ascertained and administered by the courts of justice

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of appropriate jx, as often as questions of right depending upon it are duly presented for their determination

CASE: Prosecutor v. Nikolic, Decision on Interlocutory Appeal Concerning Legality of Arrest

(International Criminal Tribunal for the Former Yugoslavia) (ICTY) Addressed the question of whether the ICTY could exercise personal jx

over a Δ who had been kidnapped The Appeals Chamber concluded that the kidnapping of the accused

did not divest the court of jxo The damage caused to int’l justice by not apprehending fugitives

accused of serious violations of int’l humanitarian law is comparatively higher than the injury, if any, caused by the sovereignty of a State by a limited intrusion in its territory

o In cases of universally condemned offenses, jdx should be set aside on the ground that there was a violation of the sovereignty of a State, when the violation is brought about by the apprehension of fugitives from int’l justice, whatever the consequences for the international responsibility of the State or organization involved

o Certain human rights violations are of such a serious nature that they require that the exercise of jdx be declined

VIII. Governing the Common Areas: The Law of the Sea Legal Terms:

o Mare Liberum: free sea → this area would remain beyond the legal control of any state

o Mare Clausum: closed & divided oceanso Areas of Sea:

Territorial sea & straits Exclusive Economic Zone & Fisheries Continental Shelf High Sea & Mining

o ISSUES: Who gets the fish? Depends on where the fish are, the nature of the

fishing (hook, nets? Any limitations on those?) Movement of military vessels: where they can go, how they can operate All vessels needs to eventually reach land – how do they have access to

ports that are not their own? Oil Exploration & Exploitation – those w/technology are able to do a lot of

exploration & exploitation anywhere within the world, but not every country in the world has the access to the oil – bring in exploiters

Seabed mining → all minerals on dry land are potentially under the oceans – issue raised when countries need certain minerals in large quantities that are located in different countries territory – those countries may be endlessly unstable –

Issues re: research – sometimes research is employed as a way to get close to a country and threaten their security

Pollution issues/environmental concerns Issues/INTERESTS :

Security

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Economics Environment

Baselines o The baseline is the starting point from which a coastal state’s zones are

measuredo The baseline is the low-water mark along the coasto Waters on the landward side of the baseline are considered internal waters,

such as bays & harbors

3 significant zones:

o 1. Territorial Sea 1982 UN Conference on the Law of the Sea: 12 mile-wide band of water

closest to a state’s shores (from the baseline) Article 2: Legal State of the territorial sea…

Coastal States has sovereignty over their territorial sea (make laws, regulation, enforce, jx, etc.)

Sovereignty extends to the air space over the territorial sea as well as to its bed & subsoil

Article 17: Right of Innocent Passage Ships of all States, whether coastal or land-locked, enjoy the right of

innocent passage through the territorial sea Article 18: Meaning of Passage

Passage means navigation thru the territorial sea for the purpose of:o Traversing that sea w/out entering internal waters…o Passage shall be continuous & expeditious

However, passage includes stopping & anchoring, but only in so far as the same are incidental to ordinary navigation or are rendered necessary by force majeure or distress or for the purpose of rendering assistance to persons, ships or aircraft in danger or distress

Article 19: Meaning of Innocent Passage Passage is innocent so long as it is not prejudicial to the peace, good

order or security of the costal state. Such passage shall take place in conformity w/this Convention & with other rules of IL

Passage of a foreign ship shall be considered to be prejudicial to the peace, good order or security of the costal State if in the territorial sea it engages in any of the following activities:o Any threat or use of force against the sovereignty, territorial

integrity or political independence of the coastal Stateo Any exercise or practice w/weapons of any kindo Any act aimed at collected information to the prejudice of the

defense or security of the coastal Stateo Any act of propaganda aimed at affecting the defense or security of

the coastal Stateo The launching, landing or taking on board any aircrafto Any act of willful and serious pollution contrary to this Conventiono Any fishing activities

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o The carrying out of research or survey activities Article 20: Submarines and other underwater vehicles

In the territorial sea, submarines & other underwater vehicles are required to navigate on the surface and to show their flag

Article 21: Laws & Regs of the coastal State re: innocent passage The coastal State may adopt laws & regs in conformity w/the

provisions of this Convention & other rules of IL re: innocent passage thru the territorial sea, in respect to all or any of the following:o Safety of navigation & regulation of maritime traffico Protection of navigational aids & facilities o Protection of cables & pipelineso Conservation of the living resources of the seao Preservation of the environment of the coastal Stateo Marine scientific research & hydrographic surveys

Article 24: Duties of the Coastal State The coastal State shall not hamper the innocent passage of foreign

ships thru the territorial sea except in accordance w/this Convention. The coastal State shall not:o Impose requirements on foreign ships which have the practical

effect of denying or impairing the right of innocent passageo Discriminate in form or in fact against the ships of any State or

against ships carrying cargoes to, from or on behalf of any State Article 25: Rights of protection of the Coastal State

The coastal State may take the necessary steps in its territorial sea to prevent passage which is not innocent

o International Straits Article 37: Scope of Section re: Straits which are used for int’l navigation

between 1 part of the high seas or an EEZ & another part of the high seas or an EEZ

Article 38: Right of Transit Passage All ships & aircraft enjoy the right of transit passage, which shall not be

impeded; except that, if the strait is formed by an island of a State bordering the strait & its mainland, transit passage shall not apply if there exists seaward of the island a route through the high seas or through an EEZ of similar convenience w/respect to navigational & hydrographical characteristics

Transit passage means the exercise…of the freedom of navigation & overflight solely for the purpose of continuous & expeditious transit of the strait between 1 part of the high seas or an EEZ & another part of the high seas or an EEZ

However, this does not preclude passage through the strait for the purpose of entering, leaving or returning from a State bordering the straito Art. 38: “all ships and aircraft” – says nothing about submarines

having to surface when navigating straitso Compare with:

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Art. 20 → in the territorial sea → submarines & other underwater vehicles are req’d to navigate on the surface and to show their flag

US Russia → transit passage for ways to move nuclear weapons under the sea. Other countries – established nuclear free zones → concluding that

they do not want their ports to be used to facilitate nuclear weapon movement

Article 39: Duties of ships & aircraft during transit passage Ships & aircraft, while exercising the right of transit passage, shall:

o Proceed w/out delay thru or over the straito Refrain from any threat or use of force against the sovereignty,

territorial integrity or political independence of States bordering the strait

o Refrain from any activities other than those incident to their normal modes of continuous & expeditious transit unless rendered necessary by force majeure or by distress

Article 44: Duties of States bordering straits States bordering straits shall not hamper transit passage & shall give

appropriate publicity to any danger to navigation or overflight within or over the strait of which they have knowledge; there shall be no suspension of transit passage

o Archipelagic States Small islands – such as Indonesia & the Philippines

Foreign ships enjoy the right of innocent passage thru archipelagic waters, but states have the right to suspend passage on terms similar to their right to suspend passage through their territorial sea

Ships, as well as aircraft, also enjoy the right of so-called archipelagic lanes passage, akin to transit passage, thru lanes designated by the state w/the approval of the Int’l Maritime Orgs; such passage may not be suspended

Most states have not designated such lanes, in which case states may still traverse “through the routes normally used for intentional navigation.”

Archipelagic states are allowed to draw baselines across their outermost islands up to a maximum of 125 miles; the waters within are governed by a regime akin to the territorial sea

o The Corfu Channel Case → Straits If coastal state has ability to narrow a particular strait → state can claim

infringement upon their sovereignty → exercising control Albania saying this ship is not ‘innocent’ → warship Art. 19 – any act aimed at collecting information…. → could be alleged

under certain circumstanceso I: Does innocent passage govern this particular strait?

