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Public International Law Outline

Nature of International LawSources of international law:

Article 38(1) of the ICJ Statute (VERY IMPORTANT!)

1. The Court whose function is to decide in accordance with international law suchdisputes as are submitted to it, shall apply:

o international conventions, whether general or particular, establishing rulesexpressly recognized by the contesting states;

o international custom, as evidence of general practice accepted as law;o the general principles of law recognized by civilized nations;o subject to the provisions of Article 59, judicial decisions and the teachings of the

most highly qualified publicists of the various nations, as subsidiary means for the

determination of rules of law

2. This provision shall not prejudice the power of the Court to decide a case ex aequo etbono, if the parties agree thereto

o Allowing the judge to reference his own intuitions to decide the caseo This provision has never been invoked

Jus Cogens or Peremptory Normo Highest form of customary international law!o Can't derogate from this law, there is no opting out of this principle, No persistent

objector

o Generally included on lists of such norms are prohibitions of such crimes andinternationally wrongful acts as:

Waging aggressive war War crimes Crimes against humanity Piracy Genocide Apartheid Torture Slavery

Example: Two states cannot have a treaty to have a slave tradebecause jus cogens trumps the treaty

o Article 53 of the Vienna Convention on the Law of Treaties Addresses treaties conflicting with a peremptory norm of general

international law (jus cogens)

A treaty is void, if at the time of its conclusion, it conflicts with aperemptory norm of general international law

Treatieso Treaties are the most consensual of the sources and it gets less consensual as you

go down the listThe ordinary theory explaining the legally binding effect of an

international agreement is that a sovereign state may exercise its sovereignty not

only by making domestic law, but also by making international law.


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o Vienna Convention on the Law of Treaties Entered into force in 1980, and became binding law for those states who

accept it

Legal rules governing reservations, treaty interpretation, treatytermination, and other matters relating to treaties

Customary International Lawo Reflects customary practices, no treaty exists, but it is bindingo Not as clearly consensual as a treaty, but still consensualo The states must have a sense of a legal obligation (opinio juris) for the custom to

be binding

Example: Paquete Habana, case about seizing ships during wartime

General principles of lawo Looking at all the legal systems of the worldo Less consensual, involves some judicial or doctrinal initiative beyond a search for

interstate agreement on rules

Natural law

o Non-consensual source of lawo Theory that posits the existence of a law whose content is set by nature and that

therefore has validity everywhere

Equity

Diplomatic correspondence (can also be a source of international law)

Chapter 1: The Nature of International LawA. International Law Sampler

McCann v. United Kingdom (European Ct Human Rights)

Illustrates an international legal rule made by a treaty, adjudicated by aninternational court, and enforced by a regional international legal system

Example of a individuals bringing a claim before the European Court of HumanRights (ECHR): (The ECHR can be described as an international court for two

reasons--- 1. The Court was established by treaty: the 1950 European Convention

for the Protection of Human Rights. 2. The rules the Court applies are

international law in that the laws are norms made and protected by the same

treaty above)

o UK, Spanish and Gibraltar authorities' aware IRA planning terrorist attackon Gibraltar

Targeting the assembly area where Royal Anglican Regiment didchanging of guard

Group of 3 were to be sent to carry out the attack including Daniel

McCann, Sean Savage and Mairead Farrell Believed to be delivered via car bomb

o Estates of the dead then lodged action with the European Human RightsCommission on 14 Aug 1991

Claimed the killings were a violation of Art 2 of the EuropeanHuman Rights Convention.
http://en.wikipedia.org/wiki/Naturehttp://en.wikipedia.org/wiki/Nature


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o Commission declared the applicant's complaint admissible but in its reportfound there had been no violation of Art 2right to life

The text of Article 2, read as a whole, demonstrates that paragraph2 does not primarily define instances where it is permitted

intentionally to kill an individual, but describes the situations

where it is permitted to 'use force' which may result, as anunintended outcome, in the deprivation of life

o As far as the conduct and planning of the operation was concerned, theCourt observed that in carrying out its examination under Article 2 it must

bear in mind that the information that the United Kingdom authoritiesreceived presented them with a fundamental dilemma. On the one hand,

they were required to have regard to their duty to protect the lives of the

people of Gibraltar, including their own military personnel and, on the

other, to have minimum resort to the use of lethal force against thesuspects in the light of the obligations flowing from both domestic and

international law

o

Commission found no evidence to support applicant's claims that therewas a premeditated plot to kill the suspects because of the use of theSoldiers

o Court also found no plot to kill the suspects in its own investigation of thefacts

o Applicants claimed that the planning and conduct of the operation to arrestwas incompetent and negligent

o Court found a lack of the degree of caution in the use of firearms Which suggested a lack of appropriate care in the control and

organization of the arrest operation

o Based on this the court found that the decision not to prevent the suspectsfrom traveling into Gibraltar, the failure of the authorities to make

sufficient allowances for the possibility that their intelligence assessments

might be erroneous and the automatic recourse to lethal force constitutedthe use of force which was not more than absolutely necessary in defense

of persons from unlawful violence within the meaning of Art 2

By a vote of 10 to 9 there was found a violation of Art 2 of theconvention

o This failure by the authorities suggested a lack of appropriate care in thecontrol and organization of the arrest operation

o In sum, having regard to the decision not to prevent the suspects fromtravelling into Gibraltar, to the failure of the authorities to make sufficientallowances for the possibility that their intelligence assessments might, in

some respects at least, be erroneous and to the automatic recourse to lethal

force when the soldiers opened fire, the Court was not persuaded that thekilling of the three terrorists constituted a use of force which was no more

than absolutely necessary in defence of persons from unlawful violence

within the meaning of Article 2-2-a ECHR. There thus had been a breach

of Article 2 ECHR


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Filartiga v. Pena-Irala (US Ct of Appeals)

Example of customary law and Alien Torts Statute

Appellants contend that their son was kidnapped and tortured to death by thedefendant, Pena who was then Inspector General of Police in Asuncion Paraguay

Pena entered US under a visitor visa

Appellants rest argument in support of federal jurisdiction upon the Alien TortStatute

o The district court shall have original jurisdiction of any civil action by analien for a tort only, committed in violation of the law of nations or a

treaty of the US.

Court found that an act of torture committed by a state official against one held indetention violates established norms of the international law of human rights and

hence the law of nations

Law of nations may be ascertained by consulting the works of jurists, writingprofessedly on public law, or by the general usage and practice of nations, or by

judicial decisions recognizing and enforcing that law.

Cites to thePaquete Habanao Where there is no treaty and no controlling executive or legislative act or

judicial decision, resort must be had to the customs and usages of civilized

nations; and, as evidence of these, to the works of jurists andcommentators, who by years of labor, research and experience, have made

themselves peculiarly well acquainted with the subjects of which they

treat. Such works are resorted to by judicial tribunals, not for thespeculations of their authors concerning what the law ought to be, but for

trustworthy evidence of what the law really is.