A: If u have to go around, that is an inconvenience – or could be more – impediment – more $$ too expensive to do so

Having to go around could be problematic b/c water around is close to the territory of other states – or too much of a distance

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o What is the regime that governs this body of water? Rule from case: right of innocent passage P 662: the court has arrived at the conclusion that the North Corfu

Channel should be considered as belonging to the class of international highways through which passage cannot be prohibited by a coastal State in time of peace

Exception: in view of these exceptional circumstances, Albania would have been justified in issuing regulations in respect of the passage of warships through the Strati, but not in prohibiting such passage or in subjecting it to the requirement of special authorization → cannot require the other country to ask for special authorization prior to passing thru strait if ‘innocent passage’

o Q. How do you regulate w/out prohibiting? Article 16(4): “There shall be no suspension of the innocent passage of

foreign ships through straits which are used for international navigation between one part of the high seas & another part of the high seas or the territorial sea of a foreign state”

Transit passage? → Article 37, 38, 39 (p. 665) → applies to straits which are used for int’l navigation btwn one part of the high seas or an exclusive eez and another part of the high seas or an exclusive economic zone Transit passage is allowed, except when: ……see above No requirement of surfacing in order to pass thru straits (submarines

don’t have to surface)

o Anti-Piracy Efforts Somali Piracy off the Horn of Africa – hijacking ships carrying humanitarian

aid to Somalia as well as other commercial vessels passing near Somalia’s coast & to hold the crews for ransom

Int’l Maritime Org, specialized UN agency regulating global shipping → alerted UN Security Council about the problem → led to new Council resolutions: Resolution 1816, 6/6/08: urged all states to cooperate in preventing &

responding to piracy Somalia’s Transitional Fed Govt (TFG) consented to assistance in

controlling the territorial & int’l waters beyond Somalia’s shores – allowed States cooperating with the TFG to: “Enter the territorial waters of Somalia for the purpose of repressing acts of piracy & armed robbery at sea” o *Violation of basic sovereignty of the State if Somalia had said ‘we

don’t need your help’ → But Somalia consented o Resolution also provided that any measures ‘shall be undertaken

consistent w/applicable int’l humanitarian & human rights law Resolution 1851, 12/02/08: called upon states w/military capacity “to

take part actively in the fight against piracy…by deploying naval vessels & military aircraft & through seizure & disposition” of items used for piracyo EU & US, & other powers deployed naval vessels to prevent &

intercept pirates; in 2009, EU concluded an agreement w/Kenya to allow some suspected pirates to be prosecuted in Kenyan courts –

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piracy still continued w/ransoms still paid by ship-owners for the release of crews

Article 101 of UNCLOS: defines piracy as certain acts against shipping on the high seas or “outside the jdx of any state”

Article 105: On the high seas, or in any other place outside the jx of any State, every State may seize pirate ships or aircraft, or a ship or aircraft taken by piracy & under the control of pirates, & arrest the persons & seize the property on board

2. The Exclusive Economic Zone (EEZ) o Stretching out to 200 miles from the coast & including most of the world’s

catches of fish 188 miles from the territorial sea Fisheries --- from sea bed to surface – defined w/in the 200 miles range of

the EEZ Confers upon the coastal state exclusive control over certain types of

economic impacts in that area → if that means fish, who can come in and take fish

o Article 55: Legal regime of the EEZ The EEZ is an area beyond & adjacent to the territorial sea…under which

the rights & jdx of the coastal State & the rights & freedoms of other States are governed by the relevant provisions of this Convention

o Article 56: Rights, jdx & duties of the Coastal State in the EEZ In the EEZ, the costal state has:

Sovereign rights for the purpose of exploring & exploiting, conserving & managing the natural resources, whether living or non living, of the waters superjacent to the sea-bed & of the seabed & its subsoil, & will regard to other activities for the economic exploitation & exploration of the zone, such as the production of energy from the water, currents & winds

JX w/regard to: est. & use of artificial islands, installations & structures; marine scientific research; the protection & preservation of the marine environment

The Coast State shall have due regard to the rights & duties of other States & shall act in a manner compatible w/the prov of this Convention

o Article 57: Breadth of the EEZ The EEZ shall not extend beyond 200 nautical miles from the baseline

from which the breadth of the territorial sea is measuredo Article 58: Rights & Duties of other States in the EEZ

In the EEZ, all States, whether coastal or land-locked: right to navigation & overflight & of laying submarine cables & pipelines, & other internationally lawful uses of the sea related to these freedoms, such as those associated w/the operation of ships, aircraft & sub cables/pipelines

States shall have due regard to the rights & duties of the coastal State & shall comply w/the laws & regs adopted by the coastal State

o Article 61: Conservation of the living resources The Coastal State shall determine the allowable catch of the living

resources in its EEZ

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Coastal State shall ensure that the maintenance of the living resources in the EEZ is not endangered by over-exploitation

o Fisheries: Foreign fishing company vs. domestic fishing company Claims by domestic to have significant economic interests in those fish Has resulted in wars – or at least in unsettling situations in the north

Atlantic Fisheries Jdx Case: UK v. Iceland → prior to 1982

Paragraph 78: negotiations Iceland cannot exclude UK vessels beyond 12 miles under the 1972

regulations ‘punting” the dispute back to the parties

Parties are under ‘mutual obligations to undertake negotiations in good faith for the equitable solution of their differences concerning their respective fishery rights i.e. neither can have exclusive control – each has legal rights to the

waters outside the 12-mile limit of the territorial sea *even under ‘innocent passage’, coastal States have the right to

regulate passage

Exploitation of the Water & Fish → Fisheries: Tuna Wars – West Coasto Canada/Spain: Canada intercepted a Spanish trawler, the Estai, fishing just

outside the 200-mile limit in the Atlantic Ocean Issue: what is the authority to reach out to foreign activity outside of your

jurisdiction? Canada says they had the right to protect depleting stocks of

turbot/halibut Spain says it’s the high seas – we have a right to fish here

Under Art. 36(2) of the ICJ Statute, Spain alleged illegal assertion of jdx on the high seas and unlawful use of force against Spanish vessel

Extraterritorial reach vs. rights of the high seaso EEZ: every state has the right to exercise jdx in a 200 mile zone – those

rights → pg. 676o Under EEZ; coastal state has rights to regulate – Art. 56 – States have

complete control over their 200 mile zoneo Sovereign Right – but w/respect to natural resources & for the purpose of

exploring and exploiting, conserving and managing the natural resources whether living or non-living… and for the economic exploitation and exploration of the zone, such as production of energy from the water, currents and winds

3. The High Sea o Areas Include:

Sea Floor Continental Shelf Continuation of a state’s landmass beneath the sea The deep seabed Area beyond the continental shelf

o High Seas → basically open to fishing by all nations

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Principle similar to property law – if you can exercise possession/control over the resources, it belongs to you

Also – Mining rights

Economic Exploitation of the Continental Shelf: Competing Claims To The Artic Regiono Many states have important economic claims regarding the exploitation of

lands located beneath the surface of adjacent waters. The landmasses of the continents extend naturally beyond their shores to an underwater mass known as the continental shelf. The shelf extends past a states coastline before it drops into a steeper area (known as the continental slope) and then a more gradually sloping area (knows as the continental rise) before eventually forming the ocean floor. The shelf is a potential resource for the coastal state It might also be an adversary threat if it were used to implant weapons or

intelligence gathering capabilities. These shelf issues came about later and some have been solved in the

Law of the Sea Convention.o A. The Problem

With global warming has come controversy as to the division of the artic shelf. 6 states govern the border of the artic ocean and have claims of the shelf in controversy:

Russia, US/Alaska, Canada, Denmark, Greenland, Iceland, Norway Because of the melting it is hard to delineate and it might melt enough to

create a passage for ships through the artic sea.

Unilateral Claims to the Continental Shelf: The Truman Proclamation and Reactionso In the past no states saw the need to claim the shelf b/c of lack of scientific

knowledge about it. It remained legally unregulated and the notion of freedom of the high seas

pointed in the direction of open exploitation The US started to view the shelf as a valuable exploitation in the 1940s President Truman issued the proclamation of: Policy of the US with respect

to natural resources subsoil and sea bed of the continental shelf This claimed that the seabed of the shelf contiguous to the coasts of

the US belonged to the US and was subject to US jurisdiction. Other states followed this with different modifications such as miles of the

coast

Prescription Through the United Nationso The International law commission began considering the issue of the shelf. o The UN held a conference which defined the seabed to be a depth of 200

meters but there was much controversy over this definitiono In the 1970s the third UN conference on the law of the sea they disagreed

over whether the shelf should be regulated separately from the regime of the waters above it.

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States with broad continental favored extensive rights In 1979 the chair of the conference offered a compromise that provided

for a continental shelf of at least 200miles in breadth but whose maximum breadth could be much larger if the shelf met certain geomorphologic criteria.

o The compromise is reflected in the United Nations Convention on the Law of the Sea. (Pg. 690) Article 76: definition of the continental shelf Article 77: rights of the coastal state over the continental shelf Article 78: legal status of the superjacent waters and air space and the

rights and freedoms of other states Article 82: payments and contributions with respect to the exploitation of the

continental shelf beyond 200 nautical mile

Norms for dividing the Artic Continental shelf?o States adjacent to each other or facing each other across a body of water

could be divided along a number of different criteria: Geography- shelf is divided by length of coastline Geomorphology- shelf is divided according to its shape Unity of resources- shelf divided in a way that would keep certain pools of

natural resources Economics- shelf divided based on the economic resources History- shelf divided based on historical patterns of exploitation Distributive justice- shelf divided based on the needs of the population of

stateso During the Conference of law of the sea it was negotiated and The

Convention On the Continental Shelf was made article 6 (pg. 692) Article 6- the equidistance principle

North Sea Continental Cases (Federal Republic of Germany/Denmark and Netherlands)o UK, Norway, Denmark, Germany, Netherlands and Belgium all used the

equidistance principle to determine their boundaries. Denmark and the Netherlands agreed to their boundaries and Germany

contested the 1966 agreement. Germany insisted that it had never agreed to the lines with Denmark

and Netherlands and that the equidistance principle in the 1958 convention did not bind them.

The 3 states asked the ICJ for a ruling on the principles and rules of the international law applicable to the division of the shelf among them. The ICJ rules that delimitation is to be effected by agreement in

accordance with equitable principles and taking amount of all the relevant circumstances as to leave each party all those parts of the continental shelf that constitutes a natural prolongation of its land territory into and under the sea without encroachment on the natural prolongation of the land territory of the other.

Article 83- delimitation of the continental shelf between states with opposite or adjacent coasts

The Artic Today

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o In 2001 Russia federation was the first state to submit info to the commission on the limits of the continental shelf established under article 76. It contained Russia’s views on the limits of its continental shelf in those

areas beyond 200 miles from its baselines and included claims to the shelves in the Bering Sea, Barents Sea, Okhotsk Sea and artic ocean.

Russia stands much to gain, as it would make it the leading exporter of oil over the decades to come. Russia has made it known that they will protect its claim militarily

Norway has also submitted claims which if successful would give it control over 6 times its mainland

The US contested Russia claim that it included parts excluded in article 76.

The commission rejected Russia claim due to lack of scientific proof and to confer with its neighbors over the precise delimitation.

2006 commission received claims from Norway regarding areas in the artic, barnet and Norwegian sea The commission approved Norway’s contention and that Norway and

Russia need to fix the line. Outside the commission Denmark and Canada have informally claimed

sovereignty over waters beyond their EEZ conducting research etc. The US has begun its own research to prove Russia wrong however they

can’t submit a claim because they haven’t ratified the UNCLOS. In 2008 Canada, Denmark Norway US and Russia adopted the Ilulissat

Declaration. This left unresolved any states territorial claims to landmass. An alternative to division of the shelf is the idea of shared control, which

the ICJ approves of. Ex in conflict with Honduras, Nicaragua, and El Salvador the ICJ ruled

that they must continue to hold the shelf common as it did historically

Combating Climate Change o United Nations Framework Convention on Climate Change (1992)

Article 4(2) Commitments – the core of this convention Note that the principles that guide it says: the parties should protect

the climate system for the benefit of present and future generations on the basis of equity (fairness ---acknowledge and take responsibility for what damage we have caused and fix it so that future generations don’t have to inherit all the damages we caused)

Developed countries → take the lead b/c developing countries do not have the technology to do so/developed countries cause most of the damage

Developed countries thus have much greater responsibility than developing countries have

Commit themselves to the following: adopt national policies

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IX. PROTECTION OF HUMAN DIGNITY: CLAIMS OF INDIVIDUALS ON STATES: INT’L HUMAN RIGHTS o Universal Declaration of Human Rights (UN G.A. Resolution 217A, 1948)

Article 5: No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment

Article 8: Everyone has the right to an effective remedy by the competent national tribunal for acts violating the fundamental rights granted him by the constitution or by law

Article 9: No one shall be subjected to arbitrary arrest, detention or exileo International Covenant on Civil & Political Rights (ICCPR)

Is a formally binding treaty, not an aspirational declaration, like the UDHR Establishes a formal international institution – the Human Rights Committee,

a body of international human rights experts – to assist parties w/the interpretation & implementation of the treaty’s provisions Article 4(1): in time of public emergency which threatens the life of the

nation & the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation – must not involve discrimination solely on the ground of race, color, sex, language, religion or social origin

Article 4(2): No derogation from the following may be made under this provision, under any circumstances:o Right to lifeo Ban on tortureo Ban on slaveryo Ban on imprisonment for debto Ban on ex post facto crimeso Recognition as a person before the lawo Freedom of thought, conscience, & religion

o Convention Against Torture & Other Cruel, Inhuman or Degrading Treatment or Punishment (UN G.A., 1984)

o British High Court: jurisdiction under the European Convention is “essentially territorial” and that “since Iraq is not within the regional sphere of the Convention” the “effective control of an area” exception does not apply However, a British military prison, operating in Iraq w/the consent of the Iraqi

sovereign authorities, & containing arrested suspects, falls within…a narrowly limited exception (to the exclusion of extraterritorial jurisdiction) exemplified by embassies, consulates, vessels and aircraft

o US: “neither the ICCPR nor the Convention Against Torture applies extraterritorially” Under Article 2 of the ICCPR, the Covenant applies “only to individuals who

are BOTH within the territory of a State Party and subject to its jurisdiction”

o CASE: Republic of Ireland v. UK (European Crt of Human Rights, 1978) Rule: Torture & inhuman or degrading treatment are prohibited, irrespective

of the victim’s conduct

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Ireland alleged the UK used “disorientation” and “sensory deprivation” techniques

Techniques were “degrading” by they did not occasion suffering of the particular intensity & cruelty implied by the word “torture”

o CASE: Public Committee Against Torture in Israel v. State of Israel (1999) Interrogations of suspected terrorists may not use physical means absent

enabling legislation

o Applying the Law on Torture to Detainees in the “Global War on Terrorism” Dept. of Justice Memo on the Geneva Convention & the Convention Against