Held that deliberate torture perpetrated under color of official authority violatesuniversally accepted norms of the international law of human rights, regardless of

the nationality of the parties. Whenever an alleged torturer is found and servedwith process by an alien within our borders, the Alien Tort Claims Act (Section

1350 USC) provides federal jurisdiction.

Chapter 2: Treaties Constitute the most frequent sort of international law made in practice

Treaties may be used to:o Form military and political allianceso Peace-makingo Creating new stateso Exchanging territoryo Controlling international violence

Treaties show the legal rule clearly because they are in written form

Treaties are subject to the explicit acceptance of stateso Treaties therefore can often be clearer in their terms and more certain in their

acceptance than other sorts of international law

Treaties can be trumped by Natural Law and Jus Cogens

Bilateral Treaties


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o Originate in the foreign ministry of one of the two interested partieso Enter force when both states indicate their intention to be bound by the agreement

as of a certain date

o Like contracts

Multilateral Treaties

o May be drafted at diplomatic conferenceso Often contain a provision indicating how many states have to accept the treaty

before it will be in force

o Like statutesA. The Sources of International Law

Material Sourceo The place one looks to actually read a rule of international law

Formal Sourceo A fashion in which international lawyers, judges, and jurists agree that

international law may be made

o Article 38 of the Statute of International Court of Justice

Starting point when thinking about the formal sources ofinternational law An instruction only to the judges of the international court Does NOT apply to other international courts or lawyers Article 38(d)(1) refers to Article 59 which states that the decision

of the court has no binding force except between the parties of that

particular case

However, this does not stop the court from relying heavily on itsown past decisions as a guide in finding customary international

law

Hard vs Soft International Law (Two ways this distinction is made):

1. The distinction may refer to the difference between rules meant to befollowed (Cession of Alaska) and norms meant to merely set out preferredoutcomes (Kellogg-Briand Pact).

2. The distinction between formal sources of law (treaties) and instruments

that are not formally legal sources (mutual declarations).

B. Treaty Sampler

Treaty between the Jews and the Romans

Mutual defense treaty

Give aid if attacked and vice versa

What constitutes coercion?

No bones about why they want to enter into the treaty What was the Romans motivation for entering into the treaty?

Romans were obsessed with image

Motivation for US establishing NATO alliance in the 60s ?

Peace of Westphalia

Marks the beginning of the era of modern international relations


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Fundamental principle: sovereignty of the states and their legitimacy

The existing states within the empire are legitimate and their internal affairs arenot the business of other states

o States can't question other states internal affairs, like religion

Concerned with individual rights

o Treaty acknowledges that the official religion will be prescribed by theprince, but those with other faiths will be able to practice at certain hours

and at home

o Cant exclude from community of merchants for your faith

Can't exclude from:o Artisans or Companieso Nor deprived of successions, legacies, hospitals, Lazar-Houses or Alms-

Houses

Amnesty from all hostilityo Pg 33All injuries, violences, hostilities, and damages, and all expenses

that either side has been obligated to be at, as well before as during the

war, and all libels by words or writing shall be entirely forgotten, withoutany regard to persons or things, so that whatever might be demanded or

pretended by one against the other upon this account shall be buried inperpetual oblivion.

Holy Roman Empire in existence because of license from the Pope

Era of limited war fare

Treaty of Paris (1783)

Treaty between great Britain and US established US sovereignty

Cession of Alaska (1867)

Bilateral treaty between the U.S. and Russiao Example of "hard" law: a formal source of law, such as a treaty

No consideration is needed for a valid treaty

Kellogg-Briand Pact (1928) (Paris)

Condemnation, express complete disapproval, of war, renounce as an instrumentof national policy

Condemning recourse to war for the solution of international controversies and asan instrument of national policy

Cited as positive law at the Nuremberg trialso Example of "soft" law, an instrument that is not a formally legal source

which may contain "non-binding" statements of principle

(Looking ahead to the UN Charter 2(4)) The consequence of this is that afterWorld War II, nations have been forced to invoke the right ofself-defense or the

right ofcollective defense when using military action and have also beenprohibited from annexing territory by force

Hull Lothian Agreement (1940)
http://en.wikipedia.org/wiki/Self-defensehttp://en.wikipedia.org/wiki/Collective_defensehttp://en.wikipedia.org/wiki/Collective_defensehttp://en.wikipedia.org/wiki/Self-defense


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Is this a treaty for the purposes of US domestic law?o The Senate is not involved, and if you look at the treaty power in Article II

2 this is not considered a treaty because it does not meet the requirementsas set out by the constitution

This is an executive agreement

o Most international agreements the US enters into are executive agreementso Sole executive agreements: don't require the spending money or any

action on the part of Congress

But in an international tribunal it is considered a treaty

C. The Law of Treaties

Vienna Convention on the Law of Treaties (1969)o Establishes rules about the making and interpretation of agreements, their

observation, modification, reservations, and terminationo Created by the U.N. General Assembly to encourage the progressive

development of international law and its codification

o Many Convention rules are regarded as customary international law

Reservations (unilateral statements purporting to exclude or modify the legaleffect of particular treaty articles for a reserving country)

o Have the potential formally to limit the scope of a state's acceptance of atreaty

o Article 2(1)(d): Defines a reservationo Article 19: Lists 3 exceptions to the reservation ruleo Article 20: Acceptance of and objection to reservations

Declarationso Suggest how a state, in its diplomatic practice, is likely to interpret articles

or words in a treaty

Termination and suspension of treatieso Changes in government of a state party does not terminate or suspend a

treaty

o Articles 54 and 57: Manners in which a State can terminate or suspendtreaties

Important Articles of the Convention:

Article 3: International agreements not within the scope of the present

Conventiono Governs ONLY treaties between stateso Does not govern agreements between a state and an international

organizations or agreements between two international organizations

Article 4: Non-retroactivityo Doesn't apply to treaties that have happened in the past

Article 6: Capacity of states to conclude treaties


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o Every state has capacity to conclude treaties

Article 7: Full powerso People who are considered as representing their state:

Heads of State Heads of Government

Ministers of Foreign Affairs Heads of diplomatic missions

Article 11: Means of expressing consent to be bound by a treatyo The consent of a state to be bound by a treaty may be expressed by

signature, exchange of instruments constituting a treaty, ratificationacceptance, approval or accession, or by any other means if so agreed

Article 12: Consent to be bound by a treaty expressed by signatureo The consent of a State to be bound by a treaty is expressed by the

signature of its representative when:

The treaty provides that signature shall have that effect It is otherwise established that the negotiating states were agreed

that signature should have that effect; or The intention of the State to give that effect to the signature

appears from the full powers of its representative or was expressed

during the negotiation

Initials count as a signature if the negotiating States so agreed

Article 19: Formulation of reservationso A state may when signing, ratifying, accepting, approving, or acceding to

a treaty, formulate a reservation UNLESS:

o The reservation is prohibited by the treatyo The treaty provides that only specified reservations may be made (and the

reservation in question is not one of the specified ones)

o The reservation is incompatible with the object and purpose of the treaty Article 20: Acceptance of and objection to reservations

o Unless the treaty provides otherwise, a reservation is considered to havebeen accepted by a State if it shall have raised no objection to the

reservation by the end of a period of 12 months after it was notified of thereservation or by the date on which it expressed its consent to be bound by

the treaty, whichever is later

Article 21: Legal effects of reservations and of objections to reservations

Article 26: Pacta sunt servandao Agreements must be kepto Every treaty is binding upon the parties to it and must be performed by

them in good faitho This is a fundamental principle of civil and international lawo The only limit to pacta sunt servanda is jus cogens, the peremptory norms

of international law

o Can't use municipal law to get out of treaty obligations

Article 39: General rule regarding the amendment of treatieso A treaty may be amended by agreement between the parties
http://en.wikipedia.org/wiki/Jus_cogenshttp://en.wikipedia.org/wiki/Jus_cogens


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Article 53: Treaties conflicting with a peremptory norm of international law (JusCogens Norm)

o A treaty is void if, at the time of its conclusion, it conflicts with aperemptory norm of general international law

o A Jus Cogens norm is accepted and recognized by the international

community of States as a whole as a norm from which no derogation ispermitted and which can be modified only by a subsequent norm of

general international law having the same character

o Article 62: provision that sets out the doctrine of fundamental changedcircumstance, to institute 3rd party conciliation

The Reservations to the Genocide Conventions Case (ICJ)

Convention of Genocide was in formed in large part as a result of WWII o US did not become a member until much later, signed in 1948 and ratified

in 1988

o Why the lapse in time between signing and ratification? o

Isolationist sentiment? What happened as states signed or contemplated ratification of the Convention?

o The states wanted to make reservationso The reservation that all the states had in common was:

Compulsory jurisdiction of the ICJ

However, opting out of this would frustrate the purpose ofthe Convention; it would be essentially taking away the

punishment mechanism...

o The other reservations included: Reserving liability from private individuals, just leaving the states Jurisdiction of municipal tribunals

Municipal tribunals are those of your own state, and anyother state

Immunity would have shielded criminals against trials intheir own states as well as in other states

Extradition If heads of state can't be extradited then these commitments are

just on paper

Colonial Clause

Dissent is saying that it is better to not have a state join the Convention then to letthe state make reservations, because genocide is such an important topic the

dissenters think it is better to not have a party sign then make

modifications/reservations to the Convention A reserving state may be a party to the convention if the reservation is compatible

with the object and purpose of the convention

Eastern Airlines, Inc. v. Floyd (US Supreme Ct) Provides an Example of how the USSup. Ct. will attempt to ascertain the meaning of a foreign judicial interpretation

Group of passengers bring separate complaints against Eastern Airlines, aninternational air carrier, each claiming damages for mental distress


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The Ct had to determine whether Article 17 of the Warsaw Convention allowsrecovery for mental or psychic injuries unaccompanied by physical injury

Marshall turns to many sources to look at the term lesion corporelle:o Dictionaryo French legislation

o French Tort law (cases) French courts were awarding damages for mental injury However, this is kind of a big leap from French tort law to

international

Scholarly literatureo Some guys Phd thesis...was usedo Decision from the Supreme Court in Israelo Israel looks at law as law that had been developed over time, a living

international law view, what do the terms and concepts in the treaty meantoday

o Marshall has an originalist view (and rejects the view of Israel), what did

the concepts mean back when the treaty was originally signed and made Held air carrier cannot be held liable under Art 17 when an accident has not

caused a passenger to suffer death, physical injury, or physical manifestation of

injury

Warsaw Conventiono One goal of the convention was to achieve uniformity of rules governing

claims arising from international air transportation, especially with claims

for personal injuries arising out of accidents, for damaged or lost baggage

and for damages caused by flight delays

Case concerning the Gabcikovo-Nagymaros Project

1977: Hungary and Czechoslovakia entered into a treaty providing to dam up theDanube River

The treaty was to be implemented through a joint contractual plan and the DanubeRiver was to be diverted into a by-pass canal in Czechoslovak territory by means

of a dam to be built by both countries

1989: In response to public protest of the project the government of Hungarysuspended its work on the project

Czechoslovakia became convinced that Hungary would abandon the project adbegan to plan its own provincial solution, known as Variant C

1992: Hungary unilaterally denounced the treaty

1993: Hungary and Slovakia agreed to submit some questions about their dispute

to the ICJ The ICJ also discusses the distinction between the law of treaties and the law of

State Responsibility:

-Law of treaties: Should be used in determining whether a convention is or

is not in force, and whether it has or has not been properly suspended or

denounced.


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-Law of State Responsibility: Should be used in the evaluation of the

extent to which the suspension or denunciation of a convention, seen asincompatible with the law of treaties, involves the responsibility of the State

which proceeded to it.

The ICJ held that if a state suspends or denounces a treaty when such action is not

authorized under the law of treaties, its conduct will be unlawful, making the stateresponsible in international law

Jus Cogens principle: treaties cannot be ignored or dropped

The law of state responsibility recognizes limited justifications to excuse anotherwise unlawful act

o States can consent to terminate a treatyo They can agree on a new treaty that will replace a previous treaty or they

can include in a treaty specific provisions about termination. Art 54 and 60

of Vienna Convention

If a state suspends or denounces a treaty when such action is not authorized underthe law of treaties, its conduct will be unlawful, making the state responsible in

international law. The law of state responsibility provides limited justifications to excuse an

otherwise unlawful act; in this case, Hungary unsuccessfully argued necessity.

However, if a state successfully establishes an excuse, the treaty is not terminated,but the excuse may justify suspending operation of the treaty.

Eastern Greenland Case

Both countries had an understanding without anything written instrument

Agreement to agree

Example of an unwritten treaty

Chapter 3: Custom and the Non-Consensual Sources of International LawA. Customary International Law

A practice does not become a rule of customary international law simply becauseit is widely followed

It must also be deemed by states to be obligatory as a matter of law

Two elements of custom:o Consistent practice of stateso Engaged in out of a sense of legal obligation

Opinio Juriso The belief of a legal obligation, a consensus of obligation to follow that

practice

o North Sea Continental Shelf Cases

The Paquete Habana (1900) (US Supreme Ct)

Neutral fishing vessels were seized and brought to Key West, their cargoes keptas prizes of war, and sold by auction


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The Ct held that under the law of nations the capture was unlawful, and withoutprobable cause and the proceeds of the vessel together with the proceeds of any

cargo be restored to the boat owner

By ancient usage among civilized nations, gradually ripening into a rule ofinternational law, coast fishing vessels, pursuing their vocation of catching and

bringing in fish have been recognized as exempt, with their cargoes and crews,from capture as prize of war

The best-known decision of the U.S. Supreme Court finding and applyingcustomary international law

Justice Gray's important quote: International law is part of our law, and mustbe ascertained and administered by the courts of justice of appropriatejurisdiction, as often as questions of right depending upon it are duly presented for

their determination. For this purpose, where there is no treaty, and no controlling

legislative act or judicial decision, resort must be had to the customs and usages

of civilized nations...