Torture Under both the Geneva Convention & the Convention Against Torture,

states are required to impose criminal sanctions for acts amounting to torture

However, DOJ’s memo argued that the Geneva Conventions do not apply to members of al Qaeda or the Taliban militia

Concluded that the US would not violate the War Crimes Act, 18 USC § 2441, which criminalizes grave breaches of the Conventions, if it chose not afford al Qaeda & Taliban detainees all the protections – including the right to be free from “inhumane or degrading treatment” – owed to prisoners of war under the Geneva Conventions

Memo further concluded that CIL governing the treatment of detainees would have “no binding legal effect on either the President or the military b/c it is not federal law, as recognized by the Constitution”o Still, Secretary Rumsfeld advised combat commanders that they

should still treat all detainees “humanely, & the extent appropriate & consistent w/military necessity, in a manner consistent with the principles of the Geneva Convention”

Bush Admin: Considered whether the Con. Against Torture & accompanying US implementing legislation (18 USC §§2340-2340A) limited US interrogation practices → the US ratified the Torture Convention in 1994, w/various reservations and understandings, including the understanding w/respect to the definition of torture: US Federal Law, §§2340-2340A makes it a criminal offense for any person

“outside the US to commit or attempt to commit torture” “an act committed by a person acting under the color of law specifically

intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanction) upon another person within his custody or physical controlo There needs to be a specific intent of inflicting “severe physical or

mental pain & suffering” upon the detaineeo Knowing that the interrogator’s 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) → a showing that an individual acted w/a good faith belief that his conduct would no produce the result that the law prohibits negates specific intent”

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Waterboarding: “although the subject may experience the fear or panic associated w/the feeling of drowning, the waterboard does not inflict physical pain…it is simply a controlled acute episode, lacking the connotation of a protracted period of time generally given to suffering”

Necessity Defense: defense of necessity could be raised under the current circumstances to an allegation of a Section 2340A violation Conduct that the actor believes to be necessary to avoid a harm or evil to

himself or to another is justifiable, provided that:o 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

o Beyond the Torture Convention: Supreme Crt, Congress & Pres Reinterpret the Geneva C Supreme Court rejected the US position that the 1949 Geneva Conventions

do not apply to the conflict with al Qaeda – at a minimum, Common Article 3 does apply Common Article 3 establishes minimum standards for non-international

armed conflicts – requires that “person taking no active part in hostilities…shall in all circumstances be treated humanely” and

Prohibits cruel treatment & torture as well as outrages upon personal dignity

President Obama → Executive Order: the terms such as “treated humanely” sahll have the same meaning as the same terms in Common Article 3 of the GCs

Section 3 also stipulated that detainees “shall not be subjected to any interrogation technique or approach, or any treatment related to interrogation, that is not authorized by & listed in the Army Field Manual

Section 3 further barred US officials & agents from relying “upon any interpretation of the law governing interrogation…issued by the DOJ between 9/11 and 1/20/2009

International Covenant on Economic, Social & Cultural Rights o Not ratified by the USo Each State Party to the present Covenant undertakes to take steps individually &

through int’l assistance & co-operation, especially economic & technical, to the maximum of its available resources, w/a view to achieving progressively the full realization of the rights recognized in the present covenant by all appropriate means, including particularly the adoption of legislative measures **Conditioned on particular States’ abilities/capabilities **Progressively → work towards, i.e. not today

o Article 6: recognizes the “right to work” → includes the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts – safeguard this right

Convention for the Protection of Human Rights & Fundamental Freedoms

The Convention on the Elimination of all Forms of Discrimination Against Womeno Religious Displays & the Public-Private Distinctiono CASE: Leyla Sahin v. Turkey (European Ct. of Human Rights, 2005)

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Sahin, a Turkish Muslim, claimed Turkey violated her rights & freedoms under the Convention for the Protection of Human Rights & Fundamental Freedoms by banning the wearing of the Islamic headscarf in institutions of higher education

RULE: The ban by a secular country on wearing religious clothing in institutions of higher education does not violate students’ rights & freedoms under the Convention Turkey is a constitutionally secular state founded on the principles of

equality w/out regard to distinctions based on sex, religion, or denomination

The wearing of Islamic headscarf in educational institutions is a relatively recent development

The supporters of secularism see the Islamic headscarf as a symbol of a political Islam

B/C Shahin was wearing the headscarf to obey a religious precept, the ban interfered w/her right to manifest her religion → however, this was prescribed by Turkish lawo Aims of protecting the rights and freedoms of others and protecting

public ordero The headscarf is a “powerful external symbol” that is hard to reconcile

w/the principle of gender equality or the message of tolerance, respect for others, and, above all, equality & non-discrimination

o It is observed that the wearing of the headscarf may have a great impact on those who choose not to wear it, given that the majority of the population, while professing a strong attachment to the rights of woman and a secular way of life, are Muslims

X. ARMED CONFLICT & THE USE OF FORCE o UN Charter re: Use of Forceo Article 1: (purpose of the UNs are): To maintain int’l peace & security, and

to that end: to take effective collective measures for the prevention & removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, & in conformity w/the principles of justice & int’l law, adjustment or settlement of int’l disputes or situations which might lead to a breach of the peace… i.e. all Member States must work together to maintain int’l peace &

securityo Article 2: The Org. & its Members, in pursuit of the Purposes stated in

Article 1, shall act in accordance w/the following principles. 2(3): All Members shall settle their int’l disputes by peaceful means in

such a manner that int’l peace & security, and justice, are not endangered 2(4): All Members shall refrain in their int’l relations from the threat or

use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent w/the Purposes of the UN

o Article 24: (1): In order to ensure prompt & effective action by the UN, its Members confer on the Security Council primary responsibility for the maintenance of international peace and security, and agree that in carrying out its duties under this responsibility the Security Council acts on their behalf

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o Article 33: (Pacific Settlement of Disputes) (1) the parties to any dispute, the continuance of which is likely to endanger the maintenance of int’l peace & security, shall, first of all, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or the peaceful means of their own choice.

o Article 39: The SC shall determine the existence of any threat to the peace, breach of the peace, or act of aggression & shall make recommendations, or decide what measures shall be taken in accordance w/Art. 41 & 42, to maintain or restore int’l peace & security

o Article 41: SC may decide what measures not involving the use of armed force are to be employed → may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, & other means of communication, and the severance of diplomatic relations

o Article 42: Should the SC consider that measures provided for in Art. 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore int’l peace & security Such action may include: demonstrations, blockade, & other operations

by air, sea, or land forces of Members of the UNo Article 43:

Envisioned that UN Member States would promptly conclude special arrangements w/the SC making military units available for enforcement actions undertaken under UN command

o Article 47: Provided for Military Staff Committee to “be responsible under the SC for

the strategic direction of any armed forces placed at the disposal of the SC” However, no state ever concluded an Article 43 agreement 1950: SC authorized the use of force to repel N. Korea’s attack on

South Korea → 16 states provided military assistance to the S. Korean gov’t

SC asked the US to select the force commander – chose Gen. Douglas MacArthur

US referred to him as the UN Commander-in-Chief & to the forces under him an UN forces, however, MacArthur operated w/in the US military chain of command

US provided UN w/regular reports but did not accept UN direction in the conduct of those operations → tensions grew over time btwn US & other UN members – disagreed over the objectives of the UN force

o Article 51: Nothing in the present Charter shall impair the inherent 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 int’l peace & security Measures taken by Members in the exercise of this right of self-defense

shall be immediately reported to the SCo Article 53: (Regional Arrangements) – SC can utilize regional arrangements

or agencies for enforcement action under its authority (but no action shall be taken under such arrangements w/out the authorization of the SC)