Frequently cited for 3 main issues:

o The manner of determining rules of customary international lawo The way in which customary international law is incorporated into the

municipal law of the U.S.

o The proper relationship between the U.S. courts and the executive legalbranch in legal matters touching on international relations

The Asylum Case (ICJ)

Example of a persistent objector

Torre, an unsuccessful leader of a military rebellion in Peru in 1948, soughtpolitical asylum in the Colombian embassy in Lima

Peru rejected Colombia's assertion of diplomatic asylum for Torre and refused to

give him safe-conduct to leave the country, insisting that he, instead, be givenover to Peru for trial for military rebellion

The dispute was given to the ICJ, who turned to customary international law

The Ct held that Colombia, the state granting asylum, is not competent to qualifythe offence by a unilateral and definitive decision, binding on Peru

Important concepts:o There can be a regional or particular rule of customary international lawo Persistent objector: when a state avoids a law that is crystallizing (term of

art), but once the norm hits jus cogens status persistent objection is nolonger valid

o Active nationality jurisdiction example

The Lotus Case (PCIJ)

French steamer, the Lotus, and Turkish steamer collided

Jurisdiction is at issue in this case

France claimed that Turkey did not have jurisdiction because the collisionoccurred on the high seas


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The Ct rejected the argument stating that there is no rule in international law thatsays this

Because the collision was on Turkeys own soil it was up to France to prove thatTurkey did not have jurisdiction

The main principle: Restrictions upon the independence of states cannot therefore

be presumed The state does not have to prove that it can do something, the opposing state has

to prove why the first state cannot do something under international law

4 theories that states use to assert SMJ over criminals:o Territorialityo Active nationality jurisdiction

Jurisdiction over any of that states citizens anywhere in the worldo Passive nationality jurisdiction

Jurisdiction over crimes committed anywhere where the nationalwas a victim

o Universal Jurisdiction Rarest and most controversial type of jurisdiction

The Texaco/Libya Arbitration

Libya nationalized their oil without compensation to Texaco

Nationalization is not illegal under international law; they must compensate theother party

Nationalization is an acceptable policy choice as long as compensation is paid(especially to foreign nationals)

B. General Principles of Law

Non-consensual and secondary source of international law

Law that is recognized Through evolution, general principle can lose status

Turn to general principles of law when there is a gap, gap fillers, in internationallaw (if there are no treaties and customary international law)

The AM & S Case (European Ct of Justice)

Opinion of the Advocate General

Officials of the European Community's Commission required AM & S to givethem certain documents in connection with an investigation being conductedpursuant to Article 14(1) Council Regulation

o AM & S produced most of the documents but not all of themo AM & S said that the documents not produced were covered by legal

confidentiality

o The commission argued no such privilege exists


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Treaties and directives give the commission the power to do these investigations,but there is no law about the exemptions of documents within the investigation

When looking for laws about privilege there is no treaty, no customary law, sothey had to go to general principles of law which means looking at other countries

o The AG finds that privilege exists in the other countries of the EEC; with

the exception of in house counsel There is a general principle of the attorney client privilege

The opinion also makes clear that general principles may not be identical commonpractices

o There are some legal principles that are found in all legal systemsC. Natural Law and Jus Cogens

Jus Cogenso 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 bya subsequent norm of general international law having the same character

o Very few norms ever reach jus cogens statuso "Persistent Objector"

When a State tries to opt out of customary international lawthrough persistent objection in its diplomatic practice

The State must have been objecting to it from the time it wasintroduced

Limits the enforceability of international law and can be used as adefense if the norm has obtained jus cogens status

Once a norm hits jus cogens status "persistent objection" isno longer valid

Jus cogens always overcomes consent

Obligations Erga Omneso Obligations of a State toward the international community as a whole

Duties that run two-fold

Duty to refrain from particular conduct

Duty to act to prohibit/prosecute such conduct Applies to States and individuals?

U.S. v. Smith (US Supreme Ct)

Smith was indicted for piracy

Smith argued that Congress was vague and the plunder and robbery he committeddid not fall into the said act of Congress

Smith was one of the two principle cases relied on by the Filartiga court todemonstrate that the rules of the law of nations "may be ascertained by consulting

the works of jurists, writing professedly on public law, or by the general usage

and practice of nations; or by judicial decisions recognizing and enforcing thatlaw"


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Both the Smith andFilartiga cases establish that an individual could be foundguilty of violating the law of nations

Prosectuor v. Furundzija

Torture is a jus cogens norm and cannot be violated

4 characteristics to become a jus cogens norm: Status of a norm of general international law

Acceptance by the international community of states as a whole

Immunity from derogation

Modifiable only by a new norm with the same principle

The Micheal Domingues Cases:

Domingues was convicted in Nevada state court of two murders committed whenhe was 16 years old, he sentenced to death

Domingues petitioned the Inter-American Commission on Human Rights, aninternational body authorized only to deliver a non-legally binding report

Issue: whether a persistent objector may still be bound in customary internationallaw and whether there is a jus cogens norm prohibiting he execution of juvenileoffenders

US Argument:o US has persistently objected to the development of a customary

international legal principle prohibiting the execution of juvenile offenders

o There is no jus cogens prohibition on the execution of juvenile offender

Report of the Inter-American Commission on Human Rightso US stands alone in the execution of minorso Commission concluded that in the present case the US bound by a norm

jus cogens not to impose capital punishment on individuals who

committed their crimes when they had not yet reached 18 years of age

D. Equity

A claim that is judged to be just and fair

Equity is generally considered part of international law

Article 38(1)(c) of the ICJ statute says that equity can be a source of internationallaw?

The Cayuga Indians Case (American and British Claims Arbitration)

Espousal

The Meuse Case (PCIJ)

Dutch and Belgium Lock

Equity could be a type of general principle, which the Court is authorized to applyunder Article 38(1)(c) of the ICJ statute

The North Sea Continental Shelf Case (ICJ)


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Provides hierarchy of sources of international law

Chapter 4: International Law and Municipal LawA. Treaties and the Constitution

"Treaty" used on international plane

o Describes agreements in generalo Also called:

Conventions Pacts Covenants Charters Protocols

Different names have no legal significance

"Treaty" used in U.S. national lawo Has a special meaning, it describes an agreement that requires the advice

and consent of the Senate before the U.S. can become a party to it

o Article II 2 of the Constitution Self-executing treaty doctrine

o Establishes directly enforceable rights Example of self-executing treaty

The states parties agree to refrain from executing anyperson in any circumstance

o Established inFoster & Elam v. Neilson Established the proposition of the self-executing treaty in U.S. law

and into international law in general

In the U.S. a treaty operates of itself without the aid of anylegislation, state or national, and will be applied and given

authoritative effect by the Courtso Federal treaty trumps state law only when the treaty provision is

incorporated in U.S. law because it is self-executing or because it has been

implemented by congressional legislation

Non self-executing treatyo Example of a non-self-executing treaty

The states parties agree to abolish the death penalty It is an obligation to act in the future

o A non-self executing treaty which has not been passed by a statute fromCongress has no effect!

Monismo International law and domestic law are parts of an integrated legal systemo Treaties are automatically part of municipal law

Dualismo International law and domestic law are two separate and discrete legal

systems

o Treaties must be specially incorporated into municipal law


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Last-in-time Ruleo If there is a conflict between a treaty and a federal statute, the one last in

date will control

Executive Agreementso An agreement between the United States and a foreign government that is

less formal than a treaty and is not subject to the constitutionalrequirement for ratification by two-thirds of the U.S. Senate.

o Two types: Statutory or Congressional executive agreement? Sole executive agreement

No prior or subsequent Congressional authorization?

Foster & Elam v. Neilson (US District Ct)

Establishes the proposition of the self-executing treaty in US law

Asakura v. City of Seattle

City had an ordinance requiring a license to operate a pawn shop and the operatormust be a citizen of the U.S.

Example of a state law being trumped by a U.S. treaty rule

Sei Fujii v. California

A federal treaty trumps state law only when the treaty provision is U.S. law eitherbecause it is self-executing or because

Missouri v. Holland

Bird treaty

Last time in Ruleo If there is a conflict between a federal statute and a treaty the one last in

date will control

Crosby v. National Foregin Trade Counsel

3 types of preemptiono Express: when Congress says states you must stop doing somethingo Field: Congressional regulation is so broad it leaves nothing left for the

states to do

o Conflict: Regulated entity can't comply with both the federal and statelaw

Youngstown Analysis

Whitney v. Robertson

Example of last in time rule

U.S. v. Belmont

The Supreme Court recognizes that there are sole executive agreements which areequivalent to the Article II formation of treaties
http://www.britannica.com/EBchecked/topic/603884/treatyhttp://www.britannica.com/EBchecked/topic/534345/Senatehttp://www.britannica.com/EBchecked/topic/534345/Senatehttp://www.britannica.com/EBchecked/topic/603884/treaty


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Strongest assertion that the US is supreme in international negotiations

U.S. v. Curtiss-Wright

Congress had authorized the president to put an embargo on arms shipments

Congress has the authority to give the president the power to decide about

international affairs

Dames & Moore v. Regan

Executive order freezing Iranian assets

Youngstown test used to validate the acts of Carter

Medellin v. Texas

President can't make a non-self executing treaty

Maybe under Jackson's twilight zone theory

Is Vienna convention consular relations self-executing?

6 members of the court say it is not self-executing

Breyer says it is self-executing

B. The Law of Nations in American Law

In the U.S. the law of nations has come to include all of the modern sorts of non-treaty rules

o Customary international lawo General principles of lawo Jus Cogens norm

The doctrine of incorporation of the law of nations into the common law predatedthe Constitution and the Supremacy Clause of Article IV

Amerada Hess v. Argentine Republic (US Ct of Appeals)

Argentina bombed the Hercules, a neutral oil tanker, without warning

Whether a federal district court could exercise subject matter jurisdiction overArgentina under the Alien Tort Statute, which establishes district courtjurisdiction over any civil action by an alien for a tort only, committed in

violation of the law of nations or a treaty of the US

The court found that a foreign state is subject to jurisdiction in the courts of thisnation if and only if an FSIA exception empowers the court to hear the case

No FSIA exception covered these facts so the case was dismissed for lack ofjurisdiction

Neutral ships have always been protected in times of waro Geneva Convention on the High Seas of 1958o Law of the Sea Convention of 1982

Federal courts have also recognized that attacking a merchant ship withoutwarning or seizing a neutral's good on the high seas requires restitution

Supreme Ct overruled the decision of the Ct of Appeals

Charming Betsy


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Important principle p. 235

Act of Congress ought never to be constructed to violate the law of nations, if anyother possible construction remains, and consequently, can never be construed toviolate neutral rights or to affect neutral commerce, further than is warranted by

the law of nations as understood in this country

US makes a law forbidding American trade with the battling European nations Man, citizen of US, takes his ship to the Danish West Indies and gets Danish

citizenship so he can continue trading (that was prohibited by US citizens)

He ship gets seized and he argues that he is Danish so he is neutral

Marshall ruled that an act of Congress ought never to be construed to violate thelaw of nations, if any other possible construction remains, and consequently, can

never be construed to violate neutral rights, or to affect neutral commerce...

Claims under Alien Torts Statute

Piracy

Violation of safe conducts/passage

Offenses against ambassadors/ Attacks on a foreign diplomat Torture

o Later added by Justice Souter

Alvarez wants to add arbitrary detention and rendition to the list of claims

US v. Alvarez-MachainDoes the abduction of Alvarez from Mexico violate the Extradition Treaty between the US and

Mexico?

Alvarez argues that his abduction violates the extradition treaty between the US andMexico

o Article 9 of the extradition treaty Each nation preserved its right to choose whether its nationals would be

tried in its own courts or by the courts of another nation

Alvarez also argues that all the processes and restrictions on the obligation to extraditeestablished in the treaty would make no sense if either nation were free to resort to

forcible kidnapping to gain the presence of an individual for prosecution in a manner not

contemplated by the Treaty

The Court does not read the Treaty that wayo Article 9 is not the only way in which a country may gain custody of a national of

another country for the purposes of prosecution

o The history of negotiation and practice under the Treaty also fails to show thatabductions outside of the Treaty constitute a violation of the Treaty

Ker v. Illinois, applied forcible abductions made outside the terms of the US-MexicoExtradition Treaty

Chapter 5: International Courts and TribunalsA. Public International Arbitration (Mediation or Settlement) and Other Non-

Judicial Methods

Permanent Court of Arbitration


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o Established in 1899 in The Hagueo World's first permanent and universal court of arbitrationo Still exists today although it has rarely been used since the creation of the

International Court of Justice in 1921

o PCA also plays a role in electing the judges to the ICJo

Process of resolving disputes between States by being referred to the PCAo Done through ad hoc arbitration or is a consequence of a particular treaty

that provides for arbitration

Arbitral decisions ARE BINDING on the parties!