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Justifications for the Use of Forceo What justifies a country or group of countries to exercise use of force against

another country that is a member of the int’l community? Self-Defense → requires necessity

“Necessity of that self-defense is instant, overwhelming, and leaving no choice of means and no moment for deliberation”

Force used in self-defense “must be by way of last resort after all peaceful means have failed”

Necessity in terms of Art. 51 of the UN Charter has been understood (by some writers) to denote a situation in which it is unavoidable to rely on force in response to the armed attack, where no alternative means of redress is available

However, in practice and in case law, necessity has not been understood in the very strict sense that a defensive measure is necessary only if it is absolutely indispensable and when no other peaceful option is available

→ Rather, necessity means what is essential and important, and what is useful to reach the objective of defense (Int’l Fact-Finding Mission on the Conflict in Georgia)

Proportionality: precludes a state from using force beyond that necessary to repel an attack or to restore the status quo ante However, situation may change when a series of attacks in one area

leads to the conclusion that defense requires a counterattack against the “source” of the attack on a scale that would deter future attacks

Not unreasonable to allow a state to retaliate beyond the immediate area of attack, when that state has sufficient reason to expect a continuation of attacks (with substantial military weapons) from the same source

Such action would not “anticipatory” b/c prior attacks occurred Nor would it be a “reprisal” since its prime motive would be protective,

not punitive When a govt treats an isolated incident of armed attack as a ground

for retaliation w/force, the action can only be justified as self-defense when it can be reasonably regarded as a defense against a new attack

“Defensive retaliation” may be justified when a state has good reason to except a series of attacks from the same source and such retaliation serves as a deterrent or protective action

However, a reprisal for revenge or as penalty (or “lesson”) would not be defensive.

o Israel: Is there a necessity? Netanyahu argues that the situation in Israel has reached a level of necessity – argues that if they don’t’ act now, it will be too late – they will be wiped out by enemy/terrorist organizations 1967: Israel struck Egypt & asserted anticipatory self-defense/preemptive

self-defense Arab states, supported by the communist bloc & many non-aligned

states, characterized the Israeli attack as aggression HOWEVER, in 1981, Israeli fighter-bombers destroyed a nuclear reactor

in Iraq – Israel contended that its action constituted legitimate self-defense

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o From Israel’s standpoint, Iraq was a hostile state whose possession of nuclear weapons would gravely threaten Israel’s security & perhaps its very survival

o 2nd Iraq War: relied on existence of weapons & intent to use them – extent to which they are proliferating – justifies an argument that there is such an awesome threat that necessity requires a response → has to be in some way proportionate

o UN SC Resolution 1441 Security Council: gave authority to US to use force against Iraq if Iraq does

not comply w/disarmament obligations & that Iraq is and has been in material breach of prior resolutions

Also, re-confirms/re-iterates Resolution 678(1991) which authorized members states to use all necessary means to uphold and implement prior resolutions & to restore int’l peace & security

o Operation Iraqi Freedom: Debating the Legality of War Attack on Iraq would be unlawful for 2 reasons:

1. Iraq had committed no armed attack permitting a use of force against it in self-defense

2. Resolution 678 could not be used to justify a use of force so many years after the end of the first Gulf Waro That resolution itself did not reauthorize the use of force, & the

primary penalty that it foresees for non-compliance w/its provisions is the maintenance of economic sanctions

Supporters of the war argued that: 1. The SC’s authorization to use force in Resolution 678 could be

revived by Iraq’s material breach of Resolution 678 2. Resolution 1441 strengthened the legal basis for war 3. The war was a legitimate exercise of anticipatory self-defense

Anticipatory Self-Defenseo In the aftermath of the Iraq war, UN Sec. Gen. Kofi Annan – high-level panel’s

view: A threatened State, according to long est. IL, can take military action as

long as the threatened attack is imminent, no other means would deflect it & the action is proportionate Problem: When the threat in question is not imminent but still claimed

to be real: ex. the acquisition, w/allegedly hostile intent, of nuclear-weapon capability

Can a State, w/out going to the SC, claim in these circumstances the right to act, in anticipatory self-defense, not just preemptively (against an imminent or proximate threat) but preventively (against a non-imminent or non-proximate one?)o If there are good arguments for preventive military action, w/good

evidence to support them, they should put to the SC, which can authorize such action if it chooses to

o If it does not choose to, there will be, by definition, time to pursue other strategies, including persuasion, negotiation, deterrence and containment – and to visit again the military option

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o What type of evidence is sufficient to demonstrate that a threatened attack is imminent? “clear & convincing evidence” standard has been suggested by academics

Interventions & Self-Defense – Internal Conflictso Types of Conflicts w/in a State:

Rebellions 3d party states – could assist under int’l law the incumbent gov’t to

resist rebellions & Insurgencies Goal of int’l community was to keep a calm, status quo In the interest of other states to assist the State in power to resist

these types of forces Insurgency

Same as above Belligerency

At state of belligerency – when incumbent gov’t says this is a real civil war

Conflict has enlarged At this state, the int’l gov’t is interested in cooling it down, not adding

to the party 3d party state were suppose to take on a neutral position

o If anything, provide everyone equally, only provide humanitarian types of assistance (foods, health care, shelter, etc.)

o UN Charter → Intervention in civil war context Art. 1, paragraph 23 – right to self-determination Art. 2, 1 – the restatement of the fact that every state is an equal 1

state/1 vote idea – no matter how small, how poor – they have sovereign control over their own property

Art. 2, 7 – domestic jdx issues and those that may have relevance to the int’l community

Article 51 (right to use self-defense) All recognitions of the sovereign nature of states and power of states

over jurisdictional issues (which is what civil wars are claimed to be – over territory)

Hazy law w/respect to the way in which 3d party can participate in a civil war that want to intervene

o What constitutes a Civil War? Is it one country? Then north and south = civil war

Or, there is a split, and invasions are crossing the borders → then it’s an int’l conflict btwn 2 states and int’l laws apply

o What really constitutes Intervention? Not talking about uses of force, armed attack by 3d party State Humanitarian aid w/out consent of anyone in the territory → trespass? But

it’s probably not deemed intervention – not deemed to upset the sovereign right of a State

o Article 51: recognizes individual and collective self-defense Collective self-defense: country being affected may well seek support

from others

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Protects the group to act in self-defense – B assists A who is being attacked by C: B, the 3d party state is assisting & their assistance is immunized b/c falls under the umbrella of A’s self-defense claim

o Anticipatory self-defenseo Counter-intervention: If 1 country intervenes in response to another countries

illegal intervention but acts short of being an armed attack, is that considered acceptable intervention?