3 types of international arbitral agreementso Arbitration clause included in a treaty

Function: to provide a method for resolution of disputes that mightarise in the interpretation or application of the treaty

o Treaties whose sole function is to establish a method for the resolution andarbitration of disputes that might arise in the future

o Arbitral agreements that are concluded after a dispute arises and which the

parties have not been able to settle by other means Compromis:

o Agreement that contains provisions for the establishment and operation ofthe arbitral panel

o Binding international agreemento Identifies the issues that are to be decided, specify the rules of procedure

to be followed, and state the undertakings of the parties to abide by and

implement the award

Modern public international arbitrationo Rainbow Warrior Case

Mixed international arbitration

o Texaco/Libya case Private or commercial international arbitration (between private litigants) and

mixed international arbitration (between a state and a private litigant) are frequenttoday

Other Non-Judicial Methodso Article 33(1) of the UN Charter

Negotiation

Traditional and most commonly used method

May be by diplomatic correspondence or face-to-faceencounters between negotiators

Inquiry

Fact finding and investigating Mediation

3rd party efforts to assist the parties resolve their dispute

Role of mediator: to bring the parties together and proposesolutions and opportunities for settlement

Conciliation (bring disputing sides together)

More formal process


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Requires an agreement by the parties that refers the disputeto a group of individuals/institution who will review the

issue and give a report containing recommendations forresolving the dispute

No obligation on the parties to accept the recommendations

B. The International Court Permanent Court of International Justice

o Created at the 1919 Paris Peace Conferenceo Failed to arrest the onset of WWII the new peace-makers in 1944-1945

created the International Court of Justice

International Court of Justiceo Main judicial organ of the United Nationso All 192 members of the UN are automatically parties to the ICJ's statute

Established by Article 93 of the United Nations Charter:

1. All members of the UN are ipso facto parties to theStatute of the International Court of Justice

2. A state which is not a member of the UN may become aparty to the Statute of the ICJ on conditions to be

determined in each case by the General Assembly upon therecommendation of the Security Council

o However, simply being a party to the statue does not guarantee that theCourt will have jurisdiction over the dispute

1. The Jurisdiction of the International Court

Statute of the International Court of Justice

Article that establishes jurisdiction:o Article 36

1. The jurisdiction of the Court comprises all cases which the

parties refer to it and all matters specially provided for the Charterof the United Nations or in treaties and conventions in force

2. The states parties to the present Statute may at any time declarethat they recognize as compulsory ipso facto without specialagreement, in relation to any other state accepting the same

obligation (reciprocity), the jurisdiction of the Court in all legal

disputes concerning:

Interpretation of a treaty

Any question of international law

The existence of any fact which, if established, wouldconstitute a breach of international obligation

The nature or extent of the reparation to be madeunconditionally or on condition of reciprocity on the part ofseveral or certain states, or for a certain time

3. The declarations referred to above may be madeunconditionally or on condition of reciprocity on the part of several

or certain states, or for a certain time


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4. Such declarations shall be deposited with the Secretary Generalof the United Nation, who shall transmit copies thereof to theparties to the Statute and to the registrar of the Court

5. Declarations made under Article 36 of the Statute and which arestill in force shall be deemed, as between the parties to the present

Statute, to be acceptances of the compulsory jurisdiction of the ICJ 6. In the event of a dispute as to whether the Court has

jurisdiction, the matter shall be settled by the discretion of the

Court

3 ways to establish jurisdiction in a case where a judgment will be rendered:o "Compromis"

When two states decide that they should go to the ICJ to solve theproblem

o States can recognize the ipso facto (compulsory?) jurisdiction of the ICJ Only about 1/3 of the States recognize this The U.S. once accepted 36(2), but no longer does

However, the Court still has jurisdiction over the USthrough 36(1)o A treaty can give the ICJ jurisdiction to handle disputes

2. Contentious Cases at the International Court

These cases are adversarial proceedings seeking to settle a dispute

Judgments are BINDING!o Article 59 of ICJ Statute

No stare decisis, only binding between those two specific partieso Article 60 of the ICJ Statute

Also deemed to be final and without appealo Article 94 of the UN Charter

o ONLY STATES CAN BE PARTIES TO CONTENTIOUS CASES!

o The following are excluded from being parties (direct participation) incontentious cases:

Individuals

The state "espouses" the claim for the nationals, meaningthe state must go on the behalf of the individual

Before the state can espouse a claim on behalf of itsnational the state must have exhausted all domestic legal

remedies within its own state

Once the claim has been espoused it becomes the subject of

international law Nottebohm Case

Corporations Parts of a federal state UN organs Non-governmental organizations (NGOs)


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The Minquiers and Ecrehos Caseo All cases submitted to the ICJ are consensual

The Diplomatic and Consular Staff Caseo Iran refused to acknowledge the ICJs jurisdiction and did not show up

o Judgment not enforceableo Under Art. 94 were unable to enforce because of Russia's veto powero Pre-judgment order not enforceable under the ICJ as opposed to U.S.

Western Sahara Caseo Spain would not consent, claimed it was terranullis

3. Advisory Opinions at the International Court

Articles that establish jurisdiction to render advisory opinionso Article 65

1. The Court may give an advisory opinion on any legal question

at the request of whatever body may be authorized by or inaccordance with the Charter of the United Nations to make such arequest

2. Questions upon which the advisory opinion of the Court isasked shall be laid before the Court by means of a written requestcontaining an exact statement of the question upon which anopinion is required. and accompanied by all documents likely to

throw light upon the question

Article 96 of the United Nations Chartero Also provides jurisdiction for advisory opinions

1. The General Assembly or the Security Council may request the

International Court of Justice to give an advisory opinion on anylegal question

2. Other organs of the UN and specialized agencies, which may atany time be so authorized by the General Assembly, may also

request advisory opinions of the Court on legal questions arisingwithin the scope of their activities

When requesting an advisory opinion:o Must submit a specific question, not asking the court to provide general

advice

o Must include all the documents that the court should look at

STATES OR INDIVIDUALS CANNOT REQUEST ADVISORY OPINIONS!

Only given at the request of designated international organizationso NOT legally BINDING, unlike judgments in contentious caseso However, these opinions have served functions fairly similar to Court

judgments

4. Chambers at the International Court

The Court has been willing to hear cases submitted to it via chambers pursuant toArticle 26 of the ICJ Statute

o Article 26 of the ICJ Statute:


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1. The Court may from time to time form one or more chambers,composed of 3 or more judges as the Court may determine, fordealing with particular categories of cases; for example, labor

cases and cases relating to transit and communications

2. The Court may at any time form a chamber for dealing with a

particular case. The number of judges to constitute such a chambershall be determined by the Court with the approval of the parties

3. Cases shall be heard and determined by the chambers providedfor in this Article if the parties so request

o Example,The Elsi Case ICJ will not hear a case until municipal remedies have been

exhausted

Chapter 6: Individuals and International LawA. Individuals as Objects of International Law

Traditional positivistic international law (19th and early 20th century)

o Individuals were not "subjects" of international lawo Individuals had neither international legal rights nor duties

However, individuals could be "objects" of state v. state litigation

Doctrines of state protection of individuals and state responsibilityo Created for injuries done to individualso 3 limitations of the doctrines of state protection of individuals:

Individuals may only be protected by their national states When the notion of national links is extended to corporations it

becomes confusing

The objective view of individuals leaves nationals open to abuseby their own states, since it is impractical to conceive of a state

protecting its own nationals against itself in international law State Responsibility