CASE: Nicaragua v. US o 36 (2): Compulsory Jurisdiction o States do not have to accept the compulsory jdx of the court, but if they do,

they do so usually thru a declaration and often w/some reservations (reserving certain disputes out of the ICJ) Reservations to JX: US Accepted compulsory jdx but w/reservation to

object to ICJ asserting jdx → Self-affirming jurisdictional requirements US contested that ICJ did not have jdx; ICJ ruled that it did have jdx over

US; US refused to participate further in the case, and on 10/7/85, US terminated its acceptance of the Court’s jdx under Article 36(2)

Certain notice needs to be given to withdraw from a convention (notice was insufficient to do that – US argued at some length the jdx of the ICJ)

US & Nic have a friendship & commerce treaty between them which allows ICJ to resolve disputes under that treaty – case was argued based on whether US violated obligations under the Friendship Treaty, since US withdrew its acceptance of compulsory jdx

US – legal justification was collective self-defenseo Insisted that Nicaragua was subverting or threatening the govt’s of

neighboring countries, El Salvador, Honduras, & Costa Rica US claimed that Nicaragua was assisting the FMLN, the Marxist rebel

forces in El Salvador, in their efforts to overthrow the gov’t of that country, by providing the FMLN w/arms & other assistance

US argued that its support for the Contras was necessary to interdict arms shipments from Nicaragua (and from the Soviet Union & Cuba thru Nicaragua) to the FMLN

Nicaragua gov’t denied that it was supplying arms to the FMLN & argued that US aid to the Contras would in any event violate the basic principles governing the use of force

ICJ announced its decision on the merits on 6/27/86: o Applicable Law : b/c not all the affected states were before the Court, the

Court held that it had to decide the case based upon customary int’l law The principles as to the use of force incorporated in the UN Charter

correspond, in essentials, to those found in customary int’l law Fundamental principle expressed in Art 2, paragraph 4 Parties accepted a treaty-law obligation to refrain in their international

relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent w/the purposes of the UN

o Principle of Non-Intervention : Involves the right of every sovereign State to conduct its affairs w/out outside interference Forbids all States or groups of States to intervene directly or indirectly in

internal or external affairs of other States

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Intervention is wrongful when it uses methods of coercion in regard to such choices, which must remain free ones

The element of coercion, which defines, and indeed forms the very essence of, prohibited intervention, is particularly obvious in the case of an intervention which uses force, either in the direct form of military action, or in the indirect form of support for subversive or terrorist armed activities w/in another State – see pg. 870

o Principles of Self-Defense: The general rule prohibiting force allows for certain exceptions (including

individual and collective self-defense) Whether the response to the attack is lawful

o Armed Attack : an armed attack must be understood as including not merely action by

regular armed forces across an int’l border, but also “the sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State of such gravity as to amount to” (inter alia) an actual armed attack conducted by regular forces, “or its substantial involvement therein” → Art. 3 para (g) General Assembly Resolution 3314 (from a political body, but in force and employed for a long time) → may be taken to reflect customary int’l law

In customary int’l law, the prohibition of armed attacks may apply to the sending by a State of armed bands to the territory of another State, if such an operation, b/c of its scale and effects, would have been classified as an armed attack rather than as a mere frontier incident had it been carried out by regular armed forces.

But the Court does not believe that the concept of “armed attack” includes assistance to rebels in the form of the provision of weapons or logistical or other support

Article 51: To justify collective self-defense: you must prove that you were under armed attack Request by state for collective self-defense should come prior to the 3d

party state intervenes – in this case, El Salvador’s request came after – thus less authoritative

o Illegal use of force – not an armed attacked by Nic– doesn’t give a justification for collective SD

o Countermeasures: States do not have a right of “collective” armed response to acts which do not constitute an “armed attack”

o While an armed attack would give rise to an entitlement to collective self-defense, a use of force of a lesser degree of gravity cannot produce any entitlement to take collective counter-measures involving the use of force

o The acts of which Nicaragua is accused, even assuming them to have been established and imputable to that State, could only have justified proportionate counter-measures on the part of the State which had been the victim of these acts, namely El Salvador, Honduras or Costa RicaThey could not justify counter-measures taken by a third State, the US, and particularly could not justify intervention involving the use of force

CASE: Congo (DRC) v. Uganda

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o DRC charged that Uganda violated IL & various agreements btwn the countries by engaging in military & paramilitary activity on DRC territory DRC accused Uganda of “acts of armed aggression…in flagrant violation

of the UN Charter & of the Charter of the Org. of African Unity, of providing “unlimited aid to rebels in the form of arms and armed troops, in return for the right to exploit the wealth of the Congo & of gross violations of Int’l humanitarian & human rights law

Uganda counterclaimed, accusing the DRC of acts of aggression & attacks on Ugandan diplomatic premises and nationals in Kinshasa

Argued that DRC consented to their presence & then renewed its consent later thru the Lusaka Agreement & subsequent amendments

o Rule of Law: A state’s aggression toward another state is not justified where the second state has not consented to the presence of the first state’s troops on its territory & the first state is not acting in self-defense

o Decision: DRC did not consent to the presence of Uganda’s troops on DRC territory thru international treaties, & U’s aggression against the DRC was not self-defense 1. The 2 parties agreed that their respective armies would cooperate in

order to secure peace along the common border, but language of the agreements did not constitute that DRC’s consent was open ended U’s military presence exceeded the timetable for agreed-upon

withdrawal Lusaka Agreement → does not refer to “consent” nor does it constitute

“an acceptance by all parties of U’s justification for sending add’l troops into the DRC

2. When U claimed to have acted in self-defense, it did not ever claim that it had been subjected to an armed attack by the DRC & there was no proof of DRC involvement in any attacks against U

Humanitarian Intervention: Stopping Repression in Kosovo o Humanitarian Intervention

The use of force by one or more states to protect another state’s citizens from serious and widespread abuse of human rights

o NATO Intervention: Debating the Legality Caveats: Group initiative or individual country, but w/NATO, usually group

– but all self-judging in essence → it undertakes the initiative w/out the sanction of the int’l community

UN Sec-Gen Kofi Annan: Use of force by NATO can only be legalized when Security Council passes a resolution to that affect

Legality of the Use of Force (Yugoslavia v. Belgium)o (Proposed) Rule of Law

1. Armed intervention by 1 state is justified to forestall an ongoing humanitarian catastrophe in another state

2. Armed intervention by 1 state is justified by a state of necessity in another state

o The humanitarian values to be protected by such intervention are absolute rights and are therefore, jus cogens NATO did not intervene against FRYs territorial independence or integrity;

its purpose was to rescue a people in peril and deep distress

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Such humanitarian intervention is compatible w/Art. 2, paragraph 4 of the UN Charter, & is also supported by precedent

Moreover, UN did not condemn NATO’s intervention Also, NATO’s action was motivated by a desire to safeguard the stability of

the entire regiono State of Necessity: notion is part of IL → principle that says that there is a

cause that justifies the violation of a binding rule in order to safeguard, in the face of grave & imminent peril, values that are higher than those protected by the rule that has been breached

o Acts must also be proportionate There has been a breach of the rule against the use of force, however, the

imminent peril is the humanitarian catastrophe recorded in the SC resolutions;

The values are jus cogens – the collective security of an entire region And finally, the intervention is proportionate to the gravity of the peril – it

was limited to aerial bombing directed solely at the aggressor’s war machine and military-industrial complex

UN’s Address to the GA re: need for new approaches re: widespread & grave HR Abuses:o R2P: set of criteria that in its view justified military intervention to protect

human rights – to place limitations on intervention Dilemma w/respect to humanitarian intervention: one the one side (?),

question (?) of legitimacy of an action taken by a regional org. w/out a UN mandate; on the other hand, the universally recognized imperative of effectively halting gross and systematic collations of human rights w/grave humanitarian consequences

o International Commission on Intervention & State Sovereignty (ICISS): Report released that states have responsibility to give their own citizens

human rights – this was already embodied in UN Charter/other human rights resolutions/international law

But, that when the State is unwilling or unable to do so, that responsibility must be borne by the broader community of states

“serious and irreparable harm” involving “large scale loss of life” or “large scale ethnic cleansing”; the use of force as a last resort; and the use of “proportional means” meaning that “the scale, duration and intensity of the planned military intervention should be the minimum necessary to secure the defined human protection objective”

Emphasized the decision to use force should be made by the Security Counsel, but noted that if the Council fails “to discharge its responsibility in conscience-shocking situations crying out for action, then it is unrealistic to expect that concerned states will rule out other means and forms of action to meet the gravity and urgency of these situations”

o Secretary-General of the Security Council: 3 pillars to an implementation strategy: I: that states have the primary responsibility to protect their own

populations II: responsibility of the international community to assist states in building

capacity to protect their populations…

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III: to take timely and decisive action to prevent genocide, ethnic cleaning, war crimes, and crimes against humanity when a state is manifestly failing to protect its population – however, this can be done thru peaceful measure, for example, diplomatic sanctions or arms embargoes, as well as thru coercive means

XI. FUNDAMENTAL CHALLENGES TO INT’L LAW Effectiveness: Armed Conflict Against al Qaeda

o War on Terrorism: o No acting, arguably, on behalf of the state – Non-State Actors →

consequences of that Not civilians – anti-terrorist network – acts of that network/harboring those

people → makes you the same as them, legally Without treating the NGO as the same as the State → treating the NGO as ‘criminals’ – cant’ attack the country, can only

attack that person/or NGOo Recognition of Governments: Taliban as govt in Afghanistan?

Legality of Force Against Afghanistan: US asserted that its military response to events on 9/11 is justified as self-

defense under article 51 of UN Charter “In accordance w/Article 51 of the Charter of the UN….the USA, together

w/other States, has initiated actions in the exercise of its inherent right of individual & collective self-defense following the armed attacks that were carried out against the US on 9/11” “Since 9/11, US Govt has obtained clear and compelling information

that the al-Qaeda org, which is supported by the Taliban regime in Afghanistan, had a central role in the attacks.

“The attacks on 9/11 & the ongoing threat to the US and its nationals posed by the Al-Qaeda org have been made possible by the decision of the Taliban regime to allow the parts of Afghanistan that it controls to be used by this org as a base of operation.

Despite every effort by the US & the int’l community, the Taliban regime has refused to change its policy. From the territory of Afghanistan, the Al-Qaeda org continues to train & support agents of terror who attach innocent people throughout the worked & target US nationals & interests in the US and abroad

In response to these attacks, & in accordance w/the inherent right of individual & collective self-defense, US armed forces have initiated actions designed to prevent & deter further attacks on the USo These actions include measures against Al-Qaeda terrorist training

camps & military installations of the Taliban regime in Afghano However, US waited approx 4 weeks & then a massive deployment of force

against Afghan → was it a lawful act of self-defense? Arguments: Armed Attack or Criminal Act? The Link to Afghanistan Failed to exhaust nonmilitary alternatives

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Delay in the use of force turned it into an illegal act of reprisal (essentially, unlawful revenge) rather than legit self-defense → Timing & Necessity

Use of force against the entire Taliban regime, rather than al Qaeda, was not proportional to the threat o Attack against Afghanistan → against a State/self-defense? Attack

against US from NGO, not a State

Armed Conflict & Int’l Humanitarian Law O 4 Geneva Conventions of 1949: the core treaties of modern international

humanitarian law Article 2:

Convention applies to all cases of declared war or of any other armed conflict which may arise btwn 2 or more of the High Contracting Parties, even if the state of war is not recognized by one of them

Article 3: In the case of armed conflict not of an international character occurring

in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions:O Persons taking no active part in the hostilities , including members

of armed forces who have laid down their arms & those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith…

O The following acts are & shall remain prohibited at any time & in any place whatsoever w/respect to the above-mentioned persons: Violence to life & person (murder, mutilation, cruel treatment &

torture) Taking of hostages Outrages upon personal dignity (humiliating & degrading

treatment) Passing of sentences & carrying out of executions w/out

previous judgment (due process)O The wounded & sick shall be collected & cared for

O Article 2 → makes clear that Conventions as a whole apply to state-to-state conflicts – “High Contracting Parties”

O Article 3: intended to provide a minimum set of protections during civil wars (“not of an int’l character occurring in the territory of one of the High Contracting Parties” Thus, conflict against Afghan (which was a party to the Conventions) at

the time it was governed by the Taliban would seem to fall w/in Article 2O Armed action against al Qaeda? → Possibilities

1) Art 2, covering inter-state conflicts, applies to any military action that is part of the conflict w/Afghan & encompasses attacks against al-Qaeda members participating in that conflict However, does not apply to action against al-Qaeda A) outside of the

Afghan conflict, or B) in Afghan after the end of the interstate conflict (since early 20020)

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2) US is in armed conflict against al-Qaeda itself, & Art. 3 applies on the theory that it encompasses all conflicts not covered by Art. 2, regardless of the location of the hostilities

3) US is in an armed conflict against al Qaeda itself, but neither Article 2 nor Article 3 applies since the conflict is neither an int’l nor a non-int’l armed conflict

o If the Geneva Conventions do not apply to military actions against al Qaeda → Customary Int’l Humanitarian law? International Committee of the Red Cross:

Is the “war on terrorism” an armed conflict? o Central element to armed conflict:

Existence of “parties” to the conflicto International Armed Conflict → requires two or more stateso Non-International armed conflict

Parties may be eithers states & armed groups (ex. rebel forces), or just armed groups A party to an armed conflict must have a military-like

formation w/a certain level of organization & command structure, & therefore, the ability to respect & ensure respect for IHL

o i.e. Only 2 types of armed conflicts recognized by int’l law: 1. Inter-state conflicts 2. Non-international armed conflicts between governmental

forces & nongovernmental armed groups, or Between such groups only, On the territory of a single state

Specific aspects of the “war on terrorism” launched after 9/11 → armed conflict as defined under IHLo Ex. US-led coalition in Afghano Here, the 1949 Geneva Convention & the rules of Customary IL

were fully applicable to that int’l armed conflict btwn the US-led coalition & Afghan

However, doubtful whether loosely organized groups that are responsible for much of the ongoing violence taking place in other parts of the world can be characterized as a “party” to a conflict w/in the meaning of the IHL

Geneva Convention Relative to the Treatment of Prisoners of Waro Article 4: POWs are persons belonging to 1 of the following & who have fallen

into the power of the enemy: Members of the armed forces of a Party to the conflict Members of other militias & volunteer corps, incl. Those of organized

resistance movements, operating in or outside their own territory, if the group meet the following conditions: Commanded by a person responsible for his subordinates Having a fixed distinctive sign recognizable at a distance Carrying arms openly Conducting their operations in accordance with the laws & customs of

war

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Targeted Killing of Suspected Terroristso Article 51 of Geneva Convention (IHL)

Civilian populations → enjoy general protection against dangers arising from military operations

Indiscriminate attacks are prohibited: Those which are not directed at a specific military objective Those which employ a method or means of combat which cannot be

directed at a specific military objective Attack which may be expected to cause incidental loss of civilian life,

injury to civilians, damage to civilian objects, or combo of both, which would be excessive in relation to the concrete & direct military advantage anticipated

Attacks against the civilian population or civilians by way of reprisalso Issue: Un-manned weapons/drones in the battlefield → Limitations:

Article 51 of Geneva Convention Internal Armed Conflict → self-defense argument are limited Otherwise, traditional weapons not limited, as long as you can meet the

criteria for an armed conflict (not internal)

o Public Committee Against Torture in Israel v. Gov’t of Israel NGO brought suit against Israel claiming that its practice of preemptive

targeted killings of suspected terrorists violated int’l humanitarian & human rights laws

Holding & Decision: Not all preemptive targeted killings of suspected terrorists violate

customary int’l humanitarian & human rights laws where the law of armed conflict apply

The terrorists at issue do not fall within the criteria for combatants under the Hague Regulations, § 1, as they do not belong to the armed forces and do not belong to units to which int’l law grants status similar to that of combatants