International responsibility of states for injuries to aliens

The Barcelona Traction CaseB. Individuals as Subjects of International Law

Legal Positivism:o Views international law as a set of rules with states as its subjectso Municipal law is thought of as pertaining to individuals who are subjects

of a single state

Before Positivism:o There was no theoretical insistence that the rules of the law of nation

applied only to states Blackstone

o Individuals and states were both proper subjects of the law of nationso Distinguished the law of nations from other sorts of law on the basis of its

sources not its subjects

Benthamo Created the term international law


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o International law had only states as it subjects

Story and Austino 19th century positivistso Promoted the notion that individuals were not subjects to international law

Public and Private International Law

o Public applied to states International not really law

o Private applied to individuals Law not really international

The positivist theory rejects the notion that individuals are proper subjects ofinternational law

US Supreme Court had no difficulty seeing individuals as subjects of internationallaw, even in the height of positivism

C. International Human Rights Law

Derogation (exemption from a law):o No derogation of the death penalty

o Many basic human rights are non-derogable Individual rights at international law

o The idea that human rights could be protected by international law as wellas municipal law was SLOW to develop

o State sovereignty impeded/hindered efforts to impose international legalobligations on states to protect individuals

Doctrine of State Responsibility provided some protection

But state responsibility could not protect individuals fromabuses committed by their own government

1. Human Rights and Municipal Law

Short summary of history of human rights law

o John Locke's, Two Treatises of Government, 1690 The principle that the law should protect the rights of individuals Locke believed that human rights, not government came first in the

natural order of things

o American Declaration of Independence, 1776 Affirmation of human rights and the duty of governments to

protect them

o Two other documents that set up the foundation of legal protection ofhuman rights in municipal law:

French Declaration of the Rights of Man and Citizen U.S. Bill of Rights

2. The Nuremberg Judgment Huge turning point for international human rights law!

In the Moscow Declaration of German Atrocities, 1932, the U.S., U.K., France,and Soviet Union declared that the individual Germans would be held responsible

for their violations of international law

o Those 4 countries established the Nuremberg Tribunal


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The tribunal was given the power to try and punish persons whohad committed crimes against peace, war crimes, and crimesagainst humanity

Ex post facto prosecution of claims

Meaning the crimes were done before there was the

decision to prosecute individuals for their violations ofinternational law

What is the problem with ex-post facto prosecution of claims?

Not fair to hold someone accountable for something thatthey didn't know was wrong

No notice, they didn't know it was wrong at the time Defenses at Nuremberg:

Did not have head of state immunity or immunity of activestate

Following orders cannot be a complete defense

Can only be a partially mitigating factor

Nuremberg was the exception not the rule Established that individuals can and should be made legally responsible for

violations of international law

Established that individual human rights ought to be protected at the level ofinternational law

3. Human Rights and the United Nations

Universal Declaration of Human Rights, 1945?o Enumerates human rights norms at the level of international law

Article 55(c) of the UN Chartero The UN shall promote universal respect for, and observance of, human

rights and fundamental freedoms for all without distinction as to race, sex,

language, or religionD. European Human Rights Law

European Convention for the Protection of Human Rights and FundamentalFreedoms, signed 1950, came into force 1953

o Basically a European Bill of Rights

Important Articles:o Article 34:

Gave individuals as well as states the right to petition the Europeanhuman rights system

o Article 32: Gave the European Court of Human Rights jurisdiction to hear and

try cases already reported to the Commission

European Court of Human Rightso Must exhaust all local/domestic remedies before applying to the ECHRo Major change in 1998:

Abolition of the Commission

This means that people can apply directly to the court, notgo through the commission first


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E. International Criminal Law

International Criminal Courto Created by Rome Statute of the International Criminal Court, 1998o Came into force in July 2002o 108 parties to the statute

U.S. is not a party to the statute Important Articles of the Rome Statute

Article 5:o Establishes jurisdiction of the ICCo Has jurisdiction over INDIVIDUALS AND STATES!o Grants the Court jurisdiction over four groups of crimes, which it refers to

as the most serious crimes of concern to the international community as a

whole

Genocide War Crimes Crimes against humanity

Crimes of aggression Not yet defined, so no jurisdiction yet

Chapter 7: States and International LawA. The Recognition and Succession of States and Governments

State Recognition Doctrineo When there is the emergence of a new state or government by non-routine

processes the other states in the world community either explicitly or

implicitly recognizing the new state or government

o 4 conditions must be met in order to be recognized state: A defined territory

A permanent population An effective government The capacity to enter into relations with other states

Established byArticle 1 of the Montevideo Conventiono Declaratory theory of recognition

Once these 4 conditions are met the entity is a state regardless ofwhat other states do or say

o Constitutive theory of recognition Only when states decide that such conditions have been met and

consequently acknowledge the legal capacity of the state the new

state actually constituted

Benefits of being a recognized state:o UN Membershipo Assistance of the World Banko Make treaties with other countries, and use the ICJ to enforce the treatieso Aggression protection?

Recognition of Governments


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o The central issue for a state when deciding whether to recognize a newlyformed government is whether the new government is in "effectivecontrol" of its state

Sometimes called the de facto control test "Effective control" is the degree to which the government

commands the obedience of the people within the stateo Estrada Doctrine

The manner in which a new government comes to power is whollya matter of national concern

Recognition in the U.S.o President has the power to receive Ambassadors and other public ministers

Chapter 8: International Organizations, People, and Non-governmental

OrganizationsA. International Organizations

Global international organizations address broad issues, such as social welfare

and the use of force International Organizations typically are:

o Institutions established by a treaty Sometimes called a "charter" Serves as the Constitution of the organization

o Composed of members that are states or international organizationso Regulated by international lawo Endowed with legal personality

Generally can engaged in contracts Can sue and be sued in national courts, subject to certain

immunities

1. An overview of International Organizations The League of Nations, 1919 after WWI

o The first general association of states concerned with social welfare issues,dispute settlement, the development of international law, and the

promotion of peace

United Nations, 1945 after WWIIo Membership constitutes 192 states, all the independent states of the worldo Article 1: Purposes and Principles of the UN

To maintain international peace and security Development of friendly relations among nations Promotion of human rights and fundamental freedoms for all

human beings without discriminationo UN cannot intervene in matters which are essentially within the domestic

jurisdiction of any state except when acting through the Security Council

to address threats to the peace

General Assembly of the UNo Article 10: Functions and Powers


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o Only UN organ in which all member states have the right to berepresented and to vote

o May discuss any questions or any matters within the scope of the UNCharter

o General Assembly resolutions are non-binding

They have the status of recommendations which the membersstates have no formal legal obligation to obeyo Has broad subject matter jurisdictiono Lacks formal legislative authority because its resolutions do not have the

force of law

Security Council of the UNo Article 24(1): Functions and Powerso Primary responsibility is the maintenance of international peace and

security

o Consists of 15 Member States 5 permanent members (including US)

o

May enact resolutions that are binding upon member states after there is adetermination that there exists a threat to the peace, breach of the peace, oract of aggression

o May impose economic sanctionso Council can be authorized to create international criminal tribunals

Ex: Tribunals for the former Yugoslavia and for Rwandao Has NO general law making authorityo Has limited subject matter jurisdiction (international peace and security)

2. International Personality

International Personality:o Ability to bring claims against other stateso

Historically it was only states that had international personalityo Personality: capacity to make agreements on the international plain, to

have obligations on the international plain, to enforce rights on the

international plain

Does the United Nations have personality?o Yes, but it's not listed directly in the text of the UN Chartero Use a pragmatic approach, necessary and implied powerso (Like McColluch v. Maryland case)o Even if UN can't appear in a contentious case, but it has international

personality so it can do some things that a state can do

Does the UN have the same personality as the US?o

No, the US has broader capacityo UN only has as much personality as the functions in the charter require

B. Self-Determination and Peoples

The process by which a country determines its own statehood and forms its ownallegiances and government

Internal self-determination:o Promotion of democratic institutions in order to respect the consent of

those governed


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External self-determination:o Freedom from alien rule

Self-determination and the UNo Article 1(2) of the UN Chartero Explicitly refers to self-determination!

2. To develop friendly relations among nations based on respectfor the principle of equal rights and self-determination of peoples,and to take other appropriate measures to strengthen universal

peace

C. Nongovernmental Organizations

Private organizations such as: associations, federations, unions, institutes, andother groups NOT established by a government or by intergovernmental

agreement

Created under municipal law

Many NGOs have legal personality

Most are private

Fundingo Non-for-profit: receive all their support from individual members or

private contributions

o Some have links to governments or receive government grants

National NGO:o The organization's membership or activity is limited to a specific country

International NGO:o Organizations membership or activity crosses boarders

Neutrality of NGOs are important!o They have a specific interest in humanitarianism of the people, not being

from either side

International Committee of the Red Crosso Hybrid between an NGO and an intergovernmental organizationo It is a private association, but its functions and activities are mandated by

the international community of States and are founded under international

law (Geneva Convention)

o Diplomatic Roleo ICRC has privileges and immunities:

Recognized either by treaty or by legislation in 80 states Judicial immunity and testimonial privileges ICRC has been granted observer status at the UN General

Assembly

Chapter 9: International Law and the Use of ForceA. Jus in Bello

AKA: International humanitarian lawo Only relates to "armed conflict"

Armed conflict: definition varies depending whether the hostilitiesare internal or international but temporal and geographical scope of


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both internal and international armed conflicts extends past the

exact place and time of hostilities

o International humanitarian law applies from the initiation of such armedconflicts and extends beyond the cessation of hostilities, until a general

conclusion of peace is reached or a peaceful settlement is achieved

Addresses treatment that states and their armed forces must accord to combatants,civilians, and prisoners in times of armed conflictB. Sources of the Laws of Wars

4 Geneva Conventions of 1949o Detail protections due to:

The wounded and sick in armed forces in the field Wounded, sick, shipwrecked members of armed forces at sea Prisoners of war Civilians in time of war

o Article 4(A)(1) POWs include members of the armed forces of a Party to an

international armed conflict as well as members of militias orvolunteer corps forming part of such armed forces once they have

fallen into the power of the enemy

o Article 4(A)(2) In addition POWs may also be members of other militia or

volunteer corps, including those of organized resistance

movements, who operate under a command structure, have a fixed

distinctive sign recognizable at a distance, carry arms openly, andconduct their operations in accordance with the laws and customs

of war

Protocols to the Geneva Convention

Protocol I applies to international armed conflictso Protocol I, Article 82

Imposes an affirmative obligation to provide legal advisors tomilitary forces, to those states who are parties to the protocol

Unstated but necessary corollary to protocol 82 is that parties tothe protocol also have an obligation to ensure that the selected

legal advisors get the appropriate training

o Protocol I, Article 83 Intended to effect a comprehensive mechanism for training

military professionals in the obligations inherent in the law of

armed conflict as well as a systematic and authoritative

implementation of those principles Protocol II applies to internal conflict

Lieber Codeo First comprehensive effort to describe the law of war in a written codeo Governs the conduct of hostilities (Hague Law)o States that persons who do not have lawful combatant status are not

entitled to the benefits of legal protections derived from the laws of war,


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including prisoner of war status and are subject to punishment for their

warlike acts

Hague Lawo Addresses targeting, makes it criminal to target civilianso Prohibits certain weapons from being used

Individual Responsibility for Violations of the Jus in Belloo Both commanders and soldiers may be responsible for violating the laws

of war

o Applicable defenses for commanders or soldiers: Article 33 of the Rome Statute of the ICC

Cannot use following orders as a complete defense

The order may be urged in mitigation of the punishment

Derogationo Derogation clauses are included in some human rights instruments which

permit the states parties to suspend in time of war or other nationalemergency, certain rights guaranteed

C. Lawful Combatants v. Unlawful Combatants Lawful Combatants:

o Get certain privileges including: Immunity from being charged with homicide Prisoner of war status when captured Meaning full protections of the 1949 Geneva Convention Relative

to the Treatment of POWs Right to be released without delay at the end of active hostilities Right not to be interrogated without consent Right not to be subjected to torture or coercion POWs also generally have the right to be tried for an offense only

by a military court offering essential guarantees of independenceand impartiality

Unlawful Combatants:o No privileges!

Refers to people taking a direct part in an international armedconflict without being entitled to do so

Belligerent persons who lack the privilege enjoyed by the armedforces of a state to engage in welfare with immunity from any

liability under national or international law

D. Traditional Limits on Resort to Force

E. Article 2(4) of the UN Charter and the Use of Force by States General prohibition on the use of force

Use of force reflects a desire to prohibit the resort to armed conflict generally, notjust conflicts arising from a formal state of war

F. Inherent Right to Self-Defense

Article 51 of the UN Charter


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o Nothing in the present Charter shall impair the inherent right of individualor collective self-defense if an armed attack occurs against a Member ofthe UN until the Security Council has taken the necessary measures to

maintain international peace and security. Measures taken by Members in

the exercise of this right of self-defense shall be immediately reported to

the Security Council and shall not in any way affect the authority andresponsibility of the Security Council under the present Charter to take at

any time such action as it deems necessary in order to maintain or restore

international peace and security

Use of force in self-defense has always been recognized as legitimate ininternational law

Article 51 does not grant a right of self-defense but rather preserves a right thatpredated the UN Charter under customary international law

MUST be necessary and proportionateo The defensive force MUST be necessary and proportionate to the armed

attack that gave rise to the right

o Important rule of customary international law associated with the right ofself defense Established in the Caroline Dispute

British attack (claiming self-defense) on the privatelyowned ship, Caroline, was neither necessary norproportionate as required under international law

The UN and Peacekeeping:

Peacekeeping vs. Peace enforcement:PK involves UN blue helmets, approved by the general assembly. Employed with the

consent of the host country. PK takes place after a cease fire.

Is PK authorized by the UN Charter?

See article 11, make recommendations. See article 12, 14

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