They are unlawful combatants and are entitled to minimum protections offered by customary int’l law

Under Int’l Law, if one is not a combatant, one is a civilian, so that even unlawful combatants are civilians

Unlawful combatant-civilians are not entitled to the same protections as civilians who are not unlawful combatants b/c customary int’l law deems a civilian taking a direct part in hostilities are not entitled to protections from attack granted civilians who are not engaged directly in hostilities

Under Hague & Geneva Conventions: no separate 3rd category of “unlawful combatant” → thus no protections under int’l lawo Thus, no POW status

Civilians who are Unlawful combatants : Article 51(3): a civilian – a person who does not fall into the category

of combatant → must refrain from directly participating in hostilities As long as the civilian is: “taking a direct part in hostilities he does not

enjoy – during that time – the protection granted to a civilian

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o He is subject to the risks of attack like those to which a combatant is subject, w/out enjoying the rights of a combatant – e.g. those granted to a prisoner of war

Indeed, terrorists who take part in hostilities are not entitled to the protection granted to civilians

“Taking…part in hostilities” Hostilities are acts which by nature & objective are intended to cause

damage to the armyo And acts which by nature & objective are intended to cause

damage to civilians A civilian is taking part in such hostilities when using weapons in an

armed conflict, while gathering intelligence or while preparing himself for the hostilites

“Takes a Direct Part” Case by Case

o Collecting intelligence of the armyo Transports unlawful combatants to or from the place where the

hostilities are taking placeo Operates weapons which unlawful combatants use

Or supervises their operation or provides services to them “For such time”

Committing the chain of acts “Revolving door” terrorist But a civilian who took a direct part in hostilities once or sporadically

but detached himself from them entirely or for a long period is not to be harmed

o Harming such civilians, even if the result is death, is permitted, on the condition that there is no other means which harms them less, and on the condition that innocent civilians nearby are not harmed.

o Harm to the latter must be proportional.o That proportionality is determine according to a values based test, intended

to balance between the military advantage and the civilian damageo As we have seen, we cannot determine that a preventative strike is always

legal, just as we cannot determine that it is always illegal.

Int’l Committee of the Red Cross → Direct Participation in Hostilities under IHLo V. Constitutive elements of direct participation in hostilities

Act must be likely to adversely affect the military operations or capacity of a party to an armed conflict or, alt. to inflict death, injury or destruction on persons or objects protected against direct attack, and

Direct casual link btwn the act & the harm likely to result either from that act, or from a coordinate military op of which that act constitutes an integral party (direct causation), and

Act must be specifically designed to directly cause the required threshold of harm in support of a party to the conflict & to the detriment of another (belligerent nexus).

Legality of the Threat or Use of Nuclear Weapons

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o Holding: the threat or use of nuclear weapons would generally be contrary to the rules of int’l law applicable in armed conflict, & in particular the principles & rules of humanitarian law However, in view of the current state of int’l law, & of the elements of fact

at its disposal, the Ct cannot conclude definitively whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance of self-defense, in which the very survival of a State would be at stake.

o Analysis: UN Charter: the Charter neither expressly prohibits, nor permits, the use

of any specific weapon, including nuclear weapons Int’l customary & treaty law does not contain any specific prescription

authorizing the threat or use of nuclear weapons or any other weapon in general or in certain circumstances, in particular those of the exercise of legitimate self-defense

Hague & Geneva Conventions: provisions that outlaw poisonous weapons → however, term has been understood in the practice of States, in their ordinary sense as covering weapons whose primse, or even exclusive effect is to poison or asphyxiate Practice is clear; parties to those instruments have not treated them as

referring to nuclear weapons Great many negotiations re: nuclear weapons → not have resulted in a

treaty of general prohibition, though Treaty on the Non-Proliferation of Nuclear Weapons: 182 States → 2

Obligations To pursue & to conclude negotiations formally Obligation to negotiate in good faith a nuclear disarmament → to

achieve a precise result – nuclear disarmament in all its aspects – by adopting a particular course of conduct → the pursuit of negotiations on the matter in good faith

→ not a treaty which prohibits the threat or use of nuclear weapons, however

Treaties & Declarations indicate: nuclear-weapon States have reserved the right to use nuclear weapons in certain circumstances; and these reservations met with no objection from parties to the relevant treaties or from the Security Council

Opinio Juris? Consistent practice of non-utilization of nuclear weapons by States

since 1945 Counter: Doctrine & practice of deterrence – these States, in concert

w/other States, have always reserved the right to use those weapons in the exercise of the right to self-defense against an armed attack – the fact that they have not been used since 1945 is not on account of an existing custom but merely b/c circumstances that might justify their use have fortunately not arisen

Int’l Humanitarian Law: use of nuclear weapons obviously violates IHL & is therefore prohibited b/c: Nuclear weapons in all circumstances → unable to draw any distinction

btwn the civilian populations & combatants, or btwn civilian objects & military objectives

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Effects→ largely uncontrollable, could not be restricted, either in time or space, to lawful military targets

Such weapons would kill & destroy in a necessarily indiscriminate manner

Counter: Fundamental right to every State to survival, & thus its right to resort to self-defense, in accordance w/Article 51 of the Charter, when its survival is at stake UN Charter Article 51: Nothing in the present Charter shall impair the

inherent 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 int’l peace & security

Measures taken by Members in the exercise of this right of self-defense shall be immediately reported to the SC

Current Events (THIS IS 2012, FIND CURRENT EVENTS FROM NOW!) Libya: Genocide? See what Obama has said this morning Syria Criminal responsibilities – how we deal w/major human rights issues in the

int’l system European Union – enlarged from 6 to 27 countries Iraq & Afghanistan are still important issues Latin America (Cartahena) Pres Obama down there last weekend to arrange

greater relationships btwn US and the Americas Issue of Cuba still a problem – somewhat tainted meeting Mexico: important cross border relationship: issues about military and police

and civil society UN issues of who should be in control of the UN, if any state? How different

Int’l orgs should operate Korea: trade agreement; but missiles/nuclear weapons Russia: party to WTO

What is IL? Law’s institutions – exec, leg, judi Rules + principles + norms re: the conduct of States, and Int’l Orgs +

relations inter se + states w/persons (natural and juridical) Binding; or Non-Binding

Sources TIRED

o T: Vienna Convention – treaties attempt to codify CIL Treaties should be written and binding Pacta suct servanda

Good faith, no deception, countries should try to carrying out the obligations

Invalidating Treaties Jus cogens

o I: Interpreting

o R: in a bilateral treaty – no reservations

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Come up in multi-lateralo E:

Exceptions to performance Changed circumstances – how do changed circumstances

excuse performance under a treatyo D: “Damages”

What is a party who is in a treaty that has been breached – what rights does the non-breaching state have as a consequence of the breach

CIL → State Practiceo Opinio Juriso General Principleso Secondary =evidence of ILo Soft Law

Use of Forceo Classic – Prohibits armed attack (2)(4)

Retorsion/reprisal history Except self defense (51) Antic self defense “armed attack” Asymmetry of 2(4) and 51 UN Charter Ch. VI and VII

o Internal Conflict 3P involvement History = neutrality (Rebellion, insurgency, belligerency [civil

war] Intervention [2(4)]

Supplanted? By UN Charter 2(5), 25, Ch. VII???o Intervention

Collective self-defense? Collective countermeasures?

If armed attack, victim S (not 3P) can use proportionate response

o Humanitarian Definition R2P (responsibility to protect)

o Terrorism State-Supported Non-state supported/instigated

o Virtual Detachment, remote Technology Impact on civilian populations; collateral damage

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